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Whitcombe v. Barr9/5/2000
Tonasket Property Boundary Dispute
On February 4, 1997, Whitcombe faxed a letter to Barr regarding a boundary dispute related to property the Whitcombes owned in Tonasket, Washington. Barr responded in writing the same day, recommending that they send letters demanding that the neighbors remove their fences and pay rent for the property they were using for grazing. If the neighbors did not respond, Barr recommended filing suit against them. He told Whitcombe that he would charge his usual hourly rate to write the demand letters and estimated how much time it would take. Barr asked Whitcombe to let him know how he wanted to proceed.
On May 16, 1997, Whitcombe wrote Barr and told him what he believed his options were in regard to the boundary dispute. Whitcombe asked Barr what he thought about the options. Barr advised Whitcombe on June 10, 1997 that, in light of the status of Whitcombe's account with the law firm, he would not represent Whitcombe in the Tonasket boundary dispute. Attorneys Liens
On June 23, 1997, the vice president of McAdams, Sklar & Marcott wrote Whitcombe, asking him to bring his account current and to deposit an additional retainer of $5,000 within ten days of the date of the letter to ensure the firm's continued legal service.
Whitcombe responded by disputing that the law firm could demand that he pay an additional $5,000 retainer, along with the balance owing on the account, to ensure continued legal services. He asserted that the firm knew his account might not be kept current because his assets were not liquid. Whitcombe also accused Barr of defeating his chance to negotiate a favorable settlement with the Henaks. Whitcombe asserted that because Barr failed to file the appellants' brief by June 15, 1997, the Henaks did not recognize the merits of the appeal at a time when they were likely to be willing to settle the case.
Barr responded, claiming he was not aware, and did not believe, that filing the brief by June 15 was crucial to the sale of the property to the DNR. He notified Whitcombe that he and his firm were withdrawing from their representation of him. A month later, Barr filed notices of attorneys liens in relation to the fees and costs Whitcombe owed for the Henak appeal and another matter.
In June 1998, the Whitcombes sued Barr and the McAdams, Sklar & Marcott law firm (collectively referred to as 'the firm'), accusing them of negligence, breach of contract, wrongful termination of services, wrongful filing of the attorneys liens, and violation of the Consumer Protection Act. The firm apparently counter-claimed for fees.
The firm moved for summary judgment, and the motion was granted. Whitcombe moved for reconsideration, but the motion was denied. This appeal followed.
Attorney Malpractice Claim
We undertake the same inquiry as the trial court when reviewing a summary judgment order. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Considering all facts and reasonable inferences from the facts in the light most favorable to the nonmoving party, we determine whether any genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. CR 56(c); Tydings, 125 Wn.2d at 341.
Once an attorney-client relationship has been established, the elements for legal malpractice are the same as for negligence. See Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1992). Thus, to prove legal malpractice, the plaintiff must show that (1) there was an attorney-client relationship that gave rise to a duty of care owed by the lawyer, (2) by his act or omission, the
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