Opinion
No. 56870-1-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-22002-5, Julie Spector, J., entered August 8, 2005.
Counsel for Appellant(s), William D. Hochberg, Attorney at Law, 222 3rd Ave N, Edmonds, WA 98020-3109.
Grady B Martin, Law Office of William D. Hochberg, 222 3rd Ave N, PO Box 1357, Edmonds, WA 98020-1357.
Counsel for Respondent(s), William H. Waechter, Lee Smart Cook Martin Patterson PS, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Joel Evans Wright, Lee Smart Cook et al, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Affirmed by unpublished per curiam opinion.
Donna Alleman appeals the dismissal of her legal malpractice claim against her attorney, Larry Lehmbecker. Because Alleman's claim was filed more than three years after the acts Alleman complains of, we affirm.
FACTS
In 1996, Donna Alleman was employed as an apartment manager. Her apartment and utilities were provided free as part of her compensation. Alleman was injured while working and made a claim to the Department of Labor and Industries (LI). Alleman retained Larry Lehmbecker to represent her to ensure that the LI award included the value of her apartment rent in LI's wage-loss calculation.
Lehmbecker informed Alleman that the apartment rent could not form part of her wage claim because it was not taxable. Alleman fired Lehmbecker on August 23, 1999. LI issued a final order on August 27, 1999. The order did not include the value of Alleman's apartment rent in the wage-loss calculation. Alleman did not appeal the order.
On August 27, 2001, Alleman retained new counsel, William Hochberg, to assist her in applying for additional medical treatment from LI. Hochberg informed Alleman that her rent and utilities should have been included in her LI final order in 1999. Three years later, on August 26, 2004, Alleman filed a legal malpractice suit against Lehmbecker. The court ruled that Alleman's claim was barred by the statute of limitations.
ANALYSIS
A grant of summary judgment is reviewed de novo. We engage in the same inquiry as the trial court and view the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate where 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). Summary judgment is proper "only if reasonable persons could reach only one conclusion from all of the evidence." Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
The statute of limitations period for a legal malpractice claim is three years. Huff v. Roach, 125 Wn. App. 724, 729, 106 P.3d 268 (2005) (citing RCW 4.16.080(3)). The cause of action accrues when the plaintiff has a right to seek legal relief. Janicki Logging Constr. Co., Inc. v. Schwabe, Williamson Wyatt, P.C., 109 Wn. App. 655, 659, 37 P.3d 309 (2001). Alleman's claim was filed five years after the final order was entered on her compensation claim, and is thus time-barred unless the discovery rule delayed accrual of her cause of action.
The discovery rule applies to legal malpractice claims. Observing that 'the consumer of professional services frequently does not have the means or ability to discover professional malpractice,' and that clients have 'little choice but to rely on the skill, expertise and diligence of counsel,' the Supreme Court in Peters v. Simmons, 87 Wn.2d 400, 404, 552 P.2d 1053 (1976) rejected the occurrence rule as 'rather narrow and mechanistic,' and held that the discovery rule applies in professional malpractice actions. The cause of action accrues when the client discovers or, in the exercise of reasonable diligence should have discovered, the facts which give rise to his or her cause of action. Id. at 406.
Once the facts are known, the statute begins to run. It is not necessary that the plaintiff understand their legal effect. Richardson v. Denend, 59 Wn. App. 92, 97 n. 6, 795 P.2d 1192 (1990) ('knowledge of the 'facts' comprising a cause of action for attorney malpractice is to be distinguished from knowledge that such conduct constitutes malpractice. . . . [T]he discovery rule does not require that the plaintiff know of the negligent character of the conduct alleged as the cause of his or her injury') (citing Gevaart v. Metco Constr., Inc., 111 Wn.2d 499, 502, 760 P.2d 348 (1988)). Ordinarily, in professional malpractice cases, the pivotal factor is ignorance of injury. Richardson, 59 Wn. App. at 96 (citing Peters, 87 Wn.2d at 404; Gevaart, 111 Wn.2d at 501). Entry of an adverse judgment places a plaintiff on notice that his or her attorney may have been negligent. Richardson, 59 Wn. App. at 98 (argument 'that the statute of limitations is tolled until such time as a dissatisfied client obtains other legal counsel or engages in independent legal research to determine the propriety of the actions of his or her former counsel . . . is not the law of Washington').
