       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


REED TAYLOR,
                                                           DIVISION ONE
               Appellant,
                                                           No. 70414-1-                           CD
                                                                                                  n


                                                                                                  ro
                                                           PUBLISHED OPINION
SCOTT BELL and JANE DOE BELL,
and their marital community; FRANK
TAYLOR and JANE DOE TAYLOR, and
their marital community; CAIRNCROSS                                                                CO

& HEMPELMANN, a Professional
Service Corporation,

               Respondents.                                FILED: December 29, 2014



       Dwyer, J. — Before the doctrine of judicial estoppel may be applied, a

party's initial position—which is subsequently contradicted in a different

proceeding—must be accepted by the court to which it is presented. In a

proceeding prior to the matter before us on appeal, appellant Reed Taylor's initial

position was rejected by the court to which it was presented. Nevertheless, in

this matter, the King County Superior Court applied judicial estoppel, found

insufficient evidence of proximate causation, and granted summary judgment in

favor of the respondents. Given that Taylor1 did not successfully maintain his

position in the prior proceeding, and because sufficient evidence of proximate

causation was presented with regard to Taylor's claims of legal malpractice and


       1 For clarity, we will refer to plaintiff-appellant Reed Taylor as "Taylor." We will refer to
defendant-respondent Frank Taylor as "Frank Taylor."
No. 70414-1-1/2



breach of fiduciary duty, we reverse the trial court's grant of summary judgment

as to those claims and remand for further proceedings.

                                                 I


        Reed Taylor was the founder and chief executive officer of AIA Services

Corporation, an Idaho corporation. In 1995, Taylor was also the majority

shareholder. At that time, certain shareholders solicited Taylor to sell his majority

stake back to AIA through a stock repurchase. At the time, both he and AIA were

represented by various lawyers from the Idaho law firm of Eberle Berlin Kading

Turnbow & McKlveen (collectively Eberle). Eberle had an extensive history of

representing Taylor and AIA.2

        On March 7, 1995, AIA held a board and shareholder meeting to discuss

the plan to repurchase Taylor's shares. At this meeting, the shareholders

authorized the repurchase of Taylor's shares. However, the shareholders did not

authorize the use of capital surplus to repurchase Taylor's shares. During the

same meeting, the board of directors advised Taylor to obtain independent legal

counsel.

        Taylor was referred to Cairncross & Hempelmann (collectively

Caimcross)—a Seattle law firm. Attorneys from Cairncross3 began representing

Taylor in March of 1995. The firm did not have an office in Idaho and the
attorneys representing Taylor were not licensed to practice law in Idaho. The fee


         2Eberle regularly served as AlA's legal representative. In addition, Taylor's personal
attorney, Richard Riley, was an attorney at Eberle.
         3Two Cairncross attorneys, Scott Bell and Frank Taylor, were named as defendants in
this lawsuit.


                                               -2-
No. 70414-1-1/3



agreement indicated that Cairncross would represent Taylor "in the matter of the

sale of his stock in AIA."

       Cairncross negotiated and drafted the stock redemption agreement and

ancillary agreements. During this period of time, Cairncross attorney Frank

Taylor wrote the following to a colleague: "What about: (1) The issue of their

authority to enter into the Stock Redemption Agreement—Riley's proposal says

Co.'s authority to do this and to close & consummate the transaction is

dependent upon . . . SH approval. . . ." When Cairncross billed Taylor for the

work that it had done in connection with the stock redemption agreement, its

billing records included the following descriptions: "Analysis re need for

shareholder meeting," and "Analysis re corporate authority issues."

       As part of the deal brokered by Cairncross, AIA was required to deliver

certain documents to Cairncross at closing. Additionally, Eberle was obligated to

deliver to Taylor a third party closing opinion letter. This opinion letter, the

content of which was negotiated by Cairncross and Eberle, was addressed to

Taylor and stated that only he could rely upon it. The letter provided, in pertinent

part, that "the consummation of the transactions contemplated thereby, will" not
"(c) to the best of our knowledge, violate any law . . . of any jurisdiction to which

[AIA]. . . [is] subject."

       The final terms of the agreement provided that AIA would redeem all of

Taylor's AIA shares in exchange for (1) a down payment of $1,500,000, (2) a $6
million promissory note, with interest-only payments for 10 years and the

principal due in a balloon payment in the final year, (3) forgiveness of certain

                                          -3-
No. 70414-1-1/4



debt owed by Taylor and related entities to AIA, and (4) transfer of title of several

airplanes to Taylor.

       Within the following year, AIA defaulted on its obligations pursuant to the

agreement. Cairncross represented Taylor in restructuring the obligations. After

the restructure, Cairncross ceased to represent Taylor.

                                   Taylor Sues AIA in Idaho

       In 2007, AIA again failed to meet its obligations to Taylor. In response,

Taylor sued AIA, including certain officers and directors, in Idaho state court.

       In 2008, certain defendants moved for partial summary judgment, arguing

that the stock redemption agreement violated an Idaho statute that had been in

effect at the time that the stock redemption transaction closed—former Idaho

Code Ann. § 30-1-6 (1995).4 That statute, which has since been repealed,

authorized corporations to purchase their own shares, but instituted restrictions

on the source of funds that could be used for that purpose.

