                                                                           FILED 

                                                                         JAN 23, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


ROSE TOWNSEND TRUST FOR                      )

DONALD TOWNSEND, by and through              )         No.31203-8-III 

JACK RILEY and ROBERT MOE,                   )

                                             )
                    Appellant,               )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
SCOTT R. SMITH, Attorney at Law;             )
DELAY, CURRAN, THOMPSON,                     )
PONTAROLO, & WALKER, P.S.                    )
                                             )
                    Respondent.              )

      KORSMO, C.J. _. The trial court dismissed this lawyer malpractice action at

summary judgment for lack of evidence that the attorney breached the standard of care.

Although expert witness testimony is not necessary for all Washington legal malpractice

actions, such testimony was essential and missing in this case. We affinn.

                                         FACTS

      The procedural history of this action is lengthy. It had its beginnings in the mid­

1990s when the Rose Townsend Trust for Donald Townsend (Trust) leased commercial

space to Daryl Johnston. Johnston later breached and defaulted on the lease and an

accompanying promissory note. The Trust, represented by its longtime counsel Scott R.
No. 31203-8-II1
Townsend v. Smith


Smith (Smith), ultimately obtained a judgment against Johnston for $76,147.31 (Johnston

State Court Judgment). Smith recorded the judgment with the Spokane County Auditor

on October 27, 1998. Smith obtained a second judgment for $700 in attorney fees and

costs. That judgment was not recorded.

      Johnston filed for bankruptcy the next year under chapter 7 of the bankruptcy

code. She was co-owner with Sally Arney of real estate in Spokane County that served

as their primary residence. The two owned the land as joint tenants with right of

survivorship. On April 9, 2004, Smith filed a creditor's claim on behalf of the Trust in

the amount of$83,183.37 as an unsecured claim in the bankruptcy action.

      The trustee in the Johnston 1999 bankruptcy proceeding obtained a default

judgment against Ms. Johnston because she had committed fraud and concealed property

of the bankruptcy estate-an inheritance Ms. Johnston had received from her mother in

the amount of$132,044.73. Thus, the same amount was awarded in the default judgment

(Johnston Bankruptcy Judgment). Additionally, because Ms. Johnston had transferred

$80,000 of that $132,044.73 inheritance to Ms. Arney, the chapter 7 trustee secured a

default judgment in the amount of$80,000 against Ms. Arney as a part of Ms. Johnston's

chapter 7 proceeding (Arney Bankruptcy Judgment). The chapter 7 trustee held both

judgments.

      On January 24, 2001, the chapter 7 trustee faxed a cover sheet to attorney Smith

that stated "Judgments for Sale! Judgments for Sale! Note: The $80,000 is included in

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No.31203-8-II1
Townsend v. Smith


the $132,044.73." The chapter 7 trustee continued to urge the Trust to purchase the

Johnston Bankruptcy Judgment and the Arney Bankruptcy Judgment into March of 2004.

       Ms. Johnston and Ms. Arney refinanced their home in October 2004 receiving a

distribution from the refinance of$81,270.89. They refinanced again through New

Century in April 2005 and received a distribution of $16,808.73. Neither the Johnston

State Court Judgment nor the Johnston or Arney Bankruptcy Judgments were satisfied

during the two refinancing processes.

       Around July 2005, the Trust contacted attorney Joseph Delay of the law firm

Delay, Curran, Thompson, Pontarolo & Walker, P.S.(Delay Curran), requesting his

assistance in purchasing the two bankruptcy judgments. Delay and the attorney for the

bankruptcy trustee drafted an "Assignment of Judgment" for both bankruptcy judgments

(Assignment). The Assignment stated that the Trust waived its creditor's claim against

Ms. Johnston in exchange for the Assignment of the bankruptcy judgments.! On July 25,

2005, the attorney for the chapter 7 trustee filed the Assignment. Neither the Assignment

nor the bankruptcy judgments for $132,044.73 and $80,000 were recorded with the

Spokane County Auditor.




       I The exact language stated "attorney for Chapter 7 Trustee in consideration of the
Assignee waiving its Creditor's Claim filed in the above entitled estate, does hereby
assign, transfer and convey over unto the Rose Townsend Trust the judgment entered in
the above-entitled cause." Clerk's Papers (CP) at 269.

