CP0260 90899 1 Petition For Review
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Tue 10/7/2014
4:06PM
Court of Appeals Cause No.
43674-4-II
rN THE SUPREME COURT OF THE STATE
OF WASHrNGTON
ALAN J. VEYS; LONE EAGLE RESORTS, INC.; and
ALAN J. VEYS PROPERTIES, LLC, Respondents
v.
MICHAEL LONG, an attorney at law, and ANN LONG,
his wife, and the marital community property comprised
thereof; OFFICE OF P. MICHAEL LONG; and P.
MICHAEL LONG, P.S., INC., a professional services
corporation, Petitioners
PETITION FOR REVIEW
James E. Mountain, Jr., WSB #35290
Frank A. Moscato, WSB #32710
C. Robert Steringer, WSB #41229
Attorney for Petitioners,
Michael Long, Office of P.
Michael Long, and P. Michael
Long, P. S. Inc.
Harrang Long Gary Rudnick P.C.
1001 SW Fifth Avenue, 16th Floor
Portland, OR 97204
(503) 242-0000
TABLE OF CONTENTS
I.
IDENTITY OF PETITIONERS AND INTRODUCTION
TO PETITION ................................................................................ 1
A.
Petitioners ........................................................................... 1
B.
Introduction ......................................................................... 1
II.
CITATION TO COURT OF APPEALS DECISION ..................... 2
III.
ISSUES PRESENTED FOR REVIEW .......................................... 2
IV.
A.
Issues ................................................................................... 2
B.
Significance of Issues ......................................................... 3
STATEMENT OF THE CASE ....................................................... 4
A.
B.
V.
Relevant Facts ..................................................................... 4
1.
The failed real estate transaction ............................. 4
2.
The Wyoming Litigation ......................................... 6
Procedural History .............................................................. 7
1.
The Cowlitz County transactional
malpractice litigation .............................................. 7
2.
The Court of Appeals .............................................. 8
ARGUMENT .................................................................................. 9
A.
The Court of Appeals announced an entirely new
rule of proximate causation in legal transaction
malpractice cases that is inconsistent with Supreme
Court jurisprudence ........................................................... 10
11
VI.
B.
The Court of Appeals erroneously expanded its own
rule of proximate cause in business transaction legal
malpractice cases .............................................................. 14
C.
The Court of Appeals decision reversing the grant of
partial summary judgment frustrates the purposes of
the summary judgment process itself.. .............................. 16
CONCLUSION ............................................................................. 19
1
TABLE OF AUTHORITIES
Page(s)
Cases
Balise v. Underwood,
62 Wash.2d 195,381 P.2d 966 (1963) ................................................. 18
City of Seattle v. Blume,
134 Wn.2d 243, 94 7 P .2d 223 (1997) ............................................ 11, 13
Gibbons v. Ludlaw,
2013 CO 49,304 P.3d 239 (2013) ................................................. 12, 16
Hizey v. Carpenter,
119 Wn.2d 251, 830 P.2d 646 (1992) ................................................. .11
Morris v. McNicol,
83 Wn.2d 491, 519 P.2d 7 (1974) ......................................................... .4
Sherry v. Diercks,
29 Wash.App. 433,628 P.2d 1336 (1981) .................................... .11, 15
Smith v. Preston Gates Ellis, LLP,
135 Wash.App. 859, 147 P.3d 600 (2006) ..................................... 15, 16
Veys v. Applequist,
2007 WY 60, 155 P .3d 1044 (2007) .................................................. 6, 7
Other Authorities
Civil Rule 56(c) .................................................................................... 17, 18
Rules of Appellate Procedure,13.4(b)(l) ........................................... 3, 9, 19
Rules of Appellate Procedure, 13.4(b)(2) .......................................... 3, 9, 19
RulesofAppellateProcedure, 13.4(b)(4) .................................... 3,9, 17,19
I.
IDENTITY OF PETITIONERS AND INTRODUCTION TO
PETITION.
A.
Petitioners.
Petitioners Michael Long, Office ofP. Michael Long, and P.
Michael Long, P.S., Inc. (collectively "Long") ask this court to accept
review of the Court of Appeals decision designated in Part II of this
petition for review.
B.
Introduction.
In an unpublished opinion, the Washington Court of Appeals
Division II assumed the role of the Washington Supreme Court to
announce and apply a new development of Washington common law
regarding a lawyer's liability for damages for legal malpractice in
handling the sale of a business and related property. In the same
unpublished opinion, the Court of Appeals unduly depreciated the valuelong recognized by the Washington Supreme Court--of the summary
judgment process to efficiently and effectively administer justice in this
state.
To preserve its principal role in the development of the common
law of Washington, the Supreme Court should accept review of the
intermediate appellate court's unpublished decision in this case. To
forestall the intermediate court's unwarranted and hidden importation of
Colorado law and that court's devaluation of the summary judgment
2
process, the Supreme Court should reverse the Court of Appeals decision
on the two crucial aspects of the case.
II.
CITATION TO COURT OF APPEALS DECISION.
Long seeks review of the Unpublished Opinion filed on August 12,
2014, by the Court of Appeals, Division II (hereafter "Court of Appeals"),
reversing the superior court's decision in Long's favor. A copy ofthe
Unpublished Opinion appears in the Appendix at pages A-1 - A-16.
On September 12, 2014, the Court of Appeals filed an order
denying Long's Combined Motions for Publication of its decision and for
Reconsideration. A copy of the order is in the Appendix at pages A-17A-18.
III.
ISSUES PRESENTED FOR REVIEW.
A.
Issues.
1.
As a matter of Washington common law, does a lawyer's
negligence, in representing the seller in negotiations of a contract to sell a
business, expose the lawyer to liability for damages measured by the
amount of a judgment in an ensuing action brought by the would-be
purchaser against the seller who elects to breach the contract?
2.
May a client in a transactional legal malpractice case
establish proximate causation by demonstrating that but for a lawyer's
3
malpractice, the other parties would have walked away from a failed
transaction?
3.
Does it frustrate the purposes underlying summary
judgment for an appellate court to reverse a trial court's grant of a motion
for summary judgment on alternative grounds?
B.
Significance of Issues.
For the following reasons, the issues presented have overarching
significance and, accordingly, this Court should accept review under RAP
13.4(b)(l), (2) and (4):
First, the Court of Appeals adopted an expanded concept of
proximate causation in legal malpractice cases involving business
transactions: a disappointed client who chooses to breach a contract that
the client's lawyer negligently formed may hold the lawyer liable for
damages in the amount of a judgment against the client in an ensuing
action for breach of contract. The expansion of the scope of a business
transactions lawyer's potential liability to a client over a failed sale is a
matter of substantial public interest, particularly for the business law
practice segment of the Bar.