        On June 17, 2009, the Idaho trial court ruled that the redemption

agreement had been in violation of former Idaho Code Ann. § 30-1-6 and, thus,

was unenforceable. Specifically, the court held that because AIA had not had

earned surplus at the time of the redemption agreement, and because it had not

been authorized by either its governing documents or by a majority shareholder

        4 This statute provided, in pertinent part, the following:
               A corporation shall have the right to purchase ... its own shares, but
        purchases of its own shares, whether direct or indirect, shall be made only to the
        extent of unreserved and unrestricted earned surplus available therefor, and, if
        the articles of incorporation so permit or with the affirmative vote of the holders of
        a majority of all shares entitled to vote thereon, to the extent of unreserved and
       unrestricted capital surplus available therefor.
Former Idaho Code Ann. § 30-1-6 (1995).
No. 70414-1-1/5



vote to use capital surplus in order to fund the redemption, the redemption

agreement was in violation of former Idaho Code Ann. § 30-1-6. In so ruling, the

Idaho trial court noted that Taylor "was represented by counsel" and that "[t]here

is no question that all parties, including [Taylor], either ignored or failed to

consider [Idaho Code Ann.] § 30-1-6."

       The Idaho Supreme Court affirmed the trial court's decision. Taylor v. AIA

Servs. Corp., 151 Idaho 552, 261 P.3d 829 (2011).

                              TaylorSues Eberle in Idaho

       In October 2009, following the adverse ruling by the trial court in his

lawsuit against AIA, Taylor filed suit against Eberle in Idaho state court. He
pleaded claims of negligent misrepresentation, fraud, breach of fiduciary duty,
legal malpractice, and violation of the Idaho Consumer Protection Act.5
       Eberle moved for summary judgment. Therein, it maintained that because

it had not had an attorney-client relationship with Taylor, it had owed him no duty

of care.

       Taylor opposed Eberle's motion. In the course of so doing, he testified
that he had relied on Eberle to provide the legal representation that was

necessary for his shares to be properly redeemed.
        I relied upon [Eberle] to provide the legal representation necessary
       to legally and properly complete the redemption of my shares for
        me and AIA Services. Neither I nor AIA Services had any other
        attorneys retained for the purpose of providing the legal
        representation to ensure the redemption of my shares had all
        necessary consents and did not violate any laws.


        5 Idaho Code Ann. § 48-601 to -619.

                                              -5
No. 70414-1-1/6



          On May 7, 2010, the Idaho trial court ruled that, although Eberle owed

Taylor a duty in connection with the drafting and issuance of the opinion letter, its

duty did not arise as a result of an attorney-client relationship. Consequently,

those of Taylor's claims that were predicated upon the existence of an attorney-

client relationship with Eberle were dismissed. However, the rest of his claims

were allowed to proceed. Eberle's motion for reconsideration was denied, and it

appealed to the Idaho Supreme Court.

          In August 2014, the Idaho Supreme Court affirmed. In upholding the trial

court's ruling that Taylor was owed a duty by Eberle as a non-client, the Idaho

Supreme Court identified that which was the target of Taylor's claim: "Mr.

Taylor's cause ofaction is not to recover damages based upon the stock
redemption agreement. It is to recover damages based upon the issuance ofthe
opinion letter that failed to mention that the transaction did not comply with Idaho
Code section 30-1-6." Tavlor v. Riley. 157 Idaho 323, 336 P.3d 256, 262 (2014).

                          Taylor Sues Cairncross in Washington

          In March 2012, Taylor filed suit against Cairncross in King County

Superior Court. His claims included legal malpractice, breach offiduciary duty,
and violation ofthe Washington Consumer Protection Act (CPA).6
          In February 2013, Cairncross moved for summary judgment.7 Therein,
Cairncross argued, inter alia, that the doctrine ofjudicial estoppel precluded

          6Ch. 19.86 RCW.
          7After Cairncross filed its summary judgment motion, Taylor moved to amend and
supplement his complaint in order to include new causes of action—(1) violation of Idaho's
Consumer Protection Act; (2) declaratory relief; and (3) equitable estoppel. His motion was
denied.
No. 70414-1-1/7



Taylor from maintaining his claims, that Taylor had failed to carry his burden on

the element of proximate causation, and that Cairncross and Taylor had limited

the scope of Cairncross's representation to exclude matters relating to AlA's

authority and the enforceability of the transaction under Idaho law.
       Taylor opposed the motion and filed a cross-motion for partial summary

judgment. Therewith, by declaration, Taylor submitted expert testimony from
Professor Richard McDermott.

        Subsequently, the trial court orally granted Cairncross's motion for
summary judgment, denied Taylor's cross motion, and—thereafter-
memorialized its ruling in a written order.8 In dismissing Taylor's claims for
malpractice, breach of fiduciary duty, and violations of the CPA, the trial court
held that (1) judicial estoppel barred Taylor's claims of malpractice and breach of
fiduciary duty, (2) Taylor had offered no admissible evidence to show proximate
causation as to his claims for malpractice and breach offiduciary duty, and (3)

Taylor's CPA claim failed as a matter of law.
        Regarding judicial estoppel, the trial court found that Taylor had taken
inconsistent positions in Idaho and in Washington.
               Basically, what the plaintiff did in Idaho is he pointed the finger
        at [Eberle] and said: These are the Idaho lawyers who were
        representing me. Imean, he didn't say they were representing some
        third party . . . , he said, "They were representing me," and that no

        8In its proposed order, Cairncross included a proposed finding that the Idaho trial court
 had been misled. In response, Taylor offered expert testimony from Washington attorney Gary
 Libey and a supplemental declaration from Taylor's counsel. These submissions were meant to
 refute the notion that the Idaho trial court had been misled. In the King County judge's written
 order memorializing that court's oral grant of summary judgment, the judge expressly declined to
 consider the supplemental declarations offered by Taylor.