                                            3

No.3l203-8-III
Townsend v. Smith


       On October 13,2005, Ms. Johnston filed a chapter 13 action in the United States

Bankruptcy Court for Eastern Washington. Ms. Arney filed a chapter 7 action on the

same day. The Trust filed a secured proof of claim in the chapter 13 proceeding in the

amount of $206,973.79 against Ms. Johnston's homestead property.

      A dispute arose regarding priority of liens as between the Trust and New Century,

the last mortgagor on the homestead property. This dispute went through two federal

district court judges: Patricia Williams and, on appeal, Lonny R. Suko. Both judges

found that the Trust had priority over New Century by way of the recorded Johnston

State Court Judgment, and that the Assignment did not waive the Trust's right to enforce

that judgment. Both judges also ruled that the Assignment did not have to be recorded to

be a lien against the property by virtue ofRCW 4.56.200(1).

      New Century appealed to the Ninth Circuit, which reversed both district court

judges and found in favor of New Century. The Ninth Circuit concluded that the waiver

language ofthe Assignment cost the Trust the priority ofits 1998 Johnson State Court

Judgment. The court also ruled that the failure to record either the Assignment or the

bankruptcy judgments meant that they were not perfected against the homestead by

operation ofRCW 6. 13.090? The Ninth Circuit concluded that RCW 6.13.090 governed


      2 In part, RCW 6.13.090 provides that a judgment "shall become a lien on the
value of the homestead property in excess of the homestead exemption from the time the
judgment creditor records the judgment with the recording officer of the county where
the property is located."

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No. 31203-8-III
Townsend v. Smith


rather than RCW 4.56.200(1), which provides that judgments entered in the county where

the debtor's real property is located become liens on the realty. See In re Johnston No.

07-36035 (9th Cir. May 20 2009) (unpublished).

       In the aftermath of the Ninth Circuit ruling, the Trust filed a legal malpractice

action against both Smith and Delay Curran in June 20 I O. The second amended

complaint filed that November alleged that Delay Curran had improperly drafted the

Assignment. That complaint also alleged that Smith was negligent in his handling of the

judgments and should have been aware that the Assignment would cost the Trust its

judgment priority.

       Discovery ensued over the next two years. In 2011, Delay Curran successfully

sought summary judgment of dismissal on the basis that the statute of limitations had run

on the claim against it, with the court determining that the Trust was on notice from the

time Smith voiced concerns about the Assignment. The court rejected the Trust's

argument that no cause of action arose until the Ninth Circuit ruling since there was no

harm to the Trust until that point. The Trust did not appeal from the order dismissing

Delay Curran from the case.

      In 2012, Smith also sought summary judgment, arguing that the Trust could not

show that he had violated the standard of care. The Trust contested the motion and also

sought permission to amend its complaint again to assert that Smith also was negligent in




                                             5

No.31203-8-III
Townsend v. Smith


failing to advise the Trust to file a malpractice action against Delay Curran within the

statute of limitations.

       The trial court granted the motion to dismiss, concluding that without expert

witnesses the Trust would be unable to establish that Smith breached the standard of care

by failing to record the Assignment. With the trial date in the offing, it was too late to

add witnesses, so the court declined to permit an amendment. The action against Smith

was dismissed. In the course of the oral ruling, the trial judge commented that she had

perhaps erred in dismissing Delay Curran from the case. She also noted that as trial

judge, she would have needed expert testimony to determine whether or not counsel

erred. After reconsideration was denied, the Trust timely appealed to this court.

                                        ANALYSIS

       The Trust argues that the trial court erred in granting summary judgment and in

denying the motion to amend. We address those two arguments in the noted order.

       Summary Judgment

       The Trust argues that summary judgment was inappropriate in this bench trial

action because no expert witness was necessary and Smith would himself establish the

standard of care with respect to the claim against Delay Curran. We agree with the trial

court that expert testimony concerning the standard of care was necessary in this case.

