NELSON v. SCHNAUTZ (2007)

PUBLISHED OPINION IN PART

 ¶ 1 In this legal malpractice action, the trial court ruled as a matter of law that an attorney's failure to file a claim against a tortfeasor's estate prevented the fault-free plaintiff from recovering damages from the other jointly and severally liable tortfeasors for more than the amount of insurance coverage available to the estate.   On appeal, the attorney, Stephen Schnautz, challenges the trial court's ruling.   Schnautz also challenges dismissal of his intervening cause defense, based on the successor attorneys' failure to commence probate proceedings for the tortfeasor's estate.   On cross appeal, Gary and Pam Nelson (collectively Nelson) challenge the court's ruling that the successor attorneys breached the standard of care by not  commencing probate proceedings.   Nelson also contends the trial court erred in ruling that Nelson waived his attorney-client privilege with Schnautz;  in refusing to dismiss Schnautz's mitigation of damages defense;  and in denying his motion to file an amended complaint against Schnautz alleging breach of fiduciary duty and violation of the Consumer Protection Act, chapter 19.86 RCW. RCW 11.40.051 requires claims against an estate to be filed within two years.   Thereafter, RCW 11.40.060 limits the amount of the recovery against the estate to the applicable insurance proceeds.   The limitation under RCW 11.40.060 for what may be recovered against a jointly and severally liable estate does not operate to limit the amount of the damages that can be recovered against other jointly and severally liable tortfeasors.   Because we conclude that a fault-free plaintiff can obtain recovery against the other jointly and severally liable tortfeasors for the entire amount of a judgment against the estate, we reverse the trial court's conclusion that the failure to timely file a claim limited the amount of recovery against the other joint tortfeasors.   Consequently, we also reverse the trial court's decision dismissing Schnautz's intervening cause defense.   On Nelson's cross appeal, we conclude the trial court did not err in ruling that the successor attorneys breached the standard of care by failing to commence probate proceedings;  in refusing to dismiss the mitigation of damages defense;  in concluding that Nelson waived his attorney-client privilege with Schnautz;  or in denying Nelson's motion to amend his complaint to add a CPA claim or breach of fiduciary duty claim.   We reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 2 Gary Nelson is a sergeant with the Seattle Police Department.   On August 10, 2000, when Nelson was driving home from work, a car that was being chased by the King County police struck the truck Nelson was driving.   The  driver of the car, David Roehr, lost control of the car and crossed the center line before colliding with Nelson's truck.   Nelson was seriously and permanently injured.   Roehr was killed in the collision.   Roehr had no insurance or assets, and was not married.   The owner of the car, Norman Stewart, had insurance coverage with Allstate Insurance.   The policy limits were $100,000.   There was conflicting testimony about whether Stephanie Stewart gave Roehr permission to drive the car.

¶ 3 In January 2001, Nelson hired Stephen Schnautz to represent him in his personal injury lawsuit.   The potential at-fault parties included Roehr's estate, the King County police officers involved in the chase, their employer, the King County Sheriff's Department, the owner of the car, Norman Stewart, and his granddaughter, Stephanie Stewart.   Approximately two and a half years later, Schnautz informed Nelson by letter dated June 11, 2003, that he had missed the two-year time limit for filing a claim against Roehr's estate.

¶ 4 In the letter, Schnautz also stated that his failure to file a claim against the estate might affect the ability to obtain joint and several liability against the other potential at-fault parties, and suggested Nelson pursue claims “other than the one against the estate of David Roehr” to recover some or all of his damages.   Because Schnautz believed he had a conflict of interest, he informed Nelson that he had to withdraw and recommended Nelson retain new counsel.   It is undisputed that while Schnautz represented Nelson, he did not file either a claim against Roehr's estate or a personal injury lawsuit against the potential at-fault parties.   It is also undisputed that at the time Schnautz withdrew, the statute of limitations on Nelson's personal injury claim had not run.

¶ 5 After Schnautz withdrew, Nelson retained attorneys Scott Stafne and Susan Cohodes to represent him in both the personal injury lawsuit and his potential malpractice claim against Schnautz.

