Opinion
No. 49037-1-I c/w 48959-3-I
Filed: July 21, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 92-2-29209-2 Judgment or order under review Date filed: 07/03/2001
Counsel for Appellant(s), William Robert Hickman, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.
Jennifer Lynn Moore, Reed McClure, 2 Union Sq, 601 Union St. Ste 4901, Seattle, WA 98101-3920.
Pamela A. Okano, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.
John Woodruff Jr Rankin, Reed McClure, 601 Union St. Ste 4901, Seattle, WA 98101-3920.
Counsel for Respondent(s), Robert B. Gould, Attorney at Law, 2110 N Pacific St. Ste 100, Seattle, WA 98103-9181.
Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
A jury found Martin Godsil professionally negligent in his representation of Martyna Mandel in her dissolution of marriage. Godsil had negotiated a settlement based on a contingency, which ultimately failed. The decree based on the contingent settlement was vacated and the case proceeded to trial. The property division at trial was less favorable than the property division in the contingent settlement. Mandel claimed that Godsil was negligent in not preserving the benefit of the settlement agreement. We hold that Godsil did not breach the duty owed to Mandel and was entitled to judgment as a matter of law. We reverse.
FACTS
Respondent Martyna M. Thurston ('Mandel') married Robert Thurston ('Thurston') in 1976. In 1987, Mandel retained appellants Casey Pruzan and Martin Godsil (collectively, 'Godsil') to handle the dissolution of her marriage to Thurston. Thurston was represented by Wolfgang Anderson ('Anderson'). The parties held a settlement conference in August 1989 before the Honorable Charles Burdell of the King County Superior Court. An agreement was reached, and Judge Burdell put the settlement on the record via courtroom video camera for purposes of enforceability under Superior Court Civil Rules (CR) 2A. The parties were present with counsel, participated in discussions while the record was made, and voiced their concurrence in the agreement on the record. Having reached a settlement, the impending trial date was stricken. The outcome of that settlement conference and the decree based on the settlement underlie this action.
The matters leading to this appeal and the underlying case involved several different judges. The names of those judges and the dates of their involvement will be stated to clarify the facts presented.
The provisions of the agreement awarding Mandel two units of Pacific Recreation Associates (PRA) are central to the dispute. These units were owned by the Westersun Corporation. Westersun was owned equally by brothers Bill and Bob Thurston. Bob Thurston was to retain his stock in Westersun. Neither Bill Thurston nor Westersun were parties to the litigation or the settlement agreement, but their cooperation was necessary to effect the transfer the PRA units to Mandel. Judge Burdell stated on the CR 2A record that 'this legal transfer of an ownership interest in the two units to [Mandel] is a condition on this agreement.' Counsel did not reach an agreement on the language for the findings of fact and conclusions of law or the decree of dissolution. A hearing was scheduled for December 18, 1989, to enter the decree. Among the issues to be resolved was the language regarding the two PRA units. Judge Burdell worked off the Mandel draft decree, which included this section regarding the two PRA units:
FURTHER ORDERED that the Petitioner is hereby awarded, as her sole and separate property, . . . and the Respondent hereby quit claims, releases, and relinquishes unto the Petitioner, all right, title, and interest in and to the following described property: . . . .
(8) Two units of Pacific Recreation Associates, a limited partnership, held in the name of The Westersun Company, a corporation. The Respondent hereby relinquishes all right, title, and interest in said two units to Petitioner, provided that she shall not sell said two units to Respondent's brother . . . provided further, should Respondent's brother Bill Thurston, not cooperate in effecting the assignment of said two shares from the Westersun Company, a corporation, to Petitioner, this court reserves jurisdiction to make a different award of assets to Petitioner in an amount equal to the value of said two units.
(Emphasis added.)
Anderson objected that the parties had not agreed to the underlined language. Judge Burdell consulted the record of the CR 2A agreement. The record indicated an agreement that the transfer of the two PRA units was a condition of this agreement. No retention of jurisdiction and no alternative relief had been stated on the record. The language Anderson objected to was stricken.
