IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
WILLIE ECHOLS, an individual, No. 85408-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION LANCE LEIH YU LEE, a sole proprietor d/b/a Law Offices of Lance L. Lee,
Respondent.
CHUNG, J. — Willie Echols bought a house at a sheriff’s auction and soon
after, filed for Chapter 7 bankruptcy. His bankruptcy attorney, Lance Leih Yu Lee,
did not include the house in Echols’s bankruptcy petition. Echols sued Lee for
legal malpractice, contending that if Lee had included the property in the
bankruptcy filing, Echols would not have incurred damages in the form of lost
equity, increased interest, lost rental income, lost development value, and
emotional distress. We affirm the trial court’s summary judgment dismissal of
Echols’s damages claims.
FACTS
On November 9, 2018, Willie Echols bought a house (Property) in Seattle,
WA, at a King County Sheriff’s auction. Echols financed the purchase with a
$280,154.36 mortgage from Eastside Funding LLC (Eastside). Echols knew this
loan was “short-term.” Its term was only seven months, its three percent No. 85408-9-I/2
origination fee was financed, its interest rate was 12 percent, and a default would
double the interest rate to 24 percent. He also obtained a second mortgage from
Eastside for $21,558.18 to finance his down payment on the Property. The
second mortgage’s terms were similar, but its origination fee, also financed, was
seven percent.
Echols understood his “credit history was poor” and that “a [b]ankruptcy
would fix some of my credit problems and make it easier to qualify for a
refinance.” Therefore, he engaged attorney Lee, who filed a Chapter 7
bankruptcy petition for Echols on January 31, 2019. Echols told Lee about the
Property and its mortgages, but no sheriff’s deed had been recorded at this point.
Echols understood Lee’s advice to be that he should not include the Property in
his bankruptcy petition. In March 2019, King County recorded a sheriff’s deed
conveying the Property to Echols.
Both of Echols’s mortgages with Eastside came due on June 7, 2019.
Later that month, the bankruptcy court issued Echols an order discharging his
bankruptcy petition. The bankruptcy court closed Echols’s case after the trustee
filed a report of no distribution. 1 In September 2019, Eastside accelerated
Echols’s first mortgage and demanded payment in full for $294,007.24, which
included accrued interest and costs, or it would foreclose.
1 A trustee’s report of no distribution, or NDR, means that Echols’s bankruptcy estate did
not have any assets to pay unsecured creditors. See Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 537, 160 P.3d 13 (2007).
2 No. 85408-9-I/3
During the fall of 2019, Echols tried to refinance his Eastside mortgages.
Echols testified in his deposition that he worked with a loan officer, and Echols
answered “[n]o” when asked if he did anything separately or apart from that to
look for a loan. He further testified that he did not remember the names of any
lenders who turned him down or any other lenders who agreed to loan him
money. A title report dated November 2019 showed that six people or entities
had encumbered the Property with 11 liens totaling $57,162.14. Nine of those
liens were filed before Echols initially filed for bankruptcy in January.
On December 31, 2019, one potential lender, Alera Management Group
LLC (Alera), provided a “conditional loan commitment” for a “refinance-rehab”
loan of $440,000 at 12 percent interest for a term of nine months. 2 A boilerplate
loan term required a title report indicating no liens. The loan’s 14 additional
conditions included evidence of investment by Echols into the Property, an
inspection by Alera, a completed loan application, Echols’s explanation of his
bankruptcy, a complete set of plans for renovating the home at the Property,
approved building permits, a contractor’s license, a budget, and insurance.
Echols testified at his deposition that “Alera said ‘No’ when we could not
get a clear title” because of the liens against the Property. He explained, “When it
came back that I did not have a clear title, then everyone backed off and said,
‘You got to get a clear title before we can do anything.’ ” Echols believed these
2 Specifically, the rate was 12 percent on drawn funds or three percent on undrawn funds
through the first six months of the loan.