 ¶ 6 On August 6, 2003, Stafne and Cohodes filed a personal injury complaint for personal injury on Nelson's behalf against the Estate of David Roehr and Jane Doe Roehr, husband and wife, Norman Stewart, the owner of the car Roehr was driving, and Stewart's granddaughter, Stephanie Stewart.   The only potential asset of the Roehr's estate was the Stewart's $100,000 Allstate Insurance policy.   Allstate attorneys appeared on behalf of the Stewarts and the estate.   Although the complaint was served on Roehr's father, there is no dispute that the successor attorneys never commenced probate proceedings and the estate was not properly served.

¶ 7 On September 24, 2004, Nelson filed an amended complaint naming Sergeant J.T. Gehrke and Jane Doe Gehrke and the King County Sheriff Department as defendants.

¶ 8 On May 9, 2005, Nelson filed a notice of settlement stating that all claims against all parties were resolved.   Nelson received the $100,000 from Allstate and another $100,000 from King County.   On June 24, Nelson filed an amended notice of settlement stating that all claims except those against Roehr's estate were resolved.   The estate then filed a motion to dismiss Nelson's lawsuit for lack of jurisdiction.   Because it was undisputed that a probate for the estate was never commenced, no personal representative was appointed, and no claim filed, the court dismissed Nelson's lawsuit against the estate for lack of jurisdiction.

¶ 9 Nelson sued Schnautz for legal malpractice.   Nelson alleged that Schnautz was negligent in failing to timely file a claim against Roehr's estate and prevented him from obtaining joint and several liability against King County for more than the amount of insurance proceeds available to the estate.

¶ 10 In January 2006, Nelson filed four motions for summary judgment:  (1) Plaintiffs' Motion for Summary Judgment that Defendant Schnautz Violated the Standard of Care Expected Attorneys Practicing Personal Injury Law;  (2) Plaintiffs' Motion for Summary Judgment Dismissing Defendants' Intervening Cause, Superceding Cause and Mitigation of Damages Defenses, (3) Plaintiffs' Motion for Summary Judgment re Joint and Several Liability Based on the Lack of At-Fault Entities Against Whom a Judgment Could be Entered, and (4) Plaintiffs' Motion for Summary Judgment re Joint and Several Liability Based on a Lack of Insurance Proceeds to Maintain Action Pursuant to RCW 11.40.060.   For purposes of summary judgment, the parties agreed that Nelson was a fault-free plaintiff, Roehr had permission to drive Stewart's car, and the sole asset available to the estate was the Stewart's $100,000 insurance policy with Allstate. On April 10, 2006, the trial court ruled on the summary judgment motions in the “Revised Order on Plaintiffs' Four Motions for Summary Judgment on the Issues of Joint and Several Liability to King County, to Dismiss Certain Defenses, and Violation of the Standard of Care and Order on Motion for Reconsideration,” but the court specifically reserved ruling on causation and damages, “[t]his Order does not address issues of causation or damages.”

¶ 11 In the April 10 revised order, the court ruled that under RCW 11.60.040 and RCW 4.22.070(1), Schnautz's failure to file a claim against Roehr's estate prevented Nelson from obtaining recovery against the other jointly and severally liable tortfeasors for more than the $100,000 in insurance coverage available to the estate.

Interpreting RCW 11.40.060 and RCW 4.22.070 together, this Court concludes that the failure to file a claim against an Estate within two years constitutes a partial defense under RCW 4.22.070.   If King County was found jointly and severally liable at trial with the Estate of Roehrer [sic], and Nelson was found fault-free, no amount of a judgment against Roehrer's [sic] Estate exceeding the insurance proceeds held by the Estate could be collected from King County or any other jointly and severally liable tortfeasor.   The Court finds no basis in these statutes to allow a fault-free plaintiff to collect a judgment against an Estate from another jointly and severally liable defendant while barring that same plaintiff from collecting the judgment against the defendant against whom it was  entered.   This rule, would, in effect, suspend the statute of limitations for claims against estates in tort cases if the judgment could be collected from another party.  RCW 11.40.060 states that ‘section does not serve to extend any otherwise relevant statutes of limitations.’

The trial court also ruled that because Nelson's successor attorneys did not initiate probate proceedings and petition to appoint a personal representative for Roehr's estate, there was no jurisdiction “even for the purpose of obtaining applicable insurance proceeds.”   But based on the court's conclusion that Nelson's recovery against the other joint tortfeasor was restricted by the amount of available insurance, the court ruled “no damage can be proven by this failure.”