On September 29, 1989, Bill Thurston had informed Godsil that he would agree to transfer the PRA units to Mandel provided that Bob Thurston first relinquished his Westersun shares and resign from its board. Bob Thurston ultimately would not agree to the conditions Bill proposed. Bob and Bill Thurston failed to agree upon any arrangement whereby Mandel would receive the two PRA units. Therefore, the condition on the agreement failed. Steps were taken without success to reach an alternate agreement. More than one year later, on July 10, 1991, Godsil filed a CR 60 motion to vacate that portion of the decree awarding Mandel the two PRA units. Judge Robert Lasnik orally vacated the entire property division portion of the decree in August 1991, ruling it was unenforceable as it was conditioned on the transfer of the units, which had failed. A written order was not entered until September 17, 1993. The case proceeded to trial in November 1994. Half of the total community assets were awarded to Mandel, but she did not receive the PRA units.
Casey Pruzan and Godsil withdrew from representation on October 3, 1991. On that same day, John Burgess became Mandel's counsel.
Judge Lasnik's memorandum decision of November 9, 1994, noted that Mandel's and Thurston's 'demonstrated inability to work together toward fair resolution of the issues dividing them over the eight years of [the dissolution] lawsuit suggest[ed] [that] they should [not] share ownership of any assets.' CP 461. Judge Lasnik concluded:
[U]nder these unique circumstances it is just and equitable to place the business assets completely with Mr. Thurston and to provide an immediate . . . cash-out to Mrs. Mandel, for her portion of these business assets. This will sever their economic relationship. It will leave Mr. Thurston with the assets he is either in litigation about or has management responsibility over. It will leave Mrs. Mandel with a substantial amount of cash which she may invest wisely to assure the necessary income flow for a secure financial future.
Both Mandel and Thurston appealed the trial court's decision. The Court of Appeals affirmed in September 1998. In re Marriage of Thurston, 92 Wn. App. 494, 963 P.2d 947 (1998). This court concluded that the trial court had correctly vacated the 1989 dissolution decree, explaining that 'the award of the two units to Mandel was a material condition of the settlement and that the nonoccurrence of that condition constituted extraordinary circumstances warranting relief.' Thurston, 92 Wn. App. at 503. This court reviewed the decree entered after the trial and stated, 'the property division is just and equitable, considering all the circumstances.' Thurston, 92 Wn. App. at 496. The Supreme Court denied review of the case.
In re Marriage of Thurston, 137 Wn.2d 1023 (1999). Mandel filed a complaint for legal malpractice against Godsil on December 17, 1992. The case was stayed pending the trial of the dissolution case.
In her malpractice complaint, Mandel alleged that Godsil 'failed to meet the minimum standard of care of a reasonable lawyer whose practice emphasizes dissolution of marriage proceedings,' and that as a result, she had 'been damaged in an amount . . . in excess of $35,000.' Mandel's damages claims are based on what she was awarded at trial compared to what she would have received had the settlement agreement and original decree not been set aside. In August 2000, Godsil moved for partial summary judgment on proximate cause and damages. At the September 8, 2000 hearing on Godsil's motion for partial summary judgment, Mandel more specifically alleged that Godsil had failed to bring a motion before the trial court to impose a trust or other vehicle for capturing assets awarded to her in the 1989 settlement and decree. Judge Steven Scott granted summary judgment dismissing negligence claims based on failure to file a motion to modify or to enforce the original decree. The court declined to grant summary judgment on the claim that Godsil was negligent in drafting a conditional, ultimately unenforceable agreement and decree.
Trial began on May 14, 2001. The jury returned a verdict for Mandel in the amount of $2,983,522. Godsil's motion for judgment as a matter of law, or in the alternative, a new trial, was denied. His motion for reconsideration was also denied. Godsil appeals.
In sum, Godsil asked the court to decide questions of law regarding negligence, proximate cause and damages in two motions for partial summary judgment, a motion for reconsideration, motions in limine and two motions for judgment as a matter of law at trial. All motions were denied.
