Evelyn Plant Test. Trust & Jennifer Linth v. Carl Gay, Et Ux

Filed
Washington State
Court of Appeals
Division Two
September 22, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JENNIFER LINTH and the estate of No. 45250-2-II
CAROLYN LINTH; the EVELYN PLANT
TESTAMENTARY TRUST; AND THE
FRANKLYN & EVELYN PLANT GREEN
POINT FOUNDATION,
Consolidated with:
Appellants,
v. No. 45590-1-II
CARL GAY and ROBIN A. GAY, husband and
wife, and the marital community composed
thereof; GREENWAY & GAY, a Washington
legal partnership; GREENWAY, GAY &
ANGIER, a Washington legal partnership;
GREENWAY, GAY & TULLOCH, a
Washington legal partnership; and DANIEL W.
DORAN and CAROL DORAN, husband and
wife, and the marital community composed
thereof,
PART PUBLISHED OPINION
Respondents.
LEE, J. — This litigation involves a legal malpractice action arising from a dispute over an
amendment to the Evelyn Plant Testamentary Trust (“ the Trust”). Carl Gay was hired to draft the
Trust and the First Amendment (“ Amendment”) to the Trust. After Plant’ s death, beneficiaries of
the Trust challenged the validity of the Amendment.
In 2009, Jennifer Linth, in her individual capacity as a beneficiary, brought a legal
malpractice suit against Gay. In 2011, Linth formed the Franklin and Evelyn Plant Green Point
No. 45250-2-II
Foundation (“ the Foundation”). In 2011, the Trust and the Foundation moved to intervene in
Linth’s suit.
Gay moved for summary judgment against Linth, arguing that he did not owe her a duty as
a nonclient beneficiary, and the superior court granted Gay’ s motion for summary judgment. Gay
then moved for summary judgment against the Trust and the Foundation, arguing that the statute
of limitations had expired, and the superior court also granted this motion.
In the published part of this opinion, we hold that Gay did not owe Linth a duty as a
nonclient beneficiary. In the unpublished portion of this opinion, we hold that the statute of
limitations has expired for the Trust’ s and the Foundation’ s claims against Gay. Accordingly, we
affirm the superior court’ s order granting Gay’ s motions for summary judgment and dismissing
all claims against Gay.
FACTS
Evelyn Plant owned and lived on property known as Green Point in Port Angeles,
Washington. In July 2000, Plant retained Gay to create a living trust. On July 22, 2000, Plant
signed the Trust, naming herself trustee.
In relevant part, the Trust provided a gift of $100,000 to Linth. It also provided that if the
Green Point property was part of Plant’ s estate, then it was to be conveyed to Crista Ministries,
Inc., subject to the condition that “[ f]or a period of five (5) years commencing immediately upon
Plant’ s] death, [ Linth] shall be entitled to an estate in the Green Point residence” and “[ u]pon
expiration of the five-year estate, [ Linth] shall be entitled to a life estate in the northeast corner of
the approximately sixty (60) acres.” Clerk’ s Papers (CP) at 606-07.
2
No. 45250-2-II
In August 2000, Plant resigned as trustee and appointed Daniel W. Doran1 as successor
trustee. Gay remained counsel to Doran in his role as trustee.
Also in August 2000, Plant sought to amend the Trust. Gay drafted the Amendment.
On August 22, 2000, Doran took a draft of the Amendment from Gay’ s office and presented
the draft to Plant, who signed it. The Amendment provided that if the Green Point property was
part of Plant’ s estate, then it was to be conveyed, along with $50,000,
to a nonprofit corporation and tax-exempt private foundation to be created by
trustee in accordance with the terms set forth on the document entitled “ THE
FRANKLIN AND EVELYN PLANT GREEN POINT FOUNDATION PLAN”
a copy of which is attached hereto marked Exhibit 1 and by this reference
incorporated herein as though set forth in full. The gift of cash and the Green Point
residence to the Foundation shall be subject to the following:
Linth] shall be entitled to occupy [ Plant’ s] residence at Green Point,
free of any costs, subject to the Foundation plan.
CP at 631-32. However, the referenced Foundation plan did not exist at the time Gay drafted the
Amendment and exhibit 1 was not attached. The Amendment also removed Crista Ministries as a
beneficiary.
Doran hired Linth’ s sister, Claudia Smith, to help create the Foundation in accordance with
the Amendment and Plant’ s wishes. But before the Foundation was created, Plant died on January
1, 2001. In March 2001, Smith presented a Foundation plan to Doran and Gay. Doran and Gay
did not believe that Smith’ s Foundation plan conformed to Plant’ s wishes, and Doran did not adopt
Smith’ s plan.
