Sandra Ferguson And The Ferguson Firm, V. Brian J. Waid And Law Office Of Brian Waid ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SANDRA L. FERGUSON and THE
FERGUSON FIRM, PLLC, DIVISION ONE
Appellants, No. 81727-2-I
v. UNPUBLISHED OPINION
LAW OFFICE OF BRIAN J. WAID,
BRIAN J. WAID and JANE DOE WAID,
and their marital community.
Respondents.
DWYER, J. — Attorney Sandra Ferguson appeals from an order granting
summary judgment dismissal of her claims of legal negligence, breach of
fiduciary duty, and Consumer Protection Act (CPA)1 violations against attorney
Brian Waid. According to Ferguson, the trial court erred in determining that all of
her claims were either time barred or precluded by prior litigation. Finding no
error, we affirm.
I
In May 2011, Sandra Ferguson and The Ferguson Firm PLLC (collectively
Ferguson) hired Brian Waid to represent her in a fee dispute with her former co-
counsel Stephen Teller. In February 2012, Ferguson became unhappy with
Waid’s representation and met with a legal malpractice attorney, resulting in
1 Ch. 19.86 RCW.
No. 81727-2-I/2
Waid’s withdrawal as her counsel. Ferguson then engaged other counsel to
represent her in her dispute with Teller.
In 2014, Ferguson filed a civil action against Waid, alleging legal
negligence, breach of contract, breach of fiduciary duty, fraud, conversion,
infliction of emotional distress, and violation of the CPA. Her claims were all
dismissed.2 After the dismissal, on December 1, 2015, Ferguson filed a second
complaint (this case) against Waid in the King County Superior Court, alleging
legal negligence, breach of fiduciary duty, and violation of the CPA.
While her second state action was pending, Ferguson also filed a civil
action against Waid in the United States District Court for the Western District of
Washington.3 Waid brought counterclaims therein against Ferguson for
defamation and civil harassment. Ferguson’s claims were dismissed. Waid’s
counterclaims proceeded to a bench trial. At the core of the defamation claim
was a review of Waid that Ferguson had posted on the attorney-rating website
Avvo.com. Ferguson’s review included the following statement:
I am an attorney. However, the opinions expressed in this review
are based on my personal experience as a former client of this
attorney, Brian J. Waid. I consulted and retained Brian Waid in
April 2011 regarding a contact [sic] dispute matter. He represented
me until December 10, 2012, the date he abandoned me on a false
pretext while an important motion was pending. Let me state it
unequivocally: Brian J. Waid is a PREDATOR and a FRAUD. He
should be prosecuted as a white collar criminal. However, this
decision is not within my control. But I can write this review to warn
and hopefully, prevent others from becoming future victims of
Attorney Waid. I am not Waid’s only victim. I assisted one of his
other clients to find capable counsel. We have both filed civil suits
2 The details of the dispute are discussed in Ferguson v. Law Office of Brian J. Waid, No.
74512-3-I (Wash. Ct. App. Apr. 15, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/745123.pdf.
3 Case No. C17-1685RSM, 2018 WL 6040174.
2
No. 81727-2-I/3
against Waid for malpractice, false and deceptive business
practices, and fraud. . . . Here is what Waid did to me: (1) he failed
to enforce my priority lien over the money that was in dispute; (2)
he advised me to file a lawsuit instead of using a more cost-effect
[sic] procedure that was available, so that he could fraudulently
charge, bill and collect fees from me for his worthless legal
services; (3) he concealed and failed to disclose to me that he had
a conflict of interest; (4) he deposited and left $265,000 of my
money in the court registry. . . he [] abandoned me, lying to the
court so that he would be allowed to withdraw over my objections
. . . . By similar methods, Waid’s other client-victim was bilked of
hundreds of thousands of dollars by Waid and his co-counsel.
Following the bench trial, the federal district court found that Ferguson’s
statements were false. The federal judge found that
Mr. Waid did not engage in the criminal, fraudulent, and unethical
conduct of which Ms. Ferguson accuses him. Mr. Waid has not
violated any Washington state criminal laws. Nor has Mr. Waid
violated any applicable ethical rules that govern attorneys. Mr.
Waid did not abandon Ms. Ferguson on a false pretext while an
important motion was pending; he did not fraudulently charge, bill,
and collect fees from Ms. Ferguson; he did not advise her to file a
lawsuit instead of following a more cost effective procedure that
was available; he did not conceal and fail to disclose a conflict of
interest; he did not lie to the court so he could withdraw over Ms.
