FILED CC) J OF A P P" LS D.f' V, SIQN It 28114 Aur 12 . Pfl 12: 45 IN THE COURT OF APPEALS OF THE STATE OF WASHIN_
DIVISION II
ALAN J. VEYS; LONE EAGLE RESORTS, No. 43674- 4- 11 INC.; and ALAN J. VEYS PROPERTIES, LLC,
Appellants,
v.
MICHAEL LONG and ANN LONG; OFFICE UNPUBLISHED OPINION OF P. MICHAEL LONG; and P. MICHAEL LONG, P. S., INC.,
Respondents.
HUNT, J. — Alan J. Veys, Lone Eagle Resorts, Inc., and Alan J. Veys Properties, LLC
appeal the superior court' s grant of summary judgment dismissal of their legal malpractice action
against Michael Long, Ann Long, Office of P. Michael Long, and P. Michael Long, P. S., Inc.
Veys argues that summary judgment was improper because ( 1) Long' s professional negligence
in representing Veys in the sale of his Alaska lodge was the proximate cause of Veys' damages
from that sale; ( 2) Veys' recovery should not be limited to $ 300, 000, the settlement offer that
Veys rejected in a separate, though related, Wyoming lawsuit; and ( 3) the statute of limitations
did not bar Veys' additional claims not related to the sale of his lodge. We reverse the superior
court' s summary judgment dismissal of Veys' legal malpractice action against Long and the
imposition of a $ 300, 000 damages cap; and we remand this claim to the superior court for trial.
We affirm the superior court' s summary judgment dismissal of Veys' other claims not related to
the sale of Veys' lodge. No. 43674 - -II 4
FACTS
Veys and attorney Long were longtime friends before Long ever provided legal services
to Veys. In 1994, Long purchased a piece of accretion land along the Cowlitz River under the
name Columbia Realty Services, a company Long owned with his ex -wife. That same year,
Veys paid Long $ 2500 for a one -half interest in this property. Columbia Realty Services later
dissolved.
I. LODGE SALE NEGOTIATIONS
Veys also owned and operated a fishing lodge, the Pybus Point Lodge on Admiralty
Island, Alaska. In spring 2004, Marvin Applequist, Bruce Reed, and Val Jones ( Purchasers)
attempted to purchase this lodge from Veys. Veys hired Long as legal counsel to negotiate the
sale; Veys also hired accountant, Jerome " Tonk" Fischer, to work with him and Long on this
transaction. Attorney Darin Scheer represented the Purchasers. During March and April 2004,
the parties negotiated the terms of sale and began drafting a purchase and sale agreement ( PSA).
On May 4, Veys faxed Long a handwritten note listing multiple substantive terms he wanted included in the PSA. On May 10, Long sent Scheer an email requesting that these terms be
included in the PSA.
A. Original PSA
On May 30, Veys, the Purchasers, and Scheer met with Long at Long' s Longview office
to negotiate the final details of the purchase. During this meeting, Applequist told Veys that he
Applequist) had to notify his company by June 3 if he was planning to leave his job to take over
the lodge. The parties agreed that ( 1) Scheer would draft a PSA memorializing the terms on
which they had reached agreement that day, and ( 2) by June 18 they would incorporate as
2 No. 43674 -4 -II
exhibits to the PSA any additional terms they might negotiate, subject to their later mutual
agreement. Addressing Applequist' s timing concerns, the parties discussed inserting into the
PSA a " cram down" clause, which would provide that once signed, the PSA would bind all
parties. Clerk' s Papers ( CP) at 10. In essence, this " cram down" clause would guarantee that the
original PSA terms agreed to on May 30 would bind the parties, even if they could not agree on
any later additional terms or exhibits. CP at 10. At the end of the May 30 meeting, the
Purchasers proposed a purchase price of $2. 8 million, $ 600, 000 of which Veys would finance.
On May 31, Scheer emailed the proposed final version of the PSA to Veys and Long.
