Randall Thomsen, Petitioners/cross-resps. v. Terence Butler, Resp./cross-petitioner

F Lii

COURI OFpPPE~J$,°1’ I

STATE Or WAShINUTO 4

20180E631 Ml 8:56

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TERENCE BUTLER,

DIVISION ONE

Respondent/Cross-Petitioner,

No. 76536-1-I

v.

UNPUBLISHED OPINION

RANDALL T. THOMSEN, individually

and on behalf of the marital community

comprised of RANDALL THOMSEN

and JANE DOE THOMSEN, and

CALFO HARRIGAN LEYH & EAKES, )

LLP, a Washington Professional

Limited Liability Partnership, f/k/a/

DANIELSON HARRIGAN LEYH &

TOLLEFSON, LLP, )

)

Petitioners/Cross-Respondents. ) FILED: December 31, 2018

___________________________________________________________________________________ )

DWYER, J. — Terence Butler sued his former attorney, Randall Thomsen,

and his former attorney’s firm, Calfo Harrigan Leyh & Eakes, LLP (collectively

Thomsen), for legal malpractice. Following hearings on cross motions for

summary judgment, the trial court ruled that Thomsen breached the standard of

care as a matter of law, but declined to dismiss Thomsen’s affirmative defense of

third party fault or to rule that collateral estoppel barred certain of Butler’s alleged

theories of causation. We granted discretionary review and now reverse the trial

court’s rulings that Thomsen breached the standard of care and that collateral

No. 76536-1-1/2

estoppel did not bar Butler’s alleged theories of causation arising from breach of

fiduciary duty and statutory wage claims.

In 2010, ImageSource, a document imaging company, had four equal

shareholders: Shadrach White, Victor Zvirzdys, Terry Sutherland, and Terence

Butler. Butler discovered that his co-owners had received substantially greater

personal payments from the company than he had received. In 2011, the co

owners all agreed to ‘level out” Butler by having ImageSource pay him amounts

to match the expenditures the company had made to the other owners. Butler

agreed to wait to receive the payments until the company was performing well.

Shortly thereafter, White left the company and filed a lawsuit (White)

against ImageSource and his three former co-owners. Butler, Sutherland, and

Zvirzdys retained Thomsen to jointly represent them in defense of the White

lawsuit. In mediation, the parties successfully reached an agreement to settle

the lawsuit. They memorialized their settlement in a written CR 2A agreement.

In pertinent part, this agreement stated that “Mr. White agrees to release all

defendants from any claims that he may possess against them. Defendants

agree to release Mr. White from any claims that they may possess against him.”

White’s attorney offered to draft a more detailed agreement that would “be

consistent with the CR 2A, but include the more detailed language and items we

did not include in the summary agreement.” The final release and settlement

agreement (White Release) stated:

In consideration of the promises set forth herein, the Parties agree

to release one another, their spouses, their respective heirs,

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No. 76536-1-1/3

agents, attorneys, employees, directors, heirs, assigns and

personal representatives from any and all charges, claims and

actions, whether known or unknown, arising prior to the date of this

Agreement and arising directly or indirectly out of the Lawsuit or

their previous dealings.

Butler, Sutherland, White, and Zvirzdys all signed the White Release.

After the settlement of the White lawsuit, Butler believed that ImageSource

was performing sufficiently well to commence paying him pursuant to the ‘level

out” agreement he had reached with his co-owners. Sutherland and Zvirzdys

objected. Butler hired an attorney, Mario Bianchi, who filed a lawsuit (Butler)

against Sutherland, Zvirzdys, and ImageSource. In this suit, Butler demanded

payment pursuant to the level out agreement and advanced several other claims,

including breach of fiduciary duty and statutory wage claims.

Butler brought a motion seeking summary judgment against his co-owners

on his breach of fiduciary duty and his statutory wage claims. In response,

Sutherland and Zvirzdys argued that the trial court should grant summary

judgment against Butler on his breach of fiduciary duty and statutory wage claims

and should also dismiss all of Butler’s claims that arose prior to the White lawsuit.

According to Sutherland and Zvirzdys, Butler voluntarily released all such claims

by signing the White Release.

In reply, Butler argued that Sutherland and Zvirzdys were misinterpreting

the release and that the White Release did not release his claims against them.

