Hipple v. Mcfadden

• Decision Date: 28 April 2011
• Docket Number: No. 39802–8–II.,39802–8–II.
• Citation: 255 P.3d 730,161 Wash.App. 550
• Parties: Robert B. HIPPLE, Jr., Respondent,v.Deborah Grace McFADDEN; John Doe McFadden, and the marital community thereof; and Carolyn Elsey; John Doe Elsey, and the marital community thereof; and County of Pierce, Appellants.
• Court: Washington Court of Appeals

161 Wash.App. 550

255 P.3d 730

Robert B. HIPPLE, Jr., Respondent,

v.Deborah Grace McFADDEN; John Doe McFadden, and the marital community thereof; and Carolyn Elsey; John Doe Elsey, and the marital community thereof; and County of Pierce, Appellants.

No. 39802–8–II.

Court of Appeals of Washington, Division 2.

April 28, 2011.

Daniel Ray Hamilton, Attorney at Law, Tacoma, WA, for Petitioner.Christopher Taylor, The Evergreen Law Group, P.S., Olympia, WA, for Respondent.CASEY, J.P.T.¹

[161 Wash.App. 554] ¶ 1 Carolyn Elsey and Deborah McFadden, two attorneys with the Pierce County Department of Assigned Counsel (DAC), appeal the trial court's denial of their CR 12(b)(6) motion, arguing that the statute of limitations on Robert Hipple's attorney malpractice action has expired. They claim that the trial court erred in finding that the statute of limitations tolled under the continuous representation rule. They also argue that Hipple failed to allege facts sufficient to show proximate cause. We granted discretionary review to determine the proper application of the continuous representation rule. We hold that although the trial court may have misapplied the continuous representation rule, it did not err in denying the defendants' motion to dismiss. We affirm.

FACTS

¶ 2 On January 8, 2004, a Pierce County Superior Court commissioner found Hipple in contempt of court for failing to comply with a child support order. The commissioner issued a bench warrant for his arrest, setting bail at $4,000, the approximate amount of support found owing. The order indicated that Hipple could purge his contempt by bringing his support current.

¶ 3 Hipple was arrested on the warrant over a year later on April 15, 2005, and placed in jail. In the next several days, Hipple contacted DAC and was determined eligible for appointed counsel. On May 9, 2005, Hipple received a letter from DAC notifying him that attorney Carolyn Elsey had been appointed to represent him. On May 10, 2005, DAC attorney Deborah McFadden filed a special notice of appearance on behalf of Hipple in connection with the contempt matter.

¶ 4 Previously, on May 5, 2005, Hipple had a hearing to review his release conditions. He was not represented by counsel at the hearing. Child support arrearages were calculated to be $20,297775, before interest. Continued confinement was ordered: Release was conditioned upon payment of the arrearages. On June 28, 2005, Hipple's confinement was changed to electronic home monitoring.

¶ 5 According to, he had contact with Elsey about his case a few days after May 9, 2005, and again about a month later. He claims that thereafter, he attempted to contact Elsey and McFadden numerous times in writing and by telephone regarding his case.

¶ 6 On June 21, 2006, attorney Robert Way filed a special notice of appearance on behalf of Hipple regarding the contempt matter. At a hearing on September 18, 2006, Way secured Hipple's release. Ongoing detention and electronic home monitoring were immediately terminated.

[161 Wash.App. 556] ¶ 7 On June 18, 2009, Hipple filed a legal malpractice claim against Elsey and McFadden. Elsey and McFadden moved to dismiss, arguing the statute of limitations barred the action, and, alternatively, that the complaint did not demonstrate proximate cause. The trial court denied the motion, ruling that under the continuous representation rule, Way's filing an appearance on the contempt was a reasonable point in time for the action to accrue. We granted discretionary' review to review the proper application of the continuous representation rule.

ANALYSIS

I. Statute of Limitations

¶ 8 Elsey and McFadden assign error to the trial court's denial of their motion to dismiss the complaint. According to Elsey and McFadden, Hipple sat on his rights for over four years—until June 2009—well past the three-year-limitation period. They argue that the “continuous representation” rule, which tolls the statute of limitations as long as the attorney continues to represent the client in the same matter, cannot apply here where the malpractice action is based on a claim of lack of representation. Br. of Appellant at 11. Instead, they argue that under the “discovery rule,” which begins the running of the statute of limitations when a plaintiff discovers the facts giving rise to a cause of action, Hipple's action accrued starting in May 2005, by which time he knew of his alleged injury. Br. of Appellant 7–8.