ANALYSIS I. What is at issue?
Godsil appeals the judgment below on two bases. First, he asserts that he committed no error, breached no duty and that causation of Mandel's damages is absent. Thus, he was entitled to dismissal as a matter of law either at summary judgment or on his motion for judgment as a matter of law following trial. Second, he alleges numerous errors in the trial court proceedings.
Judge Scott allowed the case to go forward to trial on the theory that the facts could show Godsil negligent in drafting a conditional, ultimately unenforceable agreement and decree. Mandel further described her theory of the case when responding to the motion for judgment as a matter of law. First, she argued that Godsil's representation of her at the August 31, 1998 CR 2A settlement fell below the standard of care, that Godsil did not specify the details and mechanics of obtaining for Mandel the benefit of her bargain as it related to the two PRA units. Second, Mandel argued that between September 1, 1989, and December 17, 1989, Godsil had 'the last clear chance' to remediate his negligence of August 31, that he did not do this, but rather tried to sub silentio renegotiate the August 31, 1989 agreement to give her 'equivalent value,' which had not been agreed to by Bob Thurston.
On appeal, Mandel argues that Godsil (1) failed to put an alternative division of property on the record; (2) failed to articulate and implement the agreement; (3) failed to workout a provision regarding the income when the transfer of the units failed; and (4) proposed a decree which was void with respect to the PRA units.
It is also important to note what is not at issue. The August 31, 1989 settlement conference did result in an agreement of record under CR 2A. The entire agreement was conditioned on the transfer of the two PRA units to Mandel. The transfer of the two PRA units did not occur and therefore the agreement failed. Mandel concedes that she does not argue that Godsil is negligent for failure to negotiate a better deal. Rather, Mandel seeks the benefit of a deal she viewed as a terrific opportunity. Further, Godsil's failure to seek to enforce or modify the agreement entered on August 31, 1989, is not at issue. The summary judgment granted on that issue has not been cross-appealed.
II. Standard of Review.
We review questions of law de novo. Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993). 'When reviewing summary judgment, the appellate court engages in the same inquiry as the trial court and reviews the evidence de novo.' Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 807, 6 P.3d 30 (2000). The court 'will grant a summary judgment only if, after viewing the record along with all reasonable inferences . . . in the light most favorable to the nonmoving party, [the court] can say that as a matter of law (1) there is no genuine issue of material fact, (2) all reasonable persons could reach only one conclusion, and (3) the moving party is entitled to judgment.' Fischer-McReynolds, 101 Wn. App. at 807; CR 56(c). An appellate court, reviewing the denial of a motion for judgment as a matter of law, applies the same standard as the trial court. The court may grant the motion only if, as a matter of law, there is neither substantial evidence nor reasonable inference from the evidence to sustain the verdict. Hizey v. Carpenter, 119 Wn.2d 251, 271-72, 830 P.2d 646 (1992). 'We review a trial court's evidentiary rulings, including those made in the course of a summary judgment proceeding, for an abuse of discretion.' Eagle Group, Inc. v. Pullen, 114 Wn. App. 409, 416, 58 P.3d 292 (2002). This court reviews de novo claimed errors of law in jury instructions. Hue v. Farmboy Spray Co., Inc., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). III. Was there negligence with respect to the PRA units? To sustain a claim of legal malpractice, a plaintiff must meet four elements: (1) the existence of an attorney-client relationship; (2) the existence of a duty on the part of the attorney; (3) failure to perform the duty; and (4) the negligence of the attorney must have been a proximate cause of the damage to the client. Bullard v. Bailey, 91 Wn. App. 750, 754, 959 P.2d 1122 (1998).
