Schibel v. Eymann, 32937–2–III.

CourtCourt of Appeals of Washington
Writing for the CourtKORSMO, J.
Citation193 Wash.App. 534,372 P.3d 172
PartiesJames SCHIBEL, an individual; and Patti Schibel, an individual; and the marital community thereof, Respondents, v. Richard EYMANN, an individual; Eymann Allison Hunter Jones, P.S., a Washington professional services corporation; Michael Withey, an individual; Law Offices of Michael Withey, PLLC, a Washington professional limited liability company, Petitioners.
Docket NumberNo. 32937–2–III.,32937–2–III.
Decision Date26 April 2016

193 Wash.App. 534
372 P.3d 172

James SCHIBEL, an individual; and Patti Schibel, an individual; and the marital community thereof, Respondents
Richard EYMANN, an individual; Eymann Allison Hunter Jones, P.S., a Washington professional services corporation; Michael Withey, an individual; Law Offices of Michael Withey, PLLC, a Washington professional limited liability company, Petitioners.

No. 32937–2–III.

Court of Appeals of Washington, Division 3.

April 26, 2016.

372 P.3d 173

James B. King, Evans, Craven & Lackie, P.S., Spokane, WA, Jeffrey T. Kestle, Roy Andrew Umlauf, Forsberg and Umlauf PS, Seattle, WA, for Petitioners.

Steven Erik Turner, Steven Turner Law PLLC, Vancouver, WA, for Respondents.


193 Wash.App. 536

¶ 1 This court granted interlocutory review of an order denying summary judgment in order to determine

193 Wash.App. 537

whether this legal malpractice action was foreclosed by the outcome of a previous appeal upholding the withdrawal of the petitioner attorneys in the underlying case. We agree with the trial court that the issues decided in the previous action were different, affirm its ruling, and remand for further proceedings.


¶ 2 This malpractice action alleges that attorneys Richard Eymann and Michael Withey, along with their respective law firms (collectively Attorneys), failed to protect their clients' best interests when they withdrew on the eve of trial and were unable to secure a continuance from the trial court.

372 P.3d 174

That original action had been brought by respondents James and Patti Schibel against their former landlord, alleging breach of a commercial lease and negligent infliction of injury due to mold exposure. The trial court permitted the withdrawal over the objection of the Schibels. At the same hearing, the court denied the continuance and indicated that the matter would remain set for trial.

¶ 3 The Schibels were represented by a different attorney when the commercial lease action was filed in 2007. The Attorneys took over in early 2009 after the original counsel withdrew due to a fee dispute. The Attorneys entered into a contingent fee agreement with the Schibels. Clerk's Papers (CP) at 225–30. That agreement provided that the Schibels controlled the decision to accept any settlement offers; the Attorneys were authorized to front litigation costs subject to repayment by the Schibels. CP at 227–29.

¶ 4 When the Attorneys took over the case, the pending April 2009 trial date was continued to April 2010. A conflict with the trial court's schedule then led to rescheduling the trial date to August 2010. Two days before that trial, Ms. Schibel's father passed away and the case was rescheduled to November 1, 2010. The trial judge announced that there would be no more continuances.

193 Wash.App. 538

¶ 5 During this period of time the Schibels and the Attorneys disagreed over whether to accept a settlement offer. The Attorneys stressed the weaknesses in the case, including inconsistent deposition testimony from Mr. Schibel and a strongly adverse view of the action by a focus group. The Attorneys also asked for an assurance that the extensive costs incurred to that point and expected for trial would be paid. They likewise did not reach an agreement on that topic. The Attorneys then wrote their clients on October 10 that they would need to withdraw in light of the breakdown of their relationship. CP at 244–47. A motion to withdraw and a motion to continue the trial date were filed the next day. Both the Schibels and the landlord objected to the withdrawal. The matter went to hearing on October 27 before the Honorable Annette Plese.

¶ 6 The Schibels represented themselves on the withdrawal motion. They requested to make their argument in camera, but the trial court denied the request, viewing it as improper ex parte contact. Finding compliance with CR 71, the trial court permitted the Attorneys to withdraw, noting that it was consistent with the Attorneys' ethical obligations. Judge Plese then denied the motion for a continuance. The Schibels were expected to proceed pro se on November 1 if they had not obtained counsel or settled by that time. The Schibels reached an oral agreement to dismiss the case without costs. However, they neither signed that agreement nor appeared for trial. The case was then dismissed with prejudice.