This proposed PSA, in pertinent part, listed the lodge' s sale price, the property description, and
contingencies that Veys had to meet. These contingencies included Veys' obligations ( 1) to
provide title insurance to the Purchasers, ( 2) to inform the Purchasers about all operational and
managerial decisions that Veys had made relating to the lodge, and ( 3) to allow the Purchasers to
review all lodge expenses and financial records. The PSA further provided that Wyoming was
the choice of venue but Alaskan law would govern any legal disputes arising from the PSA.
Scheer' s proposed PSA also included the previously discussed " cram down" provision,
Section 2. 1. 1( a):
In consideration of the transfer by the Seller to the Purchaser of the Purchased Assets, the Purchaser shall pay to the Seller the aggregate purchase price of Seller' s choice of $2, 800, 000 ( with Seller to carry amounts excess of $2, 000, 000) or $ 2, 650, 000 ( cash at closing) ( with either amount being inclusive of the down payment) ( the " Purchase Price "), contingent upon the conditions precedent described in Sections 9. 5, 9. 6, and 9. 7 of this Agreement ( " Conditions Precedent "). Seller' s election options are set forth below. Seller must declare its
choice of Purchase Price in writing on or before 5: 00 pm MDT on June 4, 2004, or the Purchase Price will automatically be $ 2, 800, 000 under the terms set forth herein. Seller is bound by all terms of this Agreement immediately upon signing, regardless of whether Seller elects on or before the deadline set forth above. REGARDLESS OF WHICH PURCHASE PRICE SELLER ELECTS, IT IS
3 No. 43674 - -II 4
UNDERSTOOD AND AGREED THAT PURCHASER IS ACTING IN RELIANCE ON THE FACT THAT SELLER IS BOUND TO ALL TERMS OF THIS AGREEMENT IMMEDIATELY UPON SIGNING.
CP at 422. Significantly, the proposed PSA did not contain most of the requests that Veys had
communicated to Long on May 4.
That same day, May 31, Long emailed Veys Scheer' s proposed PSA and asked Veys to
confirm receipt, to review, and to comment on it. But Veys could not open the PSA document
attached to Long' s email. The next day, June 1, Long faxed Veys only the PSA signature page,
which Veys signed and faxed back to Long.' Once Veys signed the document he was bound to
the terms of the original PSA, as provided by the " cram down" provision. Long did not confirm
that Veys had received the proposed PSA, which included the new " cram down" provision; nor
did Long review the PSA terms with Veys. As a result, when Veys signed the signature page, he
did not know that his requested changes had not been incorporated into the PSA.
On June 3, Scheer emailed Veys, with a copy to Long, asking whether Veys wanted to
proceed with the lodge sale at a selling price of either $ 2. 8 million with a potential $ 600, 000
2 carry " or $ 2. 65 million, which amount the Purchasers would pay in full at closing. CP at 204.
Veys responded that, before choosing either option, he wanted to discuss the selling price further
with his accountant. Later that day, Scheer sent an email to both Long and Veys, to which he
attached a final draft PSA. In this email Scheer ( 1) again asked whether Veys wanted $2. 65
Veys' brief asserts it was " agreed between them that Long would not deliver the signature page to Buyers' attorney Scheer until so authorized by Veys." Br. of Appellant at 13. But Veys' record cite does not reflect this agreement.
2 Scheer' s email proposed, "[ E] ither you carry at 2. 8 or we pay cash . at 2. 65." CP at 203 emphasis added). By " carry" the parties appeared to have meant that Veys would finance 600,000 of the purchase price.
4 No. 43674 - -II 4
million cash at closing or $ 2. 8 million with " carry amounts over $ 2 million," CP at 205; and ( 2)
Scheer also conspicuously noted that Veys would be contractually bound as soon as the
Purchasers received his signed PSA signature pages, regardless of whether Veys had elected the
payment amount and method. Veys emailed Scheer, replying that he ( Veys) had been trying to
call Scheer, that " it [ was] a go either way," and that he would contact Scheer; Veys also asked
Scheer to forward this email correspondence to Long because Veys was having trouble emailing
Long. CP at 210 ( emphasis added).