We begin our analysis with an acknowledgment that an attorney has a duty of care towards his client throughout his entire representation of that client. An attorney has a duty to exercise the degree of skill, care, and learning expected of a reasonably prudent attorney in the state of Washington acting in the same or similar circumstances at the time such services are provided. The failure to exercise such skill, care and learning is negligence. Hizey, 119 Wn.2d 251 at 261. We must decide whether Godsil committed error, whether that error breached his duty to Mandel, and whether that breach proximately caused Mandel's damages.
A. What was agreed to on the record on August 31, 1989?
Judge Burdell presided at the settlement conference and recorded on video the parties' agreement. The relevant provisions relating to the PRA units as set out in the transcript of the video record were:
[THE COURT:] . . . Uh, Mr. Thurston will assign to Mrs. Thurston the two units in the PRA slash — actually the PRA, uh, interest. She will receive all income, but she will not be allowed to sell to Bill Thurston or Joe Shepherd or their designees. . . . .
MR. ANDERSON: While, she, uh, the Westerson [sic], uh, the stock at Westerson [sic], that remains with — with him.
THE COURT: Right. She gets the assignment up to two units.
MR. ANDERSON: (Inaudible), yeah.
THE COURT: Anything else?
MR. GODSIL: Well, we just — if what we're talking (inaudible), Judge, understood that Mr. Thurston will cooperate in the — thing that those specific recreation, uh, associate units owned by Westerson [sic], which are actually corporate assets will be transferred to her.
MR. ANDERSON: Absolutely, right.
MR. GODSIL: And, uh, that if they're not, uh, going to be transferred to her, then there's got to be some other resolution of the problem. Because if that's —
MR. ANDERSON: We will cooperate in the transfer.
THE COURT: Yeah, but the point is that if his brother refuses to go along with that, then we've got to have — we've got to do something else about this —
MR. ANDERSON: Well, let's cross that hurdle when we come to it.
MR. GODSIL: Yeah.
MR. ANDERSON: (Inaudible) anticipate a problem. All right —
This may have been Thurston instead of Anderson.
THE COURT: It's clear, though, that the — the transfer, this legal transfer of an ownership interest in the two units to Mrs. Thurston is a condition on this agreement.
MR. ANDERSON: That's right.
THE COURT: Right.
MR. GODSIL: All right. Now, we didn't mention the Seattle Tennis Club.
B. What was written into the decree?
At the presentation of the decree, Anderson objected to the language regarding the PRA units that Godsil had proposed. The following exchange occurred between counsel and the court. The language in the decree was read on the record. MR. ANDERSON: The major problems come in their Paragraph 8, Your Honor.
In their Paragraph 8 with the two units. I think we kept their paragraph with that. I don't think — Line 19, I took out the words —
THE COURT: — Read the whole thing. Hold on a second. 'Two units of the Pacific Recreation Associates, a limited partnership, held in the name of Westerson [sic] Company, a corporation, the respondent hereby relinquishes all right, title and interest in said two units to petitioner provided that she shall not sell said two units to respondent's brother, Bill Thurston, or George Shepherd, or their assignees or designees, without prior express written permission of respondent. Provided further, should respondent's brother, Bill Thurston, not cooperate in affecting the assignment of said two shares from Westerson [sic] Company Corporation to petitioner, this Court reserves jurisdiction to make a different award of assets to petitioner in an amount equal to the value of said two units.'
MR. ANDERSON: Now, what I had done, I kept everything 'permission to the respondent.' I kept all of whatever he had there. Now, they don't have shares for instance. Line 19, 'effecting assignment of said two shares.' They don't have shares. It's two units. It should be 'two units from the Westerson [sic] Corporation to petitioners.' Then however the last sentence is very objectionable. 'This Court reserves jurisdiction to make a different award of assets to the petitioner in the amount equal to the value of said two units.' If you take a look at your decision you did not rule —
THE COURT: — Wait a second. Was that agreed to, Mr. Godsil?
MR. GODSIL: What page is that on, Mr. Anderson?
MR. ANDERSON: That's Page 4.
MR. GODSIL: No. Page what in the transcript?
MR. ANDERSON: Of the decree.
