Zander and Vevag and Hicks v. Bricklin, and Bricklin and Gend;er LLP, and Collins, 96-2-23450-8

• Decision Date: 01 February 1999
• Docket Number: 96-2-23450-8
• Court: Texas Court of Appeals
• Parties: <PartyHeader> RAYMOND ZANDER AND LINDA ZANDER, HUSBAND AND WIFE, ROBERT ZANDER, INDIVIDUALLY AND AS CUSTODIAL PARENT FOR ASHLEY ZANDER AND DIANA ZANDER, MINORS, CHRISTOPHER ZANDER, AN INDIVIDUAL, CARL VEVAG AND GLENNIS VEVAG, HUSBAND AND WIFE, AND JOHN HICKS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERVIN A. HICKS, JR., APPELLANTS, v. DAVID BRICKLIN AND JANE DOE BRICKLIN, HUSBAND AND WIFE, BRICKLIN & GENDLER, LLP, A WASHINGTON LIMITED LIABILITY PARTNERSHIP, AND BRIAN COLLINS AND JANE DOE COLLINS, HUSBAND AND WIFE, RESPONDENTS. DEBORAH CONDON, APPELLANT,</PartyHeader>

[1]
[2]	RAYMOND ZANDER AND LINDA ZANDER, HUSBAND AND WIFE, ROBERT ZANDER, INDIVIDUALLY AND AS CUSTODIAL PARENT FOR ASHLEY ZANDER AND DIANA ZANDER, MINORS, CHRISTOPHER ZANDER, AN INDIVIDUAL, CARL VEVAG AND GLENNIS VEVAG, HUSBAND AND WIFE, AND JOHN HICKS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ERVIN A. HICKS, JR., APPELLANTS,; v.; DAVID BRICKLIN AND JANE DOE BRICKLIN, HUSBAND AND WIFE, BRICKLIN & GENDLER, LLP, A WASHINGTON LIMITED LIABILITY PARTNERSHIP, AND BRIAN COLLINS AND JANE DOE COLLINS, HUSBAND AND WIFE, RESPONDENTS. DEBORAH CONDON, APPELLANT,; v.; DAVID BRICKLIN AND JANE DOE BRICKLIN, HUSBAND AND WIFE; BRICKLIN & GENDLER, A GENERAL PARTNERSHIP; AND BRIAN COLLINS AND JANE DOE COLLINS, HUSBAND AND WIFE, RESPONDENTS.
[3]	No. 41655-3-I
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of King County Docket No: 96-2-23450-8 Judgement or order under review Date filed: 10/17/1997 Judge signing: Hon. Jeffrey M. Ramsdell
[6]	February 01, 1999
[7]	Counsel: Counsel for Appellant(s) Scott B. Henrie Williams Kastner & Gibbs 4100 Two Union Square 601 Union St. Seattle, WA 98101-2327 Counsel for Respondent(s) Jerret E. Sale Bullivant Houser Bailey Pendergrass & Hoffman 2400 Westlake Offc Tower 1601 5th Avenue Seattle, WA 98101-1618 Colleen M. Cook Cook & Bartlett 1424 4th Ave Ste 600 Seattle, WA 98101-2217 Janice S. Wang Reed Mc Clure 701 5th Ave Ste 3600 Seattle, WA 98104-7081 Pamela H. Salgado 1601 Fifth Avenue Suite 2400 Seattle, WA 98101
[8]	The opinion of the court was delivered by: Cox, J.
[9]	Judges: Authored by Ronald E. Cox Concurring: H. Joseph Coleman Walter E. Webster
[10]	UNPUBLISHED
[11]	To establish the element of proximate causation in this legal malpractice action based on the claim that counsel failed to timely file prelitigation claims against the municipalities, the clients must show that they would have prevailed or obtained a better result if the claims had been timely filed. The clients here failed to make such a showing. Thus, we affirm the summary dismissal of their malpractice claims.
[12]	Ray and Linda Zander are dairy farmers in Lynden, Washington. Their property borders land owned by the Van Dalens. Western Services, Inc., on the basis of permits issued by Whatcom County, deposited sludge from various municipalities on the Van Dalens' property. The Zanders and others (collectively, the Zanders) hired the lawyers David Bricklin and Brian Collins to represent them in their suit against Western, several municipalities (collectively, the cities), and Whatcom County for damages they allegedly suffered from the deposited sludge. The trial court summarily dismissed the Zanders' claims against Whatcom County for negligence in issuing the permit to Western on the basis of the "public duty doctrine." The trial court summarily dismissed the Zanders' claims against the cities for failure to comply with the claims filing statute. On appeal, we upheld those dismissals. The Zanders then brought this legal malpractice action against Bricklin and Collins (the lawyers). The Zanders alleged that the lawyers' negligent failure to file the prelitigation claims caused their claims against the cities to be dismissed. The lawyers moved for summary Judgement. They claimed that their omission did not harm the Zanders because the claims against the cities were barred in any event by the "public duty doctrine."*fn1 The trial court agreed and granted summary Judgement on that basis. The Zanders moved for reconsideration. The trial court denied that motion. The Zanders appeal. I. Public Duty Doctrine
[13]	The Zanders contend that the trial court erred in granting the lawyers' motion for summary Judgement. We disagree. A grant of summary Judgement may be affirmed only if there are no genuine issues of material fact and the moving party is entitled to Judgement as a matter of law.*fn2 In reviewing an order granting summary Judgement, we engage in the same inquiry as the trial court.*fn3 We consider all facts and the reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party.*fn4 We review questions of law de novo.*fn5 To establish a claim for legal malpractice, a claimant must prove: (1) the existence of an attorney-client relationship; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.*fn6 Here, the focus on summary Judgement was on the claimed absence of the element of causation. To prove causation, the claimant must establish that, in the absence of the attorney's malpractice, the claimant would have prevailed or achieved a demonstrably better result in the underlying litigation.*fn7 The Zanders contend that, absent the lawyers' negligence, they would have prevailed or obtained a better result in their claims against the cities. These claims include the tort claims of negligence, nuisance, and trespass as well as the constitutional claim of inverse condemnation.*fn8 We first address the tort claims. The Zanders claimed that the cities were negligent in (1) selecting Western to dispose of their sludge; (2) investigating the safety of disposing of the sludge on the Van Dalen property, which Western selected as the disposal site; and (3) allowing "toxic materials and harmful organisms" to be in the sludge. The nuisance and trespass claims arose from this same nucleus of allegedly negligent conduct. And the existence of a duty is a common element of both of these claims.*fn9 Whether a duty exists is a question of law.*fn10 A defendant is liable only for a duty owed to the plaintiff, not for a general duty owed to the public at large.*fn11 Thus, the Zanders must show that the cities owed them, rather than the public in general, a duty of care.*fn12 Where, as here, the defendant is a governmental entity, this rule is known as the public duty doctrine.*fn13 The public duty doctrine is

...