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Whitcombe v. Barr9/5/2000
Kirk and Susan Whitcombe owed more than $5,000 to Dale Barr and his former law firm, McAdams, Sklar & Marcott, for legal services. After the firm demanded payment in full and an additional retainer to continue representing the Whitcombes, Kirk Whitcombe accused Barr of negligence and breach of the contract for services. The firm withdrew its representation, and Whitcombe sued. We hold that the trial court did not err when it granted the defendants' motion for summary judgment.
The Whitcombes owned property near North Bend, Washington. Because they intended to build a residence on the property, they had a survey done before clearing trees and building a road to the building site. But the survey was erroneous, and parts of the new road encroached on property owned by Larry and Susan Henak. The Henaks sued the Whitcombes, and the Whitcombes lost. The Henaks were awarded approximately $47,000 and were granted a temporary easement over the Whitcombe property so they could repair the damage the Whitcombes had caused.
The Whitcombes' trial attorney filed a notice of appeal, but in December 1996, Kirk Whitcombe hired attorney Dale Barr and his firm, McAdams, Sklar & Marcott, to handle the appeal. Under the contract with Barr's firm, Whitcombe agreed 'to pay all fees for legal services and chargeable costs and expenses within ten (10) days after receipt of the monthly billing statement.' Any balance not paid within thirty days after the date of billing was to be assessed a finance charge at an annual rate of ten percent. The contract gave the law firm the right to withdraw from representation for nonpayment of its fees after providing written notice of its intention to withdraw.
When Barr first took over the Henak appeal, he moved for an extension of time to file the appellants' brief to become more familiar with the case. The motion was granted. Later, he moved for another extension because, after receiving the verbatim report of proceedings, he determined that the nature of the issues should be modified and additional research was needed. The motion was granted, and the deadline for filing the appellants' brief was extended to August 1, 1997.
The DNR Sale
Before Barr was hired to work on the appeal, the Whitcombes had agreed to sell their North Bend property to the Washington State Department of Natural Resources (DNR) for $100,000. The DNR, however, insisted that the property be free of the easement in favor of the Henaks. The closing date for the sale had been extended four times between March 1996 and April 1997 while the parties attempted to resolve the problem of the easement. On May 16, 1997, an official from the DNR wrote Kirk Whitcombe, stating that the DNR's most recent amendment to the purchase and sale agreement represented its final offer for the property. The DNR was willing to close the sale if Whitcombe agreed by June 2, 1997 to drop the purchase price by $10,000. Whitcombe immediately drafted a letter to the DNR explaining his reasons for rejecting the offer, but he faxed the draft letter to Barr for his comments before sending it to the DNR.
On May 30, 1997, Barr recommended that Whitcombe accept the DNR's offer to avoid being held liable for its attorney fees and costs if the sale fell through. Barr indicated, however, that his advice was tentative because he had had no role in the negotiations with the DNR and had spent only a few minutes reviewing the purchase and sale agreement and other related correspondence. By June 2, 1997, Whitcombe had hired another lawyer to represent him in relation to the sale. After the new lawyer was hired, the closing date of the sale was extended to August 30, 1997.
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