B. Failed Requests for Additional PSA Terms
On June 5, Veys contacted Scheer and Applequist, ( 1) expressing his regret about having
decided to sell the lodge; ( 2) asking whether the Applequist Group was willing to " star[ t] over,"
CP at 213; and ( 3) stating that if the Purchasers were not willing to " star[ t] over," Veys would
take their $ 2. 65 million cash offer. CP at 213. The next day, Veys emailed Long that he had had
only 50 minutes to read the PSA, he was not happy with it, and he wanted modifications, such as
the right to terminate the PSA under certain conditions and the right to purchase items for
personal use.
On June 11, Long emailed Veys and Veys' accountant ( 1) reminding them about the
upcoming June 18 deadline for new PSA terms and exhibits, and ( 2) reminding Veys that the
cram down" provision already bound him to the existing PSA terms ( the signature page for
which Veys had signed on June 1). On June 14, Veys replied to Long that he hoped he had the
right and option to decline selling the lodge and sent Long a separate email stating that he did not
receive a copy of the final PSA. Over the next several days, Veys continued emailing Long
5 No. 43674- 4- 11
reiterating that he terms3
about additional he wanted included in the PSA and was " worried"
about the PSA. CP at 682.
On June 17 and 18, Long emailed Scheer and the Purchasers an amended version of the
PSA that included new terms that Veys wanted, including that ( 1) " the Lodge" would pay all
expenses for repairs and maintenance; ( 2) any subsequent lodge owners would have the right to
purchase fuel at " lodge cost"; ( 3) any future or subsequent lodge owners would have the right,
but not the obligation, to " put in docks at pilings "; (4) Veys would sell his plane to " the Lodge"
at fair market value; and ( 4) " all fuel" that Veys had purchased in the previous year would be an
additional cost to the Purchasers, to be paid in cash at the time of closing. CP at 704.
Responding to Long' s emails, on June 22 Scheer wrote Long a letter ( 1) stating that the
Purchasers agreed to extend the deadline for finalizing exhibits (additional PSA terms) until July
23, ( 2) chastising Long for creating completely new terms on which the parties had previously
failed to agree, and ( 3) telling Long that the Purchasers would not agree to these new terms.
Long responded to Scheer with a June 24 letter stating that he ( Long) did not agree that the
original PSA bound all parties until they could mutually agree on new or additional " replacement
exhibits." CP at 221.
Scheer again responded that ( 1) he disagreed that the PSA did not bind the parties, given
that Veys had signed the PSA (which the Purchasers had received on June 5) and had elected to
accept the cash option selling price of $2. 65 million and ( 2) the " cram down" provision, section
2. 1. 1( a), expressly provided that the final PSA and initial exhibits were binding upon all parties
3 These additional terms included setting the maximum number of guests at the house on the lodge property, payment of expenses for the house, regulation of future owners of the house, attorney fees, the addition to lodge selling price of costs for fuel purchased by Veys, and the selling price of Veys' plane.
6 No. 43674 -4 -II
unless the parties later mutually agreed on and executed replacement exhibits. Around June 24,
the Purchasers moved into the lodge for the summer to learn its day -to -day operations.
On August 27, Veys emailed Long that he ( Veys) and his accountant had looked at the
PSA. Veys asked Long ( 1) to review the PSA, ( 2) to determine when the purchase price deposit
was due, and ( 3) to advise him because he did not want to sell the lodge or be " taken to the
cleaners." CP at 246. Veys closed his email by stating that he wanted " the contract to be
terminated," that he " want[ ed] [ his] lodge back," and that the contract had been " done at a very
bad time in [ his] life." CP at 246.
