Seeley v. Roden
| Decision Date | 12 August 2003 |
| Docket Number | No. 28744-7-II.,No. 28170-8-II (consolidated with).,28170-8-II (consolidated with).,28744-7-II. |
| Parties | W. LEONARD SEELEY and NANCY L. SEELEY, husband and wife, Appellants, v. ROBERT ALLAN RODEN and JANE DOE RODEN, husband and wife and the marital community comprised thereof; and SAMUAL ST. CLAIR WARDLE and JANE DOE WARDLE, husband and wife and the marital community comprised thereof, Respondents. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Cowlitz County, Docket No: 00-2-00374-0, Judgment or order under review, Date filed: 11/05/2001.
William Patrick Horton, Attorney At Law, Portland, OR, Counsel for Appellant(s).
Terrance Jerome Lee, Attorney at Law, Vancouver, WA, Counsel for Appellant(s).
Leland G Ripley, Attorney at Law, Lake Stevens, WA, Counsel for Respondent(s).
Craig W. Weston, Attorney at Law, Longview, WA, Counsel for Respondent(s).
UNPUBLISHED OPINION
Robert Costello entered into nonrefundable retainer fee agreements with attorneys Samuel Wardle and Robert Roden for his criminal defense. Roden then obtained payment of the retainer, a total of $50,000, from Costello's aunt and uncle, the Seeleys, who were unaware of the nonrefundable provision. When Costello fired Wardle and Roden two weeks later, the Seeleys requested a refund and, after Roden and Wardle rejected their request, the Seeleys filed this action. The trial court dismissed the case against Roden under CR 12(b)(6),1 granted summary judgment to Wardle, and denied the Seeleys' motion to amend their complaint against Roden.
We affirm the dismissal of the original complaint but hold that the trial court erred by denying the Seeleys' motion to amend. Thus, we reverse and remand for trial on the amended complaint.
The State charged Robert Costello with murder. He hired Samuel Wardle to defend him, entering into a $25,000 nonrefundable retainer fee agreement, and, according to the parties' contention, entered into a similar agreement with Robert Roden.
Roden then contacted the Seeleys, requesting that they pay the $50,000 retainer fees. Roden said that the $50,000 would probably be sufficient to pay for the two years of legal services necessary to bring Costello's case to conclusion, but that neither he nor Wardle would begin work on the case until the fees were paid. Roden did not tell the Seeleys that the retainer fees were nonrefundable.
The Seeleys paid $50,000 to Roden, who delivered $25,000 to Wardle at Costello's direction. Two weeks later, Costello fired Wardle and Roden, and two months after that, he committed suicide while incarcerated at the Cowlitz County Jail.
The Seeleys filed a creditor's claim against Costello's estate, seeking reimbursement of the retainer fees. In addition, when Roden rejected their request for an accounting and refund of the retainer fees, they brought this action.
In their first complaint against Roden and Wardle, the Seeleys claimed that the attorneys (1) breached fiduciary duties; (2) violated the Consumer Protection Act (CPA) by refusing to provide an accounting; (3) converted the Seeleys' funds; and (4) wrongfully acquired the fees and, thus, under principles of equity, were holding the funds in constructive trust. Both attorneys responded by filing separate CR 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted. The trial court granted Roden's motion and, because it considered matters beyond the pleadings, it granted summary judgment to Wardle under CR 56. The trial court also awarded $4,000 in attorney fees to Wardle under CR 11 and RCW 4.84.185.
The Seeleys then moved to amend their complaint against Roden to add two new claims and to reiterate two claims alleged in their original complaint. The trial court denied their motion. The Seeleys then brought this appeal, claiming trial court error in: (1) granting Wardle's CR 12(b)6) motion while simultaneously granting his CR 56 motion for summary judgment; (2) granting Wardle's motion for summary judgment; (3) granting Wardle's motion for sanctions; and (4) denying the Seeley's motion to amend their complaint against Roden.
The Seeleys claim that the trial court erred by granting Wardle summary judgment. They argue as a matter of law that because the trial court concluded that a special partnership existed between Roden and Wardle, Wardle is liable for any of Roden's actions authorized by the partnership. They then argue that the following evidence supports an inference that Wardle authorized Roden to contact the Seeleys: (1) Costello agreed to pay a $25,000 retainer fee to Wardle and separately, but concurrently, entered into the same agreement with Roden; (2) Roden obtained the entire fee amount from the Seeleys and transferred Wardle's share to him; (3) Wardle kept the fee; and (4) Wardle would not have worked without first receiving the retainer fee. But because there was no evidence that Wardle agreed to or even knew that Roden intended to approach the Seeleys, we conclude that the above facts are insufficient to support this inference.