Second, the Court of Appeals has expanded the prior limits of its
own rule regarding legal malpractice liability in business transaction
matters by holding that a client can establish sufficient proximate
4
causation by showing that the client would have been better off had the
other parties to the deal walked away from the underlying transaction.
Notably, the Court of Appeals drew upon a nonbinding Colorado Supreme
Court opinion to support its expanded, albeit unpublished rule.
Third, the Court of Appeals failed to recognize the important
purposes served by the summary judgment procedure by reversing the
superior court's grant of summary judgment on an alternative ground as
premature, even though the superior court ruling was relevant to the extent
of the potential liability of Long in any event.
IV.
STATEMENT OF THE CASE.
A.
Relevant Facts.
This case arises from Long's alternate motions for summary
judgment. Accordingly, Long here describes the record facts in the light
most favorable to Veys. Morris v. McNicol, 83 Wn.2d 491,494,519 P.2d
7(1974).
1.
The failed real estate transaction.
Petitioner Long, a lawyer, aided Respondent Veys in negotiating a
sale of an Alaska fishing lodge to three men from Wyoming (collectively
"purchasers"). CP0003-CP0007. During a full day of face-to-face
negotiations among the parties and their lawyers in Washington on May
30, 2004, Veys presented certain terms which the purchasers rejected.
5
CP0292. lfVeys had insisted on those terms, purchasers would have
walked away from the deal as friends. CP0293. Purchasers emailed a
draft purchase and sale agreement ("PSA") to Veys and Long on May 31,
2004. CP0007 -CP0008; CPO 194-CPO 196.
On May 31, 2004, Long sent Veys the purchasers' draft PSA as an
email attachment, but Veys was unable to open the document. A-4
(Opinion at 4). Long did not confirm that Veys had received the draft
PSA, and Long did not review the terms of the draft PSA with Veys. /d.
Long faxed Veys the PSA signature page, which Veys signed and returned
to Long. /d. Under the particular terms and circumstances of the
negotiations, Veys' signature completed a contract to sell the Lodge. /d.
Because V eys had not reviewed the PSA, he did not realize that
changes he earlier had requested had not been included in the PSA. /d.
Almost immediately after signing the PSA, Veys admitted he was
suffering from "seller's remorse." CP0213; CP0215. Just three days after
signing the PSA, V eys made it known to Long that he was no longer
happy with the PSA and he now wanted the option to back out if his terms,
many of which the purchasers previously had rejected, were not met.
CP0220. After Veys attempted over several months to renegotiate the
agreement, purchasers filed a lawsuit in Wyoming on October 7, 2004, to
enforce the PSA. CP0259.
6
2.
The Wyoming Litigation.
Early in the Wyoming litigation, sometime in February 2005,
purchasers offered to settle their lawsuit ifVeys would agree to one of the
following two options: (1) Veys would sell the Lodge and his Pybus Point
residence to purchasers for $2 million; or (2) purchasers would dismiss
their lawsuit and release Veys of all liability for $300,000. CP0167;
CP0260. Through his Wyoming attorney, Veys rejected the offer.
CP0168; CP0260.
The case proceeded to trial, during which Veys admitted, under
oath on the witness stand, that he knew he had a binding contract with
purchasers when he signed the PSA. CP0263-CP0268. After Veys
testified, but before the jury returned a verdict, purchasers offered to settle
the lawsuit for $1 million. CPO 168; CP0292. Through his Wyoming
attorney, Veys rejected the offer. CP0168.
Veys denied that he was ever notified of any of the settlement
offers. CP0290.
On December 20, 2005, the jury found that Veys had entered into a
binding contract on June 3, 2004, when he authorized his signature page
be released by Long. CPOO 17. The jury returned a verdict for damages of
$3 million. Veys v. Applequist, 2007 WY 60, 155 P.3d 1044, 1046 (2007).
7
Veys appealed the trial court judgment on the verdict, but the
Wyoming Supreme Court upheld the judgment in its entirety. Veys, 155
P.3d at 1053.
B.
Procedural History.
1.
The Cowlitz County transactional malpractice
litigation.
Veys sued Long in Cowlitz County Superior Court arguing that as
a result of Long's actions, he suffered more than $3 million in economic
damages. Veys' principal allegations of negligence were that Long: (a)
failed to protect Veys' interests in the negotiation ofthe PSA; and (b)
failed to prevent Veys from executing the PSA. CP0021-CP0024. In the
complaint, Veys sought only the $3 million damages related to the
judgment, attorney fees, lost profits and expenses associated with the
Wyoming Litigation. CP0024-CP0025.
Long moved for summary judgment in a Motion for Summary
Judgment and in an Alternative Motion for Partial Summary Judgment.
Long's points were: (a) Veys' decision to breach the PSA, not any actions
by Long, was the "but for" cause of the judgment entered against Veys in
the Wyoming Litigation; and in the alternative, (b) Veys' damages must
be capped as a matter of law at $300,000, because any greater amount was
caused by the unforeseeable superseding negligence ofVeys' lawyer in
8
the Wyoming Litigation who, according to V eys, never communicated
three settlement offers to Veys. CP0138-CP0139.
Superior Court Judge Woolard granted Long's Motion for
Summary Judgment and in the Alternative Partial Summary Judgment.
CP 0843-0860. In a letter ruling dated April26, 2012, the superior court
judge said:
"It is apparent to me that the plaintiff knew
of the PSA and for whatever reason decided
not to perform under the contract. This was
of his own volition which was thoroughly
vetted in the Wyoming lawsuit brought by
the buyer that resulted in a verdict against
Veys."
CP0793.
In an Order Granting Defendants' Motions for Summary Judgment
dated June 14, 2012, Judge Woolard granted Long's summary judgment
motion "as to all claims" and dismissed Veys' claims "in their entirety,
with prejudice." CP0859.
2.
The Court of Appeals.
On August 12, 2014, the Court of Appeals issued its Unpublished
Opinion ("Opinion") on Veys' appeal of the superior court's decision.
The Opinion reversed the superior court's dismissal ofVeys' legal
malpractice claim related to the sale of the lodge, finding that "V eys
asserted specific facts to rebut Long's claims and to establish a question of
9
material fact about whether Long's alleged negligence was the proximate
cause ofVeys' injuries." A-14 (Opinion at 14). The Opinion also
reversed the superior court's imposition of a $300,000.00 cap on Veys'
damages, finding that the superior court's ruling on this damages cap was
"premature" because the superior court had granted Long's primary
motion for full summary judgment. A-15 (Opinion at 15). The Court of
Appeals affirmed the trial court's summary judgment dismissal ofVeys'
other claims for malpractice, but it further ordered that its Opinion should
be filed for public record and not published in the Washington Appellate
Reports. A-16 (Opinion at 16).