THE COURT: I want to know where it says in the order, in the agreement, the oral ruling, or the oral agreement we put on the record that I would retain jurisdiction to award an amount equal in value to the two units to your client. I don't remember that.
MR. ANDERSON: What you said is on Page 5 between Lines 18 and 20, Your Honor.
THE COURT: It's clear, though, that the transfer of this legal transfer of an ownership in two units is a condition on this agreement.
MR. ANDERSON: That's what you've said and I've put that in.
THE COURT: Basically, as I understand it, if — What's his name, Bill?
MR. ANDERSON: Bill.
THE COURT: — throws some impediment in front of this whole thing they could throw a monkey wrench into this entire agreement, wouldn't it?
MR. ANDERSON: That's right.
THE COURT: We'd be right back in court. How long would it take before you know how long that's going to happen?
MR. ANDERSON: Should know right away. She's in good terms with Bill, he isn't.
MR. GODSIL: Well, I didn't understand that, Your Honor, that the settlement was that if Bill wouldn't transfer these two units it threw the whole settlement out.
MR. ANDERSON: That's what we agreed to on the record.
MR. GODSIL: No; no.
MR. ANDERSON: It's a condition to this agreement. You wanted it that way.
MR. GODSIL: This is a condition to this agreement relating to those two units, that's all. It wouldn't turn the whole settlement upside down.
MR. ANDERSON: That's what they've said. I —
MR. GODSIL: — Because they're —
THE COURT: — Hold on a second. Isn't it best just to put a period behind 'permission' and delete the rest? If Bill Thurston does something to — It seems to me that he's exposing himself to significant legal exposure if he does something that frustrates Mrs. Thurston's right to have these two units.
MR. ANDERSON: What line are you on; where did you stop?
THE COURT: I'm at Line 19, 'Respondent's brother, Bill Thurston' — Excuse me. I'm at Line 18. Put a period behind 'permission of respondents,' period. I mean hopefully the man will comply with an order of the Court.
The only person he would hurt is Mrs. Thurston if he were to get in the way of the transfer of these assets.
MR. ANDERSON: That would be okay.
THE COURT: It seems to me that if he did something that would make it difficult or impossible for her to get these assets then he's at risk here.
MR. GODSIL: I would disagree. He's not a party here. The whole idea of that was that those units have an exact value. They have a market value of about $125,000 a unit and that they're being awarded to her, and if she didn't get them, if Bill Thurston wouldn't transfer them to her, we just — Mr. — this Mr. Thurston would have to buy them from her. That's all.
THE COURT: That's not the agreement at all.
MR. GODSIL: That was our idea.
THE COURT: Put a period behind the word 'respondent' on Line 18, 'written permission of respondent.' I'm going [to] delete the rest.
Godsil's draft proposed an alternative distribution of different assets of value equal to the value of the two PRA units in case the transfer of those units failed. The draft also reserved jurisdiction with the court to make such an alternative division.
Anderson could have agreed to these provisions, but he did not. Rather, he pointed out that they were not part of the agreement made on August 31, 1989. Godsil argued that the transfer of the PRA units was a condition to the agreement only relating to the two units. He argued that if the transfer of the units failed, Thurston would have to buy them from Mandel.
The significance of CR 2A, where a record of an agreement is made in open court, is that the agreement as recorded is enforceable. Judge Burdell determined that Anderson's position was consistent with the CR 2A agreement, Godsil's was not. Judge Burdell interpreted the agreement and enforced it by striking the language in Godsil's draft that was not part of the agreement.
C. Failure to put an alternative on the record.
Mandel argues not that Godsil failed to negotiate a better deal, but that he failed to put the deal — the alternative relief — on the record. Mandel also argues the worst thing Godsil did was fail to object and correct Judge Burdell on August 31, 1989, when he said the transfer of the units was a condition on this agreement. She argues that by failing to object, Godsil in effect was agreeing there was no provision for alternative relief.