                                                -7-
No. 70414-1-1/8



      other lawyer, specifically [Cairncross] - no other lawyer was
      involved. In other words, no other lawyer had a duty. This was done
      in Idaho so that he could pursue liability against those Idaho lawyers.
              Now he says, "No, that's not true, I didn't mean that, and
      Cairncross were the other lawyers." It is a direct and irreconcilable
      conflict stated under oath, inconsistent with the course of dealing and
      all the other evidence under oath that was submitted.
             Yes, Cairncross was not licensed to practice law in the state
      of Idaho - everybody concedes that - and that's the reason they
      went out and got the [Eberle] opinion letter. That's why it was
      abundantly clear. . . why the plaintiff had to do that, and that's why
      that opinion letter, that Idaho representation was clearly beyond the
      scope of their representation here in Washington.

       Next, independent of its ruling with regard to judicial estoppel, the trial

court ruled that Taylor had not offered evidence of a sufficient quantum as to the

element of proximate causation, rendering Taylor's claims of malpractice and

breach of fiduciary duty subject to summary judgment. In so concluding, the trial

court refused to consider the testimony of McDermott offered by Taylor.

              This relates, then, to the proximate causation issue, because
       under Washington law, I don't think there's any admissible
       evidence that there is proximate causation. There is just no
       admissible evidence under Washington law, because Mr.
       McDermott doesn't have the requisite expertise for us to admit his
       declaration as admissible evidence. He is qualified to opine under
       Idaho law, perhaps New York law, but there's no admissible
       evidence under Washington law for the admissibility of his opinion.
       It's a different question about whether it's admissible under Idaho
       law.

       However, the trial court did not reach the issue of whether Washington law

or Idaho law should apply.

              To the extent Washington law applies, there is no proximate
       causation, leaving open the question of—again, independent of any
       judicial estoppel analysis, I'm going to grant partial summary
       judgment. To the extent that Washington substantive law applies
       on the malpractice claim, there is no proximate causation.
              If Idaho law were to—substantive law were to apply, I think I

                                         -8-
No. 70414-1-1/9



          do not have sufficient information to make that decision, and that
          may be a matter for another day.[9]

          The trial court further concluded that Taylor's CPA claim failed as a matter

of law.

          Taylor's motion for reconsideration was denied.

          Taylor appeals from the dismissal of his claims for malpractice and breach

of fiduciary duty.10

                                                     II


          Taylor contends that summary judgment, insofar as it rested upon

application of the doctrine of judicial estoppel, was erroneously granted. We

agree. Even assuming, without deciding, that Cairncross's characterization of

Taylor's litigation theory in Idaho is accurate, we conclude that this theory was

not accepted in that proceeding. Consequently, the trial court's grant of

summary judgment was based upon a mistaken application of judicial estoppel.11


          9 In its written order, the trial court further explained its ruling with regard to the choice of
law issue:

          2. Proximate Cause: The Court reaches no conclusion as to whether Washington
          or Idaho substantive law governs Plaintiffs claims for legal malpractice and
          breach of fiduciary duty.
          If Washington substantive law governs, then Plaintiff's claims for legal
          malpractice and breach of fiduciary duty fail as a matter of law for lack of
          proximate causation, in which case Defendants' motion for summary judgment is
          GRANTED as to Plaintiffs claims for legal malpractice and breach of fiduciary
          duty, and those claims are hereby DISMISSED WITH PREJUDICE.
          If Idaho substantive law governs, the Court presently lacks sufficient information
          to determine whether Plaintiff's claims for legal malpractice and breach of
          fiduciary duty fail for lack of proximate causation under Idaho law, and the Court
          therefore reaches no conclusion on the subject.
          10 He does not appeal from the dismissal of his CPA claim.
         11 Taylor argues that Cairncross either waived the defense ofjudicial estoppel by failing
to raise it in its responsive pleading or was precluded from availing itself of the defense because
of its "unclean hands." We disagree.

                                                    -9-
No. 70414-1-1/10



       "Summary judgment orders are reviewed de novo." Overton v. Consol

es. Co.. 145 Wn.2d 417, 429, 38 P.3d 322 (2002). Summary judgment should

be granted "if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." CR 56(c). All evidence, however, must be viewed
in the light most favorable to the nonmoving party. Overton, 145 Wn.2d at 429.
        "'Judicial estoppel is an equitable doctrine that precludes a party from

asserting one position in a court proceeding and later seeking an advantage by
taking a clearly inconsistent position.'" Arkison v. Ethan Allen. Inc.. 160 Wn.2d
535, 538, 160 P.3d 13 (2007) (quoting Bartlev-Williams v. Kendall. 134 Wn. App.
95, 98, 138 P.3d 1103 (2006)); accord Anderson v. Dussault.                    Wn.2d       , 333
P.3d 395, 401 (2014). "There are two primary purposes behind the doctrine:
preservation of respect for judicial proceedings and avoidance of inconsistency,
duplicity, and waste of time." Anfinson v. FedEx Ground Package Svs.. Inc.. 174
Wn.2d 851, 861, 281 P.3d 289 (2012): accord Harris v. Fortin.                   Wn. App. _,

333 P.3d 556, 558 (2014).




        Judicial estoppel isdesigned to protect the judicial system. Anfinson v. FedEx Ground
Package Svs.. Inc.. 174 Wn.2d 851, 861, 281 P.3d 289 (2012). As itis primarily a means of
shielding the judicial system, the doctrine—which may be invoked by a court at its discretion—is
not subjected to the same strictures imposed upon equitable defenses that were implemented
 primarily with litigants in mind. See, &&. In re Richardson. 497 B.R. 546, 558 (Bankr. S.D. Ind.
2013) ("Even when one party's hands are unclean, another party's inconsistent positions may
threaten judicial integrity."). Nor is the court's discretion dependent upon pleading niceties.