3 No. 85408-9-I/4
liens should have been discharged in his bankruptcy. He approached Lee, who,
according to Echols, wanted “an additional $10,000 to fix the errors.”
After Lee withdrew as Echols’s bankruptcy attorney in July 2020, Echols
hired Hallaq Law to represent him before the bankruptcy court. 3 Hallaq’s office
emailed the bankruptcy trustee to alert him to the “severe misunderstanding” that
Lee did not include the Property when Echols petitioned for bankruptcy in 2019.
In July 2020, the trustee moved to reopen Echols’s bankruptcy. Hallaq added the
Property and Eastside’s mortgages. In October 2020, in a declaration to the
bankruptcy court, Lee explained he had searched for evidence of land ownership
at the King County Recorder’s office based on Echols’s name and found no
relevant records. Based on his exploration of the events and the lack of
documentation, Lee believed that Echols had been “duped” and had no interest
in the Property as an owner or contracting party, but “[i]n retrospect,” Lee
declared he should have “insisted on getting [the] details.”
Nearly a year later, in June 2021, the trustee filed a second no distribution
report. The bankruptcy court entered an order abandoning the estate’s interest in
Echols’s Property, and, through Hallaq’s efforts, it removed three of the nine liens
placed on the Property for judgments entered before Echols took ownership in
3 Both Brian Hallaq and his partner Diem Hallaq appear in the record for Echols. As Brian
ultimately provided a declaration in support of Echols’s malpractice action, references to Hallaq refer to Brian unless otherwise specified.
4 No. 85408-9-I/5
March 2019. 4 The court closed Echols’s bankruptcy a second time in October
2021.
In February 2022, the trustee on the deed of trust for the Property issued
an amended notice of a trustee’s sale of the Property in April. At that time,
regular interest due on its first mortgage totaled $89,069.57 and default interest
totaled $90,119.89. Echols tried to sell the Property in March 2022, but his buyer
needed more time to arrange financing. Eastside sold the Property at a trustee’s
sale on April 1, 2022, for $460,001.
Echols had already filed suit, pro se, against Lee in January 2022. Echols
alleged Lee prepared his bankruptcy “erroneously” and claimed as damages his
fees paid to reopen his bankruptcy, his fees paid for a subsequent Chapter 13
bankruptcy, his loss of equity, and “[g]eneral damages for pain and suffering and
punitive damages.”
Lee moved for summary judgment in October 2022 challenging Echols’s
evidence of breach, causation, or damages. Echols obtained legal representation
and filed a response. His brief clarified that he sought damages for fees paid to
his new bankruptcy attorney, for his loss of equity in the Property, for the
increased interest charges he paid, and for emotional distress. In reply, Lee
withdrew his breach and damages arguments, thus limiting his motion to Echols’s
emotional distress claim. The court granted Lee’s motion.
4 The record shows Hallaq obtained default judgments in Echols’s favor for the liens on
four judgments total, those owed to Bascomb, Robinson, Alaska Cascade, and “Meter at [address], LLC.”
5 No. 85408-9-I/6
In February 2023, Lee moved for partial summary judgment on “the bulk”
of Echols’s damages claims for lack of evidence, including loss of equity, loss or
rental income, increased interest charges, home improvement costs and other
unspecified damages. In March, the court granted Lee’s motion. It held that
[Echols] lacks admissible evidence as to the inability to secure refinancing because of liens on the [P]roperty at issue that should have been discharged in the initial bankruptcy proceedings, or that [Echols] would have been able to secure a loan, but for the liens on the [P]roperty attributable to Defendant Lee’s failure to include the [P]roperty in the initial bankruptcy schedule.
In a footnote, the court noted, “No evidence was presented from a financial
institution representative, mortgage representative[,] or other loan industry
individual as to why Mr. Echols was unable to secure necessary refinancing.”