Crista Ministries, a beneficiary under Plant’ s original Trust but not under the Amendment
to the Trust, disputed the validity of the Amendment. Linth, who was entitled to a life estate to
1
Doran is deceased and his estate is not involved in this appeal.
3
No. 45250-2-II
the entire Green Point property under the Amendment, as opposed to a life estate in only a portion
of the Green Point property under the original Trust, sought to enforce the Amendment.
In 2001, Linth filed a Trust and Estate Dispute Resolution Act ( TEDRA)2 action for a
declaration of rights under the Trust.3 In 2003, Linth and Gay agreed to toll the statute of
limitations for Linth’s potential claims against Gay. In 2004, attorney S. Brooke Taylor began
representing the trustee.
In 2005, Linth signed a Nonjudicial Dispute Resolution Agreement (NDRA) to resolve the
TEDRA action.4 As part of the NDRA, Doran resigned as trustee and personal representative.
In 2009, Linth, in her individual capacity as a beneficiary, filed a legal malpractice against
Gay. Gay moved for summary judgment against Linth, arguing that he did not owe a duty to Linth
because she was not his client. The superior court found that Gay did not have a duty to Linth as
a nonclient beneficiary and granted Gay’s motion. Linth appeals the superior court’ s order of
summary judgment in favor of Gay.
ANALYSIS
Linth argues that the superior court erred by granting Gay’ s motion for summary judgment
because genuine issues of material fact exist about whether Gay owed her a duty as primary
beneficiary of the Trust. We disagree.
2
TEDRA provides that the superior court has jurisdiction over the administration of estates, and
that it may administer and settle all matters relating to trusts. RCW 11.96A.010, .040(1), (3).
3
Linth’ s 2001 petition is not at issue here.
4
Linth has since moved to vacate the order approving the NDRA, which the superior court denied.
In 2010, Linth filed a separate appeal in this court, which is currently pending after being stayed
until 2014. No. 41285-3-II.
4
No. 45250-2-II
A. LEGAL STANDARD
We review a superior court’ s order granting summary judgment de novo. Clark County
Fire Dist. No. 5 v. Bullivant Houser Bailey P.C., 180 Wash. App. 689, 698-99, 324 P.3d 743, review
denied, 181 Wash. 2d 1008 (2014). Further, we engage in the same inquiry as the superior court and
our review is limited to the precise record before the superior court. RAP 9.12; Vernon v. Aacres
Allvest, LLC, 183 Wash. App. 422, 436, 333 P.3d 534 (2014). We resolve all factual disputes and
reasonable inferences in favor of the nonmoving party. Clark County Fire, 180 Wash. App. at 698.
I]ssues of law are not resolved in either party’ s favor, but are reviewed de novo.” Rice v. Dow
Chem. Co., 124 Wash. 2d 205, 208, 875 P.2d 1213 (1994). “Summary judgment is appropriate where
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.” Clark County Fire, 180 Wash. App. at 698.
A] defendant is entitled to summary judgment if (1) the defendant shows the absence of
evidence to support the plaintiff’ s case” and (2) the plaintiff fails to demonstrate a genuine issue
of fact on an element essential to the plaintiff’s case. Clark County, 180 Wash. App. at 699. “ The
nonmoving party may not rely on mere allegations, denials, opinions, or conclusory statements”
to show a genuine issue of fact on an essential element. Parks v. Fink, 173 Wash. App. 366, 374,
293 P.3d 1275, review denied, 177 Wash. 2d 1025 ( 2013). If the nonmoving party fails to
demonstrate the existence of an essential element, then the court should grant summary judgment.
Washington Fed. Sav. & Loan Ass’ n v. McNaughton, 181 Wash. App. 281, 297, 325 P.3d 383, review
denied, 181 Wash. 2d 1011 (2014). We may affirm on any grounds established by the pleadings and
supported by the record. Lane v. Skamania County, 164 Wash. App. 490, 497, 265 P.3d 156 (2011).
5
No. 45250-2-II
A legal malpractice claim requires:
1) [ t]he existence of an attorney-client relationship which gives rise to a duty of
care on the part of the attorney to the client; (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.”
Parks, 173 Wash. App. at 376 (quoting Hizey v. Carpenter, 119 Wash. 2d 251, 260-61, 830 P.2d 646
1992)).
B. LINTH’ S LEGAL MALPRACTICE CLAIM AGAINST GAY
Linth contends that Gay owed her a duty as beneficiary of the Trust. Specifically, Linth
claims that Gay owed her a duty during two distinct periods. First, Linth claims that Gay owed
her a duty before Plant’ s death, when he negligently prepared and executed Plant’ s estate planning
documents, including the Trust and the Amendment to the Trust. Second, Linth claims that Gay
owed her a duty after Plant’ s death, when he negligently represented Doran as personal
representative and trustee. We disagree.