Ferguson’s objections; he did not bilk Ms. Ferguson or any other
client out of hundreds of thousands of dollars.
The federal district court also concluded that, contrary to Ferguson’s
assertion, no conspiracy existed between Waid and anyone else. Ferguson
appealed. The Ninth Circuit affirmed the judgment. Ferguson v. Waid, 798 Fed.
Appx. 986 (9th Cir. 2020) (unpublished).
On February 11, 2020, Ferguson filed an amended complaint in this
action, again alleging legal negligence, breach of fiduciary duty, and violation of
the CPA. Waid moved for summary judgment dismissal of all of Ferguson’s
claims. Ferguson filed a cross-motion for partial summary judgment with regard
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No. 81727-2-I/4
to her legal negligence claim. The trial court granted Waid’s motion for summary
judgment and dismissed all of Ferguson’s claims, ruling that (1) Ferguson’s legal
negligence claim was time barred, (2) Ferguson’s CPA claim, to the extent that it
was based on an allegation that Waid’s website was misleading, was time
barred, (3) Ferguson was collaterally estopped from advancing her CPA claim
based on allegations arising from matters other than the content of Waid’s
website, and (4) Ferguson’s breach of fiduciary duty claim was barred by the
doctrine of res judicata. Ferguson’s motion for partial summary judgment was
denied as moot.
Ferguson appeals.
II
We review cross-motions for summary judgment de novo. Martinez-
Cuevas v. DeRuyter Bros. Dairy, Inc., 196 Wn.2d 506, 514, 475 P.3d 164 (2020).
“Thus, we engage in the same inquiry as the trial court.” Green v. Normandy
Park Riviera Section Cmty. Club, Inc., 137 Wn. App. 665, 681, 151 P.3d 1038(2007).
Summary judgment is properly granted when the pleadings, affidavits,
depositions, and admissions on file demonstrate that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law.
CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d
1360 (1991). All reasonable inferences from the evidence must be construed in
favor of the nonmoving party. Green, 137 Wn. App. at 681 (citing Lamon v.
McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979)).
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Moreover, we may affirm the trial court’s decision based on any ground
established by the pleadings and supported by the record. Verbeek Props., LLC
v. GreenCo Envtl., Inc., 159 Wn. App. 82, 90, 246 P.3d 205 (2010).
III
Ferguson first contends that the trial court erred by dismissing her legal
negligence claim and her CPA claim regarding Waid’s website on the basis that
the statutory limitation period had expired prior to her commencing this action.
This is so, according to Ferguson, because she became aware of an essential
fact only in late 2015. She is incorrect. Furthermore, her fiduciary duty claim
was also time barred.
In Washington, the statutory limitation period applicable to a legal
malpractice claim is three years, as is the period applicable to a claim of breach
of fiduciary duty. RCW 4.16.080; Cawdrey v. Hanson Baker Ludlow Drumheller,
P.S., 129 Wn. App. 810, 816, 120 P.3d 605 (2005). The statutory limitation
period applicable to a CPA claim is four years. RCW 19.86.120. Under the
discovery rule, when it is applicable, a cause of action does not begin to accrue
until the plaintiff knew or should have known the essential facts which give rise to
the cause of action. Green v. Am. Pharm. Co., 136 Wn.2d 87, 95, 960 P.2d 912(1998).
The limitation period begins when the plaintiff is either aware or should
have been aware of the facts underlying the claim, regardless of whether the
plaintiff is aware of the particular legal cause of action. Cawdrey, 129 Wn. App.
at 817. “In professional malpractice cases, the pivotal factor which tolls the
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running of the statute of limitations is the absence of knowledge of injury.”
Richardson v. Denend, 59 Wn. App. 92, 96, 795 P.2d 1192 (1990). Notably,
when a court enters a judgment adverse to a party, that party is “formally advised
of the judgment of the court and, hence, receives notification of any damage
which results from their attorney’s representation.” Richardson, 59 Wn. App. at
96. In Richardson, this court made clear that
[w]e adopt the reasoning of the above courts and hold, as a
matter of law, that upon entry of an adverse judgment at trial a
client is charged with knowledge, or at least is put on notice, that
his or her attorney may have committed malpractice in connection
with the representation. See 32 A.L.R.4th § 7, 8. Were we to
conclude otherwise and adopt the position urged by Richardson,
we would be ruling that the statute of limitations is tolled until such
time as a dissatisfied client obtains other legal counsel or engages
in independent legal research to determine the propriety of the
actions of his or her former counsel. This . . . is not the law of
Washington.