On August 29, 2014, Long filed Combined Motions for
Publication and for Reconsideration. On September 12, 2014, the Court of
Appeals filed an order denying the motions. A-17-A-18.
V.
ARGUMENT.
The Supreme Court should accept this petition for review because
the Court of Appeals decision is in conflict with, or at best inconsistent
with, Washington Supreme Court jurisprudence regarding legal
malpractice liability, see RAP 13 .4(b)(1 ); the intermediate court's decision
conflicts with its own precedent, see RAP 13.4(b)(2); and the petition for
review involves an issue of substantial public interest that should be
determined by the Supreme Court. See RAP 13.4(b)(4).
10
This case is framed by a.disappointed client's pleading of a legal
malpractice case against his business lawyer for damages measured by the
amount of a judgment resulting from the client's choice to breach a
contract, which the lawyer assisted the client in preparing, but which the
client no longer wished to pursue. By denying summary judgment
dismissal in favor of the business transaction lawyer, whose client's
decision to breach the perceived faulty contract was the proximate cause
of his damages, the Court of Appeals rendered the business transaction
lawyer the guarantor of the business client's satisfaction and success. The
Supreme Court should step in and say that that is not the law in this State.
A.
The Court of Appeals announced an entirely new rule
of proximate causation in legal transaction malpractice
cases that is inconsistent with Supreme Court
jurisprudence.
This court has laid out a clear course for development of the law
regarding legal malpractice liability:
"To establish a claim for legal malpractice, a
plaintiff must prove the following elements:
( 1) The 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
.··
11
(4) proximate causation between the
attorney's breach of the duty and the damage
incurred."
Hizey v. Carpenter, 119 Wn.2d 251,260-61,830 P.2d 646 (1992). In the
present case and for purposes of summary judgment, Long conceded the
issues of duty and breach with respect to the formation of the PSA. A-11
(Opinion at 11). Accordingly, the Court of Appeals' decision and this
petition focus principally on the concept of proximate cause. /d.
Proximate cause "consists of two elements: cause in fact and legal
causation." City ofSeattle v. Blume, 134 Wn.2d 243,251-52,947 P.2d
223 (1997). "Legal causation rests on policy considerations determining
how far the consequences of a defendant's acts should extend." !d. On the
other hand, "[c]ause in fact refers to the 'but for' consequences of an act,
that is, the immediate connection between an act and an injury." /d. In
the context of a transactional legal malpractice case, such as the one at
issue in this petition, in order to establish proximate cause and defeat
summary judgment, a plaintiff must demonstrate that "but for" the
attorney's negligence, he would have obtained a better result. See Sherry
v. Diercks, 29 Wash.App. 433, 438, 628 P.2d 1336 (1981).
The Court of Appeals in the present case charted a new course for
the development of proximate causation in transactional legal malpractice
cases: by turning from Washington Supreme Court precedents to a
12
Colorado Supreme Court decision, Gibbons v. Ludlaw, 2013 CO 49, 304
P.3d 239 (2013), to extract the notion that a "better result" could include
the other parties' "just walking away" from a business deal. Unhinged
from Washington Supreme Court precedent, the Court of Appeals seized
on evidence that the putative purchasers in Veys' transaction would have
walked away from the deal if Veys and his attorney Long had been more
aggressive in early negotiations. The Court of Appeals went too far to
conclude that a lawyer may be held liable for not causing others to
abandon the negotiation and, where his client chooses to breach a contract
that was negligently formed, the client's injury will be measured by the
damages suffered as a result of ensuing litigation regarding the client's
breach.
The Supreme Court should grant this petition for review in order to
clarify whether a transactional attorney may indeed be held liable under
such circumstances.
In this case, V eys argued to the Court of Appeals that Long was
negligent in (1) failing to inform Veys that the PSA did not include Veys'
desired terms; (2) failing to review the PSA with Veys despite knowing
that V eys could not open the PSA; and (3) failing to explain to Veys the
impact ofthe PSA's expedited contract provision. A-13 (Opinion at 13).
In reversing the superior court's grant of summary judgment on the legal
13
malpractice issue, the Court of Appeals found a proximate cause link
between these alleged acts of negligence by Long and the formation of the
PSA. !d. However, the Court of Appeals went a step further and
additionally found a proximate cause link between the alleged negligence
and Veys' subsequent breach of the PSA. A-14 (Opinion at 14). ("As a
result, there is sufficient evidence to show that but for Long's negligence,
V eys would not have signed the PSA, the PSA would not have been
executed, and Veys could not have breached it.") (emphasis added). The
critical evidence for the appeals court was a statement by the purchasers'
lawyer that all the parties would have walked away from the deal as
friends If Veys and Long had insisted on particular terms early in
negotiations. A-13- A-14 (Opinion at 13-14).
This finding and the Court of Appeals' holding, that Long may be
held responsible for damages flowing from Veys' intentional breach of
what Veys admitted under oath to be a binding contract, CP0263-CP0268,
are inconsistent with this court's development of proximate causation in
legal malpractice law in both the legal policy sense (legal causation) and
the cause-in-fact sense (immediate connection). See Blume, 134 Wn.2d at
251-52. Assuming Long negotiated a faulty contract-as Long did for
purposes of his summary judgment motion-Veys' proper recourse would
be to sue Long for damages he suffered as a result of the faulty deal.
14
However, V eys did not take that route. Instead of pursuing damages for
the faulty contract, Veys breached the contract and sued Long for the
damages from an adverse verdict in ligation due to the breach.
The Court of Appeals' decision places business transaction lawyers
in an unduly difficult position. A transactional attorney, like Long, causes
agreements to be made, not a "walk away" by the other party to
negotiations. A transactional lawyer causes a contract to be formed, not to
be breached. If the Court of Appeals' decision is correct, an attorney in
Long's position may be subject to millions of dollars in liability based on
damages his client incurs in a lawsuit arising from the client's intentional
breach of a contract that the attorney helped negotiate-a breach over
which the attorney may lack any control. A client may, in essence, create
damages to support a legal malpractice action-even in cases where the
lawyer's negligence did not directly result in any damages due to a faulty
contract-by breaching the underlying contract. The Supreme Court
should take the opportunity presented by this petition for review and
clarify Washington law on this important point.
B.
The Court of Appeals erroneously expanded its own
rule of proximate cause in business transaction legal
malpractice cases.
As described above, a plaintiff in a legal transaction malpractice
case can defeat summary judgment only if he shows that "but for" the
15
attorney's negligence, he would have obtained a better result. See Sherry
v. Diercks, 29 Wash.App. at 438. Division I of the Court of Appeals
addressed the "better result" element in Smith v. Preston Gates Ellis, LLP,
135 Wash.App. 859, 147 P.3d 600 (2006). In Smith, a former client sued
the lawyer who reviewed a construction contract for work, the eventual
cost of which put the client in a bad financial situation and over which the
client became involved in litigation with the construction contractor.