                                               -10-
No. 70414-1-1/11



       Three "core," nonexhaustive12 factors guide a trial court's determination of

whether to apply judicial estoppel: (1) whether the party's later position is clearly

inconsistent with its earlier position, (2) whether acceptance of the later

inconsistent position would create the perception that either the first or the

second court was misled, and (3) whether the assertion of the inconsistent

position would create an unfair advantage for the asserting party or an unfair

detriment to the opposing party. Anfinson. 174 Wn.2d at 861.

       While these factors are inevitably recited and often applied by Washington

appellate courts, there is a consensus among the courts of appeal that judicial

estoppel may be applied only in the event that a litigant's prior inconsistent
position benefited the litigant or was accepted by the court. See Cunningham v.
Reliable Concrete Pumping. Inc., 126 Wn. App. 222, 230-31, 108 P.3d 147

(2005) (Division One), DeVenv v. Hadaller. 139 Wn. App. 605, 620-22, 161 P.3d
1059 (2007) (Division Two), and Johnson v. Si-Cor. Inc.. 107 Wn. App. 902, 909,
28 P.3d 832 (2001) (Division Three): accord Lee ex rel. Office of Grant County
Prosecuting Attorney v. Jasman,            Wn. App.       , 332 P.3d 1106, 1126(2014)

(Division Three) ("To find that a party to be estopped has successfully maintained
a claim or position requires that the first court adopt the claim or position, either
as a preliminary matter or as part ofa final disposition."); see also Milgard
Tempering. Inc. v. Selas Corp. of Am., 902 F.2d 703, 716 (9th Cir. 1990) ("The


        12 While our Supreme Court has explained that these factors are not exhaustive, it has
not, contrary to Taylor's assertion, mandated consideration of other factors. See Arkison, 160
Wn.2d at 539 ("These factors are not an 'exhaustive formula' and '[additional considerations'
may guide a court's decision." (alteration in original) (quoting New Hampshire v. Maine, 532 U.S.
742, 751, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001))).

                                              -11 -
No. 70414-1-1/12



majority view is that the doctrine is inapplicable unless the inconsistent assertion

was actually adopted by the court in the prior litigation." (citing Stevens Tech.

Servs. v. SS Brooklyn. 885 F.2d 584, 589 (9th Cir. 1989) (collecting federal

cases))).13

         In this matter, the trial court concluded that there was a "direct and

irreconcilable conflict" between the positions taken by Taylor in Idaho and in

Washington. There is some dispute by the parties concerning the position that
was taken by Taylor in Idaho. Taylor argues that, in Idaho and in Washington,
his theory was and continues to be that both Eberle and Cairncross provided him
with legal representation. Cairncross proposes a different understanding,
arguing that Taylor's theory in Idaho, as evidenced by his testimony in that
proceeding, was that Eberle was his only legal representative retained "to ensure
the redemption of [his] shares had all necessary consents and did not violate any
laws."

         Resolution ofthis issue is not predicated upon an initial determination of
Taylor's true position advanced in Idaho.14 Taylor's position need not be
determined definitively because, even assuming, without deciding, that the
         13 When reviewing a summary judgment where the moving party invoked judicial estoppel
to persuade a court to bar a claim, we have said that the proper standard of review is abuse of
discretion. See, e^, Harris. 333 P.3d at558-59. Yet, it is well settled that summary judgment
orders and all rulings made in conjunction with summary judgment are reviewed de novo.
Momah v. Bharti, 144 Wn. App. 731, 749, 182 P.3d 455 (2008) (citing Folsom v. Burqer King, 135
 Wn.2d 658, 663, 958 P.2d 301 (1998)).
         Given that Taylor appeals from an order granting summary judgment that was based, in
 part on the application of judicial estoppel, the proper standard for reviewing the trial court's
 order is not self-evident. However, because we conclude that, under either standard ofreview,
 the challenged ruling was erroneous, we need not resolve the conflict noted.
         14 Yet insofar as Cairncross asserts that Taylor's theory was that Eberle represented 'his
 only potential source of recovery," Br. of Respondents at 25-26, we conclude that Cairncross is
 incorrect.


                                                 -12-
No. 70414-1-1/13



manner in which Cairncross has characterized Taylor's theory in Idaho is correct,

it was undoubtedly rejected by the Idaho trial court. In restricting to that of a non-

client the duty that was owed to Taylor by Eberle, the Idaho court necessarily

repudiated the notion—whether or not advanced by Taylor—that Eberle had

been Taylor's only legal representative in ensuring that the stock redemption was

enforceable under Idaho law and that AIA had the authority to enter into the

transaction. After all, exclusive legal representation presupposes the existence

of an actual attorney-client relationship. The Idaho trial court ruled that Taylor

enjoyed no such relationship with Eberle.

       Acceptance of an initial position is a precondition to the application of

judicial estoppel. The Idaho trial court did not give credence to the theory that
Eberle had been representing Taylor in the matter of his stock redemption, let

alone to the exclusion of any other legal representative.15 Hence, the trial court

erred in basing summary judgment on the application ofthe doctrine ofjudicial

estoppel.

                                                 Ill


        Cairncross contends that, even in the event that the trial court erred by

applying judicial estoppel, it did not err when it ruled that, with regard to the
elementof proximate causation—an essential element of Taylor's claims for
malpractice and breach offiduciary duty—insufficient evidence was offered to


        15 The Idaho Supreme Court's subsequent decision is not at variance with the trial court's
analysis. Taylor, 336 P.3d at 268 ("The claim against the Estate and [Eberle] in this case is not
based upon [the] representation [by Eberle] of any party in prior litigation   It is based solely
upon [the] issuance of the opinion letter.").