The same footnote states, “Refinancing was necessary to preserve [Echols]’s
equity in the [P]roperty at issue.”
The parties stipulated to the dismissal of the remaining claims, resulting in
a final judgment. Echols appealed.
DISCUSSION
We review summary judgment orders de novo, engaging in the same
analysis as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 196
Wn.2d 199, 205, 471 P.3d 871 (2020). A motion for summary judgment shall be
granted “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a
matter of law.” CR 56(c). We view all facts and reasonable inferences in the light
6 No. 85408-9-I/7
most favorable to the nonmoving party. Elcon Constr., Inc. v. E. Wash. Univ., 174
Wn.2d 157, 164, 273 P.3d 965 (2012). A material fact is one upon which the
outcome 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).
After the moving party meets its initial burden to show no issues of
material fact, “the inquiry shifts to the party with the burden of proof at trial.”
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986)). When responding to the summary judgment motion, the nonmoving
party cannot rely on mere allegations in the pleadings. Young, 112 Wn.2d at 225.
Instead, the party, “by affidavits or as otherwise provided” in CR 56, “must set
forth specific facts showing that there is a genuine issue for trial.” Id. at 225-26.
“ ‘A nonmoving party in a summary judgment may not rely on speculation,
argumentative assertions that unresolved factual issues remain, or in having its
affidavits considered at face value.’ ” Martin v. Gonzaga Univ., 191 Wn.2d 712,
722, 425 P.3d 837 (2018) (quoting Seven Gables Corp. v. MGM/UA Entm’t Co.,
106 Wn.2d 1, 13, 721 P.2d 1 (1986)). The nonmoving party must offer more than
conclusory statements. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d
40 (2014). The nonmoving party is nevertheless entitled under CR 56 “to have its
evidence treated as true and to be given the benefit of all inferences therefrom.”
Haley v. Amazon.com Servs., LLC, 25 Wn. App. 2d 207, 227, 522 P.3d 80
(2022).
7 No. 85408-9-I/8
To establish a claim for legal malpractice, a plaintiff must prove the
following elements: (1) the existence of an attorney-client relationship which
gives rise to a duty of care on the part of the attorney to the client; (2) an act or
omission by the attorney in breach of the duty of care; (3) damage to the client;
and (4) proximate causation between the attorney’s breach of the duty and the
damage incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646
(1992).
The issues in dispute are the availability of damages for emotional distress
and whether there was sufficient evidence of causation of other damages to
withstand summary judgment dismissal.
I. Availability of emotional distress damages
Echols claims that the court erred by dismissing his claim for emotional
distress when he faced a threat of criminal prosecution. Lee argues that Echols is
not entitled to emotional distress damages under the test in Schmidt v. Coogan,
181 Wn.2d 661, 674, 335 P.3d 424 (2014). We agree with Lee.
Damages for emotional distress are available for attorney negligence
“when emotional distress is foreseeable due to the particularly egregious (or
intentional) conduct of an attorney or the sensitive or personal nature of the
representation.” Id. Whether a plaintiff may recover emotional distress damages
for legal malpractice is a question of law that we review de novo. Id. at 665.
8 No. 85408-9-I/9
Thus, there are two ways to establish foreseeability: (1) the attorney’s egregious
conduct or (2) the sensitive or personal nature of the representation. 5
Here, Echols concedes Lee’s representation of him was not of a sensitive
or personal nature. Instead, Echols argues that Lee’s conduct was “egregious (or
intentional)” because Lee “knowingly set [Echols] adrift” when Lee asked Echols
for $10,000 to remove the liens from the Property. That is, Echols does not argue
Lee intentionally failed to include the Property in Echols’s first bankruptcy. Br. of
Appellant at 56 (“Mr. Lee’s initial omission . . . may not be egregious on its own”).
He argues that Lee’s actions after the initial omission were done “knowingly,” i.e.,
asking for additional payment. 6
In support, Echols highlights the Schmidt court’s reasoning, from
Restatement (Third) of the Law Governing Lawyers § 53 cmt. g (AM. LAW INST.