When a plaintiff discovered a cause of action, and whether a plaintiff exercised reasonable diligence to discover the action, are generally questions of fact. But if reasonable minds could not differ, these may be questions of law. Cawdrey v. Hanson Baker, 129 Wn. App. 810, 818, 120 P.3d 605 (2005); Richardson, 59 Wn. App. at 95. Here, reasonable minds could not differ about when Alleman knew of the facts regarding her claim against Lehmbecker.
In her deposition, Alleman stated that she hired Lehmbecker to ensure that her rent was included in the LI compensation. She fired him partly because he failed to achieve that. Alleman's final compensation award on August 27, 1999 excluded the value of her rent from the compensation calculation. Alleman was thus on notice of Lehmbecker's possible malpractice. See Richardson, 59 Wn. App. at 98. Alleman testified she wanted to take action against Lehmbecker at the time of the final order, but did not know she could sue a lawyer.
Alleman stated: 'When I hired him, because I wasn't going to be getting all my wage, because with me being an apartment manager, my apartment, all my utilities was included plus a wage. . . . [T]hrough LI it was just going to be a wage and my apartment was not included, so that's why I hired him was for my apartment, for the issue of the other part of my wage.' Clerk's Papers at 26.
See Clerk's Papers at 42-43 ('So is it fair to say you terminated [Lehmbecker] because the rents were not included in your compensation rate? Yes. Was there any other reason? No. . . . The basis for your termination of Mr. Lehmbecker was that he, because you felt your rent should have been included? Yes.'); see also Clerk's Papers at 66-67 ('You knew in your mind that he failed you? Yeah. You knew that as far back as August of 1999? Yeah. And you knew the particulars in which he failed you were his failures to include the rent in your compensation rate? Yes.').
See Clerk's Papers at 75 ('Specifically you're saying he didn't do his job because he didn't include the rent? Yes. And you knew that at the time [in August of 1999]? Yeah. . . . And the only reason you didn't challenge him is you didn't know you could sue a lawyer? Yes.')
Alleman argues that she could not have known Lehmbecker had committed malpractice until new counsel so informed her in August 2001. But the discovery rule does not allow the plaintiff to wait until she receives legal advice about a specific cause of action. Rather, it requires her to file suit within three years of the time when she knows the facts underlying her cause of action.
Washington courts emphasize that the exercise of due diligence is required for the discovery rule to apply. In Gevaart v. Metco Construction, Inc., 111 Wn.2d 499, 502, 760 P.2d 348 (1988)), the court held that a plaintiff who fell after treading on a downward-sloping step could, by the exercise of due diligence, have determined not only that the step did not conform to code, but also that the slope was a construction defect. In Cawdrey v. Hanson Baker, 129 Wn. App. 810, 817, 818, 120 P.3d 605 (2005), the discovery rule was held not to apply because, with due diligence, plaintiff could have discovered that her attorney negligently failed to recognize that an indemnification clause negated the need for her to quitclaim properties in order to be released from a loan agreement. The statute of limitations therefore barred her claim.
Alleman believed Lehmbecker had failed her and wanted recourse, yet she waited two years before seeking advice from independent counsel, and almost another further three years before filing any claim. Even if the discovery rule applied, this is not sufficient diligence to merit tolling the statute.
When LI issued its final order in 1999, Alleman knew of the facts underlying her cause of action, and the three year statute of limitations began to run. Because this action was not filed until 2004, it is time-barred.
Finally, Alleman asserts that Lehmbecker should be equitably estopped from asserting a statute of limitations defense. Alleman did not raise this issue below, and we decline to address it. RAP 2.5(a); Rogers Walla Walla, Inc. v. Ballard, 16 Wn. App. 92, 101, 553 P.2d 1379 (1976) (theories raised for the first time on appeal will not be considered).
Affirmed.
ELLINGTON, SCHINDLER and GROSSE, JJ., concur.