59 Wn. App. at 98.
Accordingly, upon the entry of such a judgment, as a matter of law, a
client possesses knowledge of all the facts which may give rise to a cause of
action for negligent representation. Richardson, 59 Wn. App. at 96-97; accord
Janicki Logging & Constr., Inc. v. Schwabe, Williamson & Wyatt, PC, 109 Wn.
App. 655, 660, 37 P.3d 309 (2001) (knowledge of injury imputed at the time
judgment entered).
A
The trial court in the Teller matter issued a decision adverse to Ferguson
on January 30, 2012. Thus was Ferguson put on notice—more than three years
prior to filing this action—of the facts necessary to allege a legal negligence claim
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No. 81727-2-I/7
related to Waid’s representation. Indeed, Ferguson ultimately did so, filing a
lawsuit against Waid alleging negligent representation in 2014.4,5
Nevertheless, Ferguson avers that it was not until 2015 that she became
aware that she could enforce her lien rights without filing the Teller lawsuit.
According to Ferguson, “until her attorney, Ms. Rains . . . began researching the
matter in late 2015, [she] did not possess the essential facts related to Mr. Waid’s
breach of duty or how the breach injured her.”6 But Ferguson does not explain
what essential fact she did not possess knowledge of until 2015. She was plainly
aware of the advice Waid gave her in 2011, as she had personally received it.
Moreover, she was concerned about the quality of his representation, given that
she consulted with a malpractice attorney in February 2012. Ferguson
eventually obtained replacement counsel for the underlying matter and filed a
malpractice action against Waid. The existence of a different legal strategy or
theory of which Ferguson was unaware until 2015 is not an essential fact that
would serve to justify tolling the statutory limitation period. The trial court
correctly dismissed Ferguson’s legal negligence claim as being time barred.
B
Ferguson’s CPA claim regarding Waid’s website arose from her belief that
Waid’s website was misleading. Ferguson visited Waid’s website prior to
retaining him on May 4, 2011. According to Ferguson, by October 2011, she was
4 As the trial court observed, in Ferguson’s motion for partial summary judgment, she
stated, “I filed this lawsuit pro se in October 2014 because the statute of limitations was about to
expire on my claim of malpractice against Brian Waid.”
5 That action was dismissed prior to the filing of this action.
6 Br. of Appellant at 20.
7
No. 81727-2-I/8
“upset” that Waid “erroneously disavowed [her] legal claims” and “erroneously
dismissed [her] breach of contract claim.”7 These are the only facts necessary to
Ferguson’s CPA claim regarding Waid’s website. Accordingly, the four year
statutory limitation period applicable to CPA claims began to run in October 2011
and expired in October 2015, several weeks before Ferguson filed this
complaint.8 The trial court properly dismissed Ferguson’s CPA claim based on
Waid’s website as time barred.
C
Waid contends that Ferguson’s breach of fiduciary duty claim is also time
barred. We agree. Ferguson’s breach of fiduciary duty claim is based on Waid’s
alleged acts while representing her in 2011. Ferguson’s complaint in this matter
was filed more than three years later, in December 2015. Thus, we affirm the
trial court’s dismissal of Ferguson’s fiduciary duty claim because it is time
barred.9
IV
Ferguson next avers that the trial court erred by dismissing the remainder
of her CPA cause of action. This is so, Ferguson argues, because her claims
7 Decl. of Sandra L. Ferguson in Support of Opposition to Motion in Limine.
8 In her reply brief, Ferguson contends Waid is judicially estopped from asserting that her
CPA claim is time barred. This is so, she avers, because Waid’s filing asserts that save her CPA
claim, all of Ferguson’s claims are barred by a statute of limitation. However, the language she
refers to in Waid’s prior filing does not state that Ferguson’s CPA claim was not time barred.
Waid does not contend that Ferguson’s CPA violation claim based on allegations other than
those related to Waid’s website are time barred. Accordingly, Waid did not admit that Ferguson’s
allegations relating to his website were not time barred at the time that Ferguson filed her
December 1, 2015 complaint.
