Glogowski Law Firm, Pllc. v. City First Mortgage Services, Llc.

• Court: Court of Appeals of Washington
• Decided: February 6, 2017
• Docket: 74266-3
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GLOGOWSKI LAW FIRM, PLLC, ) ) No. 74266-3-1 Respondent, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION CITY FIRST MORTGAGE SERVICES, ) LLC, ) ) FILED: February 6, 2017 Appellant. )

Appelwick, J. — Glogowski sued City First for its legal fees, and City First

counterclaimed for legal malpractice. The trial court dismissed the legal

malpractice claim on summary judgment. We reverse and remand for trial.

FACTS

Glogowski Law Firm PLLC sued City First Mortgage Services LLC for

breach of contract after City First failed to pay Glogowski for legal services. City

First hired Glogowski to defend it in a lawsuit brought by Donald and Beth Collings.

Katrina Glogowski was the attorney primarily responsible for the case.1

The Collingses contacted City First after receiving a flier advertising a

program for people with credit problems. Collings v. City First Mortg. Servs., LLC,

177 Wn. App. 908, 914, 317 P.3d 1047 (2013). The Collingses were concerned

1 For clarity, we refer to Glogowski Law Firm PLLC as Glogowski, and Katrina Glogowski, the attorney who handled the Collings case, as Ms. Glogowski. No. 74266-3-1/2

about falling behind in their payments on their home. jd. Beth Collings first spoke

with Gavin Spencer, an employee at a City First Branch in Utah, who assisted her

in applying for a loan over the phone. Id. Spencer informed the Collingses that

the loan had not been approved, but suggested that his manager might be able to

help them. Id.

Spencer introduced the Collingses to Paul Loveless and Andrew Mullen,

City First branch managers, jd. Loveless suggested a plan: he would buy the

Collingses' home for its appraised value, take out a mortgage on the home, and

lease it back to them. jd at 915. The Collingses agreed, on the condition that the

lease would prohibit Loveless from refinancing the home and encumbering it with

a home equity line of credit. Id In accordance with the agreement, Loveless took

title to the home and executed a mortgage with City First. Id

Two years later, the Collingses discovered that Loveless had refinanced the

loan with City First and taken out a home equity line of credit, Id Loveless had

failed to make payments, and a foreclosure action had commenced, jd. at 915-

16. Once the Collingses learned of the foreclosure action, they stopped making

lease payments to Loveless. Id. at 915.

The Collingses sued City First, Loveless, Mullen, and Spencer in March

2009. jd They alleged equity skimming, a civil conspiracy, usury, and violations

of the Residential Landlord-Tenant Act of 1973,2 the Credit Services Organizations

2 Chapter 59.18 RCW. No. 74266-3-1/3

Act (CSOA),3 and the Consumer Protection Act.4 They sought damages and

injunctive relief.

Loveless defaulted. Collings, 177 Wn. App. at 916. It was undisputed that

his scheme constituted illegal equity skimming, jd After a trial, the jury found that

Loveless, Mullen, and City First were liable to the Collingses. jd It determined

that Loveless and City First were liable for $40,311 in compensatory damages and

imposed $80,622 in punitive damages against the two under the CSOA. jd It also

imposed $8,000 in punitive damages against Mullen.5 \jL The court entered

judgment against City First in the amount of $120,933. CP 1476-77.

City First appealed. Id at 917. It argued that there was insufficient evidence

of its liability on all of the Collingses' claims, jd at 923. This court concluded that

because City First did not propose a special verdict form to clarify the basis for the

jury's verdict, the verdict would stand so long as at least one of the Collingses'

claims was supported by the evidence. ]d at 925. It held that there was sufficient

evidence to support City First's vicarious liability for Loveless, who defaulted on all

of the claims. Id.

Glogowski filed the instant suit due to City First's failure to pay for the legal

services rendered in Collings. City First asserted a counterclaim for legal

3 Chapter 19.134 RCW. 4 Chapter 19.86 RCW. 5 The jury verdict form required the jury to answer a number of questions about liability and damages. The jury found that Loveless and Mullen were liable to the Collingses on their claims. It found that City First was liable for the acts of Loveless, Mullen, and Spencer. It also determined that City First was "independently liable to the Collingses for their claims." The jury also specifically found that Loveless, Mullen, and City First were liable to the Collingses for violating the CSOA. No. 74266-3-1/4

malpractice. Glogowski moved for summary judgment on the counterclaim. It

argued that City First could not prove that Ms. Glogowski's conduct proximately

caused the adverse verdict in the Collings case.

The court originally denied Glogowski's motion for summary judgment.

Glogowski filed a motion for reconsideration, providing additional authority on the

propriety of deciding proximate cause on summary judgment. The trial court

granted this motion. It denied City First's subsequent motion for reconsideration.

City First appeals.