¶ 12 In a separate order, the court ruled the April 10 order was a final judgment and certified the following legal question:

These motions initially pose the following question, unaddressed by any case in Washington.   In Wagg v. Dunham, 146 Wash.2d 63, 42 P.3d 968 (2002), the Washington State Supreme Court held that a plaintiff who filed a personal injury complaint against the estate of a driver who died in the accident giving rise to the complaint was not time barred to file suit against recover any judgment against the estate solely from those insurance proceeds where the plaintiff had failed to properly serve and file his claim within two years but did properly file and serve the claim within the statute of limitations for personal injury claims.

This case poses a related scenario regarding joint and several liability.   In a car accident, two drivers are assumed (for the purposes of the motion) at fault for injuries to another driver.   One tortfeasor dies in the accident.   Assuming that a personal injury case is properly commenced against that estate in a period between two and three years, as in Wagg, so that any judgment against the estate may be satisfied solely from insurance proceeds, may a fault-free plaintiff collect any part of a verdict and judgment against the estate that exceeds applicable insurance proceeds from the other tortfeasor if that tortfeasor is jointly and severally liable with the estate?   The  Court certifies this question under CR 54(b) for review by the Court of Appeals.

Schnautz and Nelson filed cross motions for discretionary review of the April 10 decision and order.   A commissioner of this court granted review and ruled that the April 10 order was appealable under RAP 2.2(d) and should be given the same effect as a notice of appeal.¹

ANALYSIS

Schnautz's Appeal

¶ 13 Schnautz contends the trial court erred in concluding that his failure to file a claim against Roehr's estate under the probate statutes, chapter 11.40 RCW, limits the amount of damages a fault-free plaintiff can obtain against the other jointly and severally liable tortfeasors under RCW 4.22.070(1)(b).  We must determine the legislative intent and the effect of RCW 11.40.060 on the amount a fault-free plaintiff can recover from other tortfeasors under RCW 4.22.070(1)(b).

¶ 14 The standard of review on an order of summary judgment is de novo.   Sane Transit v. Sound Transit, 151 Wash.2d 60, 68, 85 P.3d 346 (2004).   The meaning of a statute is a question of law that we review de novo.  Dep't of Ecology v. Campbell & Gwinn LLC., 146 Wash.2d 1, 9, 43 P.3d 4 (2002).   The primary objective in statutory interpretation “is to ascertain and give effect to the intent of the legislature.”  King County v. Taxpayers of King County, 104 Wash.2d 1, 5, 700 P.2d 1143 (1985).   In interpreting a statute, we examine its language as well as that of closely related statutes in light of the legislative purpose.  Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001).   If the statute is unambiguous, we must give effect to that plain meaning as an expression of legislative intent.  Campbell &  Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4.  “[T]he court should assume that the legislature means exactly what it says.   Plain words do not require construction.' ”  City of Kent v. Jenkins, 99 Wash.App. 287, 290, 992 P.2d 1045 (2000).

 ¶ 15 Personal injury claims are subject to a three-year statute of limitations, RCW 4.16.080(2).   According to RCW 4.16.200, actions against a decedent are governed by the probate statutes, chapter 11.40 RCW. Because Nelson had a personal injury claim against Roehr's estate, he had to comply with the applicable procedures and timelines in the probate statutes, RCW 11.40.   The intent of the probate code is to limit claims against the decedent's estate, expedite closing the estate, and facilitate distribution of the decedent's property.  Bellevue Sch. Dist. v. Brazier Constr. Co., 103 Wash.2d 111, 120, 691 P.2d 178 (1984).

¶ 16 RCW 11.40.010 provides that a claim against an estate may not be brought “unless a personal representative has been appointed and the claimant has presented the claim as set forth in this chapter.”  RCW 11.40.051(1)(c) required Nelson to file the claim against Roehr's estate within “twenty-four months after the decedent's date of death” and failure to do so bars any claim or action against the decedent.  “[A] person having a claim against the decedent is forever barred from making a claim or commencing an action against the decedent․” RCW 11.40.051.   However, under RCW 11.40.060, the time limits do not apply to claims filed against an estate that seek to recover “applicable insurance coverage or proceeds.”  RCW 11.40.060 provides:

The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer.   Claims against the decedent or the decedent's marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.40.051, but the amount of recovery cannot exceed the amount of the insurance.   The claims may at any time be  presented as provided in RCW 11.40.070, subject to the otherwise relevant statutes of limitations, and do not constitute a cloud, lien, or encumbrance upon the title to the decedent's probate or nonprobate assets nor delay or prevent the conclusion of probate proceedings or the transfer or distribution of assets of the estate.   This section does not serve to extend any otherwise relevant statutes of limitations.