A threshold question in negligence claims is whether, as a matter of law, the defendant
owed the plaintiff a duty of care. Mita v. Guardsmark, LLC, 182 Wash. App. 76, 83, 328 P.3d 962
2014). Generally, only an attorney’s client may bring an attorney malpractice claim. Parks, 173
Wash. App. at 377. However, in limited circumstances, an attorney may owe a nonclient a duty. Id.
Whether an attorney owes a nonclient beneficiary a duty is a question of law. Id.
1. Negligence Before Plant’ s Death: Preparation of Estate Planning Documents
Linth claims that Gay negligently failed to competently draft Plant’ s estate and trust plans
by failing to include the missing attachment to the Amendment to the Trust before Plant died. The
question here is whether Gay, as Plant’ s estate attorney, owed Linth, as a beneficiary, a duty to
6
No. 45250-2-II
properly execute the Trust documents, including a duty to ensure that the Amendment was
complete.
Division One of our court addressed an issue similar to the one here and held that an
attorney does not owe a duty of care to the prospective beneficiary of a client’s estate to promptly
execute a will. Id. at 368. In Parks, the testator, without witnesses or a notary, signed a draft of a
second will, which designated the plaintiff as a beneficiary. Id. at 369. The attorney did not
promptly obtain two witnesses for the testator’ s signature as required by statute for a valid will.
Id. at 370. When the attorney finally attempted to have the testator properly execute the second
will, the testator was physically unable to do so. Id. at 369-70. In the probate proceedings, the
plaintiff submitted declarations stating that the testator wanted the plaintiff to be the primary
beneficiary of his estate. Id. at 371-73. Ultimately, the original will, with no provisions for the
plaintiff, was administered over the plaintiff’ s objections. Id. at 373. The plaintiff brought a legal
malpractice action against the attorney who prepared the will, arguing that the attorney owed him
a duty to promptly execute the second will that named him beneficiary. Id. at 367-68. The plaintiff
argued that he was deprived of his entitlement to the testator’ s property because of the attorney’ s
failure to properly execute the testator’ s will. Id. at 373. The Parks court held that to impose a
duty to prospective beneficiaries to promptly execute a will “ would severely compromise the
attorney’ s duty of undivided loyalty to the client and impose an untenable burden on the attorney-
client relationship.” Id. at 368. As the Parks court held:
Imposition of liability would create an incentive for an attorney to exert pressure
on a client to complete and execute estate planning documents summarily. Fear of
liability to potential third party beneficiaries would contravene the attorney's
primary responsibility to ensure that the proposed estate plan effectuates the client's
wishes and that the client understands the available options and the legal and
practical implications of whatever course of action is ultimately chosen.”
7
No. 45250-2-II
Id. at 387-88 (quoting Krawczyk v. Stingle, 208 Conn. 239, 246-47, 543 A.2d 733 (1988)).
Linth argues that Parks does not apply here because Parks was concerned about
compromising the attorney’ s loyalty to the client. Linth claims that there was no need for Gay to
be concerned about encouraging or influencing Plant because “ by every account, she was deeply
loved by [Plant] for many different reasons.” Br. of Appellant (Linth) at 24. However,
w]hereas a testator and the beneficiary of a will have a mutual interest in ensuring
that an attorney drafts the will non-negligently, a prospective beneficiary may be
interested in the will's prompt execution, while the testator or testatrix may be
interested in having sufficient time to consider and understand his or her estate
planning options.”
Parks, 173 Wash. App. at 388 ( quoting Sisson v. Jankowski, 148 N.H. 503, 509, 809 A.2d 1265
2002)). Linth fails to explain, or offer authority for, her assertion that Parks does not apply
because Plant wanted to provide for her.
The circumstances here closely parallel those in Parks.5 Here, as in Parks, the Trust
documents were not properly executed before Plant’ s death. Further, like Parks, there is evidence
that Plant wanted to provide a life estate for Linth. Because Parks controls, we hold that Gay did
not owe a duty to Linth, a nonclient beneficiary.6
5
Linth asserts that Parks is inapplicable because it dealt with a prospective beneficiary and she is
an actual beneficiary. She provides no authority to support her assertion that the distinction is
consequential. “ Where no authorities are cited in support of a proposition, the court is not required
to search out authorities, but may assume that counsel, after diligent search, has found none.”