Butler contended that there was no consideration for the release of claims

amongst Butler, Sutherland, Zvirzdys, and ImageSource in the White Release.

However, Butler did not assert that Washington law, as explained in Berg v.

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No. 76536-1-1/4

Hudesman, 115 Wn.2d 657, 801 P.2d 222 (1990), permitted him to introduce

extrinsic evidence of the intent of the signatories to the White Release.

The Butler court rejected Butler’s arguments and granted partial summary

judgment against him. The court granted summary judgment against Butler as to

his breach of fiduciary duty and statutory wage claims and also held that Butler

released any claims related to the “level out” agreement when he signed the

White Release. Butler neither sought discretionary review of the rulings nor

chose to litigate the case to final judgment and appeal the adverse rulings.

Rather, 11 months later, he settled the case.

Butler then filed suit against Thomsen, claiming that he committed

malpractice in reviewing and approving the White Release by failing to notice that

its language released Butler’s claims against Sutherland, Zvirzdys, and

lmageSource.1 In the trial court, Butler moved for summary judgment dismissal

of various affirmative defenses raised by Thomsen, including third party fault,2

and for summary judgment that Thomsen breached the standard of care as a

matter of law when reviewing the White Release. Thomsen filed his own motion

for summary judgment on the issue of causation, asserting that Butler should be

collaterally estopped from relitigating his breach of fiduciary duty and statutory

wage claims. Both parties provided declarations from experts in support of their

motions and in opposition to those of their opponents.

This is not the first time we have been asked to resolve an issue in this matter. In an

unpublished opinion, Butlerv, Thomsen, No. 74258-2-I (Wash. Ct. App. Aug. 29, 2016)

(unpublished), http://www.courts.wa.gov/opinions/pdf/742582.pdf, we held that the White Release

did not compel Butler to resolve this dispute with Thomsen through arbitration.

2 Specifically, that Butler’s attorney in the Butler litigation, Mario Bianchi, committed

malpractice.

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No. 76536-1-1/5

The trial court granted partial summary judgment, holding that Thomsen

breached the standard of care as a matter of law, but refused to strike

Thomsen’s affirmative defense of third party fault. The trial court denied

Thomsen’s motion for summary judgment based on collateral estoppel. We

granted discretionary review.

Thomsen contends that the trial court erred by denying his motion for

summary judgment on certain issues of causation. This is so, Thomsen asserts,

because collateral estoppel barred Butler from relitigating his underlying breach

of fiduciary duty and statutory wage claims from the Butler litigation. In response,

Butler avers that application of the doctrine of collateral estoppel is inappropriate

herein because there was no final judgment in the Butler litigation and because

the application of the doctrine would work an injustice. We disagree.

We ‘review a summary judgment ruling de novo and consider the same

evidence heard by the trial court, viewing that evidence in a light most favorable

to the party responding to the summary judgment [motion].” Slack v. Luke, 192

Wn. App. 909, 915, 370 P.3d 49(2016) (citing Lybbertv. Grant County, 141

Wn.2d 29, 34, 1 P.3d 1124 (2000)). “A court may grant summary judgment if the

pleadings, affidavits, and depositions establish that there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of

law.” Lybbert, 141 Wn.2d at 34. “A material fact is one that affects the outcome

of the litigation.” Owen v. Burlington N. & Santa Fe R.R., 153 Wn.2d 780, 789,

108 P.3d 1220 (2005). “While questions of fact typically are left to the trial

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No. 76536-1-1/6

process, they may be treated as a matter of law if ‘reasonable minds could reach

but one conclusion’ from the facts.” Slack, 192 Wn. App. at 916 (quoting Hartley

v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)).

In a professional negligence action alleging legal malpractice, “the plaintiff

must show (1) the existence of an attorney-client relationship that gives rise to a

duty of care, (2) an act or omission by the attorney in breach of that duty, (3)

damage to the client, and (4) proximate causation between the breach of duty

and the damage incurred.” Slack, 192 Wn. App. at 916 (citing Hizey v.

Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992)). “General principles of

causation are no different in a legal malpractice action than in an ordinary

negligence case.” Halvorsen v. Ferguson, 46 Wn. App. 708, 719, 735 P.2d 675

(1986). Proximate cause is shown through proof that, but for the attorney’s

negligence, the plaintiff would have prevailed or at least achieved a better result.