¶ 17 In Wagg v. Estate of Dunham, 146 Wash.2d 63, 42 P.3d 968 (2002), the Washington Supreme Court affirmed dismissal of an untimely claim filed against an estate.   But based on the language and purpose of RCW 11.40.060, the court concluded the failure to file a claim within the twenty-four month time limit, did not bar the personal injury lawsuit against the estate to recover available insurance proceeds.  Wagg, 146 Wash.2d at 73-74, 42 P.3d 968.

¶ 18 Here, as in Wagg, because Schnautz did not file a claim against Roehr's estate, RCW 11.40.060 limits Nelson's recovery against the estate to available insurance proceeds.   But we disagree with the trial court's conclusion that Nelson could not recover damages in excess of the amount of insurance proceeds available to the estate from the other jointly and severally liable tortfeasors.   The trial court's conclusion is contrary to the intent and language of the probate statutes and the Tort Reform Act.

 ¶ 19 While RCW 11.40.060 limits the amount of recovery against the estate to available insurance proceeds, neither the statute nor the court's decision in Wagg limits the amount of a jury verdict against the estate or entry of a judgment against the estate for the amount of the insurance proceeds.   The purpose of the nonclaim probate statute is to facilitate timely probate of a decedent's assets, not to absolve the other joint tortfeasors of liability.  Brown v. Spokane County Fire Protection Dist. No. 1, 21 Wash.App. 886, 890, 586 P.2d 1207 (1978).

 ¶ 20 The stated intent of the legislature in adopting the Tort Reform Act of 1986 was “to reduce costs associated with the tort system, while assuring that adequate and appropriate compensation for persons injured through the fault  of others is available.”   Laws of 1986, ch. 305, § 100.   The Tort Reform Act of 1986 abandons joint and several liability and adopts proportionate liability except for a fault-free plaintiff.²  Laws of 1986, ch. 305.

¶ 21 RCW 4.22.070(1) provides in pertinent part that:

(1) In all actions involving fault of more than one entity, the trier of fact shall determine the percentage of the total fault which is attributable to every entity which caused the claimant's damages except entities immune from liability to the claimant under Title 51 RCW. The sum of the percentages of the total fault attributed to at-fault entities shall equal one hundred percent.   The entities whose fault shall be determined include the claimant ․, defendants, third-party defendants, entities released by the claimant, entities with any other individual defense against the claimant, and entities immune from liability to the claimant, but shall not include those entities immune from liability to the claimant under Title 51 RCW. Judgment shall be entered against each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense against the claimant in an amount which represents that party's proportionate share of the claimant's total damages.   The liability of each defendant shall be several only and shall not be joint except:

․

(b) If the trier of fact determines that the claimant or party suffering bodily injury or incurring property damages was not at fault, the defendants against whom judgment is entered shall be jointly and severally liable for the sum of their proportionate shares of the claimants [claimant's] total damages.

¶ 22 RCW 4.22.070(1)(b) preserves the right of a fault-free plaintiff to obtain damages from the joint and severally liable defendants against whom judgment is entered for the sum of the defendant's proportionate shares.   The fact that the amount of recovery from the estate is limited to  $100,000,  does not affect the liability of the other joint tortfeasors for damages in excess of that amount.

 ¶ 23 While it is clear that the legislature intended that joint and several liability applies when the plaintiff is fault-free, joint and several liability under RCW 4.22.070(1) differs from the common law.  Kottler v. State, 136 Wash.2d 437, 442, 963 P.2d 834 (1999).  “[P]rior to the tort reform act, ‘pure’ joint and several liability enabled a plaintiff to sue one tortfeasor and recover all of his or her damages from one of multiple tortfeasors․ RCW 4.22.070(1) and (1)(b) do not permit that.”  Washburn v. Beatt Equip. Co., 120 Wash.2d at 280, 294, 840 P.2d 860 (1992).³  RCW 4.22.070(1)(b) limits joint and several liability to the sum of the proportionate shares of the defendants “against whom judgment is entered.”   RCW 4.22.070(1) and (1)(b).  A defendant against whom a judgment can be entered is defined as “each defendant except those who have been released by the claimant or are immune from liability to the claimant or have prevailed on any other individual defense․” RCW 4.22.070(1);  Washburn, 120 Wash.2d at 294, 840 P.2d 860.