DeHeer v. Seattle Post-Intelligencer, 60 Wash. 2d 122, 126, 372 P.2d 193 (1962). Therefore, we do
not consider this argument. RAP 10.3(a)( 6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d
801, 809, 828 P.2d 549 (1992).
6
Linth also asserts, without authority, that the cases cited by Gay discuss the “ duty in the context
of estate planning generally” but “ do not apply to this estate planning setting, which involves the
establishment first of an inter vivos irrevocable trust with testamentary provisions” and “ where an
amendment— whether effective or not—increased the gift to the beneficiary.” Br. of Appellant
8
No. 45250-2-II
Linth relies on In re the Matter of the Guardianship of Karan, 110 Wash. App. 76, 38 P.3d
396 (2002), to support her claim that Gay owed her a duty despite the absence of an attorney-client
relationship. However, Karan is factually and legally distinguishable from the present case.
In Karan, a three-year-old child’ s mother hired an attorney to establish a guardianship for
her child’ s estate, which consisted of the child’ s father’ s life insurance proceeds. Id. at 79. The
mother eventually depleted the estate. Id. The guardian of the child brought a legal malpractice
claim against the mother’ s attorney, claiming that he failed to comply with the guardianship statute
requirements. Id. at 79-80. The superior court granted the attorney-defendant’ s motion for
summary judgment, finding that the defendant did not owe a duty of care to the nonclient
beneficiary of the guardianship. Id. at 80.
Division Three of this court reversed, finding that under the unique circumstances of
guardianship, the attorney owed a duty to the child. Id. at 79. The court in Karan held that while
the court is concerned that imposing a duty to nonclient beneficiaries could “ create an impossible
ethical conflict for lawyers” because beneficiaries and the personal representative of an estate are
often in an adversarial relationship, those concerns were inapplicable in the context of a
guardianship. Id. at 86. The court held that “[ t]he obligation to protect the interests of wards in a
circumstance such as this does not put lawyers in an ethical bind.” Id. The Karan court noted that
the circumstances before it—“a legally incompetent infant ward” in a nonadversarial
relationship— were factually distinguishable from the situation involving two competent adults.
Id. at 84.
Linth) at 18. Because her assertions are not supported by authority, we do not address them. RAP
10.3(a)( 6); Cowiche Canyon Conservancy, 118 Wash. 2d at 809.
9
No. 45250-2-II
The policy concerns present in Karan are not present here because Linth and Plant were
competent adults. Id. at 84. Accordingly, Karan’ s rationale is inapplicable.
2. Negligence After Plant’ s Death: Representation of the Personal Representative and
Trustee
Linth claims that Gay negligently represented Doran, as the personal representative and
trustee, after Plant’ s death.7 Linth apparently claims that Gay’ s duty to Doran included a duty to
her as a nonclient beneficiary. We hold that Gay’ s duty to Doran, as personal representative and
trustee, did not include a duty to Linth, a nonclient beneficiary.
In Trask v. Butler, the court held that “ a duty is not owed from an attorney hired by the
personal representative of an estate to the estate or to the estate beneficiaries.” 123 Wash. 2d 835,
845, 872 P.2d 1080 (1994). The plaintiff in Trask was the successor personal representative and
a beneficiary of his parents’ estate. Id. at 839. The plaintiff brought a legal malpractice claim, on
his own behalf as a beneficiary, against the former personal representative’ s attorney, alleging that
the attorney negligently advised the former personal representative. The Trask court noted:
In Stangland v. Brock, 109 Wash. 2d 675, 747 P.2d 464 ( 1987), we
acknowledged the right of an estate beneficiary to bring a cause of action against
an attorney under the multi-factor balancing test . . . . In finding a duty to
beneficiaries under the multi-factor balancing test, we recognized “ if the
beneficiaries could not recover for the attorney’s alleged negligence, no one could.”
Stangland, at 681, 747 P.2d 454. This rationale is inapplicable to the facts in this
case since estate beneficiaries have two preexisting legal procedures to protect their
interest in the estate. Foremost, the personal representative owes the beneficiaries
of an estate a fiduciary duty to act in the estate’ s best interest. If the personal
representative’ s conduct falls below this standard, the estate beneficiaries may
bring a cause of action against the personal representative for breach of fiduciary
duty. By directing estate beneficiaries to file suit against the personal representative
for breach of fiduciary duty, we properly place the emphasis of estate
decisionmaking upon the correct individual—the personal representative.
7
Linth’ s discussion of this claim contains no citation to authority or to the record.
10
No. 45250-2-II
Id. at 843 (internal citations omitted).
Here, Linth has alternative methods to address her claims—methods that she has utilized.
She can, and has, brought a complaint against the trustee and personal representative of the estate.