Smith, like Veys, argued the lawyer's failure to recognize a number of
deficiencies in the contract caused Smith the loss of a better result. The
court, however, found that where Smith had knowledge of the contract's
deficiencies when he signed it, had other reasons for proceeding as he did,
and could only claim after the fact that he would have walked away from
the contract if the lawyer had done more to help him, Smith failed to
establish a prima facie case for causation. ld. at 869.
Like Smith, Veys argued that but for Long's alleged negligence,
Veys would have walked away from the underlying transaction. A-13
(Opinion at 13). However, unlike the appeals court in Smith, the Court of
Appeals in the present case found that Veys met the "better result" test and
successfully established a prima facie case for causation based on
evidence, not that V eys would have walked away from the deal, but that
the other parties would have walked away had Veys and his lawyer, Long,
16
been more insistent about Veys' desired terms early in contract
negotiations. !d. No published Washington appellate case has held that a
plaintiff can meet the better result test by establishing that he would have
been better off by having other parties walk away from the transaction,
and yet that is what the Court of Appeals in this case held-in conflict
with the court's prior decision in Smith and in an unpublished opinion.
The Supreme Court should grant this petition for review in order to
clarify the scope of the "better result" test and the proper test for
proximate causation in transactional legal malpractice cases. The current
lack of clarity on the issue is underscored by the Court of Appeals' resort
to Gibbons, 304 P.3d 239, a nonbinding Colorado Supreme Court
decision, in support of the "better off walking away" rule. The public and
the Bar-particularly business transaction lawyers and their clientswould benefit from guidance from the Supreme Court as to whether
Washington has adopted some form of the Colorado rule, or instead
retains the rule described by the Court of Appeals in Smith.
C.
The Court of Appeals decision reversing the grant of
partial summary judgment frustrates the purposes of
the summary judgment process itself.
The Court of Appeals concluded that the superior court erred by
granting Long's alternative motion for partial summary judgment limiting
Veys' damages to no more than $300,000.00. A-15 (Opinion at 15). The
17
appeals court reasoned that the superior court, having granted Long's
motion for summary judgment dismissal ofVeys' claim for $3 million,
acted 'prematurely' when it considered and granted Long's alternate
motion for partial summary judgment limiting damages in any event to
$300,000 dollars. !d. The Court of Appeals' ruling was in error, and it
warrants review and reversal by this court to vindicate the substantial
public interest in the efficient and effective administration of justice that is
served by the summary judgment process. See RAP 13.4(b)(4).
Resolution of all questions of damages is key to the resolution of
this case. The issue of whether Veys' damages should be limited to
$300,000 due to superseding negligence of his trial lawyer in the
Wyoming litigation was neither moot nor unripe because the court had
ruled that Long was entitled to summary judgment on the whole ofVeys'
claim for $3 million.
If~as
happened ~Long's summary judgment on
the $3 million was not sustained on appeal, the issue whether Long was
entitled to summary judgment on the $300,000 cap was even more
relevant than in the first instance.
Summary judgment is appropriate where it is shown "that there is
no genuine issue as to any material fact and that the moving party is
entitle~
to a judgment as a matter of law." CR 56(c). The purpose of a
motion for summary judgment is to avoid useless trials when no genuine
18
issue of material fact exists. Balise v. Underwood, 62 Wash.2d 195, 199,
381 P.2d 966 (1963). The superior court in this case determined, based on
the evidence before it, that no genuine issue of material fact existed as to
the question ofwhether Veys' damages should be limited to $300,000.00.
It was therefore appropriate, under CR 56(c) and as a matter of judicial
economy, for the superior court to grant summary judgment on that issue.
The Court of Appeals should have reviewed the superior court's
grant of partial summary judgment on the merits based on the record that
was before the superior court. It is not error for the trial court, nor would
it be error for the Court of Appeals, to decide a motion for summary
judgment on alternative grounds. The Court of Appeals' refusal to
consider the alternate motions defies the principle of judicial efficiency
that underlies summary judgment by requiring re-litigation of the damages
issue on a new record and, in essence, allowing V eys a second bite of the
apple after he failed to persuade the superior court of the existence of any
genuine issues of fact on the issue of whether his damages should be
limited to $300,000.00. Ironically, by reversing the superior court's
summary judgment dismissal ofVeys' legal malpractice claims, the Court
of Appeals created the very circumstances that it found would call for a
ruling on the damages cap issue. A-15 (Opinion at 15).
19
The Court of Appeals erred in reversing the superior court's ruling
on the $300,000.00 damages cap. The decision contravenes fundamental
principles regarding summary judgment. See RAP 13.4(b)(4). The
Supreme Court should grant this petition for review and correct the Court
of Appeals' error.
VI.
CONCLUSION.
Long respectfully asks that the Supreme Court grant this petition
for review pursuant to RAP 13.4(b)(l), (2), and (4).
·Respectfully submitted this 7th day of October, 2014.
HARRANG LONG GARY RUDNICK P.C.
By: ...2$f21~~~_£__!_~~~~~~
J es E. Mountain, Jr., WSB #35290
rank A. Moscato, WSB #3271 0
C. Robert Steringer, WSB #41229
Of Attorneys for Petitioners Michael
Long, Office of P. Michael Long, and
P. Michael Long, P.S., Inc.
INDEX TO APPENDIX
Unpublished Opinion filed on August 12, 2014,
by the Court of Appeals, Division II
A-1-A-16
Order Denying Long's Combined Motions
for Publication and for Reconsideration
filed on September 12, 2014
A-17-A-18
CERTIFICATE OF FILING AND SERVICE
I, James E. Mountain, Jr., declare under penalty of perjury of the
state of Washington that the following is true and correct:
I am a citizen of the United States, over the age of 18 years, and
otherwise competent to testify. I am an attorney with Harrang Long Gary
Rudnick P.C. and my business address is 1001 SW Fifth Avenue, 16th
Floor, Portland, OR 97204.
On October 7, 2014, I caused to be filed the foregoing PETITION
FOR REVIEW to be filed with the Clerk of the Court, Washington State
Court of Appeals, Division II, by forwarding a pdf of said document to
coa2filings@courts. wa. gov.