That same day, August 27, Scheer sent Long a demand letter and notice of non-
compliance, stating that Veys had not complied with the PSA in failing to provide statements of
the lodge' s net revenues and costs; a list of the lodge' s lease agreements; a list of all lodge
licenses and required governmental or official approvals, permits, or authorizations for the
business and operations; documents of each " Purchased Other Agreements" relating to the lodge;
information about managerial and operational decisions Veys had made for the lodge; a list of
insurance policies that Veys maintained; and access to the lodge' s financial records. CP at 247.
Scheer further noted that Veys' failure to provide such documentation could lead to the
Purchasers taking legal action. Scheer reiterated that, because the parties could not agree on
replacement exhibits or additional terms, the original PSA bound them. And Scheer asked for
wire transfer instructions for the Purchasers to tender their $ 50, 000 deposit for the lodge' s.
purchase.
On September 1, Long responded to Scheer' s demand letter and notice of noncompliance,
Scheer that Veys the Purchasers to " their bags and leave the island." CP informing wanted pack
7 No. 43674 -4 -II
at 254. After a heated discussion, with Veys, the Purchasers left the lodge around September 6.
On September 9, Long sent a final offer from Veys, expressing the terms under which
Veys would agree to sell the lodge to the Purchasers. The parties did not reach a new agreement.
II. PROCEDURE
A. Purchasers' Breach of Contract Action against Veys in Wyoming
On October 7, 2004, in Wyoming District Court, the Purchasers sued Veys for breach of
contract, breach of the implied covenant of good faith and .fair dealing, promissory estoppel,
anticipatory repudiation, and specific performance. Veys v. Applequist, 155 P. 3d 1044, 1048
Wyo., 2007). Veys hired Wyoming attorney Don Riske to defend him in this litigation.
Before trial, around February 2005, the Purchasers offered to dismiss the lawsuit if Veys
agreed either ( 1) to sell the lodge and his Pybus Point residence to Purchasers for $2 million, or
2) to pay the Purchasers a settlement amount of $300, 000. Riske consulted with Veys and
received Veys' authorization and direction to reject this offer. The case went to trial.
A jury determined that the parties had entered into an enforceable contract that Veys had
breached; and it entered a verdict against Veys for $ 3 million in damages. Veys, 155 P. 3d at
1048. The Purchasers made a final settlement offer to release Veys from additional liability if he
paid them $ 850, 000 in cash; Veys also rejected this settlement offer. Veys appealed, and the
Wyoming Supreme Court affirmed the jury verdict against him. Veys, 155 P. 3d at 1052 -53.
B. Veys' Legal Malpractice Action against Long in Washington
On June 19, 2009, Veys sued Long for legal malpractice in Cowlitz County Superior
Court, naming Long, Long' s office, and his wife, Ann Long, as defendants; Veys alleged both
breach of contract and tort bases. Veys alleged that ( 1) Long had failed to advise Veys and to No. 43674- 4- 11
protect his interest in the PSA negotiations, ( 2) Long' s actions and advice to Veys had resulted in
Veys' breach of the PSA that led to the Purchasers' Wyoming lawsuit against him, ( 3) Long had
failed to protect Veys from seizure of his assets after judgment was entered against him in the
Wyoming action, ( 4) Long had been negligent in advising Veys in both the PSA transaction and 4 in connection with their 1994 joint purchase of the Cowlitz River accretion land, and ( 5) Long 5 had breached the duties and obligations he owed Veys under their contract for legal services.
Long moved for summary judgment as to Veys' negligence -based malpractice claims,
arguing that ( 1) Veys' alleged damages had arisen from his own decision to breach a binding
contract, not from Long' s actions; ( 2) alternatively, the superior court should limit Veys'
damages to $ 300, 000, the settlement offer that Veys had rejected in the Wyoming trial and the
only damages arguably attributable to Long; and ( 3) the statute of limitations barred Veys'
malpractice action claims unrelated to the PSA, based on Long' s alleged malpractice in
connection with the 1994 Cowlitz River accretion land purchase. For summary judgment
purposes, Long conceded his professional duty to Veys and breach of duty in conjunction with
Veys' legal malpractice claim related to the PSA. In support, Scheer submitted a declaration
stating that the Purchasers would have " walked away from the deal as friends had Veys or Long
insisted on any of the Rejected Requests be included in the June 3, 2004 PSA." CP at 293.