Accordingly, the concerns expressed in Stangland and noted in Trask do not apply in this case.
In the absence of any authority that Gay owed her a duty or that Trask does not control this
issue, Linth has not met her burden to establish that Gay owed her a duty as a nonclient beneficiary.
Thus, because Linth has not met her burden to establish that Gay owed her a duty as a nonclient
beneficiary, summary judgment in favor of Gay was appropriate.
A majority of the panel having determined that only the foregoing portion of the opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2.06.040, it is so ordered.
FACTS
In 2011, Jennifer Linth formed the Franklin and Evelyn Plant Green Point Foundation (“ the
Foundation”). Also in 2011, the Trust and the Foundation moved to intervene in Linth’s suit. Gay
moved for summary judgment against the Trust and the Foundation, arguing that the statute of
limitations had expired. The superior court granted the motion for summary judgment and
dismissed the Trust’ s and the Foundation’ s claims. We hold that the statute of limitations has
expired for the Trust’ s and the Foundation’ s claims against Gay. Therefore, we affirm the superior
court’ s order granting summary judgment in favor of Gay.
In July 2008, Linth was appointed trustee of the Trust. On February 2011, Linth formed
the Franklin and Evelyn Plant Green Point Foundation (“ the Foundation”). 8
8
Linth was listed as registered agent and as a director.
11
No. 45250-2-II
On October 7, 2011, the Trust and the Foundation moved to intervene in Linth’ s 2009 legal
malpractice claim against Gay. The superior court granted the motion, finding that it could not
determine whether the statute of limitations had run or whether Gay owed a duty to the Trust or
the Foundation based on the evidence presented.
Gay moved for summary judgment against the Trust and the Foundation, arguing that the
statute of limitations expired and that he did not owe either the Trust or the Foundation a duty.
The superior court agreed with Gay and granted Gay’ s motion. The Trust and the Foundation
appeal the superior court’ s order of summary judgment in favor of Gay.9
ANALYSIS
A. LEGAL STANDARD
We review a superior court’ s order granting summary judgment de novo and engage in the
same inquiry as the superior court. Clark County Fire Dist. No. 5, 180 Wash. App. at 698-99.
Further, in reviewing a motion for summary judgment, our review is limited to the record before
the superior court. RAP 9.12; Vernon, 183 Wash. App. at 436. We resolve all factual disputes and
reasonable inferences in favor of the nonmoving party. Clark County Fire, 180 Wash. App. at 698.
I]ssues of law are not resolved in either party’ s favor, but are reviewed de novo.” Rice, 124
Wash. 2d at 208. “Summary judgment is appropriate where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” Clark County Fire, 180 Wn.
App. at 698.
9
This court consolidated the Foundation’ s appeal, cause no. 45590-1-II, with Linth’ s appeal, under
cause no. 45250-2-II.
12
No. 45250-2-II
A] defendant is entitled to summary judgment if (1) the defendant shows the absence of
evidence to support the plaintiff’ s case” and (2) the plaintiff fails demonstrate a genuine issue of
fact on an element essential to the plaintiff’ s case. Id. at 699. “The nonmoving party may not rely
on mere allegations, denials, opinions, or conclusory statements” to show a genuine issue of fact
on an essential element. Parks, 173 Wash. App. at 374. If the nonmoving party fails to demonstrate
the existence of an essential element, then the court should grant summary judgment. Washington
Fed., 181 Wash. App. at 297. We may affirm on any grounds established by the pleadings and
supported by the record. Lane, 164 Wash. App. at 497.
A legal malpractice claim requires:
1) [ t]he existence of an attorney-client relationship which gives rise to a duty of
care on the part of the attorney to the client; (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.”
Parks, 173 Wash. App. at 376 (quoting Hizey, 119 Wash. 2d at 260-61).
B. THE TRUST AND THE FOUNDATION V. GAY
The Trust and the Foundation contend that the superior court erred by granting Gay’ s
motion for summary judgment because genuine issues of material fact exist about whether the
statute of limitations has expired.10
10
To the extent that the Trust and the Foundation argue that the superior court improperly
considered Gay’ s reply declaration, we do not address this argument because the Trust and the
Foundation fail to offer any citation to authority as required by RAP 10.3(a)(6). Cowiche Canyon
Conservancy, 118 Wash. 2d at 809.
