Bowman v. Two

Decision Date25 July 1985
Docket NumberNo. 51148-9,51148-9
Citation104 Wn.2d 181,704 P.2d 140
PartiesDonna BOWMAN, a single woman, individually and as the Guardian Ad Litem for her minor son, Douglas C. Bowman, Appellant, v. John Doe TWO and Jane Doe Two, husband and wife, Respondents, and The State of Washington; the Department of Social and Health Services; Worldwide Church of God, a foreign corporation; Ken Burrell, a single man; John Doe One and Jane Doe One, Defendants.
CourtWashington Supreme Court

Billett, Comfort & Rosenow, Terry E. Lumsden, Tacoma, for appellant.

Burgess, Kennedy, Fitzer & Strombom, P.S., Timothy R. Gosselin, Tacoma, for respondents.

UTTER, Justice.

Donna Bowman appeals from the trial court's grant of a CR 12(b)(6) motion dismissing respondent, an attorney who represented her son, from an action alleging professional negligence resulting in injuries both to her son and to the parent-child relationship. Although Mrs. Bowman's complaint, if true, tells a story of inappropriately handled juvenile justice, under no theory of law can respondent be held liable to Mrs. Bowman for representing her minor son in matters under RCW 13.32A, "Procedures for Families in Conflict." We find the dismissal proper and affirm.

Donna Bowman, a single woman, commenced this action on her behalf and as guardian ad litem for her 17-year-old son, Douglas, on June 20, 1983. 1 Respondent John Doe Two, actually William Adams, an attorney practicing in Tacoma, is one of several defendants. Other defendants in the action are the Washington Department of Social and Health Services, the Worldwide Church of God, John Doe One and Jane Doe One, and Ken Burrell.

An action may be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." Orwick v. Seattle, 103 Wash.2d 249, 254, 692 P.2d 793 (1984); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wash.2d 959, 961, 577 P.2d 580 (1978). Bowman's factual allegations are presumed to be true for the purpose of this motion.

According to Donna Bowman, she raised her son by herself except for occasional times when friends met through her church had physical custody of the boy because she was hospitalized or otherwise incapable of providing for her son. Since he was about 10, Bowman asserts, the mother-child relationship began to deteriorate due to the influence of defendant Ken Burrell, a single man then in his mid-20's. Mrs. Bowman alleges that Burrell has abused her son. Donna Bowman, her son and Burrell met through membership in the Worldwide Church of God.

On February 13, 1982, Mrs. Bowman filed an assault charge against her son for kicking and striking her the night before. Following a few months of little conflict, on April 26, 1982, Douglas Bowman retained William Adams to represent him at the juvenile court hearing on the assault charge which was scheduled for the evening of May 6, 1982. Burrell paid some, if not all, of Douglas Bowman's legal fees.

On April 29, 1982, Douglas Bowman moved out of his mother's house. He stayed with Mr. Ron Wagner, another member of the church. With Adams' help, on May 5, 1982, Douglas filed a petition for "Alternative Residential Placement" (ARP), pursuant to RCW 13.32A. The hearing was set for 1:30 p.m. the following day. The petition stated that Douglas had been locked out of the family residence since Friday, April 30, 1982. Although a child's petition shall only ask that placement outside the parent's home be approved, RCW 13.32A.150, Douglas Bowman's petition sought alternative residential placement with Mr. Ken T. Burrell, who was then living and teaching in eastern Oregon. The petition, however, listed Burrell's address as Enumclaw.

Upon the filing of a proper petition, RCW 13.32A.160 requires that the juvenile court (a) schedule a date for a fact-finding hearing; notify the parent and child of such date; (b) notify the parent of the right to be represented by counsel and, if indigent, to have counsel appointed for him or her by the court; (c) appoint legal counsel for the child; (d) inform the child and his or her parent of the legal consequences of the court approving or disapproving an alternative residential placement petition; and (e) notify all parties of their right to present evidence at the fact-finding hearing.

Donna Bowman received notice of the ARP hearing at 7:15 a.m. May 6, 1982. Only at that time did she first become aware of the proposed placement with Burrell. The notice she received did not inform her of her right to counsel or her right to present evidence. Although Donna Bowman attests that she signed in with the receptionist prior to the 1:30 p.m. hearing time, she was not called into the courtroom.