Halvorsen, 46 Wn. App. at 719.

The doctrine of collateral estoppel applies when the following four

elements are met: “(1) identical issues; (2) a final judgment on the merits; (3) the

party against whom the plea is asserted must have been a party to or in privity

with a party to the prior adjudication; and (4) application of the doctrine must not

work an injustice on the party against whom the doctrine is to be applied.”

Malland v. Dep’t of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985).

‘Whether collateral estoppel applies to preclude relitigation of an issue is a

question of law that we review de novo.” LeMond v. Dept of Licensing, 143 Wn.

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No. 76536-1-1/7

App. 797, 803, 180 P.3d 829 (2008) (citing State v. Vasguez, lO9Wn. App. 310,

314, 34 P.3d 1255 (2001)).

The finality required for a judgment to be appealed is not the same as the

finality required for purposes of applying collateral estoppel. Cunningham v.

State, 61 Wn. App. 562, 566, 811 P.2d 225 (1991). To determine whether a

judgment is sufficiently final to invoke collateral estoppel, we consider whether

the decision was adequately deliberated, whether it was firm rather than

tentative, whether the parties were fully heard, whether the court supported its

decision with a reasoned opinion, and whether the decision was subject to

appeal or was reviewed on appeal. Cunningham, 61 Wn. App. at 567 (citing

RESTATEMENT (SECOND) OF JUDGMENTS § 13, cmt. g (AM. LAW INST. 1982)). Issues

that have been decided on summary judgment may, depending on an analysis of

the different factors, be considered to have been decided with sufficient finality.

Cunningham, 61 Wn. App. at 567-68. That a party settles a case following a

judgment does not prevent said judgment from satisfying the final judgment

requirement. Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 263-

64, 956 P.2d 312 (1998). See also In re Dependency of H.S., 188 Wn. App. 654,

660-61, 356 P.3d 202 (2015); Bunce Rental, Inc. v. Clark Equip. Co., 42Wn.

App. 644, 648, 713 P.2d 128 (1986).

“Collateral estoppel is, in the end, an equitable doctrine that will not be

applied mechanically to work an injustice.” Hadley v. Maxwell, 144 Wn.2d 306,

315, 27 P.3d 600 (2001). “[T]he party against whom the doctrine is asserted

must have had a full and fair opportunity to litigate the issue in the first forum.”

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No. 76536-1-1/8

Christensen v. Grant County Hoso. Dist. No. 1, 152 Wn.2d 299, 309, 96 P.3d 957

(2004). Not only must there have been an opportunity to fully litigate, the party

against whom the estoppel is asserted must have had “interests at stake that

would call for a full litigational effort.” Hadley, 144 Wn.2d at 312 (quoting LEwIs

H. ORLAND & KARL B. TEGLAND, WASHINGTON PRAcTIcE: TRIAL PRAcTIcE, CIVIL §

373, at 763 (5th ed. 1996)). Indeed, as we have recently reiterated, “for collateral

estoppel to apply, the party must have had ‘sufficient motivation for a full and

vigorous litigation of the issue.” Weaver v. City of Everett, 4 Wn. App. 2d 303,

316, 421 P.3d 1013 (2018) (quoting Hadley, 144 Wn.2d at 315).

However, it would work an injustice to apply collateral estoppel when “a

new determination is warranted in order to take account of an intervening change

in the applicable legal context.” In re Estate of Hambleton, 181 Wn.2d 802, 835,

335 P.3d 398 (2014) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 28(2)(b)

(AM. LAw INST. 1982)). “[Cjollateral estoppel is meant to apply only in situations

that ‘have remained substantially static, factually and legally..” Dot Foods, Inc. v.

Dep’t of Revenue, 185 Wn.2d 239, 256, 372 P.3d 747 (2016) (quoting C.I.R. v.

Sunnen, 333 U.S. 591, 599, 688. Ct. 715, 92 L. Ed. 898 (1948)).

