Thomas Flanigan v. Lloyd A. Herman ( 2024 )

FILED
JANUARY 11, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THOMAS FLANIGAN, ) No. 39295-3-111
)
Appellant, )
)
V. ) UNPUBLISHED OPINION
)
LLOYD A. HERMAN, )
)
Respondent. )
LAWRENCE-BERREY, A.C.J. -Thomas Flanigan appeals the summary judgment
dismissal of his legal malpractice and breach of fiduciary duty claims against his former
attorney, Lloyd Herman. We affirm.
FACTS
On January 29, 2016, Thomas Flanigan, Kathryn DePriest, and Patrick
McDermott, as lessees, signed a five-year lease agreement for a retail cannabis store with
Jerry McNairy, as lessor. The agreement gave the lessees an option to terminate the lease
prior to April 16, 2016, by providing lessor with written notice of their failure to obtain a
license to operate a retail marijuana store at the leased premises. The lessees were unable
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to obtain the required license. McDermott, the individual responsible for running the
store and for sending notices, failed to timely provide McNairy the written notice.
On June 8, 2016, McNairy brought suit for breach of lease. McDermott
recommended attorney Lloyd Herman, and the former business partners hired him based
on that recommendation.
The three met with Herman at the initial consultations and told Herman that
Flanigan was the only one of the three who had the ability to fund a defense or pay a
settlement. This was the only time Flanigan met with Herman. At this meeting, Herman
told the three he might be able to dismiss the case on summary judgment. The motion
was not successful, and Herman later represented the former business partners in a
mediation, which also, was not successful.1
On November 21, 2017, Herman filed with the court and mailed to the parties his
notice of intent to withdraw. The notice stated that withdrawal would be effective
December 8, 2017. It further stated that withdrawal would be effective without court
1
The parties dispute why the mediation was not successful. Herman, McDermott,
and DePriest claim that Flanigan agreed to attend the mediation, but on the morning of
mediation, told McDermott he would not attend, and then failed to respond to their
repeated phone calls. The three blame Flanigan’s refusal to participate for the failed
mediation, given that he, alone, could fund a settlement. Flanigan claims he never was
told of the mediation. This factual dispute is immaterial to our decision.
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order unless, before that time, an objection was served on him.
Flanigan signed a declaration dated December 8, 2017, allowing Herman to
withdraw. In that declaration, Flanigan struck the language stating he had received
Herman’s notice of intent to withdraw. McNairy was the only litigant who objected to
Herman’s withdrawal.
On December 19, 2017, the trial court entered an order allowing Herman to
withdraw. In the order, the court directed Herman to mail a copy of the case scheduling
order to each of his former clients.
Herman mailed the case scheduling order to Flanigan, in care of Windermere
Property Management in Spokane.2 Flanigan did not receive the case scheduling order.
Had he received the scheduling order, Flanigan would have known that the trial was set to
begin March 26, 2018.
Prior to trial, McDermott and DePriest settled with McNairy.3 Flanigan did not
appear at the March 26, 2018 trial. The court heard testimony and entered judgment
2
There is a question of fact whether this was an appropriate mailing address for
Flanigan. Flanigan asserts his mailing address was 702 E. Golden Road, in Spokane.
There is no evidence he told Herman this.
3
The record does not reflect how much (or little) each paid to settle.
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against Flanigan in the amount of $115,883.20. Flanigan later learned of the judgment
and settled with McNairy for $47,000.00.
Flanigan then brought suit against Herman for legal malpractice and breach of
fiduciary duty, requesting substantial damages and disgorgement of Herman’s attorney
fees. His claim for damages included the $47,000 he paid McNairy, and damages
resulting from entry of the judgment—including damages to his credit, reputation, and
ability to secure financing for his significant real estate investments.
Herman moved for summary judgment dismissal of Flanigan’s claims. Among
other arguments, Herman argued that his purported malpractice and breach of fiduciary
duty did not proximately cause Flanigan’s damages. The trial court granted Herman’s
motion and dismissed Flanigan’s claims.
