        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 KEVIN F. AND LINDA SULLIVAN,
 husband and wife,                                      No. 77516-2-1

                                 Appellants,           DIVISION ONE

                  V.                                   UNPUBLISHED OPINION                    Z7c;
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                                                                                                       c) -41
 SKINNER & SAAR, P.S.,
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                                  Respondent,
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                                                                                                  ••    -AC)
 CHRISTON C. SKINNER and JANE
 DOE SKINNER; and DOUGLAS A.                                                                      co      ,..4
 SAAR and JANE DOE SAAR,

                                   Defendants.         FILED: January 28, 2019


        CHUN, J. — Kevin and Linda Sullivan shared an easement with their

neighbors Mark and Linda Bressler) Douglas Saar, of the law firm Skinner &

Saar, briefly represented the Sullivans and provided advice about use of the

easement. The Sullivans eventually lost their easement through an action to

quiet title (the Bressler Lawsuit). The Sullivans then brought a legal malpractice

lawsuit against Sullivan & Saar for damages based on Saar's admittedly incorrect

legal advice. Upon Sullivan & Saar's motion for summary judgment, the trial

court concluded that collateral estoppel barred relitigation of issues pertaining to

abandonment of the easement. As a result, the trial court determined the



        1 This opinion refers to certain parties by their first names to avoid confusion. We intend
no disrespect.
No. 77516-2-1/2


Sullivans could not meet their burden to prove proximate cause as a matter of

law and granted summary judgment for Skinner & Saar. We affirm.
                                       I.
                                  BACKGROUND
       The Sullivans and Bresslers own neighboring waterfront homes on

Whidbey Island. At purchase, the Sullivans were told a mutual easement

encumbered a five-foot strip of property on either side of their common boundary

with the Bresslers. The easement was set forth in a "Declaration for Joint Use of

a Boat Launch" and recorded with the Island County Auditor on July 24, 2006.

However, the Sullivans' statutory warranty deed omitted the easement.

       In September 2011, Linda asked Saar for legal advice on how to begin

using the easement. Because the statutory warranty deed did not list the

easement, Saar failed to locate it. Saar's title expert also failed to locate the

easement. On September 23, 2011, Saar relayed this information to Linda.

Linda wanted to relocate a fence from five feet inside their property line to the

property line, and Saar approved the move.

       The Sullivans began to relocate their existing chain link fence to the

middle of the easement between the two properties. By October 5, 2011, the

Sullivans had installed fence poles set in concrete in the easement, followed

soon after by chain-link fencing along the poles.

       The Bresslers' attorney, Carolyn Cliff, contacted Saar about the newly

constructed fence interfering with the easement on October 19, 2011. Saar

explained to Cliff that no easement benefitted the properties and suggested they




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No. 77516-2-1/3


could arrange to record a mutual easement on behalf of their clients. That same

day Saar relayed this information to Linda who replied, "I am not interested in

sharing anything with Mark Bressler as he is a liar and I would always be

concerned with his lack of guidance over his handicap [sic] child which he can't

control. I have a wooden fence going between the rest of the property line so

there will be no visual whatsoever." Linda inquired as to whether the Bresslers

could sue. Saar replied that they could not sue without an easement.

       On October 24, 2011, Cliff sent Saar a letter confirming a boat launch

easement existed and included a copy of the easement as recorded immediately

before the sale of the properties. The Bresslers agreed to consider the

placement of the fence in the easement as a mistake based on incorrect

information, and requested the Sullivans remove the fence or agree to extinguish

the easement by November 4, 2011.

       Saar e-mailed the Sullivans on October 26, 2011 to inform them of the

existence of the easement. Linda told Saar to delay responding to Cliff, stating,

"Keep them humming. . .(you know my long term wishes)." Meanwhile, they

continued construction of their fence.

       Cliff mailed another letter to Saar on November 9, 2011, noting the

Sullivans not only maintained their chain-link fence but installed a taller, solid

wooden fence after her first letter. The letter confirmed the Bresslers' willingness

to extinguish the easement and included the written extinguishment instrument

for the Sullivans' signatures. The Sullivans informed Saar they would sign the

papers, but "we are in no hurry, as we are going to try to reimburse some of the


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No. 77516-2-1/4


$30,000 that will be out of our pocket by the time this is over and we actually

have a boat ramp to use."