The parties dispute whether collateral estoppel bars Butler from asserting

a theory of causation premised upon breach of fiduciary duty and statutory wage

claims previously dismissed on summary judgment by the Butler court.3 The

~ Thomsen seeks the application of collateral estoppel to Butler’s breach of fiduciary duty

and statutory wage claims because application of the doctrine strips Butler of a significant portion

of his claimed damages. If Butler had lost on his breach of fiduciary duty and statutory wage

claims because of the White Release, he could bring a claim against Thomsen to recover what he

would otherwise have recovered for such claims in the Butler litigation. However, when, as

occurred here, Butler’s breach of fiduciary duty and statutory wage claims failed for reasons other

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No. 76536-1-1/9

parties agree that the first and third elements of collateral estoppel are met, but

Butler incorrectly asserts that there was no final judgment and that the

application of collateral estoppel would work an injustice.

The partial summary judgment4 in Butler was not tentative, Butler provided

full briefing on the issues to the Butler court, and the judge supported her ruling

with a reasoned written decision. Furthermore, Butler had the opportunity to

seek discretionary review of the decision or to file an appeal after entry of final

judgment on all claims. The Butler court’s ruling was therefore sufficiently firm to

constitute a final judgment for the purpose of applying collateral estoppel.

Similarly, the application of collateral estoppel to Butler’s causation claims

would not work an injustice because Butler had a full and fair opportunity to

litigate the issues in Butler. Butler brought the motion which resulted in the

summary judgment order he now seeks to avoid. There can be no doubt that he

was properly motivated to engage in a full litigational effort to prevail on his

motion as he was seeking over one million dollars in damages. While before the

trial court in this matter, Butler’s counsel conceded that Butler had the

opportunity to seek discretionary review in the Butter litigation but decided not to

do so. Furthermore, Butler could have seen the matter through to final judgment

and then appealed the decisions as a matter of right.5 ~ RAP 2.2.

than the White Release, Butler cannot then seek to recover for those claims on the ground that

Thomsen committed malpractice when reviewing the language of the White Release.

~ Butler, citing to an unpublished case from Division Two, mistakenly addresses most of

his argument on this issue toward the notion that settlements cannot constitute final judgments.

One reason this argument is inapposite is because the final judgment relied upon by Thomsen to

argue for the application of collateral estoppel is the partial summary judgment order, not the

subsequent settlement agreement.

~ Indeed, Butler’s decision to settle his claims against his former co-owners and shift his

litigation efforts to a lawsuit against his former lawyer, with the hope or expectation that he would

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No. 76536-1-1/10

Butler asserts that substantive changes in the law regarding his statutory

wage claims would make the application of collateral estoppel to a ruling made

prior to the change unjust.6 Specifically, Butler avers that our Supreme Court’s

holding in LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 339 P.3d 963

(2014), published subsequent to the Butler court’s ruling, changed the law upon

which the Butler court based its ruling.7 Therefore, according to Butler, it would

be unjust to hold him to the Butler court’s now legally erroneous ruling.

However, the LaCoursiere decision was published only a few months

subsequent to the Butler court’s ruling and almost a year before Butler settled the

Butler litigation.8 Butler had sufficient opportunity to bring the LaCoursiere

decision to the attention of the trial court,9 to seek discretionary review in light of

the LaCoursiere decision, or to proceed with the litigation and file an appeal

subsequent to final judgment on all claims. He chose not to exercise those

be able to litigate anew the issues presented, appears to be the result of a tactical decision,

rather than one borne of an inability to see the Butler litigation through to fruition.

~ Butler also contends that the Butler court made a substantive error in its ruling

regarding his breach of fiduciary duty claim, specifically by ruling that the cause of action

belonged to the business and, thus, he lacked standing to bring such a claim. He asserts that it

would be unjust to hold him to such an erroneous ruling. However, the inquiry we conduct herein

is concerned only with the opportunity and incentive to fully litigate issues, not with the quality of

the decision reached. Butler had the opportunity to seek review of any rulings he believed to be

erroneous, and cannot now use his decision not to do so as a shield to block the application of

collateral estoppel and obtain a second bite at the litigation apple.

~ Such an argument mistakes a change in the law with a change in the interpretation of

existing law. No new statute was passed; the only change in the applicable legal context was the

interpretation of an existing statute.

8 The Butler ruling in question was dated August 15, 2014. The LaCoursiere decision

was published on October 23, 2014. 181 Wn,2d 734. Butler did not settle the Butler case until

September of 2015.