At the CR 2A settlement, Godsil raised the issue of risk that the transfer of the PRA units might fail. He raised the need to do something else with the property division if the transfer failed. Anderson did not disagree that something else would need to be done. However, Anderson asserted that they should 'cross that hurdle when [they] come to it.' Godsil replied, 'Yeah.' In this exchange, they appear to have explicitly agreed on the record to defer the issue of alternate relief to a future time, if and when the transfer failed. Judge Burdell then indicated that the transfer of the PRA units was a condition on the agreement, which both counsel agreed to on the record.
We need not rely on our interpretation of the contract, since Judge Burdell already interpreted it at the entry of the decree. The parties took differing positions on whether alternative relief had been agreed to, what that relief was, whether the court retained jurisdiction, and whether the failure to transfer the PRA units was a condition on the entire agreement.
They were free to brief and argue those issues as if the presentation were a motion to interpret or enforce the CR 2A agreement. Godsil argued on Mandel's behalf for alternative relief, for the court to retain jurisdiction, and for the position that the transfer of the PRA units was a condition only on that element not the whole agreement. Godsil repeatedly disagreed with Judge Burdell on these issues. Judge Burdell, however, ruled against Mandel on all of these issues stating, 'That's not the agreement at all.'
The record would have allowed appeal of that ruling and the decree. No appeal was taken. Mandel is estopped in this proceeding from now attacking or relitigating Judge Burdell's ruling that those issues were not part of the agreement. Lucas v. Velikanje, 2 Wn. App. 888, 891, 471 P.2d 103 (1970).
The agreement did not lack provision for alternative relief because Godsil failed to object when Judge Burdell stated the transfer of the PRA units was a condition on the agreement. The parties had not provided for alternative relief, they had deferred that decision. The parties had agreed to condition the agreement on transfer of the PRA units. No error in drafting occurred. The deficiencies Mandel complains of were in the negotiation of material terms, not drafting issues. Mandel does not claim negligence in negotiation. As a matter of law, Godsil did not breach his duty to Mandel in failing to put alternative relief on the record or in failing to object to the transfer of the PRA units being a condition on the agreement and was not negligent drafting.
D. Failure to articulate and implement the deal.
Mandel argues Godsil failed to put the deal in a form that would work for both parties. Mandel testified at trial that she wanted the income from the PRA units. Mandel asserts there were other ways to secure her the income. Godsil failed to use those means. Expert testimony suggested that the likelihood the transfer would fail and that the taxes would be prohibitive if it did not, could have been cured simply. The suggested solution was to have Thurston assign the income and any sales proceeds to Mandel and for him to agree to refrain from voting his Westersun stock in a manner that would diminish the income. Mandel would in turn hold him harmless from the taxes. Mandel argues the provisions that should have been included would have reduced or eliminated the risk of the transfer of the PRA units failing. If the transfer did not fail, she would have the benefit of the bargain.The decree did contain a provision with respect to the Pacific Recreation Company (PRC) interest, which was very similar to the expert's recommendation with respect to the PRA units. Mandel agreed to an assignment of a percentage distribution of the PRC interest. She agreed to outright legal ownership of the two PRA units owned by Westersun. The parties handled the PRC and PRA differently in the CR 2A agreement and the decree. The question is whether the different treatment was because Godsil negligently drafted something other than what the parties had agreed.
Since the deal failed and no tax liability arose, we do not address this issue.
The CR 2A agreement contains no assignment of income on the PRA units, but as legal owner of the units Mandel would receive any proceeds from the sale. The agreement contains no assignment of the proceeds from sale of the PRA units, but as legal owner of the units Mandel would receive that income. The agreement contains no restrictions on Thurston voting his Westersun shares to reduce any income distributions, but once the units were legally transferred to Mandel's ownership, rather than Westersun's, Thurston's voting his Westersun shares would not affect her income from the units. The agreement contained no provision for Mandel to hold Thurston harmless for tax liability on the income from the PRA units, but that income, unlike the PRC income, would not be passing through the corporation, and Thurston would have no tax liability on Mandel's separate income.