The superior court orally granted Long' s summary judgment motion in its entirety. The
superior court also issued a letter ruling granting summary judgment to Long, reasoning:
4 More specifically, Veys alleged that Long had failed to advise him about a conflict of interest and to seek independent legal counsel in connection with Veys' 1994 purchase of half of Long' s interest in the Cowlitz River accretion land.
5 On appeal, Veys does not pursue dismissal of his based malpractice claim. contract - Thus, we do not further address it. No. 43674- 4- 11
It is apparent to me that the plaintiff knew of the PSA and for whatever reason decided not to perform under the contract. This was of his own volition which was thoroughly vetted in the Wyoming lawsuit brought by the buyers that resulted in a verdict against Veys.
CP at 793. In a later written order, the superior court ( 1) granted summary judgment as to all of
Veys' claims, dismissing them with prejudice; ( 2) noted that it had relied on the theory of "legal
impossibility" as an additional basis for the relief granted; and ( 3) also granted Long' s alternative
motion for partial summary judgment dismissal of Veys' claims that were not related to the PSA
and which had been filed after expiration of the applicable statute of limitations. CP at 881.
Veys appeals.6
ANALYSIS
I. LEGAL MALPRACTICE
Veys argues that summary judgment on his PSA - related claims was improper because he
produced evidence that he would have obtained a better outcome for the sale of his lodge but for
Long' s negligence in representing him during the PSA negotiations— namely that Veys would
have obtained the sales terms he wanted or the Purchasers would have " walked away" from the
deal instead of suing him in Wyoming. Veys then argues that, as a result, there was an issue of
material fact about whether Long' s negligence was the proximate cause of Veys' P SA-related
damages. Br. of Appellant at 36. We agree.
Veys also argues the summary judgment was improper in his malpractice action against
Long for non -PSA related transactions, in particular Long' s alleged malpractice in connection
with Vey' s 1994 purchase of half of Long' s Cowlitz River accretion property because ( 1) his
6 Ann Long filed a separate brief, stating that as a tangential party to the action and as a result of her former marriage to Long, she joins and incorporates Long' s briefing on appeal.
10 No. 43674 - -II 4
Veys') damages were ongoing, " continu[ ing] to this day "; and ( 2) thus, Veys' claim was not
barred by the statute of limitations. Br. of Appellant at 48. This argument fails. A. Standard of Review
We review a summary judgment de novo, engaging in the same inquiry as the trial court
and viewing the facts and any reasonable inferences therefrom in the light most favorable to the
non - moving party, here, Veys. Associated Petroleum. v. NW Cascade, 149 Wn. App. 429, 434,
203 P. 3d 1077 ( 2009). Summary judgment is proper when no genuine issue of material fact
remains and the moving party is entitled to judgment as a matter of law. Diamond " B"
Constructors, Inc. v. Granite Falls Sch. Dist., 117 Wn. App. 157, 160 -61, 70 P. 3d 966 ( 2003). A
genuine issue of material fact exists where reasonable minds could differ on the facts controlling
the outcome of the litigation. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P. 3d
886 ( 2008). To defeat summary judgment, the non - moving party must assert specific facts and
cannot rely on mere speculation. Ranger, 164 Wn.2d at 552.
B. PSA- Related Claims, Proximate Cause
To establish legal malpractice, a plaintiff must show "( 1) the existence of an attorney-
client relationship giving rise to a duty of care to the client, ( 2) act or omission in breach of the
duty, ( 3) damages to the client, and ( 4) proximate causation between the breach and damages."
Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 863 - 64, 147 P. 3d 600 ( 2006), review
denied, 161 Wn. 2d 1011 ( 2007). For summary judgment purposes, Long conceded the issues of
duty and breach of duty with respect to Veys' PSA claims and moved for summary judgment
based on lack of proximate causation. Accordingly, we address only proximate cause.
