Opinion
No. 29741–1–III.
2012-10-11
LK OPERATING, LLC, a Washington Limited Liability Company, Appellant, v. THE COLLECTION GROUP, LLC, a Washington Limited Liability Company, and Brian Fair and Shirley Fair, husband and wife, and their marital community composed thereof, Respondents and Cross–Appellants, Leslie Alan Powers and Patricia Powers, husband and wife, and Keith Therrien and Marsha Therrien, husband and wife, Intervenors.
PANEL: Judges SWEENEY, KULIK, and SIDDOWAY.
ORDER GRANTING LK OPERATING'S MOTION FOR RECONSIDERATION AND AMENDING OPINION
¶ 1 The court has considered LK Operating's motion for reconsideration, Powers' and Therrien's motion for reconsideration, and the answer filed by the Collection Group. The court is of the opinion that LK Operating's motion should be granted and the opinion should be amended. Therefore
¶ 2 IT IS ORDERED that LK Operating's motion for reconsideration is granted and the opinion shall be amended as follows:
¶ 3 The first full sentence at the top of page 10 that begins, “The court also dismissed” shall be deleted and the following shall be substituted in its place:
The trial court's decision on the motion for reconsideration stated that it was “no longer necessary to rule on whether RPC 1.8 was violated.” CP at 2373.
¶ 4 The following footnote shall be added at the end of the first full paragraph on page 21 that ends “are helpful here”:
In motions for reconsideration, LK Operating and Powers and Therrien argue that in the evaluation of RPC 1.8 as a basis for decision, we should not review these findings and conclusions but should limit ourselves to the summary judgment record, viewed in the light most favorable to them. While TCG always relied on the trial court's findings following trial as the basis for its cross appeal, the appellant and intervenors raise this objection for the first time in their motions for reconsideration.
The trial court was not required to reach the RPC 1.8 issue in ruling on summary judgment but it did not dismiss TCG's and Mr. Fair's claim based on that ethical rule. (The statement to the contrary in our original opinion was mistaken.) And while the trial focused on LK Operating's right to recover rescissory damages, TCG persisted in contending that both ethical rules had been violated, see, e.g., CP at 2121, just as LK Operating continued to contend that TCG had not established an ethical breach by the lawyers. See, e.g., RP at 384 (“[T]hey're trying to, from the other side, turn an innocent party's investment into, You don't get any money back, because we think ... some other third party ... did something wrong.”). In any event, a judge may reverse or modify a summary judgment ruling at any time prior to the entry of final judgment. Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wash.2d 15, 37, 864 P.2d 921 (1993). The court's findings following trial are the appropriate focus of our review. See Johnson v. Rothstein, 52 Wash.App. 303, 306, 759 P.2d 471 (1988) (rulings made at the time summary judgment was denied affecting the final judgment “ ‘can be reviewed at that time in light of the full record’ ”) (quoting Evans v. Jensen, 103 Idaho 937, 942, 655 P.2d 454 (1982)).
FOR THE COURT:
/s/ Kevin M. Korsmo
KEVIN M. KORSMO
CHIEF JUDGE