DISCUSSION

City First asserts that the trial court erred in dismissing its legal malpractice

claim. It argues that it created genuine issues of material fact on the issue of

proximate cause that preclude summary judgment. City First contends that an

issue remains as to whether, had Ms. Glogowski raised exemption from the CSOA

or the Consumer Loan Act (CLA) as a defense, the jury would have imposed

punitive damages.

This court reviews a summary judgment order de novo. Loeffelholz v. Univ.

of Wash., 175 Wn.2d 264, 271, 285 P.3d 854 (2012). The court reviews the

evidence in the light most favorable to the nonmoving party and draws all

reasonable inferences in that party's favor. Klinke v. Famous Recipe Fried

Chicken, Inc., 94 Wn.2d 255, 256, 616 P.2d 644 (1980). Summary judgment is

appropriate where there is no genuine issue of material fact and 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). A material fact is one upon which the outcome No. 74266-3-1/5

of the litigation depends, either in whole or in part. VersusLaw, Inc. v. Stoel Rives,

LLP, 127 Wn. App. 309, 319, 111 P.3d 866 (2005). The court should grant

summary judgment when reasonable minds could reach only one conclusion, jd

There are four elements of a legal malpractice claim: (1) an attorney-client

relationship existed, (2) the lawyer had a duty, (3) the lawyer failed to perform the

duty, and (4) the lawyer's negligence was a proximate cause of the damage to the

client. Halvorsen v. Ferguson, 46 Wn. App. 708, 711-12, 735 P.2d 675 (1986).

Attorneys have a duty to exercise the degree of care, skill, diligence, and

knowledge commonly possessed and exercised by a reasonable, careful, and

prudent lawyer practicing in this jurisdiction, jd. at 712.

Proximate cause requires there to be a nexus between the attorney's

breach of duty and the resulting injury. Estep v. Hamilton, 148 Wn. App. 246, 256,

201 P.3d 331 (2008). To establish proximate cause, the client must prove that,

butfor the attorney's negligence, he or she would have prevailed or at least would

have achieved a better result. Halvorsen, 46 Wn. App. at 719. Generally,

proximate cause is a question for the jury. Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 864, 147 P.3d 600 (2006). But, the court can decide proximate

cause as a matter of law if reasonable minds could not differ. Id

City First argues that the trial court erred in dismissing its legal malpractice claim based on proximate cause. City First argues that Ms. Glogowski failed to

raise defenses under the CSOA and CLA, which would have exempted City First

from liability. Therefore, the question before us is whether City First could have No. 74266-3-1/6

received a more favorable outcome if Ms. Glogowski had raised one of these

defenses.

Among other things, the CSOA prohibits those who attempt to assist

borrowers in preventing or delaying foreclosure from making untrue or misleading

representations. RCW 19.134.020, .010(2). It defines a "credit services

organization" as

[Ajny person who, with respect to the extension of credit by others, sells, provides, performs, or represents that he or she can or will sell, provide, or perform, in return for the payment of money or other valuable consideration any of the following services:

(i) Improving, saving, or preserving a buyer's credit record, history, or rating;

(ii) Obtaining an extension of credit for a buyer;

(iii) Stopping, preventing, or delaying the foreclosure of a deed of trust, mortgage, or other security agreement; or

(iv) Providing advice or assistance to a buyer with regard to [any of the above].

RCW 19.134.010(2)(a). The CSOA also specifies what a credit services

organization does not include. RCW 19.134.010(2)(b). At issue here is the

exemption of,

Any person authorized to make loans or extensions of credit under the laws of this state or the United States who is subject to regulation and supervision by this state or the United States or a lender approved by the United States secretary of housing and urban development for participation in any mortgage insurance program under the national housing act.

RCW19.134.010(2)(b)(i).

City First asserts that it is exempt from the CSOA due to this provision, and

therefore it should not have been subject to the Collingses' CSOA claim. City First No. 74266-3-1/7

contends this is so, because City First has held and continuously maintained a

license from the Federal Housing Authority (FHA) since at least 1997. And, City

First is directly supervised by a federal regulator: the United States Department of

Housing and Urban Development (HUD). City First asserts that as its licensees,

Loveless and Mullen are also supervised by HUD, and therefore exempt as well.

At the underlying trial, in City First's motion for judgment as a matter of law,

Ms. Glogowski argued that City First was exempt from the CSOA. But, she limited

her argument to the exemption for " 'any person authorized to make loans or

extensions of credit under the laws of this state.' " (Quoting RCW

19.134.010(2)(b)(i)). She quoted this portion of RCW 19.134.010(2)(b)(i), arguing

that because City First is licensed by the Department of Financial Institutions (DFI)

as a consumer loan company, it is exempt from the CSOA. On appeal, the Collings

court rejected that argument. See 177 Wn. App. at 929-30. It determined that DFI

regulations indicate that every branch must be licensed in the state to be

authorized to make loans or extensions of credit under the laws of Washington.