¶ 24 The cases Nelson relies on to argue that Roehr's estate is immune from judgment under RCW 4.22.070(1) because the insurance company is the real party in interest are inapposite.   In Bowker v. McDonald, 49 Wash.2d 633, 305 P.2d 800 (1957), the court addressed the role of the insurance company and whether because of the delay in assuming the defense, the insured was entitled to a new trial.   In Hamilton v. Blackman, 915 P.2d 1210, 1215, 1218 (1996), the court held that an amendment adding the personal representative of the estate as a party was not prejudicial under CR 15(c) because the suit only sought  insurance proceeds and the insurance company had notice of the claim.   And in Pargman v. Vickers, 208 Ariz. 573, 581, 96 P.3d 571 (2004), the court held that the amended complaint naming the estate related back under CR 15(c) because the substance of the complaint effected no real change to the claim.⁴

 ¶ 25 In sum, when a fault-free plaintiff does not file a claim against the estate of a joint tortfeasor within twenty-four months, the amount of recovery against the estate is limited to available insurance proceeds.   However, the other joint tortfeasors remain liable for the combined percentage of fault for all the defendants against whom judgment is entered.   We reverse and remand for further proceedings with this opinion.⁵

¶ 26 The remainder of this opinion has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

Nelson's Cross Appeal

¶ 27 Because we determined that the trial court's April 10 order is appealable under RAP 2.2(d), the prior rulings Nelson challenges are also appealable under RAP 2.4(b).6

¶ 28 In his cross appeal, Nelson contends the trial court erred in ruling as a matter of law that the successor attorneys had a duty to initiate probate proceedings and petition to appoint a personal representative.   Nelson also contends the trial court erred in concluding that, contrary to City of Seattle v. Blume, 134 Wash.2d 243, 947 P.2d 223 (1997), the independent business rule applied.   In addition, Nelson claims the trial court erred in ruling Nelson waived his attorney-client privilege with Schnautz, and denying Nelson's motion to amend his complaint to allege a violation of the Consumer Protection Act, ch. 19.86 RCW, and breach of fiduciary duty.

¶ 29 In the legal malpractice suit against Schnautz, Nelson alleged that his failure to file a claim against the estate prevented Nelson from obtaining recovery against the other jointly and severally liable tortfeasors for more than the amount of insurance available to the estate.   To establish a legal malpractice, the plaintiff must prove (1) an attorney client relationship giving rise to a duty of care by the attorney;  (2) an act or omission by the attorney that is a breach of the duty of care;  (3) damage to the client;  and (4) the attorney's breach of the duty of care proximately caused damage.   Trask v. Butler, 123 Wash.2d 835, 839-40, 872 P.2d 1080 (1994);  Leipham v. Adams, 77 Wash.App. 827, 831-31, 894 P.2d 576 (1995).

¶ 30 In the April 10 order on summary judgment, the trial court ruled that the successor attorneys should have initiated probate proceedings and petitioned for appointment of a personal representative and because they did not “correctly gain jurisdiction over the estate even for the purpose of obtaining applicable insurance proceeds,” the lawsuit against the estate was dismissed for lack of personal jurisdiction.