9 Accordingly, we need not address whether the trial court was correct in concluding that
Ferguson’s fiduciary duty claim was also barred by res judicata.
8
No. 81727-2-I/9
were not collaterally estopped by the judgment in the federal lawsuit. We
disagree.
“Collateral estoppel, or issue preclusion, bars relitigation of particular
issues decided in a prior proceeding.” Weaver v. City of Everett, 194 Wn.2d 464,
473, 450 P.3d 177 (2019). The doctrine of collateral estoppel applies when the
following four factors are present: “(1) identical issues; (2) a final judgment on the
merits; (3) the party against whom the plea is asserted must have been a party to
or in privity with a party to the prior adjudication; and (4) application of the
doctrine must not work an injustice on the party against whom the doctrine is to
be applied.” Malland v. Dep’t of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16(1985).
Following a bench trial in which Waid prevailed on a defamation
counterclaim against Ferguson, the federal district court found the following:
Mr. Waid did not engage in the criminal, fraudulent, and unethical
conduct of which Ms. Ferguson accuses him. Mr. Waid has not
violated any Washington state criminal laws. Nor has Mr. Waid
violated any applicable ethical rules that govern attorneys. Mr.
Waid did not abandon Ms. Ferguson on a false pretext while an
important motion was pending; he did not fraudulently charge, bill,
and collect fees from Ms. Ferguson; he did not advise her to file a
lawsuit instead of following a more cost effective procedure that
was available; he did not conceal and fail to disclose a conflict of
interest; he did not lie to the court so he could withdraw over Ms.
Ferguson’s objections; he did not bilk Ms. Ferguson or any other
client out of hundreds of thousands of dollars.
Ferguson asserts that the federal court’s judgment “does not embody the
issues related to Ms. Ferguson’s CPA claim against Mr. Waid in this case.”10
This is so, Ferguson avers, because it addressed Waid’s defamation claim
10 Br. of Appellant at 42.
9
No. 81727-2-I/10
against her regarding a review that she wrote on the website Avvo.com, rather
than her CPA claim against Waid. However, Ferguson’s defamatory Avvo.com
review was nearly identical to the allegations she makes in support of her CPA
claim. Therefore, because truth is a defense to defamation (thus requiring the
federal trial court to review and decide identical issues—namely, whether Waid
conspired with other attorneys and whether Waid brought meritless claims and
used inappropriate litigation tactics to needlessly drive up billing), the issues are
the same. The federal lawsuit did, in fact, “embody the issues related to Ms.
Ferguson’s CPA claim.” And the federal court resolved those issues when it
determined that Waid did not engage in the nefarious practices asserted. That
the ultimate cause of action for which the issues were resolved was not identical
is of no consequence—Ferguson may not relitigate her claims that Waid
conspired with other attorneys or used inappropriate litigation tactics to
fraudulently bill her. See, e.g., Thompson v. Dep’t of Licensing, 138 Wn.2d 783,
800, 982 P.2d 601 (1999) (collateral estoppel applies to a ruling made in a
criminal trial in a subsequent administrative proceeding involving the same facts).
Finally, Ferguson argues that application of collateral estoppel would work
an injustice on her because, as the defendant to Waid’s counterclaims in the
federal district court, she lacked sufficient motivation to vigorously litigate the
crucial issues in the first forum. In her briefing, Ferguson asks, “What incentive
does a party, who stands to recover nothing if they are successful, have to
litigate a case?”11 The answer is obvious. Such a party is incentivized by the
11 Br. of Appellant at 49.
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No. 81727-2-I/11
possibility of avoiding loss. In the federal case, Waid was awarded monetary
damages amounting to $50,000.12 Furthermore, Ferguson did indeed vigorously
litigate the federal case, including prosecuting an appeal to the Ninth Circuit.
There is no injustice in preventing Ferguson from relitigating the same issues yet
again.13
Affirmed.
WE CONCUR:
12 Ferguson also argues that there is a disparity in size of monetary award because her
claim is for $3,000,000 in money damages. Her purported damages, however, are not evidenced
in the record.
13 Ferguson also contends, without sufficient explanation, that the priority of action rule
precludes application of collateral estoppel. The priority of action rule is not applicable here. It
has no impact on the validity of the federal district court’s decisions or judgment.
11