¶ 9 We review CR 12(b)(6) rulings de novo. Burton v. Lehman, 153 Wash.2d 416, 422, 103 P.3d 1230 (2005). A trial court should grant a motion to dismiss under CR 12(b)(6) only if it appears beyond doubt that the plaintiff cannot prove any set of facts, consistent with the complaint, justifying recovery. Burton, 153 Wash.2d at 422, 103 P.3d 1230; see also McCurry v. Chevy Chase Bank, FSB, 169 Wash.2d 96, 101, 233 P.3d 861 (2010) (refusing to change the standard for dismissing a CR 12(b) (6) motion despite the United States Supreme Court's recently altered interpretation of Federal Rules of Civil Procedure 12(b)(6)). In addition, a defendant may ask a trial court to dismiss a claim brought after the statute of limitations has expired. See e.g., Atchison v. Great W. Malting Co., 161 Wash.2d 372, 374, 166 P.3d 662 (2007). For the purposes of this analysis, a plaintiff's allegations are presumed to be true and a court may consider hypothetical facts not included in the record. Burton, 153 Wash.2d at 422, 103 P.3d 1230.

A. Continuous Representation Rule

¶ 10 The statute of limitations for attorney malpractice action is three years. RCW 4.16.080(3); Huff v. Roach, 125 Wash.App. 724, 729, 106 P.3d 268, review denied, 155 Wash.2d 1023, 126 P.3d 1279 (2005). The “continuous representation” rule tolls the statute of limitations until the end of an attorney's representation of a client in the same matter in which the alleged malpractice occurred. Janicki Logging & Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 109 Wash.App. 655, 661, 37 P.3d 309 (2001), review denied, 146 Wash.2d 1019, 51 P.3d 88 (2002); see also Burns v. McClinton, 135 Wash.App. 285, 297, 143 P.3d 630 (2006) (recognizing the continuous representation rule with its limitation to representation concerning a particular transaction), review denied, 161 Wash.2d 1005, 166 P.3d 718 (2007). In Janicki, the court noted policy reasons in favor of adopting the rule in Washington: (1) the rule avoids disruption of the attorney-client relationship and gives attorneys a chance to remedy mistakes before being sued, (2) it prevents attorneys from defeating a malpractice claim by continuing to represent a client until the statute of limitations has expired, and (3) speculative malpractice claims are avoided. Janicki, 109 Wash.App. at 662, 37 P.3d 309. Moreover, the rule is consistent with the purpose of the statute of limitations, which is to prevent stale claims and enable the defendant to preserve evidence. Janicki, 109 Wash.App. at 662, 37 P.3d 309. The application of the continuous representation rule should be based on whether any of the above policy considerations are furthered. Burns, 135 Wash.App. at 294, 143 P.3d 630 (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22.13, at 372 (2006 ed.)).

¶ 11 The test for determining whether an attorney's representation of a client regarding a specific subject matter continues or ends is a matter of first impression in Washington. In general, the determinative event for the continuous representation rule is when the representation ended. 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 23.13, at 434 (2008 ed.). The inquiry is not whether an attorney-client relationship ended but when the representation of the specific subject matter concluded. 3 Mallen & Smith, § 23.13, supra, at 434 (2008). Termination does not require formally withdrawing as counsel; de facto termination can be implied from circumstantial evidence. 3 Mallen & Smith, supra, § 23.13, at 439 (2008). As there is no bright-line rule for determining when representation ends, particular circumstances most often present an issue of fact. 3 Mallen & Smith, supra, § 23.13, at 440 (2008); see e.g., Gonzalez v. Kalu, 140 Cal.App.4th 21, 31, 43 Cal.Rptr.3d 866 (2006).

¶ 12 The test for deciding when representation ends varies by jurisdiction. The so-called “New York rule” states that an attorney-client relationship exists as long as there are clear indicia of an ongoing, continuous, developing and dependant relationship. Muller v. Sturman, 79 A.D.2d 482, 437 N.Y.S.2d 205, 208 (1981). Other courts have adopted a more concrete test, stating that de facto termination occurs if the client clearly indicates that he is no longer relying on the professional judgment of his attorney and adopts a position adverse to that of the attorney. DeLeo v. Nusbaum, 263 Conn. 588, 597–98, 821 A.2d 744 (2003). In these cases, continuity of representation depends not on the client's subjective beliefs but on evidence of an ongoing mutual relationship and of activities in furtherance of that relationship. Worthington v. Rusconi, 29 Cal.App.4th 1488, 1498, 35 Cal.Rptr.2d 169 (1994).

[161 Wash.App. 559] ¶ 13 These rules, however, are of limited use where unilateral conduct on the part of the attorney arguably terminates the attorney-client relationship. If the measure of a terminated relationship is a client's objective step toward ending a relationship, an attorney can too easily exploit the client's reliance and escape liability. Gonzalez, 140 Cal.App.4th at 30, 43 Cal.Rptr.3d 866. As we noted above, one of the stated purposes of the continuous representation rule is to prevent an attorney from defeating a malpractice cause of action by continuing to represent the client until the statutory period has expired. Janicki, 109 Wash.App. at 662, 37 P.3d 309. This purpose cannot be served if tolling ends when the attorney unilaterally abandons representation or ceases to...