11 No. 43674 -4 -II
The burden is on the legal malpractice plaintiff to show that the attorney' s negligence
was the proximate cause of his injury. Hansen v. Wightman, 14 Wn. App. 78, 88, 538 P. 2d 1238
1975). Proximate cause is the nexus between breach of duty and resulting injury. Halvorsen v.
Ferguson, 46 Wn. App. 708, 719, 735 P. 2d 675 ( 1986). Proximate cause has two elements:
cause in fact and legal causation. City of Seattle v. Blume, 134 Wn.2d 243, 251, 947 P. 2d 223
1997). " Cause in fact refers to the ` but for' consequences of an act, that is, the immediate
connection between an act and an injury." Blume, 134 Wn.2d at 251 - 52. The plaintiff must
demonstrate that " but for" the attorney' s negligence he would have obtained a better result.
Smith, 135 Wn. App. at 864. Legal causation is based on policy considerations in determining
how far the consequences of an act should extend. Blume, 134 Wn.2d at 252: Although
proximate cause is usually an issue for the fact finder, the trial court can decide proximate cause
as a matter of law if "reasonable minds could not differ." Smith, 135 Wn. App. at 864.
To avoid summary judgment on proximate cause, Veys needed to show that Long' s
breach of his professional duties caused Veys harm. In the context of this negotiated contract,
Veys had to show that but for Long' s negligence, he would have been able to obtain a " better"
contract ( more favorable to Veys) or an improved outcome. See Smith, 135 Wn. App. at 864.
In Smith, Smith sued Preston Gates Ellis, LLP, alleging legal malpractice for its
representation of him in drafting and reviewing a contract for the construction of his " dream
home." Smith, 135 Wn. App. at 863. Division One of our court held that, even though Smith
7 Although not binding here, we note the Colorado Supreme Court' s holding in Gibbons v. Ludlow, 2013 CO 49, 304 P. 3d 239 ( 2013) that a legal malpractice plaintiff can show a better litigation result by proving that if his attorney had provided competent representation, ( 1) he ( the plaintiff) would have been able to obtain a better bargain in the underlying transaction, or ( 2) he would have been better off "walking away from the underlying transaction." Gibbons, 304 P. 3d at 242.
12 No. 43674- 4- 11
noted various deficiencies in the construction contract to support his malpractice claim, summary
judgment was appropriate because he had failed to demonstrate, with specificity, that but for
these deficiencies he would have had a better result. Smith, 135 Wn. App. at 865. Smith alleged
that if he had been advised of the deficiencies in the contract, he never would have signed it.
Smith, 135 Wn. App. at 865. The court held, however, that this allegation was insufficient to
defeat summary judgment because Smith could not identify an alternative that would have led to
a better outcome. Smith, 135 Wn. App. at 865.
Here, Veys argues that Long was negligent in failing ( 1) to inform Veys that the final
PSA Long had Veys sign did not contain the terms that Veys had expressly requested; ( 2) to
review the PSA with Veys before emailing him the signature page to sign, despite knowing that
Veys had been unable to open and. to read the PSA Long had originally emailed to him; and ( 3)
to explain to Veys the impact of the PSA' s " cram down" provision on his ability to incorporate
his requested terms. Unlike in Smith, Veys produced clear evidence that but for Long' s
negligence Veys would have obtained a better outcome — Veys' desired terms for sale of the
lodge or no sale at all. Veys declared that he had no pressing need to sell the lodge and would
have refused to sell if his requested terms were not included in the PSA. Similarly, Scheer' s
declaration established that the Purchasers would have " walked away from the deal as friends
had Veys or Long insisted on any of [ Veys'] Rejected Requests be included in the June 3, 2004
PSA." CP at 293.