We review a summary judgment de novo, engaging in the same inquiry as the trial court; we may affirm on any basis the record supports. Int'l Bhd. of Elec. Workers, Local Union No. 46 v. TRIG Elec. Constr. Co., 142 Wn.2d 431, 434-35, 13 P.3d 622 (2000); Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). Summary judgment is appropriate only if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
Under Washington law, a special partner must authorize the acts of another special partner to be held liable for those acts. Swanson v. Webb Tractor & Equip. Co., 24 Wn.2d 631, 649, 167 P.2d 146 (1946). And this authority must be found in {1} the actual agreement of the partners, or {2} through implication arising from the nature of the business or the actual or usual manner in which it is conducted by the particular partnership or by similar partnerships in the same locality, or else {3} from a reasonable inference of its necessity or fitness for the successful operation of the particular partnership business.
Wardle, as the party moving for summary judgment, had the burden of clearly demonstrating the absence of any genuine issue of material fact as to whether the partnership authorized Roden to solicit the $50,000. Spurrell v. Bloch, 40 Wn. App. 854, 860, 701 P.2d 529 (1985). To show the lack of authorization, Wardle presented evidence that although he and Roden were co-counsel, he never associated with Roden; at all times he acted independently of Roden regarding Costello's defense; he at no time directed or controlled Roden's representation of Costello; and he did not authorize Roden to contact the Seeleys.
Wardle's evidence was sufficient to show lack of authorization. The burden then shifted to the Seeleys to present evidence that would raise an issue of material fact as to the partnership relationship or authorization. Hash v. Children's Orthopedic Hosp. and Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). But, as we discussed above, the Seeleys presented no factual evidence regarding Wardle's knowledge of Roden's plan to solicit the $50,000 from the Seeleys. Nor, as the dissents points out, is there any showing that Roden and Wardle discussed either the case or how they would obtain payment of their fees. Dissent at 22.
Moreover, the dissent's contention that Wardle and Roden `may' have discussed their co-representation and `may' have authorized the contact is mere speculation, lacking support in the record. Dissent at 23. And there is no evidence about the nature of Roden's or Wardle's businesses, or similar partnerships, that would support an implication of authorization or establish that the solicitation was necessary for the successful operation of the special partnership.2
We share the dissent's concern for the Seeleys' situation but, unfortunately, it is the Seeleys who failed to meet their burden to present evidence to support their claim. To hold that `the incomplete nature' of evidence showing Roden's authority to bind Wardle establishes that Wardle did not bear his burden of showing the absence of a material issue of fact turns the summary judgment standard on its head. Dissent at 22.
Because the Seeleys failed to establish `specific and material facts to support each element' of their prima facie case, the record contains what the dissent describes as `incomplete' evidence. Hiatt v. Walker Chevrolet, Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992); Dissent at 22. And because at that point the Seeleys had the burden of presenting evidence, the trial court properly granted summary judgment to Wardle.3
The Seeleys also argue that the trial court erred by granting Wardle's CR 12(b)(6) motion to dismiss and, simultaneously, granting summary judgment to Wardle.
The trial court is to treat a motion to dismiss under CR 12(b)(6) as one for summary judgment when `matters outside the pleading are presented to and not excluded by the court.' CR 12(b). When the trial court considers matters outside the pleadings in a motion to dismiss, its `decision should be reviewed as though it were a motion for summary judgment under CR 56.' Lombardo v. Pierson, 121 Wn.2d 577, 581 n.2, 852 P. 2d 308 (1993). Because the trial court properly granted Wardle summary judgment, the validity of the trial court's order granting Wardle's CR 12(b)(6) motion is moot.
Nonetheless, the dissent posits a hypothetical third party beneficiary theory that, we agree, if pled or even argued, might have supported denial of Wardle's CR 12(b)(6) motion. The trial court properly grants a CR 12(b)(6) motion when there is no set of facts, consistent with the complaint, that would merit relief. Rowe v. Quality Transp. Svcs., 67 Wn. App. 604, 606, 838 P.2d 128 (1992). Here, as the Seeleys did not plead breach of...
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