2000), that emotional-distress damages are ordinarily not recoverable when a
lawyer’s misconduct causes the client to lose profits from a commercial
transaction, but are ordinarily recoverable when misconduct causes a client’s
imprisonment. 7 Schmidt, 181 Wn.2d at 673. But Echols does not argue that he
lost his liberty. Instead, he argues that the bankruptcy trustee hired an attorney
5 Echols argues that even the possibility of criminal charges caused him to become
physically ill. But evidence of objective symptomatology does not define the subject matter of the representation; indeed, such proof is not even required to establish emotional distress damages. Schmidt, 181 Wn.2d at 675 (proof of emotional distress does not require physical impact or objective symptomatology). 6 Echols reiterated this basis for his emotional distress claim at oral argument. See Wash.
Ct. of Appeals oral argument, Echols v. Lee, No. 85408-9-I (Nov. 15, 2023), at 18 min. 35 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2023111169/?eventID=2023111169. 7 It is a federal crime, punishable by fine or no more than five years of imprisonment, or
both, for a debtor to knowingly and fraudulently conceal property from a U.S. Trustee. 18 U.S.C. § 152.
9 No. 85408-9-I/10
who told Hallaq that he intended to refer Echols to the U.S. Trustee’s office for
prosecution. No record evidence suggests such a referral was ever made, and
Echols never defended himself against allegations that he violated the
bankruptcy code. To the contrary, Hallaq’s declaration states that attorney Lee’s
declaration “effectively vindicated Mr. Echols with respect to allegations of
criminal violations.” By asking for additional payment to reopen the bankruptcy,
Lee did not engage in the type of egregious or intentional conduct contemplated
by the court in Schmidt. Because Lee’s omission was not egregious or intentional
such that emotional distress would be foreseeable, we conclude that the court
did not err when it granted Lee summary judgment as a matter of law regarding
Echols’s claim of emotional distress.
II. Proximate cause and damages
Echols also contends the trial court erred by dismissing his claims for
other damages because he provided evidence sufficient to raise questions of fact
regarding both causation and damages. We disagree.
The general principles of causation are no different in a legal malpractice
action than in an ordinary negligence case. VersusLaw, 127 Wn. App. at 328.
Specifically, to prove causation in a legal malpractice case, a client must show
that the outcome of the underlying litigation would have been more favorable but
for the attorney’s negligence. Kommavongsa v. Haskell, 149 Wn.2d 288, 300, 67
P.3d 1068 (2003). “Proximate cause consists of two elements: cause in fact and
legal causation.” VersusLaw, 127 Wn. App. at 328. “ ‘Cause in fact refers to the
“but for” consequences of an act, that is, the immediate connection between an
10 No. 85408-9-I/11
act and an injury.’ ” Id. (quoting City of Seattle v. Blume, 134 Wn.2d 243, 251-52,
947 P.2d 223 (1997)). The plaintiff must establish that the act or omission
complained of “probably caused” the subsequent injury. Id. The first step is to
determine whether a client’s case was lost or compromised by the attorney’s
alleged misconduct. Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd
& Hokanson, 95 Wn. App. 231, 235, 974 P.2d 1275 (1999). The second step is to
determine whether the client would have fared better but for the attorney’s
misconduct. Id. at 236. Both steps are for the trier of fact. Id. (citing Daugert v.
Pappas, 104 Wn.2d 254, 257, 704 P.2d 600 (1985)). “Legal causation rests on
considerations of policy determining how far a party’s responsibility should
extend.” VersusLaw, 127 Wn. App. at 328 (citing Blume, 134 Wn.2d at 252). Only
when the facts are undisputed and the inferences plain does proximate cause
become a question of law for the court. Daugert, 104 Wn.2d at 257.