I further certify that on said date I served one true and correct copy
of said document on the party or parties listed below, via email
transmission and first class mail, postage prepaid, and addressed as
follows:
Jacob Wieselman
j ackw@wgroup-law.com
Wieselman Law Group, LLP
1001 SW Fifth Ave., Ste 1414
Portland, OR 97204
Jason Marc Rosen
J ason@christielawgroup.com
Christie Law Group, PLLC
2100 Westlake Avenue N, Ste 206
Seattle, W A 98109
Of Attorneys for Appellants
Of Attorneys for Respondent, Ann
Long
HARRANG LONG GARY RUDNICK
P.C.
es E. Mountain, Jr., WSB #35290
Frank A. Moscato, WSB #32710
C. Robert Steringer, WSB #41229
Of Attorneys for Petitioners Michael
Long, Office ofP. Michael Long, and
P. Michael Long, P.S., Inc.
P0444380.vl
Page 1 -CERTIFICATE OF FILING AND SERVICE
FILED
COURJ OF APPEt~Ls
DIVISION II
201YAU,.. 12 PH 12: 45
IN THE COURT OF APPEALS OF THE STATE OF WASHI~~-~~-'
v
\
DIVISION II
ALAN J. VEYS; LONE EAGLE RESORTS,
INC.; and ALAN J. VEYS PROPERTIES,
LLC,
No. 43674-4-11
Appellants,
v.
MICHAEL LONG and ANN LONG; OFFICE
OF P. MICHAEL LONG; and P. MICHAEL
LONG, P.S., INC.,
UNPUBLISHED OPINION
Respondents.
HUNT, J. -Alan J. Veys, Lone Eagle Resorts, Inc., and Alan J. Veys Properties, LLC
appeal the superior court's grant of summary judgment dismissal of their legal malpractice action
against Michael Long, Ann Long, Office of P. Michael Long, and P. Michael Long, P.S., Inc.
Veys argues that summary judgment was improper because (1) Long's professional negligence
in representing Veys in the sale of his Alaska lodge was the proximate cause of Veys' damages
from that sale; (2) Veys' recovery should not he limited to $300,000, the settlement offer that
Veys rejected in a separate, though related, Wyoming lawsuit; and (3) the statute of limitations
did not bar Veys' additional claims not related to the sale of his lodge. We reverse the superior
court's summary judgment dismissal of Veys' legal malpractice action against Long and the
imposition of a $300,000 damages cap; and we remand this claim to the superior court for trial.
We affirm the superior court's summary judgment dismissal ofVeys' other claims not related to
the sale ofVeys' lodge.
No. 43674-4-II
FACTS
Veys and attorney Long were longtime friends before Long ever provided legal services
to Veys. In 1994, Long purchased a piece of accretion land along the Cowlitz River under the
name Columbia Realty Services, a company Long owned with his ex-wife. That same year,
Veys paid Long $2500 for a one-half interest in this property. Columbia Realty Services later
dissolved.
I. LODGE SALE NEGOTIATIONS
Veys also owned and operated a fishing lodge, the Pybus Point Lodge on Admiralty
Island, Alaska. In spring 2004, Marvin Applequist, Bruce Reed, and Val Jones (Purchasers)
attempted to purchase this lodge from Veys. Veys hired Long as legal counsel to negotiate the
sale; Veys also hired accountant, Jerome "Tonk" Fischer, to work with him and Long on this
transaction. Attorney Darin Scheer represented the Purchasers. During March and April 2004,
the parties negotiated the terms of sale and began drafting a purchase and sale agreement (PSA).
On May 4, Veys faxed Long a handwritten note listing multiple substantive terms he wanted
included in the PSA. On May 10, Long sent Scheer an email requesting that these terms be
included in the PSA.
A. Original PSA
On May 30, Veys, the Purchasers, and Scheer met with Long at Long's Longview office
.to negotiate the final details of the purchase. During this meeting, Applequist told Veys that he
(Applequist) had to notify his company by June 3 if he was planning to leave his job to take over
the lodge. The parties agreed that ( 1) Scheer would draft a PSA memorializing the terms on
which they had· reached agreement that day, and (2) by June 18 they would incorporate as
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No. 43674-4-II
exhibits to the PSA any additional terms they might negotiate, subject to their later mutual
agreement. Addressing Applequist's timing concerns, the parties discussed inserting into the
PSA a "cram down" clause, which would provide that once signed, the PSA would bind all
parties. Clerk's Papers (CP) at 10. In essence, this "cram down" clause would guarantee that the
original PSA terms agreed to on May 30 would bind the parties, even if they could not agree on
any later additional terms or exhibits.
CP at 10. At the end of the May 30 meeting, the
Purchasers proposed a purchase price of $2.8 million, $600,000 of which Veys would finance.
On May 31, Scheer emailed the proposed final version of the PSA to Veys and Long.
This proposed PSA, in pertinent part, listed the lodge's sale price, the property description, and
contingencies that Veys had to meet. These contingencies included Veys' obligations (1) to
provide title insurance to the Purchasers, (2) to inform the Purchasers about all operational and
managerial decisions that Veys had made relating to the lodge, and (3) to allow the Purchasers to
review all lodge expenses and financial records. The PSA further provided that Wyoming was
the choice of venue but Alaskan law would govern any legal disputes arising from the PSA.
Scheer's proposed PSA also included the previously discussed "cram down" provision,
Section 2.1.1(a):
In consideration of the transfer by the Seller to the Purchaser of the Purchased
Assets, the Purchaser shall pay to the Seller the aggregate purchase price of
Seller's choice of $2,800,000 (with Seller to carry amounts excess of $2,000,000)
or $2,650,000 (cash at closing) (with either amount being inclusive of the down
payment) (the "Purchase Price"), contingent upon the conditions precedent
described in Sections 9.5, 9.6, and 9.7 of this Agreement ("Conditions
Precedent"). Seller's election options are set forth below. Seller must declare its
choice of Purchase Price in writing on or before 5:00pm MDT on June 4, 2004,
or the Purchase Price will automatically be $2,800,000 under the terms set forth
herein. Seller is bound by all terms of this Agreement immediately upon signing,
regardless of whether Seller elects on or before the deadline set forth above.
REGARDLESS OF WHICH PURCHASE PRICE SELLER ELECTS, IT IS
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No. 43674-4-II
UNDERSTOOD AND AGREED THAT PURCHASER IS ACTING IN
RELIANCE ON THE FACT THAT SELLER IS BOUND TO ALL TERMS
OF THIS AGREEMENT IMMEDIATELY UPON SIGNING.
CP at 422. Significantly, the proposed PSA did not contain most of the requests that Veys had
communicated to Long on May 4.
That same day, May 31, Long emailed Veys Scheer's proposed PSA and asked Veys to
confirm receipt, to review, and to comment on it. But Veys could not open the PSA document
attached to Long's email. The next day, June 1, Long faxed Veys only the PSA signature page,
which Veys signed and faxed back to Long. I Once Veys signed the document he was bound to
the terms of the original PSA, as provided by the "cram down" provision. Long did not confirm
that Veys had received the proposed PSA, which included the new "cram down" provision; nor
did Long review the PSA terms with Veys. As a result, when Veys signed the signature page, he
did not know that his requested changes had not been incorporated into the PSA.