       In late November 2011, Saar sent a demand letter to the title company

requesting payment of the Sullivans' attorney fees related to the easement. Saar

e-mailed Linda advising her they could not recoup any costs for the fence or a

new boat ramp, but he hoped to obtain some compensation for the title

company's failure to identify the easement. Saar also reminded Linda they

needed to sign the extinguishment instrument. Linda failed to respond to the

e-mail for several days. When Saar e-mailed again to set a time to sign the

documents, Linda informed him they were unavailable until mid-December.

       Saar sent another e-mail on December 7, expressing concern about

jeopardizing the agreement with the Bresslers. He noted Cliff's increasing

frustration with the situation, especially because Kevin had been home despite

the claims of unavailability. Saar also informed Linda of the title company's

denial of their claim. In response, Linda replied, "I never said Kevin was out of

town, I said we were unavailable, and will be until mentioned."

       Saar renewed the request for damages from the title company in a

responsive letter sent December 8, 2011. On December 19, 2011, Saar notified

the Sullivans that the title company agreed to pay $3,951 for the claim and

reminded them they needed to sign the extinguishment. The Sullivans

responded they would not be signing the proposed extinguishment, noting "[d]ue

to recent conclusions, we feel this matter requires further investigation . . ." Saar

received no further communication from the Sullivans despite repeated attempts


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No. 77516-2-1/5


to contact them. On January 12, 2012, Saar received a letter from the Sullivans

terminating his representation and requesting that he forward their file to another

law firm.

       On February 7,2012, new counsel for the Sullivans informed Cliff that

they agreed to move their fence out of the easement and maintain their rights to

the easement. The parties engaged in unsuccessful mediation in April 2012.

The Bresslers attempted to settle the dispute, offering $5,000 toward the

estimated $15,000 cost of a new boat launch on the Sullivan property. The

Bresslers also relayed their intention to seek a judicial determination on the

abandonment issue if the parties could not come to an agreement. But as of

May 24, 2012, the gate and a portion of the fencing continued to block a part of

the easement.

       In June 2012, the Bresslers filed an action to quiet the Sullivans' title to the

easement. During the pendency of that litigation, the Sullivans rejected the title

company's settlement offer as secured by Saar, and requested indemnification in

the Bressler Lawsuit and $27,162.77 in damages for failure to identify the boat

launch declaration in the title policy.

       The Sullivans filed this malpractice case against Skinner & Saar in June

2013, seeking damages of $2.25 million.2 Soon after, the Sullivans filed suit

against Cliff for $5 million. The Sullivans eventually agreed to dismiss the case

against Cliff.


        2 The lawsuit originally named Skinner & Saar, Christon C. Skinner and Jane Doe
Skinner, and Douglas A. Saar and Jane Doe Saar as defendants. The individual defendants
were dismissed.


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No. 77516-2-1/6


        The Bressler Lawsuit proceeded to trial in December 2013. The trial court

determined the Su!livens had abandoned the easement through their actions:

       The court has found that the Sullivens' installation of a fence along
       the property line was unequivocal, decisive, and inconsistent with the
       continued existence of the easement, and that, at that point, the
       Sullivens abandoned the easement. The Sullivens' actions in
       finishing the fence installation after receiving verification that the
       easement had been recorded were intentional. Their continued
       encroachment into the easement thereafter were also unequivocal
       and decisive and inconsistent with the continued existence of the
       easement.

The trial court also defined certain material requirements the Sullivens

could fulfill to reinstate the easement.

       The Bresslers appealed the portion of the trial court's order allowing

reinstatement of the abandoned easement.3 The Sullivens did not file a cross

appeal. Neither party assigned error to the trial court's findings of fact on the

issue of the Sullivens' intentional installation of the fence. This court reversed in

part, affirming abandonment of the easement but concluding the trial court's

order allowing potential reinstatement of the easement lacked legal basis. The

Washington Supreme Court denied review. In February 2016, the trial court

entered a final order extinguishing the boat launch easement.

       In August 2017, Skinner & Saar filed a motion for summary judgment in

this malpractice suit. The trial court concluded that the prior factual findings in

the Bressler Lawsuit estopped the Sullivens from relitigating the facts leading to




        3 Bressler v. Sullivan, No. 72027-9-1,(Wash. Ct. App. June 29, 2015)(unpublished),
http://www.courts.wa.qov/opinions/odf/720279.pdf, review denied, 184 Wn.2d 1027(2016).


