Daugert v. Pappas

• Decision Date: 08 August 1985
• Docket Number: No. 51147-1,51147-1
• Citation: 104 Wn.2d 254,704 P.2d 600
• Court: Washington Supreme Court
• Parties: Larry DAUGERT, Trustee for David M. Simms & Gail Simms, and Ernest R. Henken & Sandra Henken, husband and wife, and Black Mountain Development Company, a Washington partnership, Respondents, v. John D. PAPPAS & Betty Pappas, husband & wife, d/b/a the Law Office of John D. Pappas, Appellants.

Page 254

104 Wn.2d 254

704 P.2d 600

Larry DAUGERT, Trustee for David M. Simms & Gail Simms, and Ernest R. Henken & Sandra Henken, husband and wife, and Black Mountain Development Company, a Washington partnership, Respondents, v. John D. PAPPAS & Betty Pappas, husband & wife, d/b/a the Law Office of John D. Pappas, Appellants.

No. 51147-1.

Supreme Court of Washington En Banc.

Aug. 8, 1985.

Review Denied Oct. 18, 1985.

Rush, Kleinwachter, Hannula & Harkins, Daniel L. Hannula, Bradford E. Furlong, Tacoma, for appellants.

Brett & Daugert, Rand Jack, Bellingham, for respondents.

PEARSON, Justice.

This case involves a legal malpractice claim against an attorney for failure to file timely a petition for review with this court of a Court of Appeals decision. The issues presented concern the proper standard for determining proximate cause in a legal malpractice action. The trial court concluded that proximate cause was a question for the jury and instructed the jury to decide whether the attorney's negligence was a substantial factor in causing the client's loss and whether the client lost a chance to recover. We hold this was error and reverse.

The underlying suit upon which this malpractice action is based arose out of a contract dispute between Black Mountain Development Company (developer) and Black Mountain Ranch (ranch). The ranch purchased a recreation complex built by the developer. Over a period of years a number of disputes arose about alleged deficiencies in the complex and its facilities and who should make the repairs. In an attempt to resolve these disputes, the parties signed an agreement purported to be a full and complete settlement of all disputes, past, present and future, between the ranch and the developer. Pursuant to this agreement the parties agreed to abide by the findings of an independent appraiser, the Anvil Corporation. Anvil completed the study called for in the agreement and concluded the problems were caused by a design defect. The developer disagreed with the findings and refused to correct the deficiencies. The ranch filed suit against the developer alleging breach of the settlement agreement.

Following trial the court concluded, contrary to Anvil's findings, that the deficiencies resulted from the ranch's negligent failure to maintain properly and adequately the facility so as to prevent deterioration. Thus, judgment was entered in favor of the developer. The ranch appealed and the Court of Appeals reversed based on a finding that without a showing of fraud, mistake, or arbitrariness, the settlement agreement was binding and enforceable. Black Mt. Ranch v. Black Mt. Dev. Co., 29 Wash.App. 212, 627 P.2d 1006 (1981).

Immediately following the Court of Appeals decision, the developer instructed its attorney, John Pappas, to petition the Supreme Court for review. The petition was filed a day late and Pappas failed to follow the proper procedure for requesting an extension of time. Having lost any right to a further appeal, judgment was entered against the developer. Thereafter, the developer, through its trustee, Larry Daugert, brought suit against Pappas and his law firm for malpractice. The issues of duty and breach of duty were resolved on summary judgment. The only issue disputed at trial was whether Pappas' negligence was the proximate cause of the judgment being entered against the developer. At trial both parties presented expert testimony on the likelihood of review and reversal of the Court of Appeals decision by the Supreme Court. In addition the trial judge, believing that proximate cause was a jury question, instructed the jury that:

The Plaintiffs have the burden of proving the following:

1. That Defendants' malpractice proximately caused the loss of chance for Plaintiffs to avoid damage;

2. The percentage chance, if any, that the Supreme Court would have accepted review and reversed the decision of the Court of Appeals;

3. Whether the percentage chance, if any, for Plaintiffs to avoid damage that was lost by Defendants' malpractice was a substantial factor in bringing about damage to Plaintiffs.

This instruction apparently was based on this court's opinion in Herskovits v. Group Health Coop. of Puget Sound, 99 Wash.2d 609, 664 P.2d 474 (1983). Upon returning its verdict, the jury found there was a 20 percent chance the Supreme Court would have granted review and reversed. Hence, judgment was entered against Pappas. ¹ Pappas then sought review in the Court of Appeals. The case was transferred to this court.