The ARP hearing lasted only a few minutes. Clerk's Papers, at 41-45. Without the fact-finding hearing required by statute, and without a guardian ad litem for Douglas, 2 the court commissioner granted the petition. Although the statute makes no provision for temporary placement, the commissioner signed an "Order for Temporary Alternative Residential Placement" presented by Adams the next day, pending a fact-finding hearing scheduled for June 23, 1982. It does not appear that the court informed Douglas Bowman of the legal consequences of this approval, contrary to the statute's directive.

After the ARP hearing, Donna Bowman retained counsel (defendant marital community John Doe One and Jane Doe One) to attempt to set aside the order. For various reasons no further hearings were held. A caseworker's notes indicate that Douglas' and Donna's attorneys stipulated to dismissal of the June 23, 1982 hearing with the understanding that Burrell would return Douglas to Donna. Her son was not returned. Mrs. Bowman has not seen her son since the May 6, 1982 hearing.

The complaint states the cause of action against defendant Adams:

Defendant "John Doe Two" negligently represented the minor child, although he was hired and paid by defendant Ken Burrell, thereby grossly exhibiting a conflict of interest. "John Doe Two" failed to properly investigate the facts of this case, made negligent representations to persons involved, and otherwise his negligence contributed to the destruction of the mother and child relationship.

Clerk's Papers, at 5.

A claim for which relief can be granted is based upon facts which constitute invasion of a recognized legal right. Orwick, 103 Wash.2d at 254, 692 P.2d 793. The present action alleges negligent representation by an attorney, also known as legal malpractice. Once an attorney-client relationship is established, the elements for legal malpractice are the same as for negligence. See Sherry v. Diercks, 29 Wash.App. 433, 437, 628 P.2d 1336 (1981); Hansen v. Wightman, 14 Wash.App. 78, 88, 538 P.2d 1238 (1975). Negligent conduct consists of (1) the existence of a duty owed to the complaining party; (2) a breach thereof; and (3) a resulting injury. LaPlante v. State, 85 Wash.2d 154, 159, 531 P.2d 299 (1975). Just as negligence alone does not necessarily result in legal consequences, Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985); LaPlante, 85 Wash.2d at 159, 531 P.2d 299, for an attorney's negligent conduct to constitute legal malpractice, the breach of duty must also be a proximate cause of the resulting injury. Laux v. Woodworth, 195 Wash. 550, 552, 81 P.2d 531 (1938); Sherry v. Diercks, 29 Wash.App. supra at 437, 538 P.2d 1238; Hansen v. Wightman, supra 14 Wash.App. 78 at 88, 538 P.2d 1238.

Adams brought this motion to dismiss claiming he had no duty to Donna Bowman. The motion was granted by the trial court. Following the English tradition, the United States Supreme Court held in 1879 that "[b]eyond all doubt, the general rule is that the obligation of the attorney is to his client and not to a third party ..." Savings Bank v. Ward, 10 Otto 195, 100 U.S. 195, 200, 25 L.Ed. 621 (1879). In that case, an attorney overlooked a previously recorded deed in a title search for a client. After the client defaulted, the bank unsuccessfully sought recovery against the attorney. Without privity, the court held, there could be no duty owed the bank and without duty there could be no breach, hence no cause of action for negligence. Savings Bank, 100 U.S. at 200.

Since Savings Bank, however, there has been an "assault upon the citadel of privity," Ultramares Corp. v. Touche, 255 N.Y. 170, 180, 174 N.E. 441, 445 (1931) (Cardozo, J.). As Prosser writes:

the absence of "privity" between the parties makes it difficult to impose any duty to the plaintiff upon the contract itself. But by entering into a contract with A, the defendant may place himself in such a relation toward B that the law will impose upon him an obligation, sounding in tort and not in contract, to act in such a way that B will not be injured.

W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 93, at 667-68 (5th ed. 1984). A number of states, led by California, have relaxed the privity requirement for attorney malpractice actions to hold attorneys liable to persons not their clients. See, e.g., Heyer v. Flaig, 70 Cal.2d 223, 449 P.2d 161, 74 Cal.Rptr. 225 (1969); Ogle v. Fuiten, 102 Ill.2d 356, 80 Ill.Dec. 772, 466 N.E.2d 224 (1984); Fickett v. Superior Court, 27 Ariz.App. 793, 558 P.2d 988 (1976); McAbee v. Edwards, 340 So.2d 1167 (Fla.Dist.Ct.App.1976). Some states recognize a cause of action by a third party in contract only. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). Other states allow the third party to bring the action either in contract or in tort. Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81, 84 (1981); Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 15 Cal.Rptr. 821 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962). In all of these cases, the third party claimant was a legatee who was deprived of taking under a...

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