On June 3, Scheer emailed Veys, with a copy to Long, asking whether Veys wanted to
proceed with the lodge sale at a selling price of either $2.8 million with a potential $600,000
"carry" 2 or $2.65 million, which amount the Purchasers would pay in full at closing. CP at 204.
Veys responded that, before choosing either option, he wanted to discuss the selling price further
with his accountant. Later that day, Scheer sent an email to both Long and Veys, to which he
attached a final draft PSA. In this email Scheer (1) again asked whether Veys wanted $2.65
Veys' brief asserts it was "agreed between them that Long would not deliver the signature page
to Buyers' attorney Scheer until so authorized by Veys." Br. of Appellant at 13. But Veys'
record cite does not reflect this agreement.
I
2
Scheer's email proposed, "[E]ither you carry at 2.8 or we pay cash at 2.65." CP at 203
(emphasis added). By "carry" the parties appeared to have meant that Veys would finance
$600,000 of the purchase price.
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No. 43674-4-II
million cash at closing or $2.8 million with "carry amounts over $2 million," CP at 205; and (2)
Scheer also conspicuously noted that Veys would be contractually bound as soon as the
Purchasers received his signed PSA signature pages, regardless of whether Veys had elected the
payment amount and method. Veys emailed Scheer, replying that he (Veys) had been trying to
call Scheer, that "it [was] a go either way," and that he would contact Scheer; Veys also asked
Scheer to forward this email correspondence to Long because Veys was having trouble emailing
Long. CP at 210 (emphasis added).
B. Failed Requests for Additional PSA Terms
On June 5, Veys contacted Scheer and Applequist, (1) expressing his regret about having
decided to sell the lodge; (2) asking whether the Applequist Group was willing to "star[t] over,"
CP at 213; and (3) stating that if the Purchasers were not willing to "star[t] over," Veys would
take their $2.65 million cash offer. CP at 213. The next day, Veys emailed Long that he had had
only 50 minutes to read the PSA, he was not happy with it, and he wanted modifications, such as
the right to terminate the PSA under certain conditions and the right to purchase items for
personal use.
On June 11, Long emailed Veys and Veys' accountant (1) reminding them about the
upcoming June 18 deadline for new PSA terms and exhibits, and (2) reminding Veys that the
"cram down" provision already bound him to the existing PSA terms (the signature page for
which Veys had signed on June 1). On June 14, Veys replied to Long that he hoped he had the
right and option to decline selling the lodge and sent Long a separate email stating that he did not
receive a copy of the final PSA. Over the next several days, Veys continued emailing Long
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No. 43674-4-II
about additional terms 3 he wanted included in the PSA and reiterating that he was "worried"
about the PSA. CP at 682.
On June 17 and 18, Long emailed Scheer and the Purchasers an amended version of the
PSA that included new terms that Veys wanted, including that (1) "the Lodge" would pay all
expenses for repairs and maintenance; (2) any subsequent lodge owners would have the right to
purchase fuel at "lodge cost"; (3) any future or subsequent lodge owners would have the right,
but not the obligation, to "put in docks atpilings"; (4) Veys would sell his plane to "the Lodge"
at fair market value; and (4) "all fuel" that Veys had purchased in the previous year would be an
additional cost to the Purchasers, to be paid in cash at the time of closing. CP at 704.
Responding to Long's emails, on June 22 Scheer wrote Long a letter (1) stating that the
Purchasers agreed to extend the deadline for finalizing exhibits (additional PSA terms) until July
23, (2) chastising Long for creating completely new terms on which the parties had previously
failed to agree, and (3) telling Long that the Purchasers would not agree to these new terms.
Long responded to Scheer with a June 24 letter stating that he (Long) did not agree that the
original PSA bound all parties until they could mutually agree on new or additional "replacement
exhibits." CP at 221.
Scheer again responded that (1) he disagreed that the PSA did not bind the parties, given
that Veys had signed the PSA (which the Purchasers had received on June 5) and had elected to
accept the cash option selling price of $2.65 million and (2) the "cram down" provision, section
2.1.1(a), expressly provided that the final PSA and initial exhibits were binding upon all parties
3
These additional terms included setting the maximum number of guests at the house on the
lodge property, payment of expenses for the house, regulation of future owners of the house,
attorney fees, the addition to lodge selling price of costs for fuel purchased by V eys, and the
selling price of Veys' plane.
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No. 43674-4-II
unless the parties later mutually agreed on and executed replacement exhibits. Around June 24,
the Purchasers moved into the lodge for the summer to learn its day-to-day operations.
On August 27, Veys emailed Long that he (Veys) and his accountant had looked at the
PSA. Veys asked Long (1) to review the PSA, (2) to determine when the purchase price deposit
was due, and (3) to advise him because he did not want to sell the lodge or be "taken to the
cleaners." CP at 246. Veys closed his email by stating that he wanted "the contract to be
terminated," that he "want[ed] [his] lodge back," and that the contract had been "done at a very
bad time in [his] life." CP at 246.
That same day, August 27, Scheer sent Long a demand letter and notice of noncompliance, stating that Veys had not complied with the PSA in failing to provide statements of
the lodge's net revenues and costs; a list of the lodge's lease agreements; a list of all lodge
licenses and required governmental or official approvals, permits, or authorizations for the
business and operations; documents of each "Purchased Other Agreements" relating to the lodge;
information about managerial and operational decisions Veys had made for the lodge; a list of
insurance policies that Veys maintained; and access to the lodge's financial records. CP at 247.
Scheer further noted that Veys' failure to provide such documentation could lead to the
Purchasers taking legal action. Scheer reiterated that, because the parties could not agree on
replacement exhibits or additional terms, the original PSA bound them. And Scheer asked for
wire transfer instructions for the Purchasers to tender their $50,000 deposit for the lodge's
purchase.
On September 1, Long responded to Scheer's demand letter and notice of noncompliance,
informing Scheer that Veys wanted the Purchasers to "pack their bags and leave the island." CP
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No. 43674-4-II
at 254. After a heated discussion,with Veys, the Purchasers left the lodge around September 6.
On September 9, Long sent a final offer from Veys, expressing the terms under which
Veys would agree to sell the lodge to the Purchasers. The parties did not reach a new agreement.
II.
PROCEDURE
A. Purchasers' Breach of Contract Action against Veys in Wyoming
On October 7, 2004, in Wyoming District Court, the Purchasers sued Veys for breach of
contract, breach of the implied covenant of good faith and .fair dealing, promissory estoppel,
anticipatory repudiation, and specific performance. Veys v. Applequist, 155 P.3d 1044, 1048
(Wyo., 2007). Veys hired Wyoming attorney Don Riske to defend him in this litigation.