Long argues, and the superior court found, that the cause of Veys' damages was his own
willful breach of the PSA that he signed. The key evidence, however, which we assume is true
for summary judgment purposes, is that ( 1) when Veys signed the PSA signature page, he had
13 No. 43674 - -II 4
not seen the entire PSA, was unaware that it contained the " cram down" clause, and did not
know that his requested terms had not been included; ( 2) Veys would not have signed the PSA if
Long had informed him that the requested terms had not been included; and ( 3) the Purchasers
would have walked away from the deal if Veys had insisted on his requested terms. As a result,
there is sufficient evidence to show that but for Long' s negligence, Veys would not have signed
the PSA, the PSA would not have been executed, and Veys could not have breached it.
Veys asserted specific facts to rebut Long' s claims and to establish a question of material
fact about whether Long' s alleged negligence was the proximate cause of Veys' injuries.
Therefore, we hold that the superior court erred in granting Long' s motion for summary
judgment.
C. Non - PSA- Related Claims
Veys argues that the superior court improperly dismissed his other, non -PSA based
claims as barred by the statute of limitations. 8 He asserts that ( 1) the claims related to his 1994 purchase of half of Long' s interest in the Cowlitz River accretion land did not fall outside the
statute of limitations because they were subject to the parties' " Tolling Agreement "9; and ( 2) that
because Long had failed to convey any interest to Veys, these claims were ongoing, and thus not
barred by the statute of limitations. But contrary to RAP 10. 3( a)( 6), other than asserting this his
claim is " ongoing," Veys does not support his argument with citations to legal authority; nor
does he otherwise attempt to explain how the superior court erred in dismissing these claims
8 These claims related to the Cowlitz River accretion land and the statute of limitations.
9 Veys and Long entered into a " Tolling Agreement" for claims arising only in relation to the lodge sale transaction. CP at 286. Under this " Tolling Agreement," the parties agreed to toll the ,
statute of limitations for any claims arising from the sale of the lodge. CP at 286.
14 No. 43674-4- 11
related to a 1994 land transaction were not barred by the applicable three -year statute of
limitations for legal malpractice actions, 10 for which he similarly fails to provide a citation to the Revised Code of Washington.
An appellate court will not review issues that a party inadequately briefs or treats in
passing. State v. Thomas, 150 Wn.2d 821, 868 -69, 83 P. 3d 970 ( 2004). Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial consideration. State v.
Johnson, 119 Wn.2d 167, 171, 829 P. 2d 1082 ( 1992). Generally, an appellate court will not
review an assignment of error without argument and citation to authority. State v. Cox, 109 Wn.
App. 937, 943, 38 P. 3d 371 ( 2002). Thus, we do not further address this argument.
II. ALTERNATIVE PARTIAL SUMMARY JUDGMENT LIMITING VEYS' RECOVERY
Veys also argues that the superior court erred in granting Long' s alternative motion for
partial summary judgment limiting Veys' potential recovery to $ 300, 000, the settlement offer
amount offered at the Wyoming trial, which Veys had refused. We do not reach this argument.
Long brought this motion for partial summary judgment only as an alternative in the
event that the superior court denied his primary motion for full summary judgment. Because the
superior court granted Long' s primary motion for full summary judgment, it did not need to
address limiting Veys' recovery - the subject of Long' s alternative motion. Moreover, resolving
this issue would have been relevant only if the superior court had allowed some of Veys' claims
to remain such that there were potential damages to limit. But such was not the case. We hold
that the superior court' s ruling on this damages cap was premature. Thus, we reverse the
10 RCW 4. 16. 080( 3)_
15 No. 43674 - -II 4
superior court' s $ 300, 000 cap on Veys' damages and leave for the trial court on remand to
address any potential damages limitation if necessary.
We reverse the superior court' s summary judgment dismissal of Veys' legal malpractice
claims against Long related to the sale of his lodge and remand for trial. We also reverse the
superior court' s $ 300, 000 damages cap. And we affirm the superior court' s summary judgment
dismissal of Veys' other claims not related to the sale of the lodge.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.