Ahmann-Yamane, LLC v. Tabler

Decision Date01 March 2001
Docket NumberNo. 19204-1-III.,19204-1-III.
Citation105 Wash.App. 103,19 P.3d 436
PartiesAHMANN-YAMANE, LLC, a Washington domestic limited liability company, Appellant, v. Michael Rex TABLER and Jane Doe Tabler, husband and wife, and the marital community comprised thereof; Richard E. Schultheis and Jane Doe Schultheis, husband and wife, and the marital community comprised thereof; Nicholas L. Wallace and Jane Doe Wallace, husband and wife, and the marital community comprised thereof; and Schultheis Tabler, a Washington general partnership, Respondents.
CourtWashington Court of Appeals

Robert B. Gould, Seattle, for Appellant.

David A. Thorner, Bryan G. Evenson, Thorner, Kennedy & Gano, Yakima, for Respondents.

SCHULTHEIS, J.1

Ahmann-Yamane, LLC's (Ahmann's) attorney, Michael Tabler, filed an untimely petition for review of a county board of commissioners (Board) land use ruling, and filed it in the wrong county's superior court. The petition was dismissed for lack of jurisdiction. Ahmann's suit against Mr. Tabler for legal malpractice was dismissed on summary judgment. On appeal to this court, Ahmann argues that if not for Mr. Tabler's negligence, the superior court would have reversed the Board ruling that denied its application for a rezoning of its property. Because we find that the superior court would not have granted Ahmann's land use petition, we affirm dismissal of the legal malpractice claim.

Ahmann owns about 165 acres of property northwest of Moses Lake. The land, zoned agricultural, was used by tenant farmers to grow alfalfa hay. In January 1998, Ahmann filed an application with the Grant County Planning Commission for a zone change from agricultural to "Suburban 1." Property zoned Suburban-1 could be divided into residential lots of one to three acres. Ahmann's property was outside the interim urban growth area (IUGA) established by the Board pursuant to the Growth Management Act (GMA). The Board's standard for housing density outside the IUGA is 2.5 acre lots. Ahmann's application requested a zone change to Suburban 1, but with a minimum lot size of 2.5 acres.

The planning commission held a public meeting on the rezone application in March 1998. Ahmann, represented by Michael Ahmann, attended the meeting with Ahmann's attorney, Mr. Tabler. After hearing expert testimony and comments from the public, the commission recommended denial of the zone change. In May 1998, the Board held a closed record public meeting on the rezone application, adopted the commission's recommendation, and denied the application. Notice of the Board's decision was mailed to Ahmann on May 27. The next day, Mr. Tabler sent Ahmann a letter confirming that it had 21 days from the issuance of the notice to file a land use petition in superior court challenging the Board's decision. Ahmann did not respond.

On June 17, 1998, the twenty-first day after the Board's decision was issued, Mr. Tabler happened to see Mr. Ahmann on a golf course. Mr. Ahmann asked him to file a land use petition. Recognizing he had three additional days to file because the Board's notice had been mailed, Mr. Tabler agreed to file the petition and proceeded. Due to a scheduling backlog in Grant County, Mr. Tabler decided to file in another county. He filed the land use petition in Adams County on June 19. The superior court subsequently granted Grant County's motion to dismiss the petition for lack of jurisdiction (violation of the filing requirements of RCW 36.01.050).

Ahmann sued Mr. Tabler for legal malpractice, claiming that the attorney's negligent filing of the petition more probably than not prevented an ultimate granting of the rezone application. Mr. Tabler's motion for summary judgment dismissal of the malpractice suit was granted and Ahmann now appeals.

As this is a review of a summary judgment, we undertake the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. CR 56(c); Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). Legal malpractice is a negligence action that seeks to show that (1) there was an attorney-client relationship that gave rise to a duty of care, (2) the attorney breached that duty by an act or omission, (3) the breach damaged the client, and (4) the breach was the proximate cause of the client's damages. Hizey v. Carpenter, 119 Wash.2d 251, 260-61, 830 P.2d 646 (1992). The attorney's standard of care is that degree of skill, diligence, and knowledge commonly possessed and exercised by reasonable, careful, and prudent attorneys in the jurisdiction. Id. at 261, 830 P.2d 646.