       Appellate courts review appeals from dismissals on summary judgment under well

settled standards. The moving party bears the initial burden of establishing that it is

                                              6

No. 31203-8-III
Townsend v. Smith


entitled to judgment because there are no disputed issues of material fact. Young v. Key

Pharm., Inc., 112 Wn.2d 216, 225, 770 P .2d 182 (1989). If a defendant makes that initial

showing, then the burden shifts to the plaintiff to establish there is a genuine issue for the

trier of fact. Id. at 225-26. The plaintiff may not rely on speculation or having its own

affidavits accepted at face value. Seven Gables Corp. v. MGMlUA Entm 't Co., 106

Wn.2d 1, 13,721 P.2d 1 (1986). Instead, it must put forth evidence showing the

existence of a triable issue. Id.

       The elements of a legal malpractice action are: (1) an attorney-client relationship

that gives rise to a duty of care, (2) an act or omission by the attorney in breach of that

duty, (3) damage to the client, and (4) proximate causation between the breach of duty

and the damage incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P .2d 646

(1992). A legal malpractice trial effectively requires a trial within a trial. The trier of

fact must decide if the underlying cause of action would have resulted in a favorable

verdict for the client; only then is the suit against the attorney viable. Daugert v. Pappas,

104 Wn.2d 254,258, 704 P.2d 600 (1985). The standard of care is uniform throughout

the state of Washington: "that degree of care, skill, diligence and knowledge commonly

possessed and exercised by a reasonable, careful and prudent lawyer in the practice of

law in this jurisdiction." Cook, Flanagan & Berst v. Clausing, 73 Wn.2d 393, 395,438

P.2d 865 (1968).




                                              7

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No. 3l203-8-III
                                                                                               !
Townsend v. Smith                                                                              1
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       Some states require expert testimony to establish the standard of care in a legal 	     !
                                                                                               t
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malpractice action. Walker v. Bangs, 92 Wn.2d 854,858,601 P.2d 1279 (1979).                    f




However, the "general rule is to permit but not require expert testimony." Id.

Washington does not require expert testimony "when the negligence charged is within the 	
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common knowledge of lay persons." Id. The court concluded that establishing the 	              i;
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malpractice alleged there, involving negligence in the trial of a maritime case, did require

testimony from an expert. Id.

       Both parties find comfort in the Walker rule and contend that it supports their

position. The Trust notes that expert testimony is not required, while Smith relies on the

holding of Walker that an expert was required due to the complexity of federal maritime

law and likens it to the federal bankruptcy law at issue in this case. We agree with Smith

and the trial judge that an expert was required here.                                          I

       The facts of this case demonstrate that it was at least as complex as those at issue    I
in Walker. Here, two veteran attorneys and two local federal judges did not believe that

the Assignment needed to be recorded or that it had extinguished the prior state

judgments. In what appears to be a question of first impression, the Ninth Circuit
                                                                                               I
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disagreed after considering the interplay of two Washington statutes and federal

bankruptcy regulations. These were not matters "within the common knowledge of lay

persons." If five federal judges can split three to two over the effect of the Assignment,

then certainly expert testimony was necessary to establish the attorney's standard of care.

                                             8

No. 31203-8-111
Townsend v, Smith


Although the Ninth Circuit ruling established the legal effect of the Assignment, it does

not inform about what local attorneys should have known or how they should have acted

in advance of that ruling.

       The Trust emphasizes that the pending trial would have been to the bench and that

the Ninth Circuit ruling had established that the Assignment was defective, effectively

determining the breach element as a matter of law and making the matter comparatively

easy for the trial judge who then would not need expert testimony. We disagree. The

purpose of expert testimony would be to establish the attorney's standard of care. The

Ninth Circuit ruling did not do that The standard needed to be established by expert

testimony in light of the complex facts of this action.

       We agree with the trial court that in light of legal complexities of federal

bankruptcy law as it interacted with Washington judgment and homestead law, the

standard of care for Washington attorneys dealing in these matters was subject to proof

by experts. It was not a matter within the common knowledge of lay persons or a state

trial judge. For these reasons, we agree that the trial court correctly dismissed this action

on summary judgment 3




       3  The Trust also argues that its action against Smith for his failure to recommend
that suit be brought against Delay Curran would have survived summary judgment if the
court had granted its request to amend the action. We do not address that claim in light
of the trial court's decision not to include it in the case.