Furthermore, the Trust and the Foundation argue that Gay’ s reply declaration contained
legal arguments, new facts, and hearsay. However, the Trust’ s and the Foundation’ s claims are
belied by the record. There is no evidence that the superior court considered improper legal
arguments or that the declaration introduced new facts. Moreover, the statements that the Trust
and the Foundation recite as “ glaring” examples of hearsay are not out of court statements and thus
13
No. 45250-2-II
1 Columbia Gorge Audubon Society v. Klickitat County
In the Trust and the Foundation’ s motion for reconsideration before the superior court, they
argued that under Columbia Gorge, once their motion for intervention was granted, the statute of
limitations no longer applied. Columbia Gorge Audubon Soc’ y v. Klickitat County, 98 Wash. App.
618, 989 P.2d 1260 (1999). We disagree.11
The Trust and the Foundation mischaracterize Columbia Gorge. In Columbia Gorge, the
appellants, the Confederated Tribes and Bands of the Yakama Indian Nation, filed a timely petition
for review of a Klickitat County Board of Adjustment decision. Columbia Gorge, 98 Wash. App. at
621. Klickitat County moved to dismiss because the Yakama Nation failed to join indispensable
parties. Id.. The Yakama Nation voluntarily dismissed its petition. Id. The Columbia Gorge
Audubon Society also filed a timely petition for review of a Klickitat County Board of Adjustment
decision. Id. Approximately one month after the allowable period to petition for review, the
Yakama Nation filed a motion to intervene in the Audubon Society’ s action. Id. at 622. Klickitat
County objected, arguing that the Yakama Nation’ s motion was untimely because it failed to
perfect its own timely appeal. Id. The superior court denied the motion, finding that the Yakama
Nation’s motion for intervention was untimely. Division Three of this court reversed, holding that
do not constitute hearsay. Amended Reply Br. of Appellant ( Trust and Foundation) at 12; ER
801(c) (hearsay is an out of court statement offered for the truth of the matter asserted).
11
The Trust and the Foundation did not present their arguments based on Columbia Gorge in the
summary judgment motion before the superior court. Instead, they raised this argument for the
first time in their motion for reconsideration. Generally, a party is not permitted to present new
argument based on new authority on a motion for reconsideration. Wilcox v. Lexington Eye Inst.,
130 Wash. App. 234, 241, 122 P.3d 729 (2005); JDFJ Corp. v. Int'l Raceway, Inc., 97 Wash. App. 1,
7, 970 P.2d 343 ( 1999). However, it appears that the trial court considered this argument on
reconsideration. Therefore, we will address it.
14
No. 45250-2-II
the trial court erred by denying the appellant’ s motion for intervention, despite its untimeliness,
because in part, the “ Yakama Nation is not seeking damages. So here, win or lose, the outcome”
is the same, regardless of intervention. Id. at 628.
Columbia Gorge is factually and procedurally distinguishable. Here, after the statute of
limitations had expired for claims to be brought against Gay, the Trust and the Foundation
intervened in Linth’ s action. But, Linth’s action was timely only because of Linth and Gay’s
tolling agreement. Without Linth and Gay’ s tolling agreement, Linth’s action also would have
been barred by the statute of limitations. Significantly, the Trust and the Foundation were not
included in or party to the tolling agreement. Those not party to the agreement may not later seek
intervention as a means to benefit from the terms of the agreement. See Touchet Valley Grain
Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wash. 2d 334, 342-43, 831 P.2d 724 (1992)
holding that a non-party to a contract cannot claim benefits under the contract). Accordingly,
Columbia Gorge does not apply to the facts of this case.
2. The Trust’ s Claims
The Trust argues that the superior court improperly granted Gay’ s motions for summary
judgment because genuine issues of material fact exist about whether the statute of limitations has
expired. Because the Trust fails to cite to authority to support its claims or demonstrate that any
genuine issue of material fact exist, we disagree.12
12
The Trust and the Foundation do not offer argument or authority regarding Gay’ s duty. For the
purposes of this opinion, we assume without deciding that Gay owed it a duty.
15
No. 45250-2-II
a. Statute of limitations claim
The statute of limitations for attorney malpractice action is three years. RCW 4.16.080(3);
Hipple v. McFadden, 161 Wash. App. 550, 557, 255 P.3d 730, review denied, 172 Wash. 2d 1009
2011). Whether the statute of limitations has expired is a legal question, but the underlying
circumstances that give rise to the action are questions of fact. Goodman v. Goodman, 128 Wash. 2d
366, 373, 907 P.2d 290 ( 1995). The statute of limitations on an action begins to run when the
cause of action accrues, measured by when the plaintiff has a right to seek relief. Janicki Logging
Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 109 Wash. App. 655, 659, 37 P.3d 309 (2001).
W]hen reasonable minds could reach but one conclusion, questions of fact may be determined
as a matter of law.” Clare v. Saberhagen Holdings, Inc., 129 Wash. App. 599, 603, 123 P.3d 465,
review denied, 155 Wash. 2d 1012 (2005).