Flanigan appeals.
ANALYSIS
Flanigan argues the trial court erred in dismissing his claims on summary judgment
because proximate cause, an element of both of his claims, should have been decided by a
trier of fact. We disagree.
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Standard of review
“We review an order granting summary judgment de novo.” Meyers v. Ferndale
Sch. Dist., 197 Wn.2d 281, 287, 481 P.3d 1084 (2021). “Summary judgment is
appropriate where there is no genuine issue as to any material fact, so the moving party is
entitled to judgment as a matter of law.” Id. “We view the facts and reasonable
inferences in the light most favorable to the nonmoving party.” Id.Summary judgment is proper if the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to that party’s case. Young v.
Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). “An order granting
summary judgment may be affirmed on any legal basis supported by the record.”
Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 514, 475 P.3d 164 (2020).
Proximate cause
Proximate cause is an element both of a legal malpractice claim and a breach of
fiduciary duty claim. See Piris v. Kitching, 185 Wn.2d 856, 861, 375 P.3d 627 (2016)
(legal malpractice); Micro Enhancement Int’l, Inc. v. Coopers & Lybrand, LLP, 110 Wn.
App. 412, 433-34, 40 P.3d 1206 (2002) (breach of fiduciary duty). In N.L. v. Bethel
School District, 186 Wn.2d 422, 436-47, 378 P.2d 162 (2016), our Supreme Court
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explained how courts must analyze proximate cause in the context of a summary
judgment motion:
Proximate cause has two elements: cause in fact and legal cause. “Cause in
fact refers to the ‘but for’ consequences of an act—the physical connection
between an act and an injury.” It is normally a question for the jury. Legal
cause “is grounded in policy determinations as to how far the consequences
of a defendant’s acts should extend.” “In deciding whether a defendant’s
breach of duty is too removed or insubstantial to trigger liability as a matter
of legal cause, we evaluate mixed considerations of logic, common sense,
justice, policy, and precedent.” “[W]here the facts are not in dispute, legal
causation is for the court to decide as a matter of law.”
(alteration in original) (citations and internal quotation marks omitted) (quoting Hartley v.
State, 103 Wn.2d 768, 778, 698 P.2d 77 (1985); Crowe v. Gaston, 134 Wn.2d 509, 518,
951 P.2d 1118 (1998); Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013);
Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998)).
The undisputed evidence is that Flanigan is a sophisticated businessman. He has
been an area manager and mortgage banker for nearly three decades. He is an owner of
Windermere Property Management, and personally owns and invests in properties and
rentals—typically purchasing two or three homes per year as investments. In early
December 2017, Flanigan knew he would be the primary person responsible for paying
McNairy’s damages, and he knew Herman was withdrawing as his attorney. But he did
not know of the March 26, 2018 trial date.
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The remoteness between the negligent act and the injury can be dispositive of the
question of legal causation. Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190,
205, 15 P.3d 1283 (2001). There, defendant rental car company had left keys in a rental
car, a thief stole the car, “went home, went to sleep, and became intoxicated before
criminally causing the accident injuring plaintiff the day after the theft.” Id. On these
facts, the Supreme Court affirmed summary judgment dismissal of the plaintiff’s
negligence claim due to a lack of proximate cause. Id. at 206.
Here, logic, common sense, and justice support our conclusion that Herman’s
failure to provide Flanigan the case scheduling order should not result in Herman’s
liability for Flanigan’s damages. Flanigan authorized Herman’s withdrawal, knew he
would be paying for most of McNairy’s damages, and had several weeks to protect his
financial interests—either by calling Herman or his former business partners to inquire of
the status of the litigation, or by simply hiring his own attorney. Yet Flanigan, a
sophisticated businessman, did nothing. On these facts, we conclude that summary
judgment dismissal of Flanigan’s legal malpractice and fiduciary duty claims was proper
due to a lack of proximate cause.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Lawrence-Berrey, A.C.J.
WE CONCUR:
______________________________ _________________________________
Staab, J. Cooney, J.
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