None of these terms were negotiated or incorporated into the CR 2A record. Such terms would have changed the nature of the transfer of the PRA units and would have put the agreement in a form that reduced the risks of its failure. Based on Judge Burdell's statement on the CR 2A record that Mandel was to receive legal transfer of ownership in the two units, and based on his ruling that no alternative relief was agreed to and that the transfer was a condition on the whole agreement, which reflects acknowledged risk, we hold the provisions Mandel argues for were not within the scope of the agreement. Clearly, such changes, which would put the deal in a form as advocated by Mandel, would have required renegotiation and material changes to the agreement as made on the record. Godsil was not at liberty to unilaterally make such changes in the agreement or in the decree. As a matter of law, Godsil's failure to do so was not a breach of his duty to Mandel and was not negligent drafting.
E. Failure to work out a remedy regarding income.
Mandel argues that Godsil failed to timely discover that the transfer of the units would fail and that he failed to work out a provision regarding the income causing the settlement to fail.
Once it was determined that the transfer of the PRA units would not occur, the condition on the agreement failed not only as to the income but to the entire agreement. At that point, Mandel had no interest in the income to protect, so Godsil violated no duty with respect to the income. Judge Scott ruled on summary judgment that Godsil was not negligent for failure to move to modify or enforce the settlement agreement once the condition failed. That decision has not been appealed. As a matter of law, Godsil breached no duty to Mandel and was not negligent for failing to work out a provision regarding income once the transfer of the PRA units was known to fail.
F. Negligent presentation of a void decree.
Mandel argues that the presentation of a void decree was negligence.
The decree was allegedly void because the court had no jurisdiction over Westersun or the PRA units, and because Thurston purported to give Mandel her PRA units he did not own.
The decree presented by Godsil was revised by Judge Burdell to be consistent with his ruling on the scope of the CR 2A agreement. The CR 2A agreement was contingent, and voidable. The agreement was not void. The record contains no evidence that the Thurston brothers could not have transferred legal ownership of the PRA units to Mandel. Had they chosen to make the transfer, the contingency would not have failed. While the court did not have jurisdiction over Westersun, the PRA units or Bill Thurston, jurisdiction was not essential to the voluntary compliance contemplated by the agreement. Enforcement would not be an issue if the voluntary transfer failed because they had agreed the entire agreement would fail if the PRA transfer failed. Such agreements are not per se void or per se evidence of attorney negligence. The parties were free to make such an agreement. That is the agreement Mandel made.
The decree tracked the agreement, except that the provision that the transfer of the PRA units was a condition on the agreement was omitted. This omission was not significant. The decree became voidable under CR 60 when the agreement failed.
Mandel argues that Godsil was negligent because he did not draft the decree as a directive to Thurston to do what he could do, i.e., assign income, including the sale proceeds. However, as discussed above, those were not terms to which Thurston had agreed. Godsil was not at liberty to unilaterally rewrite the CR 2A agreement. As a matter of law, Godsil did not breach his duty to Mandel by presenting the decree without these provisions and was not negligent.
III. Summary
Mandel's action for negligent drafting mischaracterizes the errors of omission she alleges Godsil committed. The deficiencies Mandel argues should have been cured could only be achieved by negotiation of materially different terms than those Judge Burdell ruled had been agreed to at the CR 2A conference. Godsil had no legal authority to unilaterally amend the CR 2A agreement and no legal duty to draft terms that purported to do so. Negligent negotiation of the agreement and negligent failure to modify the agreement are not at issue in this case. Mandel has failed to identify a duty, which Godsil has breached. As a matter of law, Godsil was entitled to summary judgment and to judgment as a matter of law when those motions were brought.
IV. Errors assigned to trial rulings. Having determined Godsil is
entitled to judgment as a matter of law on the claim of negligence, we need not reach the assignments of error regarding rulings on motions in limine, witness testimony, jury instructions, verdict forms, and other matters.
V. Conclusion
We reverse and remand for entry of a judgment as a matter of law in favor of Godsil.