Before trial, around February 2005, the Purchasers offered to dismiss the lawsuit ifVeys
agreed either (1) to sell the lodge and his Pybus Point residence to Purchasers for $2 million, or
(2) to pay the Purchasers a settlement amount of $300,000. Riske consulted with Veys and
received Veys' authorization and direction to reject this offer. The case went to trial.
A jury determined that the parties had entered into an enforceable contract that Veys had
breached; and it entered a verdict against Veys for $3 million in damages. Veys, 155 P.3d at
1048. The Purchasers made a final settlement offer to release Veys from additional liability if he
paid them $850,000 in cash; Veys also rejected this settlement offer. Veys appealed, and the
Wyoming Supreme Court affirmed the jury verdict against him. Veys, 155 P.3d at 1052-53.
B. Veys' Legal Malpractice Action against Long in Washington
On June 19, 2009, Veys sued Long for legal malpractice in Cowlitz County Superior
Court, naming Long, Long's office, and his wife, Ann Long, as defendants; Veys alleged both
breach of contract and tort bases. Veys alleged that (1) Long had failed to advise Veys and to
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No. 43674-4-II
protect his interest in the PSA negotiations, (2) Long's actions and advice to Veys had resulted in
Veys' breach of the PSA that led to the Purchasers' Wyoming lawsuit against him, (3) Long had
failed to protect Veys from seizure of his assets after judgment was entered against him in the
Wyoming action, (4) Long had been negligent in advising Veys in both the PSA transaction and
in connection with their 1994 joint purchase of the Cowlitz River accretion land,4 and (5) Long
had breached the duties and obligations he owed Veys under their contract for legal services. 5
Long moved for summary judgment as to Veys' negligence-based malpractice claims,
arguing that (1) Veys' alleged damages had arisen from his own decision to breach a binding
contract, not from Long's actions; (2) alternatively, the superior court should limit Veys'
damages to $300,000, the settlement offer that Veys had rejected in the Wyoming trial and the
only damages arguably attributable to Long; and (3) the statute of limitations barred Veys'
malpractice action claims unrelated to the PSA, based on Long's alleged malpractice in
connection with the 1994 Cowlitz River accretion land purchase.
For summary judgment
purposes, Long conceded his professional duty to Veys and breach of duty in conjunction with
Veys' legal malpractice claim related to the PSA. In support, Scheer submitted a declaration
stating that the Purchasers would have "walked away from the deal as friends had Veys or Long
insisted on any of the Rejected Requests be included in the June 3, 2004 PSA." CP at 293.
The superior court orally granted Long's summary judgment motion in its entirety. The
superior court also issued a letter ruling granting summary judgment to Long, reasoning:
4
More specifically, Veys alleged that Long had failed to advise him about a conflict of interest
and to seek independent legal counsel in connection with Veys' 1994 purchase ofhalfofLong's
interest in the Cowlitz River accretion land.
5
On appeal, Veys does not pursue dismissal of his contract-based malpractice claim. Thus, we
do not further address it.
9
No. 43674-4-II
It is apparent to me that the plaintiff knew of the PSA and for whatever reason
decided not to perform under the contract. This was of his own volition which
was thoroughly vetted in the Wyoming lawsuit brought by the buyers that resulted
in a verdict against Veys.
CP at 793. In a later written order, the superior court (1) granted summary judgment as to all of
Veys' claims, dismissing them with prejudice; (2) noted that it had relied on the theory of"legal
impossibility" as an additional basis for the relief granted; and (3) also granted Long's alternative
motion for partial summary judgment dismissal ofVeys' claims that were not related to the PSA
and which had been filed after expiration of the applicable statute of limitations. CP at 881.
Veys appeals. 6
ANALYSIS
I. LEGAL MALPRACTICE
Veys argues that summary judgment on his PSA-related claims was improper because he
produced evidence that he would have obtained a better outcome for the sale of his lodge but for
Long·' s negligence in representing him during the PSA negotiations-namely that Veys would
have obtained the sales terms he wanted or the Purchasers would have "walked away" from the
deal instead of suing him in Wyoming. Veys then argues that, as a result, there was an issue of
material fact about whether Long's negligence was the proximate cause of Veys' PSA-related
damages. Br. of Appellant at 36. We agree.
Veys also argues the summary judgment was improper in his malpractice action against
Long for non-PSA related transactions, in particular Long's alleged malpractice in connection
with Vey's 1994 purchase of half of Long's Cowlitz River accretion property because (1) his
6
Ann Long filed a separate brief, stating that as a tangential party to the action and as a result of
her former marriage to Long, she joins and incorporates Long's briefing on appeal.
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No. 43674-4-11
(Veys') damages were ongoing, "continu[ing] to this day"; and (2) thus, Veys' claim was not
barred by the statute oflimitations. Br. of Appellant at 48. This argument fails.
A. Standard of Review
We review a summary judgment de novo, engaging in the same inquiry as the trial court
and viewing the facts and any reasonable inferences therefrom in the light most favorable to the
non-moving party, here, Veys. Associated Petroleum. v. NW Cascade, 149 Wn. App. 429, 434,
203 P.3d 1077 (2009). Summary judgment is proper when no genuine issue of material fact
remains and the moving party is entitled to judgment as a matter of law.
Diamond "B"
Constructors, Inc. v. Granite Falls Sch. Dist., 117 Wn. App. 157,160-61,70 P.3d 966 (2003). A
genuine issue of material fact exists where reasonable minds could differ on the facts controlling
the outcome of the litigation. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d
886 (2008). To defeat summary judgment, the non-moving party must assert specific facts and
cannot rely on mere speculation. Ranger, 164 Wn.2d at 552.
B. PSA-Related Claims, Proximate Cause
To establish legal malpractice, a plaintiff must show "(1) the existence of an attorneyclient relationship giving rise to a duty of care to the client, (2) act or omission in breach of the
duty, (3) damages to the client, and (4) proximate causation between the breach and damages."
Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 863-64, 147 P.3d 600 (2006), review
denied, 161 Wn.2d 1011 (2007). For summary judgment purposes, Long conceded the issues of
duty and breach of duty with respect to Veys' PSA claims and moved for summary judgment
based on lack of proximate causation. Accordingly, we address only proximate cause.
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No. 43674-4-II
The burden is on the legal malpractice plaintiff to show that the attorney's negligence
was the proximate cause of his injury. Hansen v. Wightman, 14 Wn. App. 78, 88, 538 P.2d 1238
(1975). Proximate cause is the nexus between breach ofduty and resulting injury. Halvorsen v.
Ferguson, 46 Wn. App. 708, 719, 735 P.2d 675 (1986). Proximate cause has two elements:
cause in fact and legal causation. City of Seattle v. Blume, 134 Wn.2d 243, 251, 947 P.2d 223
(1997). "Cause in fact refers to the 'but for' consequences of an act, that is, the immediate
connection between an act and an injury." Blume, 134 Wn.2d at 251-52. The plaintiff must
demonstrate that "but for" the attorney's negligence he would have obtained a better result.