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No. 77516-2-1/7


the Sullivans' abandonment of the easement. As a result, the trial court granted

summary judgment for Skinner & Saar. The Sullivans timely appeal.


                                   DISCUSSION

       The Sullivans filed a legal malpractice lawsuit against Skinner & Saar. To

establish a claim for legal malpractice, the Sullivans must prove the following:

      (1) The existence of an attorney-client relationship which gives rise
      to a duty of care on the part of the attorney to the client;(2) an act or
      omission by the attorney in breach of the duty of care;(3) damage to
      the client; and (4) proximate causation between the attorney's breach
      of the duty and the damage incurred.

Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992). The trial court

granted summary judgment for Skinner & Saar because the Sullivans could not

meet their burden on proximate causation.

      Summary judgment is appropriate "if the pleadings, affidavits, and

depositions establish that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law." Jones v. Allstate Ins.

Co., 146 Wn.2d 291, 300-01, 45 P.3d 1068 (2002). The court must consider the

facts and inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d at 300. Questions of fact may be determined as a matter of law

where reasonable minds could reach only one conclusion. United Fin. Cas. Co.

v. Coleman, 173 Wn. App. 463, 471, 295 P.3d 763 (2012).

      Appellate courts review an order of summary judgment de novo,

performing the same inquiry as the trial court. Jones, 146 Wn.2d at 300. The

court may affirm summary judgment on any grounds supported by the record.




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No. 77516-2-1/8


Blue Diamond Group Inc. v. KB Seattle 1, Inc., 163 Wn. App. 449, 453, 266 P.3d

881 (2011).

    A. Collateral Estoppel4

        Collateral estoppel "promotes the policy of ending disputes by preventing

the relitigation of an issue or determinative fact after the party estopped has had

a full and fair opportunity to present the case." McDaniels v. Carlson, 108 Wn.2d

299, 303, 738 P.2d 254 (1987). Collateral estoppel, or issue preclusion, applies

when the subsequent suit involves a different claim but the same issue. Lemond

v. State, Dept. of Licensing, 143 Wn. App. 797, 804, 180 P.3d 829 (2008). The

party invoking collateral estoppel must establish the following:

        (1) the issue decided in the earlier proceeding was identical to the
        issue presented in the later proceeding; (2) the earlier proceeding
        ended in a judgment on the merits; (3) the party against whom
        collateral estoppel is asserted was a party to, or in privity with a party
        to, the earlier proceeding; and (4) application of collateral estoppel
        does not work an injustice on the party against whom it is applied.

Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 307, 96 P.3d 957

(2004).

        The Sullivans contend collateral estoppel does not apply because the trial

court never adjudicated any of the elements of their legal malpractice claim. We

disagree and conclude the Bressler Lawsuit satisfies the requirements for

collateral estoppel.




        4 As a threshold issue, the Sullivans contend the trial court erred by considering collateral
estoppel because Skinner & Saar failed to properly raise the issue in their motion for summary
judgment. However, Skinner & Saar's motion for summary judgment mentions collateral estoppel
in the body of the motion and it discusses the issue in more depth in the appendix.


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No. 77516-2-1/9


                 1. Identity of the Issues

          Collateral estoppel requires identity of the issues in the current and prior

proceedings. The issue decided in the prior adjudication must be identical to the

one at hand in the current matter. McDaniels, 108 Wn.2d at 305. Collateral

estoppel extends only to "'ultimate facts', i.e. those facts directly at issue in the

first controversy upon which the claim rests, and not to 'evidentiary facts' which

are merely collateral to the original claim." McDaniels, 108 Wn.2d at 305.

Collateral estoppel precludes only those issues that have been actually litigated

and determined. McDaniels, 108 Wn.2d at 305.

       The Sullivans contend the claims are not identical because the trial court

did not adjudicate the issue of Saar's negligence in the Bressler lawsuit. This

argument confuses collateral estoppel with res judicata (or claim preclusion).

