Auer v. Leach
| Decision Date | 27 October 2015 |
| Docket Number | 46105-6-II |
| Court | Court of Appeals of Washington |
| Parties | RONALD AUER and JOHN TRASTER, Appellants/Cross Respondents, v. J. ROBERT LEACH and JANE DOE LEACH, his wife; CHRISTOPHER KNAPP and JANE DOE KNAPP, his wife; GEOFFREY GIBBS and JANE DOE GIBBS, his wife; ANDERSON HUNTER LAW FIRM, P.S., INC.; and SAFECO INSURANCE, Respondents/Cross Appellants. |
UNPUBLISHED OPINION
Ronald Auer and John Traster sued the Anderson Hunter Law Firm P.S J. Robert Leach, [1] Jane Doe Leach, Geoffrey Gibbs, Jane Doe Gibbs, Christopher Knapp, and Jane Doe Knapp (collectively lawyers[2]) alleging legal malpractice and violation of Washington's Consumer Protection Act (CPA), chapter 19.86 RCW. The trial court first denied the lawyers' summary judgment motion seeking dismissal of the malpractice claim as time-barred under RCW 4.16.080(2). The trial court then granted the lawyers' motion for summary judgment on both the malpractice and CPA claims, determining that Auer and Traster failed to raise genuine issues of material fact on essential elements of each claim. After Auer and Traster moved for reconsideration on the malpractice claim and filed a supplemental declaration by their expert, Paul Brain, the trial court struck this declaration and denied reconsideration of its order dismissing the malpractice claim.
Auer and Traster appeal, arguing that the grant of summary judgment in favor of the lawyers was improper, because genuine issues of material fact exist as to whether the lawyers' alleged malpractice proximately caused Auer and Traster their injuries and whether the lawyers committed deceptive acts that affected the public interest. Auer and Traster also argue that the trial court erred or abused its discretion by refusing to consider the new evidence offered on reconsideration and by denying their motion for reconsideration. The lawyers cross-appeal the trial court's denial of their summary judgment motion to dismiss the malpractice claim on grounds of untimeliness.
We affirm the trial court's grant of summary judgment in favor of the lawyers on the malpractice and CPA claims. We also affirm the trial court's order striking Brain's supplemental declaration and its order denying reconsideration of its summary judgment order on the malpractice claim. As to the cross-appeal, we affirm the trial court's denial of summary judgment dismissing the malpractice claim against Anderson Hunter, Leach, Jane Doe Leach, Gibbs and Knapp as time-barred. However, we reverse the trial court's denial of summary judgment dismissing the malpractice claim against Jane Doe Gibbs and Jane Doe Knapp as time-barred. Accordingly, we affirm in part, reverse in part, and remand for the trial court to enter an order granting summary judgment dismissing the malpractice claim against Jane Doe Gibbs and Jane Doe Knapp.
In 2003, Auer and Traster purchased two lots to "construct upper scale single family residences, as well as large commercial quality shop structures."[3] Clerk's Papers (CP) at 441. Auer wanted his commercial shop to operate his business in; Traster wanted his for the pursuit of "various activities and hobbies." CP at 441.
The agreements for the purchase and sale of the lots each required the seller, the estate of Margaret Westland, to obtain certain permits and construct a driveway to the properties within 60 days of closing escrow. After closing the estate began constructing that driveway. However, the estate failed to obtain the necessary permits and the driveway did not conform to the Snohomish County Code causing the county to issue a stop work order for the project. That order, along with the lack of an "approved access road" to the two properties, rendered the properties ineligible for building permits and disrupted Auer's and Traster's plans for the lots.
Auer and Traster retained Leach and the Anderson Hunter Law Firm to pursue legal claims against the Westland estate, the realtor who drafted the purchase and sale agreements, and the realtor's employer. Auer and Traster filed suit for breach of contract against those defendants in 2003.
Auer's and Traster's relationship with Leach was a difficult one. Auer and Traster frequently complained to Christopher Knapp, Anderson Hunter's managing partner, about perceived failures to communicate, to take requested action, and to diligently pursue their claims. Knapp assured Auer and Traster that Leach would do a better job communicating with them and promised that he would monitor the situation. Nevertheless, Auer and Traster became dissatisfied with Knapp's monitoring of Leach's work.