Mr. Tabler is undisputedly the attorney for Ahmann. Consequently, the first question presented is whether Mr. Tabler breached the standard of care when he allegedly failed to file the petition in a timely manner or in the proper forum. Mr. Tabler explained in his declaration that he notified Mr. Ahmann that Ahmann had until June 17 to file a land use petition challenging the Board's ruling. Mr. Ahmann did not respond until the afternoon of June 17, and only after Mr. Tabler happened to run into him socially. Although Mr. Ahmann contends in his declaration that he discussed the petition on more than one occasion with Mr. Tabler, he admits that the cost of the land use appeal—estimated by Mr. Tabler at over $14,000—prevented him from making a unilateral decision to go ahead. As he stated, "I told [Mr. Tabler] that he was the attorney, and `you're the guy I'm paying to advise me, and I have to exhaust all the possibilities. I've got two other guys I have to answer to. We've got a lot of money in this thing now.'" Clerk's Papers (CP) at 45. Mr. Ahmann does not dispute Mr. Tabler's assertion that the decision to file the land use petition was not made until June 17, on the golf course.

By statute, the land use petition must be filed in superior court within 21 days of the issuance of the land use decision. RCW 36.70C.040(2), (3). Three days are added to the time period if the written decision is mailed to the parties. RCW 36.70C.040(4)(a). Because the Board's decision denying the rezone application was mailed, Mr. Tabler actually had until June 20 to file the petition. He filed it on June 19, but in the wrong county. According to his declaration, he decided to file in a neighboring county because Grant County routinely filed affidavits of prejudice against one of its two superior court judges in civil cases involving the county. Expecting a delay, he chose to file in Adams County under the authority of former RCW 36.01.050 (1963) (actions against any county may be commenced in the superior court of the adjoining county). Unfortunately, he did not know that RCW 36.01.050 had been amended in 1997 to provide that actions against a county can only be commenced in that county or in the nearest two judicial districts. According to the record, the nearest two judicial districts in this case would have been Chelan and Kittitas Counties. A reasonably prudent attorney would be expected to know all applicable procedural rules. Consequently, Mr. Tabler's violation of statute in attempting to file the land use petition constituted a breach of duty to Ahmann.

Whether this breach caused harm to Ahmann is the pivotal question in this appeal. We are concerned only with cause in fact, the "but for" consequences of Mr. Tabler's negligent act. Daugert v. Pappas, 104 Wash.2d 254, 257-59, 704 P.2d 600 (1985). Under the "but for" test the plaintiff must establish that the attorney's act or omission caused the plaintiff's damages. Id. at 260, 704 P.2d 600. This showing must be based on more than speculation. Id. Ahmann contends Mr. Tabler's untimely filing in the improper county caused dismissal of what would have been a successful reversal of the Board's denial of its rezone application. To prove legal malpractice in an action involving an attorney's failure to file an appeal in a timely manner, the client must show that the appellate tribunal would have rendered a judgment more favorable to the client. Id. at 258, 704 P.2d 600. This is a question of law, requiring review of the record of the underlying action and the arguments of the parties, and subject to the rules of review that would have been applied by the appellate court. Id. at 259, 704 P.2d 600 (citing R. Mallen & V. Levit, LEGAL MALPRACTICE § 583, at 738 (2d ed.1981)). In short, we must decide the likely result of the land use petition.

Under RCW 36.70C.130(1), the superior court, acting without a jury, reviews the record of a land use decision and grants relief only if one of the following six standards has been met:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.

The land use petition erroneously filed by Ahmann challenged several of the Board's findings and conclusions, including findings that the 165 acres were suitable for farming, that there was no demonstrated substantial change supporting a rezone, and that there was no proof of a need for additional residential tracts in the area; and conclusions that the rezone was not consistent with the comprehensive plan, that it was incompatible with irrigated agricultural use, and that it was outside the IUGA....

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