As to proof of damages, generally, a plaintiff must establish damages with
reasonable certainty. Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d
712, 717, 845 P.2d 987(1993). Certainty is more concerned with the fact of
damage than with the amount of damages. Gaasland Co. v. Hyak Lumber &
Millwork, Inc., 42 Wn.2d 705, 712, 257 P.2d 784 (1953). Evidence of the amount
of damages “is sufficient if it affords a reasonable basis for estimating loss and
does not subject the trier of fact to mere speculation or conjecture.” Clayton v.
Wilson, 168 Wn.2d 57, 72, 227 P.3d 278 (2010) (quoting State v. Mark, 36 Wn.
App. 428, 434, 675 P.2d 1250 (1984)). The measure of damages for legal
malpractice is the amount of loss actually sustained as a proximate result of the
11 No. 85408-9-I/12
attorney’s conduct. Schmidt, 181 Wn.2d at 670. Trial court decisions addressing
the proper components of damage awards are reviewed de novo. Shoemake v.
Ferrer, 143 Wn. App. 819, 825, 182 P.3d 992 (2008), aff’d, 168 Wn.2d 193, 225
P.3d 990 (2010).
A. Loss of equity and increased interest charges
It is undisputed that Echols would have had to refinance the Property in
order to avoid increased interest charges on the Eastside loans and, ultimately,
foreclosure. Echols argues that Lee’s failures were twofold. First, Lee’s failure to
include the Property left judgment liens in place that rendered his effort to
refinance a “fruitless endeavor.” Second, he argues that Lee’s failure to list the
Property led to his second attorney, Hallaq, having to file to reopen his
bankruptcy and his consequent loss of control of the property to the bankruptcy
trustee for almost a year. 8 Echols argues that both of these failures made
refinancing “an impossibility” and, thus, he had to pay higher interest charges on
the Eastside loan. Lee argues Echols “cannot show that he would have secured
additional funding to pay off his loans,” so Echols “failed to meet this necessary
element.” We agree with Lee.
The summary judgment evidence included an expert declaration by
bankruptcy attorney Marc Stern, who opined that but for Lee’s negligence, the
Property would have been listed on the bankruptcy schedule. Stern explained
8 At oral argument Echols referred to this theory, that the reopening his bankruptcy and
the trustee’s possession of the Property for another year caused his damages, as “part 2” of Lee’s negligence. Wash. Ct. of Appeals oral argument, supra, at 5 min., 09 sec to 7 min., 21 sec.
12 No. 85408-9-I/13
that Echols’s “expectancy in real property” and debt obligation on the Property
should have been listed on the Statement of Affairs and, “presuming they were
ongoing payments,” also on Schedule D. Stern further opined that the “only issue
was valuation of the asset,” but that he was “unwilling to opine about the nature
of the asset,” whether it was real property or “some sort of personalty.” Stern did
not provide any opinion regarding any specific consequence from the failure to
include the Property in the bankruptcy filings.
Echols’s loss of equity claim was based on the value of the Property at the
time of foreclosure. Echols had purchased the Property for $300,000, entirely
financed through two promissory notes he gave to Eastside, one for $280,154.36
and one for $21,558.18. Eastside’s two loans came due the week before
Echols’s bankruptcy was discharged the first time in June 2019. In April 2022, the
foreclosed Property was sold at a non-judicial sale for $460,001. At that time,
Echols owed Eastside $489,125.01, including interest, on his $280,154.36 first
mortgage alone.
Under Echols’s first theory of causation, had the Property been listed in
the original bankruptcy petition, the liens would have been discharged, and he
would have been able to obtain refinancing. Echols estimates his loss of equity
as $324,998.33, measured as the asserted fair market value of the property
when it was foreclosed ($650,000) “less the amount he would have paid under
the normal refinance with Alera” in 2020 ($325,001.67). And Echols argues that
had he obtained refinancing, he would not have owed additional interest on the
Eastside loans.