                                                -13-
No. 70414-1-1/14



survive summary judgment. We disagree. McDermott's expert testimony, which

was erroneously excluded by the trial court, provides a sufficient quantum of

evidence for Taylor's claims of malpractice and breach of fiduciary duty to

withstand summary adjudication.16

       While ordinarily our review of evidentiary rulings made by the trial court is

for abuse of discretion, we review de novo such rulings when they are made in

conjunction with a summary judgment motion. Wilkinson v. Chiwawa

Communities Ass'n. 180 Wn.2d 241, 249, 327 P.3d 614 (2014). Hence, we do

not defer to a trial court's determination regarding the qualifications of an expert

witness when made for purposes of summary judgment. Sevbold v. Neu, 105

Wn. App. 666, 678, 19 P.3d 1068 (2001).

       "Generally, expert testimony is admissible if (1) the expert is qualified, (2)

the expert relies on generally accepted theories in the scientific community, and

(3) the testimony would be helpful to the trier of fact." Johnston-Forbes v.
Matsunaga. 181 Wn.2d 346, 352, 333 P.3d 388 (2014). "[A] lawyer not admitted

to the Washington bar is not, per se, unqualified as an expert witness in a legal

malpractice action in this state." Walker v. Bangs. 92 Wn.2d 854, 858-59, 601
P.2d 1279 (1979) (holding that the fact that the expert witness was not licensed
to practice in Washington should go to the weight, ratherthan the admissibility, of
his testimony, assuming that the witness is otherwise qualified); accord


         16 The parties dispute whether Idaho or Washington law applies. The trial court based its
decision to grantsummary judgment on the assumption thatWashington law applies. It
specifically declined to reach this issue in the event that Idaho law applied. Therefore, in
reviewing the trial court's order, we apply Washington law.

                                              -14-
No. 70414-1-1/15



Johnston-Forbes. 181 Wn.2d at 355 ("Licensure may be relevant to a trial judge

in deciding admissibility of expert testimony, but lack of a license does not, in all

cases, require exclusion."); Channel v. Mills. 77 Wn. App. 268, 282-83, 890 P.2d

535 (1995) ("It is error... to exclude the testimony of an expert solely because

he or she is not licensed in this state."). It is beyond cavil that "an expert may be

qualified" to testify "by experience alone." In re Marriage of Katare. 175 Wn.2d

23, 38, 283 P.3d 546 (2012) (citing ER 702); accord State v. Ortiz. 119 Wn.2d

294, 310, 831 P.2d 1060 (1992) ("Practical experience is sufficient to qualify a

witness as an expert.")

        In excluding McDermott's expert testimony, the trial court misperceived

the appropriate inquiry.17 The trial court should have sought to ascertain whether

McDermott was qualified to opine on matters of multi-jurisdictional corporate

practice, including third party opinion practice. That was the gist of his testimony

and the purpose for which it was offered. Had the trial court considered

McDermott's credentials, which were undisputed, they would have revealed, as

detailed below, that he is eminently qualified to testify as an expert in this matter.

        •   He has extensive experience in multi-jurisdictional practice;
        •   He has been a member of the TriBar Opinion Committee18 for over 20
            years;


        17 The record suggests that McDermott's testimony was rejected on the basis that he was
not licensed to practice law in Washington.
        There is just no admissible evidence under Washington law, because Mr.
        McDermott doesn't have the requisite expertise for us to admit his declaration as
        admissible evidence. He is qualified to opine under Idaho law, perhaps New
        York law, but there's no admissible evidence under Washington law for the
        admissibility of his opinion. It's a different question about whether it's admissible
        under Idaho law.
        18 This well-established and well-regarded organization publishes reports on various
aspects of opinion practice.

                                               -15-
No. 70414-1-1/16



      •   He has experience in the preparation or receipt of over 100 third party
          opinion letters;
      •   He has over 33 years of experience as a professor of law on corporate
          finance;
      •   He is the author of a law school text book on corporate finance;
      •   He is the author on a chapter in a treatise on opinion letters; and
      •   He has over 35 years of experience in all aspects of corporate law.

      McDermott's testimony contains evidence sufficient to withstand summary

judgment on Taylor's claims of malpractice and breach of fiduciary duty. More

specifically, as to each claim, aspects of his testimony create genuine issues of

material fact regarding the essential element of proximate causation.

       Proximate causation has two elements: cause in fact and legal causation.

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

Cause in fact refers to the "but for" consequences of an act, that is, the

immediate connection between an act and an injury. Smith, 135 Wn. App. at

864. Cause in fact is usually the province of the jury. Smith. 135 Wn. App. at

864. However, the court can determine cause in fact as a matter of law if

reasonable minds could not differ. Smith. 135 Wn. App. at 864. Legal causation

is based on policy considerations determining how far the consequences of an
act should extend. Smith, 135 Wn. App. at 864. "Legal causation is generally a

question of law." Lowman v. Wilbur, 178 Wn.2d 165, 177, 309 P.3d 387 (2013).
       Taylor's claims of malpractice and breach offiduciary duty are predicated
upon Cairncross's alleged failure to discharge its duty by ensuring that the stock
redemption was enforceable under the applicable law. According to McDermott,
had Cairncross capably discharged its duty, the stock redemption would have


                                         16
No. 70414-1-1/17



been in compliance with Idaho law. For instance, given that Cairncross was

counsel for the majority shareholder, it "could have and should have insisted that

actions be taken that would have made the transaction, the Stock Redemption

Agreement and related agreements and instruments legal and enforceable in

accordance with their terms." Indeed, "[i]n his capacity as the majority

shareholder, Reed Taylor could have voted and adopted a shareholder resolution

authorizing the use of capital surplus to purchase his shares," and Cairncross

"had countless opportunities to ensure that a shareholder resolution was

presented and adopted by AIA Services' shareholders." Obtaining the opinion

letter was insufficient for Cairncross to discharge its duty, McDermott asserts,

because Cairncross was "not entitled to rely upon the opinion letter because they

were not addressees thereof and the opinion letter expressly stated that it was

only for Reed Taylor's benefit and use." Moreover, as explained by McDermott,

"The opinion letter could not make the transaction legal; the obtaining of an

opinion letter is only a part of exercising the degree of care, skill and knowledge

that a reasonably prudent attorney would exercise ... in a transaction of the

magnitude of the one with AIA Services."