~ Pursuant to CR 54(b), the Butler court retained the power to revise its interlocutory

rulings at any time prior to the final adjudication of all claims.

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No. 76536-1-I/Il

options.1° The application of collateral estoppel to these claims works no

injustice.

Ill

Thomsen next contends thatthe trial court erred by ruling that he

breached the applicable standard of care as a matter of law. This is so,

Thomsen asserts, because he presented expert testimony that established a

genuine dispute of material fact regarding whether Thomsen breached the

standard of care under the circumstances. In response, Butler asserts that

Thomsen’s expert’s testimony is inadmissible evidence and that expert testimony

was unnecessary to establish a breach of the standard of care under the

circumstances. Thomsen has the better argument.

The standard of care applicable to all cases of professional negligence

involving the practice of law is “that degree of care, skill, diligence and knowledge

commonly possessed and exercised by a reasonable, careful and prudent lawyer

in the practice of law in this jurisdiction.” Cook, Flanagan & Berst v. Clausing, 73

Wn.2d 393, 395, 438 P.2d 865 (1968). Thus, to breach the duty of care, an

attorney “must fail to exercise ‘the degree of care, skill, diligence, and knowledge

commonly possessed and exercised by a reasonable, careful, and prudent

lawyer in the practice of law” in Washington. Geer v. Tonnon, 137 Wn. App.

838, 850-51, 155 P.3d 163 (2007) (quoting Hizey, 119 Wn.2d at 261). Breach of

the standard of care is generally a question of fact, but if reasonable minds could

10 Because Butler had, despite choosing to forgo it, a full and fair opportunity to litigate

the issue of LaCoursiere’s applicability to his statutory wage claims, we need not reach the

parties arguments regarding the applicability of LaCoursiere to the claims raised.

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No. 76536-1-1/12

not differ on the question, breach may also be determined as a matter of law.

Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864, 147 P.3d 600 (2006).

Because the law can be a “highly technical field beyond the knowledge of

the ordinary person,” Walker v. Bangs, 92 Wn.2d 854, 857, 601 P.2d 1279

(1979) (citing Lynch v. Republic Publ’g Co., 40 Wn.2d 379, 389, 243 P.2d 636

(1952)), expert testimony is often required to determine whether an attorney’s

duty of care was breached in a legal professional negligence action. Geer, 137

Wn. App. at 851. However, such expert testimony is not required where the

breach is such that it could fairly be considered within the common knowledge of

laypersons. Walker, 92 Wn.2d at 858.

Several other common principles inform our inquiry. “[E]vidence

submitted in opposition to summary judgment must be admissible.” SentinelC3,

Inc. v. Hunt, 181 Wn.2d 127, 141, 331 P.3d 40(2014). “[T]o preclude summary

judgment, an expert’s affidavit must include more than mere speculation or

conclusory statements.” Cho v. City of Seattle, 185 Wn. App. 10, 20, 341 P.3d

309 (2014).

In addition, “[t]he cardinal rule with which all [contract] interpretation

begins is that its purpose is to ascertain the intention of the parties.” Berg, 115

Wn.2d at 663 (quoting Corbin, The Interpretation of Words and the Parol

Evidence Rule, 50 CORNELL L. QLJAR. 161, 162 (1965)). In Berg, our Supreme

Court held that “extrinsic evidence is admissible as to the entire circumstances

under which the contract was made, as an aid in ascertaining the parties’ intent.”

115 Wn.2d at 667. The court quoted directly from the Restatement (Second) of

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No. 76536-1-1/13

Contracts, stating that the correct interpretation of a contract is determined “by

the trier of fact if it depends on the credibility of extrinsic evidence or on a choice

among reasonable inferences to be drawn from extrinsic evidence.” Berg, 115

Wn.2d at 668 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 212(2) (AM. LAW

INST. 1981)). Again quoting from the Restatement, the court explained that this

rule “is not limited to cases where it is determined that the language used [in the

contract] is ambiguous.” Berg, 115 Wn.2d at 668 (quoting RESTATEMENT~212

cmt. b).