See id at 930. The City First branch at issue was not licensed in the state. \±

No mention was made in the trial motion to the language that immediately

follows in RCW 19.134.010(2)(b)(i): "or the United States who is subject to

regulation and supervision by this state or the United States or a lender approved

by the United States secretary of housing and urban development for participation

in any mortgage insurance program under the national housing act." This

language creates an exemption for entities that are authorized to make loans and

extensions of credit under federal law and are regulated by a federal entity. Yet, No. 74266-3-1/8

Ms. Glogowski did not argue that City First was entitled to this exemption. Nor did

she specifically object to jury instruction 19, which summarized the CSOA

exemption as, "A 'credit services organization' does not include a person or entity

authorized to make loans under the laws of the state of Washington."6

Consequently, this instruction did not mention that an entity may be exempt if it is

authorized to make loans under federal law. And, the Court of Appeals had no

reason to consider a federal law exemption in its opinion.

In the malpractice action, City First produced a declaration of Brian Hunt as

support for an exemption based on regulation at the federal level. Hunt is general

counsel for City First. He stated that the information in his declaration was based

on his own personal knowledge. This declaration states that City First has been

continuously licensed by the FHA since 1997. And, City First is directly supervised

by HUD, so it is an approved HUD and FHA lender. It also states that City First is

a licensed mortgage broker. And, it provides that Loveless and Mullen were HUD

and FHA approved lenders as licensees of City First.7 While not conclusive, these

statements create a genuine issue of material fact on City First's status under the

CSOA.

6Ms. Glogowski generally objected to a list of the Collingses' proposed jury instructions, including instruction 19. But, she did not provide any grounds for the objection. CR 51(f) requires counsel to "state distinctly the matter to which counsel objects and the grounds of counsel's objection" to a particular jury instruction. Where counsel does not clarifythe reasons for the objection, a reviewing court will not consider the objection. Walker v. State, 121 Wn.2d 214, 217, 848 P.2d 721 (1993). Indeed, this court determined that City First did not take exception to instruction 19. Collings, 177 Wn. App. at 930. 7 Unlike the other statements in Hunt's declaration, this comment is a legal conclusion. Thus, we do not consider this portion of the declaration in our analysis.

8 No. 74266-3-1/9

Glogowski argues that even if Ms. Glogowski had raised the exemption

defense, the outcome would not have changed, because City First was found

vicariously liable for the acts of Loveless and Mullen. It contends that because

individuals are not federally regulated, Loveless and Mullen could not have

asserted the exemption defense themselves. Consequently, City First would have

still been found vicariously liable for Loveless's and Mullen's CSOA violations.

But, a corporation necessarily acts through its officers, directors,

employees, and other agents. Diaz v. Wash. State Migrant Council, 165 Wn. App.

59, 76, 265 P.3d 956 (2011). Where a corporation's agents act within the scope

of their authority, their actions are the actions of the corporation. Mauch v. Kizzling,

56 Wn. App. 312, 316, 783 P.2d 601 (1989). The only potential agents of City First

who were found liable under the CSOA were Loveless and Mullen. Therefore, had

Ms. Glogowski raised this defense, she would have had to argue that Loveless

and Mullen were acting within the scope of their authority and therefore their

actions were actually those of City First itself. Under this legal theory, City First,

Loveless, and Mullen could have been determined to be exempt from the CSOA.

Or, if Loveless and Mullen were found not to be agents of City First acting in the

scope of their authority, they might still have been found liable under the CSOA.

But, the determination of vicarious liability made in the Collings case would not

control, because the question for the jury would have changed if City First was

exempt. The outcome would not necessarily have been the same.

Viewing Hunt's declaration in the light most favorable to City First, we

conclude that a genuine issue of material fact exists as to whether City First is No. 74266-3-1/10

exempt from the CSOA. If Ms. Glogowski had raised the issue of exemption as a

federally licensed and regulated lender, the outcome of the Collings case may

have been different. The jury awarded $80,622 in punitive damages under the

CSOA. Punitive damages were not available under any other statute or theory at

issue. Had City First been exempt from the CSOA, the jury would not have been

able to award these punitive damages.8 Ms. Glogowski's failure to assert the

federal exemption from the CSOA may have been the proximate cause of at least

some damages incurred by City First. Therefore, the trial court erred in granting

summary judgment in favor of Glogowski.9

We reverse and remand for proceedings consistent with this opinion.

WE CONCUR:

/ (finr\%

8 For purposes of this appeal, we need not and do not address whether the CSOA exemption would preclude any liability for City First. 9 Given the conclusion that City First's argument relating to the CSOA should have barred summary judgment, we need not address City First's argument relating to the CLA.