       However, given that it did not author the opinion letter, Cairncross argues

that Taylor should not be permitted to seek recourse against it. According to
Cairncross, permitting the recipient of an opinion letter to seek recourse against

the recipient's own legal representative "would result in tremendous inefficiencies

and expense and effect a judicially created sea-change in the handling and
structure of complex transactions throughout Washington and the United States."

                                       -17-
No. 70414-1-1/18



Br. of Respondent at 41. Whether this will or will not be so is, at best, a matter of

conjecture. What is clear, however, is that the issuance of the opinion letter

could not make the stock purchase transaction legal. And Taylor sought out

independent counsel to further his goal of legally selling his AIA shares to AIA.

       Taylor may seek recourse against Cairncross as his legal representative.

McDermott's testimony contains evidence that, but for Cairncross's alleged

negligence, the harm to Taylor would not have occurred. Furthermore,

Cairncross fails to offer a cognizable basis for limiting the consequences of its

alleged negligence. Taken in the light most favorable to Taylor, his expert's

testimony, with regard to proximate causation, is sufficient to survive summary

adjudication.

                                             IV


       Cairncross next contends that Taylor agreed to Cairncross providing a

limited scope of representation. Specifically, Cairncross asserts that, with regard

to the issues of "corporate authority and enforceability under Idaho law," Taylor

agreed that Cairncross's representation was to be limited so as to exclude these

issues. Therefore, Cairncross asserts, regardless of our treatment of the trial

court's actual bases for granting summary judgment, we should nonetheless

affirm because Taylor agreed to a limited scope of representation.19 We




        19 We may affirm the trial court's grantof summary judgment on any basis adequately
supported by the record. Davidson Series &Assocs. v. City of Kirkland, 159 Wn. App. 616, 624,
246 P.3d 822 (2011).

                                            -18-
No. 70414-1-1/19



disagree. Although, during the time that Taylor was represented by Cairncross,20

a Washington lawyer was permitted to "limit the objectives of the representation if

the client consents after consultation," former RPC 1.2(c) (2002), the record

reveals that whether Taylor agreed to a limited scope of representation presents,

at best for Cairncross, a disputed question of fact.21

       We begin by examining what was said and done by the parties at the time

of Cairncross's representation—nearly 20 years ago. In March 1995, Cairncross

agreed to represent Taylor "in the matter of the sale of his stock in AIA Services."

This broad language does not suggest that Taylor agreed to any efforts by

Cairncross to exempt itselffrom responsibility for issues of corporate authority

and enforceability under Idaho law.

       Thereafter, Frank Taylor wrote the following to a colleague: "What about:

(1) The issue of their authority to enter into the Stock Redemption Agreement—

Riley's proposal says Co.'s authority to do this and to close &consummate the

transaction is dependent upon . . . SH approval. . . ." This internal memorandum

indicates that Cairncross was working on an issue that it now claims was

exempted from the scope of representation by agreement. Cairncross's billing

records—which included the following descriptions, "Analysis re need for

shareholder meeting," and "Analysis re corporate authority issues"—corroborate

       20 The trial court did not conduct a choice of law analysis. Instead, it provisionally held
thatWashington law was applicable. Cairncross agrees. We therefore rely on Washington law in
declining to affirm based on Cairncross's limited scope of representation theory.
       21 In addition, we note that McDermott opined that Cairncross's purported limited scope of
representation would have been "unreasonable" and would have left Taylor inadequately
represented. This also raises an issue in need of resolution as to whether Cairncross could
provide Taylor with limited representation without advising him to seek additional independent
counsel for those matters allegedly excluded from Cairncross's representation.

                                              -19-
No. 70414-1-1/20



the content of the memorandum.22

      Together, the foregoing evidence suggests that after Cairncross and

Taylor entered into a general fee agreement, they did not subsequently agree to

limit the scope of Cairncross's representation. Rather, Cairncross performed

work on issues of corporate authority, charged Taylor for that work, and received

compensation from Taylor.

       Nevertheless, in asserting that a limited scope of representation was, in

fact, agreed to by Taylor, Cairncross directs our attention to Taylor's testimony in

his Idaho suit against Eberle. Cairncross avers, "Taylor himself testified that

Eberle Berlin—and not anyone else—was tasked exclusively with 'ensur[ing] the

redemption of my shares had all necessary consents and did not violate any

laws.'" Br. of Respondents at 36-37 (quoting Clerk's Papers at 78-79). From

this, Cairncross maintains that "Taylor unequivocally understood and agreed that

Cairncross's representation excluded issues of corporate authority and

enforceability under Idaho law." Br. of Respondents at 37.

       Although Taylor's testimony may be interpreted in this manner, it is not the

only reasonable interpretation. An examination ofTaylor's testimony in Idaho
confirms that the interpretation advanced by Cairncross is by no means the only

one that could be reached by a trier of fact.

       In Idaho, Taylor submitted an affidavit, wherein he explained that both

Cairncross and Eberle had provided him with legal representation.

               I retained Scott Bell [of Cairncross] to represent] me in

       22 Taylor paid Cairncross for the work that was reflected in these billing records.

                                              -20-
No. 70414-1-1/21



      connection with negotiating and drafting the Redemption
      Agreement. . ., the $6 Million Promissory Note . . . and the
      ancillary agreements. Mr. Bell and his firm were not retained by me
      to act as counsel for AIA Services; rather, that job was left to my
      attorneys at Eberle Berlin.