Washington courts apply the “ discovery rule,” which provides that the statute of limitations
begins to run when the client discovers, or exercising due diligence, should have discovered, the
facts that give rise to the cause of action. Janicki, 109 Wash. App. at 659. The discovery rule is also
applied where the defendant fraudulently conceals material facts from the plaintiff. Crisman v.
Crisman, 85 Wash. App. 15, 20, 931 P.2d 163, review denied, 132 Wash. 2d 1008 (1997). Under the
discovery rule, “[ t]he plaintiff bears the burden of proving that the facts constituting the claim were
not and could not have been discovered by due diligence within the applicable limitations period.”
Clare, 129 Wash. App. at 603.
However, the date the plaintiff discovers facts giving rise to a malpractice claim is not
dispositive. The “ continuous representation” rule tolls the statute of limitations “ during the
lawyer’ s representation of the client in the same matter from which the malpractice claim arose.”
16
No. 45250-2-II
Janicki, 109 Wash. App. at 663-64; Hipple, 161 Wash. App. at 557. Accordingly, even if the plaintiff
discovers facts giving rise to a malpractice claim, but the attorney continues to represent the
plaintiff, the statute of limitations is tolled. See Hipple, 161 Wash. App. at 558. Generally, the
determinative event for the continuous representation rule is termination of the representation of
the matter giving rise to the malpractice claim. Id. at 558-59 (“ The inquiry is not whether an
attorney-client relationship ended but when the representation of the specific subject matter
concluded.” Termination can be implied from circumstantial evidence and does not require
counsel to formally withdraw. Id. at 558. “ As there is no bright-line rule for determining when
representation ends, particular circumstances most often present an issue of fact.” Id. at 558.
a. The “ discovery rule”
In Gay’ s motion for summary judgment, he claimed that the statute of limitations had
expired because the Trust was aware, or should have been aware, of any facts giving rise to a
malpractice claim in 2000 or 2001.13 The Trust contends that “[ t]his action was brought within
three years of the disclosure and release of some of the documents provided to Ms. Linth, but not
all, namely those withheld under a dubious claim of attorney-client privilege.” Amended Br. of
Appellant (Trust and Foundation) at 34, n.14.
On summary judgment, the nonmoving party cannot rely on “ mere speculative and
argumentative assertions.” Adams v. King County, 164 Wash. 2d 640, 647, 192 P.3d 891 (2008). In
asserting the discovery rule, the Trust has the burden to prove that the facts giving rise to its claim
13
In Gay’ s motion for summary judgment, he asserted that the statute of limitations began to run
on either August 22, 2000, or January 1, 2001, based on his alleged negligent drafting.
Alternatively, Gay argued that the statute of limitations began to run in 2004, when attorney S.
Brooke Taylor replaced him “as attorney for the trust and for [Doran], the trustee.” CP at 351.
17
No. 45250-2-II
were not and could not have been discovered by due diligence within the applicable limitations
period.” Clare, 129 Wash. App. at 603. The Trust had the burden to come forward with some
evidence that Gay concealed information giving rise to the malpractice claim. See Clare, 129 Wn.
App. at 603; see also Crisman, 85 Wash. App. at 20.
Linth’s declaration, in her capacity as trustee, states that she was appointed trustee in 2008.
Linth, in her capacity as trustee, claims that in 2008, the Trust’ s attorney shared documents with
her, and in those documents, she discovered information related to Gay’ s alleged malpractice in
October 2008.14 Aside from bald assertions, the Trust did not provide any evidence that Gay
wrongfully withheld or concealed documents, or otherwise prevented Linth, as trustee, or the
former trustees, from discovering the documents. Moreover, the Trust did not provide any
evidence that a trustee could not have discovered the facts giving rise to the cause of action until
2008.
The Trust has provided no authority or support for its claim that the statute of limitations
should be tolled under the discovery rule because Linth, as trustee, first saw documents in 2008
when she was appointed trustee. Here, and before the superior court, the Trust has merely stated
that it discovered documents in 2008. But, the Trust has not demonstrated how these documents
14
Gay argued that the statute of limitations began to run when Doran, as trustee, became aware of
facts giving rise to a claim—not when Linth, as the second successor trustee to Doran—discovered
the facts giving rise to a malpractice claim. The fact that Linth had access to the documents
because she was trustee, and that the Trust’ s attorney had access to the documents, suggests that
the former trustees also had access prior to 2008. Logically, if the Trust is correct that the statute
of limitations began to run each time a new trustee was appointed, attorneys would be perpetually
at risk of new malpractice actions each time a new trustee was appointed, which would defeat the
purpose of the statute of limitations.