Thomsen first asserts that he presented evidence to show that he did not

breach the standard of care. This is so, he avers, because his expert witness

opined that the White Release did not release claims amongst Butler,

Sutherland, and Zvirzdys. To support his opinion, Thomsen’s expert relied upon

extrinsic evidence, including the prior CR 2A agreement, an e-mail exchange

between Thomsen and White’s attorney specifying that the White Release be

consistent with the CR 2A agreement, and the preamble to the settlement

agreement.

In response, Butler contends that such evidence contradicts the writing

and is inadmissible here because the language of the White Release is not

ambiguous. To Butler, it follows that expert testimony based upon such extrinsic

evidence must also be inadmissible.

To the contrary, Berg clearly states that extrinsic evidence may be

admissible to interpret unambiguous contract language. 115 Wn.2d at 668.

Thus, the extrinsic evidence was properly relied upon by Thomsen’s expert,

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No. 76536-1-1/14

whose opinion raised questions of fact regarding the appropriate inferences to

draw from the language of the CR 2A agreement and the White Release. This

evidence was sufficient to establish a disputed genuine issue of material fact

regarding the correct interpretation of the White Release.11

Thomsen next asserts that he presented expert opinion evidence tending

to prove that, under the circumstances, Thomsen did not breach the applicable

standard of care even if the White Release did release claims amongst Butler,

Sutherland, and Zvirzdysi2 Thomsen’s expert opined that, given the

circumstances of joint representation in a complex business litigation matter, if

there was a mistake made in drafting or accepting the White Release, such a

mistake was reasonable, Thomsen’s expert based this opinion primarily on facts

alleged in Thomsen’s affidavit, specifically that Butler told Thomsen that there

~ Butler appears to also suggest that we should place at least some weight on the Butler

court’s ruling that the Release did, in fact, release all claims amongst Butler, Sutherland, and

Zvirzdys. However, that ruling is not binding on Thomsen as he was not a party to the Butler

litigation and did not have an opportunity to litigate the issue in that case.

12 Thomsen also asserts that he exercised judgment when reviewing and approving the

White Release and that such judgment is protected by the attorney judgment rule expressed in

clark county Fire Dist. No. 5 v. Bullivant Houser Bailey PC, 180 Wn. App. 689, 324 P.3d 743

(2014). Thomsen presumably seeks to qualify the alleged mistake as an exercise of judgment

because “[i]n general, mere errors in judgment or in trial tactics do not subject an attorney to

liability for legal malpractice.” Halvorsen, 46 Wn. App. at 717. In response, Butler contends that

Thomsen merely failed to notice the difference between the language of the CR 2A agreement

and the White Release and to take appropriate measures to address the differences, Butler

further reasons that such failure did not involve an exercise of judgment and, thus, the attorney

judgment rule is inapplicable. Our review of the record indicates that Butler is correct; Thomsen

did not consider that the pertinent section of the White Release may have expressed something

different than the intent expressed in the CR 2A agreement before advising his clients to sign.

However, regardless of whether such an alleged mistake required the exercise of

judgment, that does not change the standard of care or that which constitutes a breach of the

standard of care in a professional negligence action. The question of breach remains the same:

Was Thomsen’s alleged failure to notice the difference (if any) between the CR 2A agreement

and the White Release an unreasonable mistake under the circumstances? In other words, could

an attorney exercising “the degree of care, skill, diligence, and knowledge commonly possessed

and exercised by a reasonable, careful, and prudent lawyer in the practice of law” in Washington

make such a mistake? Hizey, 119 Wn.2d at 261.

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No. 76536-1-1/15

were no unresolved disputes between him and Sutherland and Zvirzdys, that

Butler told Thomsen that he had independent counsel, and that Thomsen’s

engagement letter limited the scope of the engagement to the claims asserted in

the White litigation.

Although Butler presented his own expert witness testimony countering

that of Thomsen’s expert, he asserts that such testimony was unnecessary in this

case because the breach was of the type within the common knowledge of

laypersons. This is so, Butler contends, because Thomsen’s failure to notice that

the language of the White Release might release Butler’s claims against

Sutherland and Zvirzdys is something that laypersons could readily understand.

However, the question is not merely whether Thomsen made a mistake in

reviewing the language of the White Release but, rather, whether such a mistake

is one that no reasonable attorney in Washington would make under the same

circumstances. See Seer, 137 Wn. App. at 851 (requiring expert witness

testimony tending to prove that attorney breached duty in the specific

circumstances where the client failed to disclose information to the attorney).