The latter bars relitigation of the same cause of action between the same parties

to a prior judgment. Lucas v. Velikanie, 2 Wn. App. 888, 893, 471 P.2d 103

(1970). Collateral estoppel requires identity of issues, not claims. Therefore, the

fact that the Bressler Lawsuit did not involve litigation of Saar's alleged

negligence is irrelevant. For collateral estoppel to apply, the Bressler Lawsuit

must have resolved an ultimate fact directly at issue in the current malpractice

action.

       Here, the facts regarding the Sullivans' intentions and actions with respect

to the easement relate directly to the central issue of the malpractice lawsuit—

whether Saar's failure to locate a record of the easement, and the advice

resulting from this failure, caused the Sullivans to lose their easement and incur


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No. 77516-2-1/10


damages. The Bressler Lawsuit established that the Sullivans' actions—namely,

completing installation of their fence and continuing to encroach after receiving

verification of the easement—were intentional and inconsistent with the existence

of the easement. Bressler, No. 72027-9-1, Slip Op. at 6. The trial court and

appellate decisions acknowledged Saar initially mistakenly informed the Sullivans

that there was no easement. Bressler, No. 72027-9-1, Slip Op. at 2. But both

courts attributed abandonment of the easement to the Sullivans' actions: "[T]he

Sullivans' actions after being advised that an easement was recorded were

intentional. After receiving verification that the easement was recorded,

Ms. Sullivan nevertheless continued with the installation of the fence inside the

easement." Bressler, No. 72027-9-1, Slip Op. at 8. These prior decisions resolve

the issue of causation of the Sullivans' loss of their easement.

       Lucas discusses a similar scenario involving a legal malpractice claim.

Lucas brought a malpractice claim against her deceased husband's lawyer

alleging malpractice for his failure to discover and preserve evidence of fraud and

Undue duress in the execution of an irrevocable trust. Lucas, 2 Wn. App. at 892.

A prior lawsuit between Lucas and her stepson to contest the trust resulted in a

jury determination of no fraud, undue influence, or misrepresentation in the

execution of the trust. Lucas, 2 Wn. App. at 892. Based on the jury's conclusion

in the prior litigation, the court granted summary judgment on the malpractice

claim reasoning "no charge of malpractice would lie against defendant for his

failure to discover a fraud that did not exist." Lucas, 2 Wn. App. at 892-93. On




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No. 77516-2-1/11


review, the appellate court agreed with this application of collateral estoppel.

Lucas, 2 Wn. App. at 894.

       Like the case at hand, the prior litigation in Lucas did not adjudicate the

issue of legal malpractice. However, the prior case conclusively resolved an

issue central to the malpractice claim—whether the attorney should have

discovered an instance of fraud. Similarly, the Bressler Lawsuit conclusively

resolved the issue of the facts underlying the Sullivans' abandonment of the

easement. This conclusion has direct bearing on any consideration of the

Sullivans' malpractice claim against Saar. Thus, the issue at the heart of the

current case is identical to an "ultimate fact" in that case.

              2. Final Judgment on the Merits

       The Sullivans argue their case fails to satisfy the final judgment on the

merits element because the malpractice issue was not actually litigated. Once

again, this argument confuses res judicata and collateral estoppel. The court

need not have adjudicated the negligence claim for collateral estoppel to apply to

an issue in the case. Collateral estoppel requires only that the earlier

proceedings ended in a judgment on the merits. See Christensen, 152 Wn.2d at

307. The parties do not dispute that the Bressler Lawsuit ended in a final

judgment on the merits.

              3. Party to the Earlier Proceedings

       The Sullivans claim a lack of identity of the parties because Skinner &

Saar were not a party to the Bressler lawsuit. Skinner & Saar points out that

collateral estoppel does not require identical parties. Skinner & Saar is correct.


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No. 77516-2-1/12


       The modern doctrine of collateral estoppel does not require mutuality of

parties. Simpson Timber Co. v. Aetna Cas. & Sur. Co., 19 Wn. App. 535, 540,

576 P.2d 437(1978). "It is sufficient that the party against whom the plea of

collateral estoppel is asserted . . . is a party or in privity with a party to the prior

litigation." Simpson Timber Co., 19 Wn. App. at 540. Additionally, "[t]he party

urging collateral estoppel as a defense may be a stranger to the prior

adjudication so long as the application of the doctrine does not work an injustice."

Simpson Timber Co., 19 Wn. App. at 540.

