255 P.3d 730
Wash. Ct. App.2011Background
- Hipple was found in contempt for nonpayment of child support in 2004; arrest and detention followed in 2005.
- DAC appointed Elsey (May 2005) and McFadden (May 10, 2005) represented Hipple in contempt proceedings.
- Hipple’s May–June 2005 hearings involved arrearages and release conditions; he remained confined.
- Way appeared for Hipple on June 21, 2006, leading to release and termination of confinement.
- Hipple filed legal malpractice suit against Elsey and McFadden on June 18, 2009; defendants moved to dismiss based on statute of limitations and proximate cause, which the trial court denied; appellate court affirmed denial, citing continuous representation rule applicability.
- The central issue is whether the continuous representation rule tolled the limitations period or whether discovery or proximate-cause considerations apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the continuous representation rule tolls the statute of limitations. | Hipple argues tolling continues until representation ends. | Elsey/McFadden contend tolling ends earlier or not at all if representation lacks continuity. | Question of tolling under continuous representation is fact-dependent; trial court’s denial affirmed, with remand as appropriate on remand. |
| Whether the discovery rule can toll the limitations period. | If continuous rule fails, Hipple asserts discovery of injury (May 2005) tolls. | Defendants argue discovery rule applies only when plaintiff knew essential elements. | Summary of discovery-rule tolling is factual; court left open for trial to determine if applicable. |
| Whether Hipple can prove causation (proximate cause) as a matter of law. | Hipple alleges counsel could have altered May 2005 hearing outcome. | Defendants argue release decisions were independent of alleged malpractice. | Causation is a factual question; court held dismissal improper at CR 12(b)(6) stage. |
Key Cases Cited
- Janicki Logging & Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 109 Wash.App. 655, 37 P.3d 309 (2001) (adopts continuous representation rule; tolls until end of representation in same matter; policy rationales stated)
- Burns v. McClinton, 135 Wash.App. 285, 143 P.3d 630 (2006) (recognizes continuous representation rule with limitation to representation concerning a particular transaction)
- King v. Dep't of Soc. & Health Servs., 110 Wash.2d 793, 756 P.2d 1303 (1988) (continuous-treatment-like coercive-release context for contempt cases; need current ability to perform act)
- Gonzalez v. Kalu, 140 Cal. App.4th 21, 43 Cal. Rptr. 3d 866 (2006) (end of representation based on client’s reasonable expectation; used to assess continuity)
- Matson v. Weidenkopf, 101 Wash.App. 472, 3 P.3d 805 (2000) (discovery rule tolls when plaintiff discovers essential elements of claim)
- Peters v. Simmons, 87 Wash.2d 400, 552 P.2d 1053 (1976) (foundation for discovery rule in professional malpractice)
- Daugert v. Pappas, 104 Wash.2d 254, 704 P.2d 600 (1985) (causation questions generally jury issues in legal malpractice; law/fact distinction)