13 No. 85408-9-I/14
To establish that Lee’s negligence was the proximate, or “but for,” cause
of his loss in equity and increased interest charges, Echols must ultimately prove
that if it were not for the liens, he would have refinanced and “fared better.”
Shepard Ambulance, 95 Wn. App. at 236. Under his second theory, he must
prove that were it not for the Property being tied up in the reopened bankruptcy
proceedings for a year, he would have refinanced and “fared better.” To defeat
summary judgment, Echols, as the nonmoving party, “by affidavits or as
otherwise provided” in CR 56, “must set forth specific facts showing that there is
a genuine issue for trial.” Young, 112 Wn.2d at 225-26.
At the time Echols’s original bankruptcy petition was filed in January 2019,
the Property was encumbered by at least nine liens. 9 After the Bankruptcy
Trustee abandoned the Property the second time, Echols’s second bankruptcy
attorney, Hallaq, was able to have four liens removed based on judgments
entered prior to Echols’s receiving the deed to the Property in March 2019, three
of which were present when Echols filed for bankruptcy in January 2019. 10
Echols’s deposition testimony was that “Alera said ‘No’ when we could not
get a clear title,” and “ ‘[y]ou got to get a clear title before we can do anything.’ ”
This is at most evidence that the existence of the liens on the Property was an
impediment to Echols’s ability to secure refinancing. But this evidence is not
9 The November 2019 title report shows a total of 11 liens, two of which were for
judgments entered after Echols filed for bankruptcy. 10 The record does not indicate whether six liens placed by the Washington State
Department of Labor and Industries liens based on judgments prior to March 2019 were removed. The record is also silent regarding a subsequent lien placed by Foster and Tracy Jones in July 2019.
14 No. 85408-9-I/15
enough to establish that Echols would have fared better and obtained
refinancing. First, the evidence does not establish that all of the liens would have
been removed; the record only shows that Hallaq subsequently removed three of
the nine liens that existed at the time of the initial bankruptcy petition. Thus, even
had the same three liens been removed, the record does not establish that all of
the liens would have been removed such that Echols would have had a clear
title.
Further, Alera’s offer to refinance was conditional. It required Echols to
present a “complete plan set for renovation of home (adding square footage),” a
copy of “approved building permits,” a general contractor’s (GC) license, and an
“[u]pdated project cost breakdown from the GC . . . on what has already been
paid/completed from the budget.” It also required Echols “to explain recent
Chapter 7 [bankruptcy].” 11
There is no evidence in the record that Echols would have satisfied these
conditions. To the contrary, Echols testified at his deposition that he had not
satisfied some of the conditions. Echols stated that he “had a complete set of
11 Lee argues that the evidence of Alera’s conditional loan commitment is hearsay. But he
makes no argument to support that conclusion, and the lack of reasoned argument is insufficient to merit judicial consideration. Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996). Further, while the trial court concluded that plaintiff “lack[ed] admissible evidence as to the inability to secure refinancing because of liens . . . or that [he] would have been able to secure a loan, but for the liens,” it did not make a clear ruling on Lee’s specific objections that the Conditional Loan Commitment was inadmissible hearsay. The order on summary judgment shows that the court considered the declarations that attached this evidence. It is the appellate court’s “duty to review evidentiary rulings made by the trial court; we do not ourselves make evidentiary rulings.” Jacob’s Meadow Owners Ass’n v. Plateau 44 II, LLC, 139 Wn. App. 743, 756, 162 P.3d 1153 (2007). In Jacob’s Meadow, the trial court considered the evidence at issue, and this court held that “[b]ecause the trial court made no ruling on the admissibility of this evidence to which any error has been assigned, the evidence constitutes part of the record before the trial court in ruling on the motion and is, consequently, properly before this court as well.” Id.