18
No. 45250-2-II
gave rise to its claim, or that it did not and could not have discovered the information giving rise
to its claim prior to 2008.
The Trust asserts that Gay had a conflict of interest when he advised the trustee in matters
related to Gay’ s own legal work.15 The Trust argues that the statute of limitations was tolled
because Gay concealed that conflict.16 However, the Trust does not argue that Gay concealed his
conflicts of interest from the Trust—rather, it argues that Gay concealed his conflicts of interest
from the Trust beneficiaries. Furthermore, the Trust does not argue that Gay’ s concealment from
the Trust beneficiaries prevented the Trust from discovering the facts giving rise to the malpractice
action. Even assuming that Gay intentionally failed to disclose conflicts of interest to the Trust
beneficiaries, the Trust does not argue or demonstrate that it did not and could not discover facts
giving rise to its malpractice action until 2008. Accordingly, the Trust’ s argument that Gay’ s
alleged concealment of conflicts of interest tolled the statute of limitations fails.
The Trust has not met its burden to demonstrate that because of Gay’ s actions, it did not
and could not discover the facts giving rise to its claim within the applicable limitations period.
15
Much of the Trust’ s supporting documents are dated 2000 and 2001— the Trust does not offer
explanation about which documents it first discovered in 2008. Furthermore, the Trust’ s own
supporting documents suggest that it had access to the information that it alleges Gay withheld. It
relies on requests for production to Doran, which, in relevant part, states that although Doran
objected on the basis of attorney-client privilege, “respondent’ s counsel [Gay] previously provided
petitioners with the complete legal memorandum by e-mail attachment on October 1, 2001.” CP
at 414 (emphasis added).
16
To the extent that the Trust argues that the statute of limitations is tolled because Gay prevented
Doran from forming the Foundation in light of Gay’ s realization of a potential malpractice claim,
there is no evidence in the record to support the argument to create a genuine issue of material fact.
19
No. 45250-2-II
Accordingly, the discovery rule does not operate to toll the statute of limitations. Clare, 129 Wn.
App. at 603.
b. Continuous representation
Here, Gay was retained by Plant in 2000. Gay then represented Doran, in Doran’ s capacity
as trustee. At some point in 2002, Taylor was brought in to assist Gay. In 2004, Taylor replaced
Gay as counsel for the Trust and trustee.17 In 2005, Doran resigned from his role as trustee and
personal representative. There is no evidence or claim that Gay represented any trustee other than
Doran or that he was involved when Doran was not trustee. There also is no evidence in the record
that Gay was involved in the Trust affairs after 2004.
Assuming without deciding that Gay represented the Trust and thereby owed it a duty,
Gay’s representation ended in 2004 when Taylor replaced Gay as counsel for the Trust. Therefore,
under the continuous representation rule, the statute of limitations began to run in 2004 and would
have expired in 2007. Even if we assume without deciding that Gay represented the Trust until
Doran resigned as trustee in 2005, the statute of limitations would have begun to run in 2005 and
expired in 2008. See RCW 4.16.080(3); Hipple, 161 Wash. App. at 557-58. The Trust filed its
action in 2011. Accordingly, the Trust’ s claims are barred by the statute of limitations.
Thus, the Trust, by relying on argumentative assertions, does not meet its burden to survive
summary judgment because it provided no evidence or authority demonstrating a genuine issue of
material fact. Therefore, we affirm the superior court’ s order granting summary judgment.
17
To the extent that the Trust argues that a formal withdrawal from representation is necessary,
the claim fails. Hipple, 161 Wash. App. at 558 (holding that “ de facto termination can be implied
from circumstantial evidence”).
20
No. 45250-2-II
3. The Foundation’ s claims
The Foundation argues that Gay owed it a duty and that the statute of limitations was tolled
until it was created. We disagree.
The Foundation was created in 2011. Gay was involved in Plant’ s affairs until 2004. The
Foundation has offered no authority to support its claim that that the scope of Gay’s duty to his
former clients from 2000-2004 extends to a foundation formed in 2011, or that the statute of
limitations for a legal malpractice claim should be tolled from the time Gay ended his involvement
in 2004 until the Foundation was formed in 2011. Therefore, in the absence of authority, we reject
the Foundation’ s argument that Gay owed the Foundation a duty and that the statute of limitations
tolled for the Foundation until it was created in 2011. RAP 10.3(a)( 6); Cowiche Canyon, 118
Wash. 2d at 809.
We affirm the superior court’ s orders granting summary judgment and dismissing all
claims against Gay.
Lee, J.
We concur:
Worswick, P.J.
Maxa, J.
21