      Taylor, the majority shareholder, elaborated on his subjective

understanding of the duties that he and AIA Services were owed by Eberle.

             I was never advised orally or in writing that Riley, Turnbow
      and Eberle Berlin were no longer my attorneys and that I could not
      rely upon them. The fact that the Opinion Letter was drafted and
      delivered to me only confirmed that they had obligations to me as
      my attorneys. At no time, did Richard Riley, Robert Turnbow or
      Eberle Berlin advise me, orally or in writing, that I was responsible
      for hiring or retaining a separate attorney for AIA Services to ensure
      that all corporate formalities and laws were complied with for the
      redemption of my shares. Had I known that I could not rely upon
      them or their Opinion Letter, I would have retained new counsel for
      AIA Services for the redemption of my shares in 1995.

      Taylor then clarified that no other attorneys had been retained by him or

by AIA to ensure that the redemption agreement was completed properly.

             I would have never agreed to sell my shares without being
      provided the Opinion Letter by Mr. Riley, Mr. Turnbow and Eberle
      Berlin. I relied upon Mr. Riley, Mr. Turnbow and Eberle Berlin to
      provide the legal representation necessary to legally and properly
      complete the redemption of my shares for me and AIA Services.
      Neither I nor AIA Services had any other attorneys retained for the
      purpose of providing the legal representation to ensure the
      redemption of my shares had all necessary consents and did not
      violate any laws.

      Cairncross fixates on the final sentence of Taylor's preceding testimony,

arguing that it constitutes an admission of Taylor's agreement to a limited scope

of representation with Cairncross. Taylor offers a different characterization.

According to Taylor, this testimony, considered in context, evidences his belief
that, "as the CEO and majority shareholder, he controlled who represented AIA

                                       -21 -
No. 70414-1-1/22



and that the Idaho Lawyers owed him and the other shareholders duties too." Br.

of Appellant at 20.

       Taylor's characterization is supported by his deposition testimony in this

case. When he was deposed by Cairncross prior to its motion for summary

judgment, Taylor explained his understanding that he had been represented by

both Cairncross and Eberle.

              Q:      Sir, isn't it the case that the fact of the matter is you
       relied on Mr. Riley, Mr. Turnbow, and Eberle Berlin to provide the
       legal representation necessary to legally and properly complete
       AlA's redemption of your shares?

             A:     They were doing the work for AIA and they'd done
       work for them for years, and Scott Bell was hired to represent me in
       those transactions.

             Q:    Let me try it a different way.
             A:    Scott Bell was working with them, and he was there to
       make sure mine was done correctly, for my protection.
             Q:    Let me try it a different way. I'm going to read you a
       statement and ask you if it's true or if it's false, okay? You relied on
       Mr. Turnbow, Mr. Riley and Eberle Berlin to provide the legal
       representation necessary to legally and properly complete AlA's
       redemption of your shares. True statement or false statement?

              A:      I guess it depends on what context it's in.

              A:      I mean, I relied on them, but it was -- they weren't the
       only ones that was relied. So I don't know how to answer that
       question.

       Taylor then disavowed the suggestion that he had agreed with Cairncross

to a limited scope of representation and again explained his understanding that

he had been represented by both Cairncross and Eberle.

              Q:      And you looked at a number of memos today from
       Scott Bell to yourself, correct?
              A:      Correct.


                                          -22-
No. 70414-1-1/23



               Q:    And in any of those memos that you looked at, did
       you see any advice or words or language from Mr. Bell telling you
       that his representation of you was limited in any way?
              A:        No.
              Q:        And Mr. Bell never asked for such limitation of
       representation from you, did he?
              A:        Never.


              Q:     And that Mr. Hollon went through and quoted a bunch
       of your testimony and asked if it was true?
              A:        Yes.
             Q:      Okay. And just so we're clear for the record, the
       context of that testimony was because you were testifying in the
       case against those attorneys, correct?
              A:        Correct.
              Q:     And at no time have you ever offered any testimony in
       that case that you had no claims against Scott Bell or any other
       attorney at Cairncross?
              A:        Correct.


       Taylor's explanation of the portion of his testimony seized upon by

Cairncross is sufficient to withstand summary adjudication pursuant to CR 56.

Because Taylor's testimony did not directly contradict itself and because Taylor
provided a reasonable explanation for the potential inconsistencies, the rule

barring the use ofcontradictory testimony to create a genuine issue of material

fact is inapplicable.

       "'"When a party has given clear answers to unambiguous [deposition]

questions which negate the existence ofany genuine issue of material fact, that
party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony."'" Cornish

Coll. of the Arts v. 1000 Virginia Ltd. P'ship. 158 Wn. App. 203, 227, 242 P.3d 1

(2010) (alteration in original) (quoting Marshall v. AC&S. Inc., 56 Wn. App. 181,
185, 782 P.2d 1107 (1989) (quoting Van T. Junkins &Assocs.. Inc. v. U.S.

                                          -23-
No. 70414-1-1/24



Indus., Inc.. 736 F.2d 656, 657 (11th Cir. 1984)). This rule is a narrow one. The

"self-serving affidavit" must "directly contradict" the affiant's "unambiguous sworn

testimony" previously given. Kaplan v. Nw. Mut. Life Ins. Co.. 100 Wn. App. 571,

576, 990 P.2d 991, 6 P.3d 1177 (2000); accord Berry v. Crown Cork & Seal Co..

103 Wn. App. 312, 322, 14 P.3d 789 (2000) ("While [the] statements contain

potential inconsistencies, they are not necessarily contradictory, and certainly do

not rise to the level of clear contradiction necessary to invoke the Marshall rule.").