15 No. 85408-9-I/16
drawings, but it had not been through the City and completed yet, no.” He
testified there was no approved building permit,
[b]ecause I never owned the property outright. I never got a clear title, and there’s no way in the world I was going to spend more money after a piece of property that I could not even get - - I could not even get the loans - - the liens off to do anything.
Echols testified that he planned “to be the general contractor myself,” but that,
while he had a general contractor’s license in the past, he did not currently have
one. There is no evidence from Alera suggesting it would have made a loan to
Echols despite these conditions not being met, or on different terms. 12 See
Martin, 191 Wn.2d at 722 (“ ‘A nonmoving party in a summary judgment may not
rely on speculation.’ ”) (quoting Seven Gables Corp., 106 Wn.2d at 13).
Thus, there is insufficient evidence to create a genuine issue of material
fact that but for Lee’s failure to list the Property in the initial bankruptcy petition or
the subsequent reopening of the bankruptcy proceedings, Echols would have
fared better by refinancing his Eastside loans. The trial court properly dismissed
Echols’s claims as to damages from loss of equity and increased interest
charges. 13
12 Nor is there evidence that any other lender was prepared to refinance Echols’s interest
in the Property. Echols’s deposition testimony was that he was “not sure” whether any other lender turned him down and, while he repeats his attorney Hallaq’s assertion that his “efforts at refinancing . . . would have been successful,” his attorney, as the trial court noted, is not a financial institutions, mortgage, or loan industry expert qualified to opine as to whether Echols would have been able to secure refinancing. 13 Because there is insufficient evidence of causation, we need not consider whether
Echols’s loss of equity and increased interest charge damages claims are reasonably certain.
16 No. 85408-9-I/17
B. Loss of rental income and development value
Echols claims that he lost rental income when the Property was returned
to the bankruptcy estate from July 2020 to June 2021. He also argues that his
“original intent” was to build two or three residences at the Property. Lee argues
that Echols never tried to rent the house out and was living it and that Echols’s
plans for developing the Property were dependent on his ability secure
refinancing. We agree with Lee.
There is no evidence that Lee’s failure to list the Property in the original
bankruptcy petition was the “but for” cause of Echols losing rental income. Echols
testified that he was living at the house on the Property “from the early part of
2019 until foreclosure.” Thus, he had possession of the Property. He admitted he
did not put out any advertisement: “no, I didn’t do none of that.” Echols’s
suggestion that he could rent out the downstairs, which had no kitchen, as “a
studio-type thing” is not evidence that he would have done so, or that he was
thwarted from doing so because the Property was in the bankruptcy estate. 14
Likewise, there is insufficient evidence to withstand summary judgment
dismissal of claimed lost development value. As discussed above, Echols cannot
establish that either Lee’s failure to list the Property in the bankruptcy petition in
January 2019 or the subsequent reopening of the bankruptcy proceedings was
the proximate cause of his loss of the Property. Moreover, he presented only real
14 As for the amount of lost rental income, Echols’s own deposition testimony constituted
speculation because he said he lost $67,500 but “I don’t recall how we came up with that number.” Real estate broker Dan Bundy provided an estimate of lost rental income of $2,000 per month in 2020, $3,000 per month in 2021, and $3,400 per month in 2022 based on the per-month cost to rent a two-bedroom property in Seattle.
17 No. 85408-9-I/18
estate broker Dan Bundy’s opinion that, because the Property contained 13,630
square feet and was zoned R6, Echols “could have” built, “minimum,” two or
maybe three additional houses on the Property that would have sold for between
$618,000 and $649,000 each. The summary judgment record contains no
evidence that Echols would have done so—particularly when the record contains
no evidence that Echols had the funds to embark on this construction project.
The record does not establish a genuine issue of material fact regarding
whether Lee’s breach was the proximate cause of Echols’s claims for lost rental
income or lost development value. There is also insufficient evidence of the lost
development damages beyond mere speculation or conjecture. The trial court
thus properly dismissed these damages claims.
Affirmed.
WE CONCUR: