Brust v. Newton

• Decision Date: 14 June 1993
• Docket Number: No. 30729-1-I,30729-1-I
• Citation: 70 Wn.App. 286,852 P.2d 1092
• Court: Washington Court of Appeals
• Parties: William P. BRUST, a single man, Respondent, Cross-Appellant, v. Henry T. NEWTON and Jane Doe Newton, his wife; and R. Michael Kight and Jane Doe Kight, his wife, Appellant, Cross-Respondent. Division 1

Page 286

70 Wn.App. 286

852 P.2d 1092

William P. BRUST, a single man, Respondent, Cross-Appellant, v. Henry T. NEWTON and Jane Doe Newton, his wife; and R Michael Kight and Jane Doe Kight, his wife Appellant, Cross-Respondent.

No. 30729-1-I.

Court of Appeals of Washington,

Division 1.

June 14, 1993.

Reconsideration Denied July 14, 1993.

As Amended Aug. 30, 1993.

John Dalton and Merrick, Hofstedt & Lindsey, Seattle, for appellant.

Robert B. Gould, Law Offices of Robert B. Gould, Seattle, for respondent.

AGID, Judge.

Henry T. Newton appeals from the judgment entered against him in a legal malpractice action brought by William P. Brust alleging that Newton was negligent in preparing a prenuptial agreement. Newton argues that the trial court erred in withholding the question of damages from the jury. Brust cross-appeals from the trial court's denial of his motion for prejudgment interest and attorney fees. We conclude that, in a legal malpractice action, the issue of what a reasonable judge would have awarded in the underlying dissolution is for the jury, not the court. We therefore reverse and remand for reinstatement of the jury's verdict.

Prior to his marriage to Patricia Peterson in 1975, Brust retained Newton to draw up a prenuptial agreement. That agreement was signed on May 15, 1975, and the marriage took place a month later. When Ms. Brust commenced dissolution proceedings 14 years later, Brust was advised by two attorneys that it was their opinion that the prenuptial agreement would probably not be enforceable. ¹ Brust asserts that it was because of this advice that he abandoned his initial contention that the prenuptial agreement was valid and agreed to settle the dissolution proceeding in December 1990. Under the settlement agreement, Brust agreed to:

(a) Sign a promissory note in the amount of $600,000, earning interest at 10% per annum, secured by three parcels of commercial real estate;

(b) Pay a lump sum payment entitled "Property Settlement" [in the amount] of $50,000;

(c) Pay a lump sum payment entitled "Maintenance" [in the amount] of $11,000;

(d) Purchase a life insurance policy insuring the life of Mrs. Brust in the amount of $339,000.

Brust's net worth at the time the settlement agreement was entered into was $5,500,000; Ms. Brust's was approximately $100,000.

Brust then filed a legal malpractice claim alleging that Newton was negligent in drafting the prenuptial agreement and that Brust was entitled to money damages as a result. Newton denied that he was negligent in drafting the agreement and filed a jury demand. Brust's motion to strike Newton's jury demand was denied by the trial court, and his motion for discretionary review of that decision was denied by this court. The matter was then set for trial.

Prior to trial, Brust made a motion in limine to exclude evidence related to the issues of proximate cause and damages. The trial court initially reserved ruling but, at the conclusion of the presentation of evidence, determined that the jury should decide the negligence issue and the trial court should decide the issues of proximate cause and damages. The trial court also submitted the issues of proximate cause and damages to the jury, however, so that if its conclusion that the court should decide proximate cause and damages was reversed on appeal, it would not be necessary to retry the case to determine what the jury's verdict would have been. The jury found that Newton was negligent in drafting the prenuptial agreement. It also found that Newton's negligence was the proximate cause of damages to Brust in the amount of $46,364.47.

After the jury returned its verdict, the trial court concluded that Newton's negligence was a proximate cause of damages to Brust and that the measure of damages was the difference between the amount a reasonable judge would have awarded had there been a valid prenuptial agreement and the amount Brust agreed to pay under the settlement agreement. Under that formula, the amount of gross damages was the present value of the various sums to be paid under the terms of the settlement agreement, or $582,364. From that amount the trial court subtracted $143,200, the present value of the maintenance the court concluded Ms. Brust would have been awarded if the matter had gone to trial. ²

Following the trial court's oral ruling on damages, Newton filed a motion for reconsideration arguing that judgment should be entered on the jury's damages award. Brust moved for the award of prejudgment interest on any liquidated sums included in the trial court's damages award and for attorney fees incurred in proving facts denied by Newton in response to Brust's request for admissions. The trial court denied each of these motions and entered judgment in the amount of $439,084 plus costs and prospective interest.