The first question presented by this case is whether it is proper, in a legal malpractice action involving an attorney's failure to perfect an appeal, for the jury to decide the issue of proximate cause. Washington law recognizes two elements to proximate cause: cause in fact and legal causation. Hartley v. State, 103 Wash.2d 768, 698 P.2d 77 (1985). The instant case concerns only cause in fact; therefore, any use herein of the term proximate cause concerns only the question of cause in fact. Furthermore, any reference to questions of law bears no relation to the concept of legal causation.

In most instances the question of cause in fact is for the jury. It is only when the facts are undisputed and inferences therefrom are plain and incapable of reasonable doubt or difference of opinion that this court has held it becomes a question of law for the court. Petersen v. State, 100 Wash.2d 421, 436, 671 P.2d 230 (1983) (quoting Mathers v. Stephens, 22 Wash.2d 364, 156 P.2d 227 (1945)). The principles of proof and causation in a legal malpractice action usually do not differ from an ordinary negligence case. Ward v. Arnold, 52 Wash.2d 581, 584, 328 P.2d 164 (1958). For instance, when an attorney makes an error during a trial, the causation issue in the subsequent malpractice action is relatively straightforward. The trial court hearing the malpractice claim merely retries, or tries for the first time, the client's cause of action which the client asserts was lost or compromised by the attorney's negligence, and the trier of fact decides whether the client would have fared better but for such mishandling. See, e.g., Cline v. Watkins, 66 Cal.App.3d 174, 135 Cal.Rptr. 838 (1977). In such a case it is appropriate to allow the trier of fact to decide proximate cause. In effect the second trier of fact will be asked to decide what a reasonable jury or fact finder would have done but for the attorney's negligence. Thus, it is obvious that in most legal malpractice actions the jury should decide the issue of cause in fact.

In cases involving an attorney's alleged failure to perfect an appeal, however, the burden of proving causation takes on a different light. The cause in fact inquiry becomes whether the frustrated client would have been successful if the attorney had timely filed the appeal. Specifically, the client must show that an appellate court would have (1) granted review, and (2) rendered a judgment more favorable to the client. Not surprisingly, numerous other courts confronted with making this causation determination have not delegated it to the jury. Rather, they have consistently recognized that these latter two determinations are within the exclusive province of the court, not the jury, to decide. See, e.g., Chocktoot v. Smith, 280 Or. 567, 571 P.2d 1255 (1977); Hurd v. DiMento & Sullivan, 440 F.2d 1322 (1st Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 164, 30 L.Ed.2d 105, reh'g denied, 404 U.S. 961, 92 S.Ct. 321, 30 L.Ed.2d 281 (1971); Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666 (1968); Chicago Red Top Cab Ass'n, Inc. v. Gaines, 49 Ill.App.3d 332, 7 Ill.Dec. 167, 364 N.E.2d 328 (1977); Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F. Supp. 371 (E.D. La.1983); Katsaris v. Scelsi, 115 Misc.2d 115, 453 N.Y.S.2d 994 (1982).

The rationale for these decisions is clear. The overall inquiry is whether the client would have been successful if the attorney had timely filed the appeal. The determination of this issue would normally be within the sole province of the jury. Underlying the broad inquiry, however, are questions bearing legal analysis. The determination of whether review would have been granted and whether the client would have received a more favorable judgment depends on an analysis of the law and the rules of appellate procedure. Clearly, a judge is in a much better position to make these determinations. Thus, as two commentators have indicated:

This decision must be made by the trial judge as an issue of law, based upon review of the transcript and record of the underlying action, the argument of counsel, and subject to the same rules of review as should have been applied by the appellate courts.

R. Mallen & V. Levit, Legal Malpractice § 583, at 738 (2d ed. 1981).

We believe the rule articulated above constitutes the proper procedure for determining cause in fact in a legal malpractice action involving an attorney's failure to file an appeal in a timely manner. Although some courts have expressed concern over the idea of a trial judge attempting to predict the outcome of an appellate case, see Better Homes, Inc. v. Rodgers, 195 F.Supp. 93, 95 (N.D.W.Va.1961), the needs of both the client and the legal profession dictate adoption of the rule. On balance, the rule protects a client who is without fault from bearing the loss of an unappealed claim and prevents the jury from speculating over what an appellate court might have done by requiring the trial judge to make the determination by reviewing the record and applying the rules of appellate procedure. Hence, we hold that the determination of what decision would have followed if the attorney had timely filed the petition for review is a question of law for the judge, irrespective of whether the facts are undisputed. Therefore, in the instant case the trial court erred in...