The acrimony between Leach, Knapp, Auer, and Traster eventually caused Anderson Hunter to try to end the attorney-client relationship. Knapp e-mailed Leach, telling him that CPat470. Knapp also repeatedly told Auer and Traster that they might want to seek representation that would work better for them, but they refused.
By 2005, the estate had filed a motion for summary judgment. Leach recommended that Auer and Traster voluntarily dismiss the suit under CR 41 to avoid summary judgment and then refile the claim as a new lawsuit. Auer and Traster maintain that Leach's lack of preparation necessitated the nonsuit, but they agreed to the plan. Accordingly, the original suit was dismissed and a new one filed in 2006.
Effective March 1, 2008, the governor appointed Leach to an open seat on Division One of the Washington State Court of Appeals. Accordingly, Leach withdrew from representing Auer and Traster. However, they remained Anderson Hunter's clients and Geoffrey Gibbs, another attorney from the firm, began representing them.
Later in March, Gibbs informed Auer and Traster that his pretrial preparations had uncovered a potential conflict of interest that complicated his representation of both of them.[4]Auer and Traster told Gibbs that they had already discussed the potential conflict with Leach and had "come to an agreement to resolve" it. CP at 444.
Gibbs announced that Auer and Traster had failed to address his concerns and served a notice of withdrawal to terminate his and Anderson Hunter's representation of them. When Auer and Traster objected to the withdrawal, Gibbs filed a motion before the superior court, which then granted the withdrawal.
Auer and Traster eventually retained new counsel to represent them. Gibbs had previously informed Auer and Traster that, after taking over representation of them for Leach, he would only need to bill approximately $50, 000 in order to take the matter through trial. Auer and Traster's new counsel billed them approximately $200, 000 for time spent preparing for, and taking them to, a scheduled mediation.
The mediation resulted in a settlement between Auer and Traster and the defendants in the underlying suit. Although Auer and Traster valued their claims as worth over $8, 000, 000, they received only $500, 000 in the settlement and a construction easement so that they could get a permit and complete the road required by the purchase and sale agreement. Auer maintains that he and Traster settled because the protracted legal battle caused by the defendants' lack of diligence had drained them of the financial resources necessary to continue to assert their claims.
On February 14, 2011, Auer and Traster appeared pro se and filed summonses and a complaint in Snohomish County Superior Court. These named Anderson Hunter, Leach and his wife, Gibbs and his wife, and Knapp and his wife as defendants.
The complaint's first cause of action was malpractice. Auer and Traster alleged:
That the said Defendants failed to fully advise Plaintiffs of their rights and appropriate tactics and strategy, failed to diligently pursue the litigation, had undisclosed conflicts of interest, served their own interest at the expense of the Plaintiffs, failed to pursue necessary discovery, failed to prepare the case for trial, necessitated dismissal of the 2003 case and refiling of the 2006 case, then withdrew from the 2006 case in 2008 as trial approached, made multiple misrepresentations to Plaintiffs and claimed a wrongfully asserted conflict of interest between the two Plaintiffs herein as justification for withdrawal. That Defendants refused to disgorge payments wrongfully received and Plaintiffs were impaired in retaining replacement counsel and incurred additional litigation expenses as a consequence of the withdrawal of said Defendants.
The complaint's second cause of action was for violation of the CPA. Auer and Traster alleged:
That the said Defendants' conduct set forth above was unfair and deceptive within the meaning of the Consumer Protection Act, implicated the entrepreneurial aspects of the practice of law, is likely to be repeated, and constituted business practices of the Defendants.
In April 2011, Auer and Traster retained new counsel and on April 26 served the summonses, complaint, notice of appearance, and the superior court case summary printout on Anderson Hunter, Leach, Gibbs, and Knapp. However, the summonses and the notice of appearance were mistakenly captioned for King County Superior Court. The superior court case summary showed the action as filed in Snohomish County. On April 29, due to an impending scheduled vacation, Auer's and Traster's counsel filed a notice of unavailability listing the Snohomish County cause number of Auer's and Traster's action served on the defendants.
The lawyers served a special notice of appearance captioned for Snohomish County Superior Court on May 4, 2011. Further, the lawyers' counsel served a notice of withdrawal and substitution captioned for Snohomish...
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