                                                                                                                      FILED
                                                                                                         CC)     J OF A P P"       LS
                                                                                                                 D.f' V, SIQN It
                                                                                                        28114   Aur   12 . Pfl 12: 45
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN_

                                                  DIVISION II

ALAN J. VEYS; LONE EAGLE RESORTS,                                                   No. 43674- 4- 11
INC.;    and     ALAN       J.   VEYS    PROPERTIES,
LLC,


                                       Appellants,


          v.



MICHAEL LONG and ANN LONG; OFFICE                                          UNPUBLISHED OPINION
OF P. MICHAEL LONG; and P. MICHAEL
LONG, P. S., INC.,


                                       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     be 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 of Veys' other claims not related to

the   sale of   Veys' lodge.
No. 43674 - -II
          4



                                                                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



                                                                    2
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: 00 pm 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



                                                                           3
No. 43674 - -II
          4



            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.' 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

             2
    carry "      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.

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.


                                                                         4
No. 43674 - -II
          4



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




                                                                       5
No. 43674- 4- 11



                                                                                         reiterating that he
                             terms3


about additional                         he   wanted    included in the PSA       and                          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   at pilings "; (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 Veys, and the
selling price of Veys' plane.


                                                                       6
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 non-

compliance, 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,

               Scheer that Veys                    the Purchasers to "                  their bags   and   leave the island."   CP
informing                                 wanted                                 pack




                                                                      7
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 if Veys

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
No. 43674- 4- 11



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
                                                                                                                    4
in   connection with         their 1994 joint       purchase of        the Cowlitz River     accretion      land,       and ( 5) Long
                                                                                                                                    5
had breached the duties           and obligations          he   owed    Veys   under   their contract   for legal       services.




            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 of half of Long' s
interest in the Cowlitz River accretion land.

5
     On   appeal,   Veys does          not pursue   dismissal      of   his            based malpractice claim.
                                                                              contract -                                    Thus, we
do    not   further   address    it.
No. 43674- 4- 11



           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 of Veys' 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' P SA-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.



                                                             10
No. 43674 - -II
          4



Veys') damages           were    ongoing, "            continu[   ing]   to this   day ";   and ( 2) thus, Veys' claim was not


barred by the statute of limitations. 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 attorney-

client   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.




                                                                         11
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 of duty 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.     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- 11



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 of Veys' 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 - -II
          4



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 of    limitations 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- 11



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.     Thus, we reverse the




10 RCW 4. 16. 080( 3)_


                                                                15
No. 43674 - -II
          4



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 of Veys' 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.




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