                                              9

No. 31203-8-II1
Townsend v. Smith


       Amendment ofthe Complaint

       The Trust also argues that the trial court erred in refusing to grant its motion to

again amend the complaint to add the theory that Smith committed malpractice by failing

to recommend that it bring a malpractice action against Delay Curran concerning the

drafting of the Assignment. The Trust has failed to establish that the court abused its

discretion in denying the request.

       A party has the right to amend a pleading once as a matter of right, provided that

the amendment is timely; in all other circumstances, an amendment must be granted by

the trial court. CR 15(a). The decision to permit or deny an amendment to the pleadings

is reviewed for abuse of discretion. Wilson v. Horsley, 137 Wn.2d 500,505,974 P.2d

316 (1999). Discretion is abused when it is exercised on untenable grounds or for

untenable reasons. State ex ref. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

The denial of a motion for leave to amend does not constitute an abuse of discretion

where the proposed amendment was futile. Rodriguez v. Loudeye Corp., 144 Wn. App.

709, 729, 189 P.3d 168 (2008).

       Smith argues that the proposed amendment was untimely, futile, and would have

failed for lack of expert testimony concerning the standard of care just as the existing

complaint did. We do not address the standard of care related argument for the same

reasons we did not discuss it previously-the amendment was not granted, so there was

no need to address the hypothetical question of whether or not it would have survived

                                             10 

No. 31203-8-111
Townsend v. Smith


summary judgment if the amendment had been permitted and subsequently challenged by

Smith for evidentiary insufficiency.

       The futility argument appeared to have some traction before the trial court. The

trial judge noted that she may have erred in dismissing Delay Curran from the case.

Smith argued, as the Trust had in opposing Delay Curran's motion for summary

judgment, that no malpractice cause of action accrued prior to the Ninth Circuit's ruling

in 2009 established that the Trust had been harmed. A change in ruling by a trial court

was similarly at issue in Paradise Orchards General Partnership v. Fearing, 122 Wn.

App. 507, 94 P.3d 372 (2004), review denied, 153 Wn.2d 1027 (2005). There the

attorney representing a seller had drafted the sales agreement, including a remedies

clause. When the sale fell through, litigation resulted and the trial judge interpreted the

clause as limiting the remedies available to the seller. The seller then settled with the

buyer on less favorable terms than desired and sued its attorney for malpractice. Id. at

511-13. The trial court ruled that the first judge had erred in the interpretation of the

remedies clause and found no legal malpractice. Id. at 513. This court agreed that the

client's remedy was to challenge the judge's ruling rather than sue the attorney. Id. at

515,520. The judgment in favor of the attorney was affirmed. Id. at 520.

       If the trial court had changed its mind about the timing of the malpractice action

against Delay Curran, it could easily decide that amending the complaint would have

been futile because Delay Curran had been timely sued and Smith's alleged failure to

                                             11 

No.31203-8-II1
Townsend v. Smith


pick up on the issue in 2005 was irrelevant since the harm did not arise until 2009. 4

Given the court's commentary, we are not certain if the court relied upon that reasoning

in its rejection of the request for leave to amend and therefore do not further analyze that

point.

         It does appear that the trial court denied the motion on timeliness grounds. We

believe that was a tenable basis for ruling. Delay Curran received its summary judgment

in late April 2011. The deadline for amendments under the case scheduling order was

August 1, 2011. The request for leave to amend was not made until 2012 in response to

Smith's motion for summary judgment. The Trust had time after Delay Curran was

dismissed to seek an amendment before the scheduling order's deadline. It did not.

         On that basis, we conclude the trial court did not abuse its discretion by declining

permission to amend the complaint once again. Although it may have had additional

reasons for denying the request, its determination that the motion was untimely was a

tenable reason for doing so. Again, we see no trial court error.




        Contrary to the Trust's arguments, the law of the case doctrine would not apply
         4
against Smith who was not party to Delay Curran's motion for summary judgment. The
Trust was the only other party to that action and Smith was not bound by its results since
he did not take part in the motion.

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No. 31203-8-II1
Townsend v. Smith


      The judgment is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                       Korsmo, C.J.

WE CONCUR:



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