Smith, 135 Wn. App. at 864. Legal causation is based on policy considerations in determining
how far the consequences of an act should extend.
Blume, 134 Wn.2d at 252.
Although
proximate cause is usually an issue for the fact finder, the trial court can decide proximate cause
as a matter of law if"reasonable minds could not differ." Smith, 135 Wn. App. at 864.
To avoid summary judgment on proximate cause, Veys needed to show that Long's
breach of his professional duties caused Veys harm. In the context of this negotiated contract,
Veys had to show that but for Long's negligence, he would have been able to obtain a "better"
contract (more favorable to Veys) or an improved outcome. 7 See Smith, 135 Wn. App. at 864.
In Smith, Smith sued Preston Gates Ellis, LLP, alleging legal malpractice for its
representation of him in drafting and reviewing a contract for the construction of his "dream
home." Smith, 135 Wn. App. at 863. Division One of our court held that, even though Smith
7
Although not binding here, we note the Colorado Supreme Court's holding in Gibbons v.
Ludlow, 2013 CO 49, 304 P.3d 239 (2013) that a legal malpractice plaintiff can show a better
litigation result by proving that if his attorney had provided competent representation, (1) he (the
'plaintiff) would have been able to obtain a better bargain in the underlying transaction, or (2) he
would have been better off"walking away from the underlying transaction." Gibbons, 304 P.3d
at 242.
12
No. 43674-4-II
noted various deficiencies in the construction contract to support his malpractice claim, summary
judgment was appropriate because he had failed to demonstrate, with specificity, that but for
these deficiencies he would have had a better result. Smith, 135 Wn. App. at 865. Smith alleged
that if he had been advised of the deficiencies in the contract, he never would have signed it.
Smith, 135 Wn. App. at 865. The court held, however, that this allegation was insufficient to
defeat summary judgment because Smith could not identify an alternative that would have led to
a better outcome. Smith, 135 Wn. App. at 865.
Here, Veys argues that Long was negligent in failing (1) to inform Veys that the final
PSA Long had Veys sign did not contain the terms that Veys had expressly requested; (2) to
review the PSA with Veys before emailing him the signature page to sign, despite knowing that
Veys had been unable to open and to read the PSA Long had originally emailed to him; and (3)
to explain to Veys the impact of the PSA' s "cram down" provision on his ability to incorporate
his requested terms.
Unlike in Smith, Veys produced clear evidence that but for Long's
negligence Veys would have obtained a better outcome-Veys' desired terms for sale of the
lodge or no sale at all. Veys declared that he had no pressing need to sell the lodge and would
have refused to sell if his requested terms were not included in the PSA. Similarly, Scheer's
declaration established that the Purchasers would have "walked away from the deal as friends
had Veys or Long insisted on any of [Veys'] Rejected Requests be included in the June 3, 2004
PSA." CP at 293.
Long argues, and the superior court found, that the cause ofVeys' damages was his
own
willful breach of the PSA that he signed. The key evidence, however, which we assume is true
for summary judgment purposes, is that (1) when Veys signed the PSA signature page, he had
13
No. 43674-4-II
not seen the entire PSA, was unaware that it contained the "cram down" clause, and did not
know that his requested terms had not been included; (2) Veys would not have signed the PSA if
Long had informed him that the requested terms had not been included; and (3) the Purchasers
would have walked away from the deal if Veys had insisted on his requested terms. As a result,
there is sufficient evidence to show that but for Long's negligence, Veys would not have signed
the PSA, the PSA would not have been executed, and Veys could not have breached it.
Veys asserted specific facts to rebut Long's claims and to establish a question of material
fact about whether Long's alleged negligence was the proximate cause of Veys' injuries.
Therefore, we hold that the superior court erred in granting Long's motion for summary
judgment.
C. Non-PSA-Related Claims
Veys argues that the superior court improperly dismissed his other, non-PSA based
claims as barred by the statute of limitations. 8 He asserts that ( 1) the claims related to his 1994
purchase of half of Long's interest in the Cowlitz River accretion land did not fall outside the
statute oflimitations because they were subject to the parties' "Tolling Agreement"9 ; and (2) that
because Long had failed to convey any interest to Veys, these claims were ongoing, and thus not
barred by the statute of limitations. But contrary to RAP 10.3(a)(6), other than asserting this his
claim is "ongoing," Veys does not support his argument with citations to legal authority; nor
does he otherwise attempt to explain how the superior court erred in dismissing these claims
8
These claims related to the Cowlitz River accretion land and the statute of limitations.
9
Veys and Long entered into a "Tolling Agreement" for claims arising only in relation to the
lodge sale transaction. CP at 286. Under this "Tolling Agreement," the parties agreed to toll the
statute of limitations for any claims arising from the sale of the lodge. CP at 286.
14
No. 43674-4-II
related to a 1994 land transaction were not barred by the applicable three-year statute of
limitations for legal malpractice actions, 10 for which he similarly fails to provide a citation to the
Revised Code of Washington.
An appellate court will not review issues that a party inadequately briefs or treats in
passing. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004). Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration.
State v.
Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). Generally, an appellate court will not
review an assignment of error without argument and citation to authority. State v. Cox, 109 Wn.
App. 937, 943, 38 P.3d 371 (2002). Thus, we do not further address this argument.
II.
ALTERNATIVE PARTIAL SUMMARY JUDGMENT LIMITING VEYS' RECOVERY
Veys also argues that the superior court erred in granting Long's alternative motion for
partial summary judgment limiting Veys' potential recovery to $300,000, the settlement offer
amount offered at the Wyoming trial, which Veys had refused. We do not reach this argument.
Long brought this motion for partial summary judgment only as an alternative in the
event that the superior court denied his primary motion for full summary judgment. Because the
superior court granted Long's primary motion for full summary judgment, it did not need to
address limiting Veys' recovery-the subject of Long's alternative motion. Moreover, resolving
this issue would have been relevant only if the superior court had allowed some of Veys' claims
to remain such that there were potential damages to limit. But such was not the case. We hold
that the superior court's ruling on this damages cap was premature.
10
RCW 4.16.080(3).,
15
Thus, we reverse the
No. 43674-4-II
superior court's $300,000 cap on Veys' damages and leave for the trial court on remand to
address any potential damages limitation if necessary.
We reverse the superior court's summary judgment dismissal of Veys' legal malpractice
claims against Long related to the sale of his lodge and remand for trial. We also reverse the
superior court's $300,000 damages cap. And we affirm the superior court's summary judgment
dismissal ofVeys' other claims not related to the sale of the lodge.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
-~J~.··Maxa, J.
·
"'
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