¶ 31 Relying on Wagg, Nelson argues the successor attorneys did not have a duty to commence probate proceedings or petition for a personal representative to be appointed to Roehr's estate.   In support of his argument, Nelson points to the court's citation to the holding in Young v. Estate of Snell, 134 Wash.2d 267, 278, 948 P.2d 1291 (1997) that “where there is liability insurance and thus, no requirement that a claim be filed with the estate of the decedent as a condition precedent to maintaining a lawsuit against the estate.”   Wagg, 146 Wash.2d at 72-73, 42 P.3d 968 (quoting, Young, 134 Wash.2d at 280-81, 948 P.2d 1291).   We agree that it is not necessary to file a claim against the estate to obtain insurance proceeds in a lawsuit against the estate.   But in Wagg, the plaintiff initiated probate proceedings for the decedent's estate and petitioned for appointment of a personal representative.   And here, as the trial court correctly concluded, in order to obtain jurisdiction over the estate and obtain insurance proceeds, the attorneys had to commence probate proceedings and petition for appointment of a personal representative.  Williams-Moore v. Estate of Shaw, 122 Wash.App. 871, 96 P.3d 433 (2004).7  We reject Nelson's argument that the successor attorneys did not have a duty to initiate probate proceedings to obtain jurisdiction over Roehr's estate and affirm the trial court's decision. 8

¶ 32 Nelson also argues the trial court erred in not following Seattle v. Blume, 134 Wash.2d 243, 947 P.2d 223, by concluding that the independent business judgment rule applied.9  Nelson mischaracterizes the court's ruling.   According to the undisputed findings in the April 10 order, the trial court only addressed the independent business judgment rule because Nelson relied on it to argue that the successor attorneys had no duty to petition to appoint a personal representative for Roehr's estate.

The Nelsons argued that under Seattle v. Blume, 134 Wash.2d 243, 947 P.2d 223 (1997) the ‘business judgment rule’ applies and they were within their rights not to file against the Estate.   Assuming (which the Court does not decide) that the rule applies, still the actions here do not fit under the rule.   The decision not to have a personal representative appointed but still attempt to file suit against the Estate by serving a relative (rather than a personal representative) is not an instance of independent business judgment.

¶ 33 Next, Nelson contends the trial court erred in ruling Nelson waived his attorney-client privilege with Schnautz.   Nelson argues that Pappas v. Holloway, 114 Wash.2d 198, 787 P.2d 30 (1990), is distinguishable and this case is analogous to Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 468 N.Y.S.2d 895 (1983).

¶ 34 In Pappas, the plaintiffs, the Holloways, sued their attorney, Pappas, for legal malpractice.  Pappas, 114 Wash.2d at 200, 787 P.2d 30.   Pappas filed a third-party complaint against the successor attorneys who represented the plaintiffs in the underlying litigation, alleging negligence.   Pappas, 114 Wash.2d at 201, 787 P.2d 30.   When Pappas sought to obtain discovery from the successor attorneys, the Holloways asserted attorney-client privilege.  Pappas, 114 Wash.2d at 202, 787 P.2d 30.   The court ordered production of discovery, concluding that “the Holloways waived the attorney-client privilege as to all the attorneys who participated in the ․ litigation when they sued Pappas for malpractice.”  Pappas, 114 Wash.2d at 202, 787 P.2d 30.   The Washington Supreme Court affirmed the trial court's decision

the Holloways cannot counterclaim against Pappas for malpractice and at the same time conceal from him communications which have a direct bearing on this issue simply because the attorney-client privilege protects them.   To do so would in effect enable them to use as a sword the protection which the Legislature awarded them as a shield.

․

to allow the Holloways to block Pappas' request for communications relating to the ․ litigation would effectively deny him an adequate defense.   In order for the Holloways to prove Pappas committed malpractice, they will have to show, among other things, that Pappas had a duty to exercise the care and skill of a reasonably prudent attorney and that Pappas failed to meet this duty․ Contrary to the Holloways' claim that the only information relevant to this issue is what actually happened, this inquiry will involve examining decisions made at various stages of the underlying litigation.   This will necessarily involve information communicated between these attorneys and the Holloways.   This is particularly true given that Pappas was not the attorney who actually tried the case, nor did he have any part in its eventual settlement.

Pappas, 114 Wash.2d at 208-09, 787 P.2d 30.

¶ 35 Here, as in Pappas, Schnautz asserted that the successor attorneys were negligent.   And as in Pappas, Jakobleff is distinguishable because Schnautz “did not participate in the underlying litigation which gave rise to the malpractice claim against the defendants.”  Pappas, 114 Wash.2d at 206, 787 P.2d 30.