       Here, the Sullivans were a party to the Bressler Lawsuit and may be

estopped on issues litigated in that case. Lucas is instructive. Although the

attorney had not been party to the original litigation, the court determined

collateral estoppel applied in the subsequent legal malpractice suit grounded on

facts related to the original case. Lucas, 2 Wn. App. at 894-95.

              4. Injustice

       The party employing defensive collateral estoppel must demonstrate its

application would not cause deprivation of due process by barring further

litigation on the issue. See Simpson, 19 Wn. App. at 540. This element

concerns whether the parties to the earlier proceeding received a full and fair

hearing on the issue in question. Thompson v. State Dept. of Licensing, 138

Wn.2d 783, 795, 982 P.2d 601 (1999). Evaluation of whether collateral estoppel

applies concerns whether the party against whom estoppel is asserted had the

motivation and opportunity to fully and fairly present its case. Simpson Timber




                                           12
No. 77516-2-1/13


Co., 19 Wn. App. at 540; See Hanson v. City of Snohomish, 121 Wn.2d 552,

563, 852 P.2d 295 (1993).

       Unquestionably, the Sullivans received a full hearing on the facts relating

to abandonment of the easement. The Bressler Lawsuit went through trial,

appeal, and petition for review in the Washington Supreme Court. Because their

easement was at stake, the Sullivans had substantial motivation to fully litigate

the issues pertaining to their actions. Therefore, application of collateral estoppel

would not result in injustice.

       The issue of the Sullivans' actions pertaining to their easement meets the

four elements of collateral estoppel. The trial court did not err in applying issue

preclusion in this case.

   B. Causation

       The Sullivans claim genuine issues of material fact exist as to whether

Skinner & Saar's actions proximately caused their damages. The trial court

found the Sullivans could not satisfy their burden of proof on causation after

application of collateral estoppel. We agree.

       Proximate causation consists of two elements—legal causation and cause

in fact. Legal causation "rests on considerations of policy and common sense as

to how far the defendant's responsibility for the consequences of its actions

should extend." Taggart v. State, 118 Wn.2d 195, 226, 822 P.2d 243(1992).

Cause in fact requires the plaintiff to establish the act at issue likely caused the

injury. Nielson v. Eisenhower & Carlson, 100 Wn. App. 584, 591, 999 P.2d 42

(2000). Put another way,"the act produced in a direct unbroken sequence which


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No. 77516-2-1/14


would not have resulted had the act not occurred." Hertog v. City of Seattle, 138

Wn.2d 265, 282-83, 979 P.2d 400 (1999). In most cases, the question of cause

in fact is for the jury. Dauqert v. Pappas, 104 Wn.2d 254, 257, 704 P.2d 600

(1985). "It is only when the facts are undisputed and inferences therefrom are

plain and incapable of reasonable doubt or difference of opinion that this court

has held it becomes a question of law for the court." Dauciert, 104 Wn.2d at 257.

       The Bressler Lawsuit concluded that the Sullivans' actions led to their loss

of the easement:

              The Sullivans' installation of a fence along the property line,
      down the middle of the easement, was unequivocal, decisive, and
      inconsistent with the continued existence of the easement. At that
      point, the Sullivans abandoned the easement. The Sullivans'
      decision to relocate the fence to the middle of the easement after
      they were mistakenly told that there was no recorded easement
      appears to have been done in the mistaken belief that the easement
      had not been executed or recorded, as acknowledged by the
      Bresslers. However, the Sullivans' actions after being advised that
      an easement was recorded were intentional. After receiving
      verification that the easement was recorded, Ms. Sullivan
      nevertheless continued with the installation of the fence inside the
      easement.

Bressler, No. 72027-9-1, Slip Op. at 8. Thus, the sequence of events leading

from Saar's misinformation to abandonment was broken by the Sullivans' acts,

eliminating any issue of material fact as to cause in fact. Without demonstrating

cause in fact, the Sullivans cannot establish a legal malpractice claim. As a

result, the trial court properly concluded the Sullivans could not meet their burden




                                        14
No. 77516.-2-1/15


on proximate causation and granted summary judgment in favor of Skinner &

Saar.5

         Affirmed.



                                                                 c  ...4......,q.
WE CONCUR:




                                                             1      4,4.11. 4.C..."--




        5 In light of our conclusion, we need not reach the additional issues raised by the
Sullivans.


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