Moreover, ifthe subsequent affidavit offers an explanation for previously given

testimony, whether the explanation is plausible is an issue to be determined by

the trier of fact. Safeco Ins. Co v. McGrath, 63 Wn. App. 170, 175, 817 P.2d 861

(1991).

       Taylor's testimony falls outside the narrow ambit ofthis rule. As an initial
matter, this case does not present the traditional scenario to which the rule

applies, in which a party—in an effort to create a genuine issue of material fact-
introduces a self-serving affidavit that directly contradicts that party's own

unambiguous sworn testimony. Cf Marshall. 56 Wn. App. at 183-84. More
importantly, Taylor's testimony is neither unambiguous nor in direct contradiction
to itself. Instead, as Taylor explained when he was deposed by Cairncross, he
understood that both Cairncross and Eberle were providing him with legal

representation. There were independent facts supporting his understanding,
including his belief that, as CEO and majority shareholder, he was, in essence,
the embodiment of the corporation and, thus, could select the legal

representative responsible for carrying out the transaction between the
                                        -24-
No. 70414-1-1/25



corporation and its controlling shareholder in a proper fashion. Thus, the single

sentence taken from his declaration in a different case—to which Cairncross was

not a party—does not preclude consideration of eitherTaylor's other testimony or
the abovementioned nontestimonial evidence predating this litigation.

        Given our conclusion that genuine issues of material fact exist, we decline

to affirm the trial court's grant of summary judgment on this independent basis.
                                                 V


        Taylor next contends that the trial court erred by refusing to consider the
declarations of Gary Libey and ofTaylor's counsel, which were submitted after
the court's oral grantofsummary judgment but before the written order
memorializing its ruling was filed. Contrary to Taylor's contention, the trial court
record suggests that the trial court did, in fact, consider the declarations. In
denying Taylor's motion for reconsideration on May 16, 2013, the trial court
"reviewed the files and records herein." By that date, the declarations in dispute,

which were filed on April 2, 2013, were, presumably, among the "files and
records" reviewed by the trial court.23
         Even if the trial court did not, however, consider the aforementioned

declarations, and even if its failure to do so was erroneous, the manner in which
we dispose of this appeal would not be impacted.24 The additional declarations
 filed by Taylor were intended to offer evidence of proximate causation and to

         23 The fact that Taylor's motion for reconsideration referenced the declarations lends
 further credence to the notion that they were considered by the trial court.
         24 Our discussion ofthese additional declarations is not intended to have any prospective
 impact. On remand, the law of the case doctrine will not affect the admissibility or
 nonadmissibility of this testimony.

                                                -25-
No. 70414-1-1/26



indicate that the Idaho trial court had not been misled. Our ruling, reversing the

trial court on these issues, moots this claim of error.

                                               VI


        Both Cairncross and Taylor seek to recover costs on appeal. Cairncross

also seeks an award of attorney fees on appeal. Taylor, on the other hand,

requests that the issue of attorney fees be reserved for the trial court to resolve

on remand.

        Pursuant to RAP 14.2, a party that "substantially prevails" on appeal is

entitled to recover costs. Where the dismissal of a party's claim as a result of

summary judgment is reversed on appeal, costs may be awarded. See, e^,
Sorrel v. Eagle Healthcare. Inc., 110 Wn. App. 290, 300, 38 P.3d 1024 (2002).

However, "[w]here a party has succeeded on appeal but has not yet prevailed on
the merits," an award of attorney fees should abide the ultimate resolution of the

issues in the case. Riehl v. Foodmaker. Inc., 152 Wn.2d 138, 153, 94 P.3d 930

(2004).

        Given the manner in which we resolve this appeal, Taylor is the

substantially prevailing party and, as such, is entitled to recover costs on appeal.
However, because the merits of his claims have not yet been fully decided, it is
premature for us to order an award of attorney fees. Cairncross has not
prevailed on appeal and, thus, it is not entitled to recover appellate costs. Its fee
request, as with Taylor's, must abide ultimate resolution of the lawsuit.25

         25 On appeal, Taylor argues that the trial court abused its discretion by denying his
 motion to amend his complaint. After Cairncross had already moved for summary judgment,

                                               -26-
No. 70414-1-1/27



        Reversed and remanded.




We concur:




                                                        (L^mj^Qj?^




Taylor unsuccessfully moved to amend and supplement his complaint in order to add three new
causes ofaction—(1) violation of Idaho's Consumer Protection Act; (2) declaratory relief; and (3)
equitable estoppel.
        CR 15(a) provides that "a party may amend his pleading only by leave of court or
        by written consent ofthe adverse party; and leave shall be freely given when
        justice so requires." "A motion to amend the pleadings is addressed to the sound
        discretion of the trial court and will not be overturned except for abuse of that
        discretion." Culpepper v. Snohomish County Dep't of Planning &Cmtv. Dev., 59
        Wn. App. 166, 169, 796 P.2d 1285 (1990). Leave to amend should be freely
        given unless itwould result in prejudice to the nonmoving party. Herron v.
        Tribune Publ'a Co.. 108 Wn.2d 162, 165, 736 P.2d 249 (1987). In determining
        whether prejudice would result, a courtcan consider potential delay, unfair
        surprise, or the introduction of remote issues. Herron, 108 Wn.2d at 165-66.
Kirkham v. Smith, 106 Wn. App. 177, 181, 23 P.3d 10 (2001).
       At the time the trial court ruled, the CR 56 motion was pending. That will not be the case
on remand.
        The trial court's ruling was an interlocutory one, which may be revisited upon remand.
Given its interlocutory nature and given the change in circumstances, we need not further review
this claim of error.


                                               -27-