The circumstances herein, a joint representation in a complex business litigation

matter, can hardly be considered within the common knowledge of laypersons.

Expert opinion evidence on these complex legal circumstances is both

appropriate and necessary. See Geer, 137 Wn. App. at 851-52.

Thomsen and Butler presented conflicting expert opinion evidence on the

issue of Thomsen’s breach of the standard of care. Thus, we conclude that the

trial court erred when it granted summary judgment to Butler on that issue.

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No. 76536-1-1/16

Iv

Next, Butler contends that the trial court should have granted summary

judgment against Thomsen precluding Thomsen from arguing the affirmative

defense of third party fault. In response, Thomsen asserts that he met his

burden by offering evidence sufficient to show a genuine question of material fact

regarding each element of a legal professional negligence claim against Bianchi,

Butler’s attorney in the Butler litigation.

The defense of third party fault is an affirmative defense. See Wuth v.

Lab. Corp. of Am., 189Wn. App. 660, 701-02, 359 P.3d 841 (2015). The party

asserting an affirmative defense bears the burden of proving the elements of the

defense. Fulle v. Boulevard Excavating, Inc., 20 Wn. App. 741, 743, 582 P.2d

566 (1978). For a third party fault defense, the party asserting third party fault

must present evidence of the third party’s negligence constituting fault. See ~g,

Adcox v. Children’s Ortho. Hosp & Med. Ctr., 123 Wn.2d 15, 25-26, 864 P.2d 921

(1993). Thus, because Thomsen asserts that Bianchi’s malpractice, or

professional negligence, was responsible for any harm to Butler in the Butler

litigation, to survive summary judgment Thomsen must show that there is a

question of material fact regarding each element of a malpractice claim against

Bianchi.

Thomsen contends that he met his burden to offer evidence sufficient to

create a question of material fact regarding each element of his third party fault

defense through Thomsen’s declaration, his expert witness’s declaration, and the

underlying testimony from the Butler proceedings upon which his expert based

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No. 76536-1-1/17

his opinions. Butler does not assert that such evidence fails to meet Thomsen’s

burden but, rather, asserts that some of the evidence from Thomsen’s expert

witness is inadmissible. Specifically, Butler avers that Thomsen’s expert’s

opinions regarding Bianchi’s choice of forum13 are inadmissible and that,

therefore, Thomsen failed to meet his burden of proof on the issue of causation.

Thus, Butler asserts that Thomsen failed to meet his burden to show that

Bianchi’s actions were the proximate cause of the harm to Butler.14

Butler first contends that Thomsen’s expert witness’s opinions regarding

Bianchi’s choice of forum are inadmissible because such a consideration is

impermissibly speculative. Washington courts’ standard “trial within a trial”

method of determining cause in fact in a legal malpractice action supports

Butler’s argument because it necessarily presumes that different fact finders

would reach the same conclusion when presented with the same evidence and

law. See Brustv. Newton, 7OWn. App. 286, 293, 852 P.2d 1092 (1993) (‘[T]he

purpose of the ‘trial within a trial’ that occurs in a legal malpractice action is not to

recreate what a particular judge or fact finder would have done. Rather, the

jury’s task is to determine what a reasonable judge or fact finder would have

done.”); See also Daugert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985)

(“[W]hen an attorney makes an error during a trial, the causation issue in the

13 Thomsen asserts that Bianchi erred by not insisting that the dispute in Butler be

submitted to arbitration before the White case mediator, as allowed in the White Release.

Thomsen’s theory is that such an arbitration would have advantaged Butler because the

mediator/arbitrator had personal knowledge of the White settlement and of the parties’ intentions

in entering into the settlement.

14 Indeed, Butler does not dispute Thomsen’s expert’s opinion regarding whether Bianchi

breached the standard of care. The only dispute is whether Bianchi’s alleged malpractice

proximately caused Butler’s alleged damages.