I.

Article 1, section 21 of our constitution provides that the right to a jury trial shall remain inviolate. This section has consistently been interpreted to guarantee those rights to trial by jury which existed at the time of the adoption of the constitution. Sofie v. Fibreboard Corp., 112 Wash.2d 636, 645, 771 P.2d 711, 780 P.2d 260 (1989); Brown v. Safeway Stores, Inc., 94 Wash.2d 359, 365, 617 P.2d 704 (1980). Negligence is a type of action defined by the common law and heard by a jury when the constitution was adopted. DNR v. Littlejohn Logging, Inc., 60 Wash.App. 671, 674, 806 P.2d 779 (1991). While questions of negligence and proximate causation are usually questions for the jury, the unique characteristics of a legal malpractice action may, under some circumstances, make that general rule inapplicable. Daugert v. Pappas, 104 Wash.2d 254, 257-58, 704 P.2d 600 (1985); Halvorsen v. Ferguson, 46 Wash.App. 708, 712-13, 735 P.2d 675 (1986), review denied, 108 Wash.2d 1008 (1987).

Brust argues that the questions of proximate cause and damages in a legal malpractice action alleging negligence in the drafting of a prenuptial agreement can only be determined by a judge because the Legislature has provided that dissolution actions can be tried only to a judge. RCW 26.09.010. However, the majority of courts and legal scholars considering the question of whether a particular issue should be for the judge or the jury in a legal malpractice action have declined to analyze it in terms of whether that issue would have been one for the judge or the jury in the original proceeding. ³ Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 362 N.W.2d 118, 135 (1985); Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255, 1259 (1977). Rather, the line between questions for the judge and those for the jury in legal malpractice actions has generally been drawn between questions of law and questions of fact. Chocktoot, 571 P.2d at 1259; Helmbrecht, 122 Wis.2d at 135, 362 N.W.2d 118; Phillips v. Clancy, 152 Ariz. 415, 733 P.2d 300, 306 (1986).

The critical distinction is that a suit alleging negligence by an attorney in drafting a prenuptial agreement is not a dissolution action. It is an action in tort. Helmbrecht, 362 N.W.2d at 134. Thus, the fact that there would be no right to a jury in a divorce action or other equitable proceeding, Erickson v. Erickson, 30 Wash.2d 914, 918, 194 P.2d 954 (1948), does not factor into the analysis. Cf. Kelly v. Foster, 62 Wash.App. 150, 154, 813 P.2d 598, review denied, 118 Wash.2d 1001, 822 P.2d 287 (1991) (an action seeking damages based on an attorney's malpractice is an action at law even if the basis of liability is a claimed breach of fiduciary duty); Wright v. Williams, 47 Cal.App.3d 802, 121 Cal.Rptr. 194, 197 (1975) (attorney malpractice cases are treated in the same manner as other negligence actions). To rule otherwise would be to withdraw from the jury in a malpractice suit the resolution of purely factual disputes in all cases arising out of an attorney's actions in connection with equity, probate, or administrative proceedings. Chocktoot, 571 P.2d at 1259.

The trial court based its decision to take the issues of proximate cause and damages from the jury on Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985). However, Daugert is an exception to the rule that issues of fact be determined by a jury. It is also readily distinguishable from this case. Daugert was tried to a jury, and the only issue on appeal was whether the trial court should have withheld the question of proximate cause, not damages, from the jury and decided it as a question of law. Daugert, 104 Wash.2d at 259, 704 P.2d 600. Second, the Daugert court limited its ruling to the narrow question of whether a judge or jury should have determined whether the attorney's negligence in failing to timely file an appeal was a proximate cause of damages to his client. Because the questions of whether an appellatecourt would have granted review and, if so, whether its ruling would have been favorable to the appellant necessarily involved analysis of the relevant law and the Rules of Appellate Procedure, the proximate cause issue in that case required special expertise and was therefore a question of law for the court. Daugert, 104 Wash.2d at 258-59, 704 P.2d 600.

In the instant case, neither the damages determination nor the proximate cause issue raises a comparable need to engage in an analysis of the law. ⁴ Proximate cause consists of two elements: cause in fact and legal causation. Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985). Cause in fact refers to the immediate connection between an act and an injury; legal causation involves the question of whether liability should attach as a matter of law, even if the proof establishes cause in fact. Horn v. Moberg, 68 Wash.App. 551, 557, 844 P.2d 452 (1993) (citing King v. Seattle, 84 Wash.2d 239, 250, 525 P.2d 228 (1974)). The Washington Supreme Court has held that in most instances the question of cause in fact is for the jury:

The principles of proof and causation in a legal malpractice action usually do...