¶ 7 The Schibels retained counsel and appealed, challenging the withdrawal and continuance rulings. This court affirmed. See Schibel v. Johnson, noted at 168 Wash.App. 1046, 2012 WL 2326992 (2012). Specifically, this court concluded that the trial judge did not abuse her discretion in granting the withdrawal. Schibel, slip op. at 5–10. While ethical duties define when an attorney can withdraw from a case, the trial court's discretion to permit the withdrawal is governed by case authority rather than the ethical rules. Id. at 6–8. We

193 Wash.App. 539

also rejected the Schibels' argument that an attorney could not withdraw if the client would be harmed by the action. Id. at 9. Instead, we agreed with the trial judge's findings that counsel's ethical obligations required the withdrawal. Id. at 9–10. We also concluded that the trial judge had not abused her discretion in denying the continuance. Id. at 10–12.

¶ 8 Represented by another new attorney, the Schibels then filed the current malpractice action against the Attorneys. Discovery ensued and eventually the Attorneys filed a motion for summary judgment, arguing that the Schibels were collaterally estopped by the previous appeal from challenging their withdrawal from the lease case.1 The trial

372 P.3d 175

court, the Honorable James Triplet, disagreed with the argument in a lengthy letter opinion. The trial court concluded that there was no Washington precedent governing the interplay between a judicially-approved withdrawal from representation under CR 71 and legal malpractice. It also noted that the issues resolved in the original case were different from those in the malpractice case and that the Schibels had not had a fair opportunity to contest the ethical problems because they could not present their argument ex parte.

¶ 9 This court granted the Attorneys' motion for discretionary review. The case was submitted to a panel without oral argument.


¶ 10 The sole issue presented is whether the trial court correctly determined that collateral estoppel did not apply to bar the malpractice action. We agree with the trial court

193 Wash.App. 540

that the issues decided in the previous action are not the same as those presented by this case. Although this matter comes to us as an issue of collateral estoppel, at its heart the question here involves an attorney's duty to his client.

¶ 11 Several well-settled principles of law govern our review of this action. Summary judgment is proper when the moving party bears its initial burden of establishing that it is entitled to judgment because there are no disputed issues of material fact. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). “A material fact is one that affects the outcome of the litigation.” Owen v. Burlington N. Santa Fe R.R. Co., 153 Wash.2d 780, 789, 108 P.3d 1220 (2005). If that initial showing is made, then the burden shifts to the other party to establish there is a genuine issue for the trier of fact. Young, 112 Wash.2d at 225–26, 770 P.2d 182. The responding party may not rely on speculation or having its own affidavits accepted at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the existence of a triable issue. Id. This court applies de novo review to an order granting summary judgment on the basis of collateral estoppel. Barr v. Day, 124 Wash.2d 318, 324, 879 P.2d 912 (1994).

¶ 12 The plaintiff in a legal malpractice action must establish four elements: (1) the existence of an attorney-client relationship that gives rise to a duty of care, (2) an act or omission by the attorney in breach of that duty, (3) damage to the client, and (4) proximate causation between the breach of duty and the damage incurred. Hizey v. Carpenter, 119 Wash.2d 251, 260–61, 830 P.2d 646 (1992). The standard of care is uniform throughout the state of Washington: “that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.” Cook, Flanagan & Berst v. Clausing, 73 Wash.2d 393, 395, 438 P.2d 865 (1968).

¶ 13 Collateral estoppel precludes relitigation of the same issue in a subsequent action involving the parties.

193 Wash.App. 541

Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash.2d 299, 306, 96 P.3d 957 (2004). In order to prevail on a claim of collateral estoppel, the party seeking application of the...

To continue reading

Request your trial
3 cases
  • Schibel v. Eymann
    • United States
    • United States State Supreme Court of Washington
    • August 3, 2017
    ...The trial court denied the motion for summary judgment. On interlocutory appeal, the Court of Appeals affirmed. Schibel v. Eymann , 193 Wash.App. 534, 372 P.3d 172 (2016). We accepted review and now reverse.ANALYSIS ¶10 Summary judgment is appropriate where there is no genuine issue of mate......
  • JPMorgan Chase Bank, National Association v. Zalac, 75837-3-I
    • United States
    • Court of Appeals of Washington
    • December 11, 2017
    ...MERS as the beneficiary. Bain, 175 Wn.2d at 117. Instead, this case resembles Blair v. Nw. Tr. Servs.. Inc., 193 Wn.App. 18, 24-25, 372 P.3d 172. review denied. 186 Wn.2d 1019 (2016). The crux of the borrower's complaint in Blair was that the defendants misrepresented Bank of America as the......
  • Jpmorgan Chase Bank v. Zalac
    • United States
    • Court of Appeals of Washington
    • December 11, 2017

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT