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Lockhart v. Greive8/3/1992
ell grounded in fact, (2) it is not warranted by existing law, and (3) the attorney signing the pleading has failed to conduct a reasonable inquiry into the factual or legal basis of the
action. John Doe v. Spokane & Inland Empire Blood Bank, 55 Wash. App. 106, 780 P.2d 853 (1989). The decision to award attorney fees as a sanction for a frivolous action is left to the discretion of the trial court, and the court's decision will not be disturbed absent a showing of abuse of discretion. Clarke v. Equinox Holdings, Ltd., 56 Wash. App. 125, 783 P.2d 82, review denied, 113 Wash. 2d 1001 (1989).
Similarly, RCW 4.84.185 provides that
n any civil action, the court . . . may, upon written findings . . . that the action . . . was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense. . . .
We have found Lockhart's breach of contract claim to be without merit, but hold it was not frivolous. Lockhart's counsel was faced with a situation where his client had hired two other law firms to represent him in a personal injury case, but somehow the statute of limitations was allowed to run and bar the claim. While the claim against Greive and Serrin appeared the stronger from the outset, counsel would naturally be reluctant not to include as defendant an attorney who was still an attorney of record for Lockhart at the time the statute ran. If he did not sue Murphy and Welts, he could have faced a strenuous effort by Greive and Serrin to place the fault on Murphy and Welts -- the "empty chair" defense.
Furthermore, there were no Washington cases to guide Lockhart's counsel as to the position the court might ultimately take in respect to the liability of an attorney who did not follow the rules for withdrawal or substitution of counsel and remained an attorney of record at the time the statute of limitations barred the claim. The possibility of divided responsibility being developed as the case progressed could not be totally disregarded.
[8, 9] We see no evidence Lockhart's attorney did not conduct a reasonable inquiry prior to filing the malpractice action. It turned out that the action against Murphy and
Welts was not well grounded in fact, but this ultimate development could have been unclear at the time the action was filed. To draw the conclusion that at the time the complaint was filed it was not warranted by existing law does not appear justified under circumstances where defendant did not comply with the rules and the effect of that noncompliance in a legal malpractice action had not been decided or even discussed in any existing Washington cases. Thus, this case had aspects of a case of first impression that presented debatable issues. Under these circumstances, the claim was not frivolous. Moorman v. Walker, 54 Wash. App. 461, 466-67, 773 P.2d 887, review denied, 113 Wash. 2d 1012 (1989).
We affirm the dismissal of Lockhart's claims against Murphy and Welts, but reverse the imposition of sanctions against Lockhart and/or his attorney. Murphy and Welts' claim for attorney's fees on appeal is denied.
Disposition
The court affirms the dismissal and reverses the imposition of sanctions in the summary judgment dated January 11, 1991, holding that the attorney-client relationship between the plaintiff and his first attorney was te
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