¶ 36 Nelson also argues the court erred in denying his motion to amend the complaint to allege that Schnautz violated the CPA and breached his continuing fiduciary duty to Nelson.   A trial court's refusal to grant leave to amend a complaint will not be disturbed on appeal unless the decision was a manifest abuse of discretion or a failure to exercise discretion.  Caruso v. Local Union No. 690 of Int'l Brotherhood of Teamsters, 100 Wash.2d 343, 351, 670 P.2d 240 (1983).   A trial court abuses its discretion when its decision rests on untenable grounds or is made for untenable reasons.  State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 37 On November 30, 2005, Nelson filed a motion to amend his complaint to allege that Schnautz violated the CPA and breached his fiduciary duty to Nelson before and after withdrawing from representation.   Because the allegations were conclusory and Nelson did not allege a violation of the Rules of Professional Conduct, Schnautz argued the court should deny the motion to amend.

¶ 38 As to the claim for breach of fiduciary duty, the proposed Amended and Supplemental Complaint for Damages alleged in pertinent part that:

c). Breach of Fiduciary Duties

4.18 The Nelsons assert that Defendant SCHNAUTZ breached a fiduciary duty owed to them as clients by not indicating to the Nelsons that he could continue to represent them in an attempt to cure his negligence or mitigate the damages caused by it if this was possible to do;

4.19 The NELSONS assert the Defendant SCHNAUTZ breached a fiduciary duty owed to them as clients by telling the NELSONS prior to dismissing them as client that any attempt to remedy his negligence through use of RCW 11.40.060 was unlikely and then later that because NELSONS' subsequent attorneys refused to bring an action under .060 the NELSONS and the subsequent attorneys were negligent and that subsequent attorneys must withdraw because they were witnesses as to why they did not file an action under .060.

4.20 The NELSONS assert the Defendant SCHNAUTZ breached a fiduciary duty owed to them as clients by interfering in the underlying action so as to benefit himself to the detriment of the NELSONS;  4.) by attempting to unfairly limit the NELSONS' ability to prosecution their malpractice claims through the use of unfair and deceptive means pursuant to a plan spawned during the time period the NELSONS were clients.

¶ 39 On December 15, 2005, the court entered an order granting in part and denying in part Nelson's motion to file an amended complaint.   The court granted Nelson's request to add a claim alleging Schnautz breached his fiduciary duty, concluding that “Nelson has proffered case law sufficient for a good faith basis for pleading the claim for a breach of duty to former clients.”   But the court denied Nelson's motion to add a claim for violation of the CPA.

¶ 40 By order dated February 3, 2006, the trial court ruled that the breach of fiduciary duty claim in the amended complaint that Nelson filed on January 10, 2006, differed significantly from the amended complaint the court considered and approved in the December 15 order.

THE COURT FINDS that Plaintiffs Amended and Supplemental Complaint for Damages filed on January 10, 2006 is not the complaint submitted for consideration by motion on Nov. 30, 2005.   The Court's order on this proposed amended complaint (dated December 15, 2005) allowed the filing of a breach of fiduciary duty claim.   However, Plaintiffs' counsel apparently rewrote the amended complaint after the 15 December 2005 Order.   Thus, the filed Jan. 10, 2006 breach of fiduciary duty claim does not resemble the one considered by this Court.

¶ 41 The court ruled that the amended and supplemental complaint for damages filed on January 10, 2006 was stricken and directed Nelson to file an amended complaint that complied with the court's December 15 order.   The court “[o]n its own motion” also revised the December 15 order to limit the breach of fiduciary duty claim to acts that occurred during the time Schnautz represented Nelson.   The court ruled that as a matter of law Schnautz did not have a continuing fiduciary duty to Nelson after he was terminated.

Nelson's Motion to amend to add a Breach of Fiduciary Duty claim is granted in part and denied in part.   Nelson may add the claim for acts that occurred during the time Schnautz represented Nelson.   To that extent, the motion to amend is granted.   To the extent Nelson claims that Schnautz somehow committed tortuous acts after he quit representation of Nelson, he must pursue legal theories other than breach of fiduciary duty.

This Court finds no case law would allow Nelson to claim a breach of fiduciary duty claim against his former attorney for the period after the attorney represented Nelson where, as here, the former attorney (Schnautz) quit representing Nelson, informed Nelson that he had committed legal malpractice, and was later sued by Nelson for malpractice.