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No. 76536-1-1/18

subsequent malpractice action is relatively straightforward. The trial court

hearing the malpractice claim merely retries, or tries for the first time, the client’s

cause of action which the client asserts was lost or compromised by the

attorney’s negligence.”). Furthermore, as noted by courts in other jurisdictions,

permitting legal malpractice claims to proceed upon the ground that the attorney

should have sought a different venue is to allow claims that are entirely

speculative. See~g~, Mitchell v. Transamerica Ins. Co., 551 S.W.2d 586, 588

(1977) (“Trying to predict what a jury might do at any given time or place is

hazardous and is one of the vagaries of life.”).

Thomsen asserts that the aforementioned policy concerns are addressed

herein because arbitration has different evidentiary rules than does superior court

and because the arbitration agreement specifies that the mediator who helped

negotiate the agreement would act as the arbitrator.15 We disagree with

Thomsen that these reasons are sufficient to overcome the policy concern that

testimony, even expert testimony, regarding what a decision-maker might or

might not have decided, is speculative. It cannot matter that the decision-maker

in arbitration may have had greater background knowledge of the White litigation

or that the rules of evidence are different in arbitration. Even if true, testimony

regarding what could have been the outcome in such a forum remains

speculative. The ‘trial within a trial” mechanism is the proper method by which to

determine what may or may not have happened in prior litigation but for the

1~ The White Release actually specifies that the mediator “or a single arbitrator as agreed

by the Parties” will arbitrate. It does not state that the parties would necessarily use the services

of the mediator.

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alleged malpractice. Brust, 70 Wn. App. at 293. Thus, we hold that speculative

expert testimony regarding what may have or not have happened in a different

forum is inadmissible.

We further hold that Thomsen’s expert may not present opinion evidence

regarding whether the Butler court would have ruled differently but for Bianchi’s

tactical decisions. The proper method for determining what a trier of fact would

have determined absent Bianchi’s alleged mistakes is to present the case to the

jury free of such mistakes. See Brust, 70 Wn. App. at 293. For example,

Thomsen may present evidence to the jury that Bianchi did not present extrinsic

evidence of the intent of the White Release’s language in Butler and then may

present said extrinsic evidence. However, Thomsen is not permitted to present

speculative expert testimony that Bianchi’s failure to present such extrinsic

evidence and argue for its admissibility under Berg caused the Butler court’s

rulings regarding the correct interpretation of the White Release. That is for the

jury to decide.

Although we hold that Thomsen’s speculative expert opinion evidence as

to hypothetical results is inadmissible, the underlying evidence upon which said

expert opinion evidence is based shows that there is a genuine dispute of

material fact on the issue of causation. Butler’s reply to Sutherland’s and

Zvirzdys’s response to Butler’s motion for summary judgment in the Butler

litigation did not in any way refer to Berg and the rules it set forth regarding the

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No. 76536-1-1/20

admissibility of extrinsic evidence.16 Whether such failure resulted in the Butler

court’s ruling—in other words, whether the extrinsic evidence not considered by

the Butler court would establish that the White Release did not release claims

amongst Butler, Sutherland, and Zvirzdys—is a disputed factual question. ~

Berg, 115 Wn.2d at 668 (“A question of interpretation of an integrated agreement

is to be determined by the trier of fact if it depends on the credibility of extrinsic

evidence or on a choice among reasonable inferences to be drawn from extrinsic

evidence.” (quoting RESTATEMENT (SECOND) OF CONTRACTS § 212(2))). We

conclude that there is a genuine dispute over a question of material fact

regarding whether Bianchi’s alleged malpractice proximately caused Butler’s

alleged damages. The trial court properly denied summary judgment on this

issue.

Reversed and remanded for proceedings consistent with this opinion.

“4

We concur: /

16 Butler asserts that the extrinsc evidence Thomsen contends should have been

introduced is inadmissib e under ~jg and subsequent cases applying the ~g rules But er

appears to argue that the ev dence is inadmissble simply because it contradicts hs and the

Butler court’s interpretations of the White Release. While Butler lists several princip es that courts

consider when interpreting contract language (that he asserts show extrinsic evidence shou d not

be admissible when contract language is clear), he fails to acknowledge that the fl~jg court he d

both that extrinsic evidence is admissible even in situations in which the contract language s not

ambiguous and that ‘the various principles of [contracti interpretaton should not be app ed as

absolutes.” 115 Wn.2d at 664, 669.

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