In these circumstances, once representation has ended, the Court concludes that Nelson can have no legal basis for a claim that Schnautz still has a fiduciary duty to Nelson.   Therefore, paragraph 4.19 of the proposed amended complaint filed as part of the motion to amend on Nov. 30, 2005, must be rewritten to omit a claim against Schnautz after representation ended.

¶ 42 We conclude the trial court did not abuse its discretion in denying Nelson's motion to amend his complaint to allege a CPA violation.   To prevail in a CPA claim, plaintiffs must show “(1) unfair or deceptive act or practice;  (2) occurring in trade or commerce;  (3) public interest impact;  (4) injury to plaintiff in his or her business or property;  [and] (5) causation.”  Hangman Ridge Training Stables v. Safeco Title Ins. Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986).   Failure to meet any one of the elements under the CPA is fatal to the claim.  Sorrel v. Eagle Healthcare, Inc., 110 Wash.App. 290, 298, 38 P.3d 1024 (2002).   Factors considered to determine whether the public interest is affected include:  whether the acts complained of are part of a generalized course of conduct, whether there is a real or substantial potential for repetition, or whether many consumers were affected by a single act.  Hangman Ridge, 105 Wash.2d at 789, 719 P.2d 531.   Here, because only Nelson and Schnautz were affected by Schnautz's conduct and Nelson cannot show the conduct affected the public interest, we affirm the trial court's decision to deny the motion to add a CPA claim.

¶ 43 Based on the record before the trial court, we also conclude the court did not abuse its discretion on the breach of fiduciary duty claim.   But on appeal, Nelson cites cases holding that under certain circumstances, an attorney has a continuing duty of loyalty to his former client.   See Lockhart v. Greive, 66 Wash.App. 735, 834 P.2d 64 (1992);  Damron v. Herzog, 67 F.3d 211 (9th Cir.1995).   Because we remand, the court should consider the case law Nelson cites to determine whether he should be allowed to amend his complaint to allege breach of fiduciary duty after Schnautz withdrew.

¶ 44 We reverse the trial court's decision that Schnautz's failure to file a claim against the estate limited the recovery Nelson could obtain against the other jointly and severally liable tortfeasors and we remand for further proceedings consistent with this opinion.

FOOTNOTES

1.   See RAP 5.1(c).

2.   The two other exceptions in RCW 4.22.070(1) do not apply.

3.   Under the common law, multiple tortfeasors were jointly and severally liable for the entire harm and the injured party could sue one or all of the tortfeasors to obtain full recovery.  “The cornerstone of tort law is the assurance of full compensation to the injured party․ So long as each tort-feasor's conduct is found to have been a proximate cause of the indivisible harm, we can conceive of no reason for relieving that tort-feasor of his responsibility to make full compensation for all harm he has caused the injured party.”  Seattle First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 236, 588 P.2d 1308 (1978).

4.   As Schnautz points out, no defendant asserted the failure to file a claim against the estate as a defense.   And on appeal, Nelson does not argue the limitation in RCW 11.40.060 is an “individual defense” under RCW 4.22.070(1).

5.   Because we reverse, we conclude the trial court erred in dismissing Schnautz's superceding and intervening cause defense.   On remand Schnautz is entitled to assert this defense.

6.   “The appellate court will review a trial court order or ruling not designated in the notice, including an appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling made, before the appellate court accepts review.”  RAP 2.4(b).

7.   There is no dispute that Schnautz did not initiate probate proceedings or timely file a claim against Roehr's estate.   There is also no dispute that while Nelson's successor attorneys filed the personal injury lawsuit within the statute of limitations, they did not initiate probate proceedings and did not properly serve the estate resulting in dismissal of the lawsuit against the estate for lack of personal jurisdiction.

8.   Because we affirm, we also conclude the trial court did not err in refusing to dismiss Schnautz's mitigating damages defense.

9.   Under the independent business judgment rule, if a plaintiff elected not to pursue available legal remedies, the defendant's negligent act was not the proximate cause of the plaintiff's damages. Blume, 134 Wash.2d at 251, 947 P.2d 223.   In Blume, the Washington Supreme Court rejected the independent business judgment rule and held it did not prevent a plaintiff from proving that the defendant's negligent act was the proximate cause of the plaintiff's damages.  Blume, 134 Wash.2d at 260, 947 P.2d 223.

SCHINDLER, A.C.J.