Key Points

  • Division One of the Washington Court of Appeals reversed summary judgment for attorney Mark Kimball and MDK Law on Geoff Minor's legal malpractice and breach of fiduciary duty claims.
  • The court held that Paradise Orchards General Partnership v. Fearing does not require a malpractice plaintiff to seek CR 60(b) vacatur of the underlying dismissal before suing the lawyer.
  • Paradise Orchards would apply where the client's loss was caused solely by judicial error rather than the lawyer's malpractice, and here a question of material fact exists on breach.
  • The trial judge in the underlying case did not err as a matter of law in dismissing with prejudice, because CR 41(b)(1) does not govern dismissal for failing to follow a case schedule.
  • The court vacated the denial of Minor's partial summary judgment motion and remanded, expressing no opinion on concurrent causation, superseding cause or mitigation defenses.

A Washington appeals court has revived a business owner's malpractice suit against the law firm whose lawyers let the owner's lawsuit against a landlord be dismissed as a sanction. The court held that the client was not required to ask the judge in that earlier case to undo the dismissal before suing the firm.

Division One of the Washington Court of Appeals reversed a trial court's summary judgment in favor of MDK Law and its attorney Mark Kimball. Judge Feldman wrote the opinion reinstating malpractice and breach of fiduciary duty claims by Geoff Minor and Minor's company, Minor Enterprises LLC. The panel filed the opinion July 27 and ordered it published on Oct. 12 at Minor's request.

The decision distinguishes Paradise Orchards General Partnership v. Fearing, a 2004 ruling by the court's Division Three. The trial court had read that case to bar Minor's claims because Minor never filed a CR 60(b) motion to vacate the dismissal order in the landlord case. The appeals court said Paradise Orchards would apply if a client's loss came solely from a judge's error rather than from the lawyer's malpractice.

"Paradise Orchards does not require Minor to seek to have that order vacated under CR 60(b) prior to filing a legal malpractice action," Judge Feldman wrote, referring to the dismissal order.

Minor hired MDK Law in July 2023 for a dispute with Minor's landlord and property manager. The firm filed suit in King County Superior Court on Jan. 12, 2024, and collected $8,400 in fees.

On Feb. 8, 2024, Minor asked MDK Law attorney James Ware to stop serving the complaint until the two could talk. Ware told Minor in March that one defendant, Kennedy-Wilson Properties Northwest, had already been served and that a voluntary dismissal, if needed, would be "no big deal because you can refile it later in the year."

In May, Minor agreed to find new counsel so the firm could withdraw. Kimball said Minor also told the firm to stop working on the case. After Ware left the firm, a paralegal emailed Minor on June 19 to ask whether Minor had hired a new lawyer. Minor did not reply, and the firm never contacted Minor again about the litigation.

Between July and September 2024, Kennedy-Wilson's lawyers repeatedly tried to reach MDK Law about court-ordered discovery deadlines, and the firm did not respond. Kimball declined an invitation to a CR 26(i) conference. He took one call from opposing counsel on Sept. 11, said he would provide an update in a day or two and never followed up.

Kennedy-Wilson then moved to compel discovery and for an order to show cause, and MDK Law did not respond. Judge David Keenan granted both motions, ordered discovery responses within 10 days and set a hearing for Oct. 29, 2024, which the firm did not attend. On Nov. 7, Judge Keenan dismissed the suit with prejudice "[a]s a sanctions [sic] of Plaintiff for failure to prosecute this lawsuit and for failing to follow the case schedule." The firm did not tell Minor, who learned of the dismissal from a third party in February 2025.

Minor sued Kimball and MDK Law on March 18, 2025, and both sides moved for summary judgment. The firm relied on Paradise Orchards to argue that Minor could not prove proximate cause. At the hearing, the firm said the court "could assume for limited purposes of argument that the standard of care was violated." The trial judge granted the firm's motion and ruled that "the failure to bring a CR 60(b) motion in the underlying case is a defense to this case."

Judge Feldman wrote that the 2004 case is distinguishable. There, the judge in the underlying real estate case had misread a contract the lawyer drafted. Because the lawyer had not breached the standard of care, Division Three held that the client, which never challenged the ruling, could not prove causation.

Minor's case differs, the panel held, because "there is at least a question of material fact as to whether MDK Law breached the applicable standard of care and, accordingly, caused Minor's alleged damages." The opinion cited evidence that the firm "overlooked or ignored numerous e-mails from opposing counsel, declined an invitation for a CR 26(i) conference, ignored orders from the trial court, and failed to appear to a show cause hearing."

MDK Law also argued that Judge Keenan erred, because CR 41(b)(1) provides that an action "shall be dismissed, without prejudice, for want of prosecution." Judge Keenan had dismissed the case in part for failing to follow the case schedule, which that rule does not govern, so the judge "did not err as a matter of law," the panel held. "MDK law stretches Paradise Orchards beyond its facts," Judge Feldman wrote.

The panel also rejected the firm's reliance on a concurring opinion in Setterquist v. Law Offices of Ted D. Billbe PLLC, an unpublished 2019 Ninth Circuit decision. The majority in that case, the panel noted, "concluded that plaintiff's failure to challenge the trial court's decision was not necessarily fatal to establishing proximate causation."

The panel vacated the trial court's denial of Minor's motion for partial summary judgment on liability because that order rested on the same reading of Paradise Orchards. The court sent the malpractice and fiduciary duty claims back to the trial court for further proceedings. In a footnote, the panel said concurrent causation and superseding cause are potentially applicable defenses, along with a failure-to-mitigate argument a lawyer raised in a 1998 case. "We express no opinion as to the applicability of these legal principles and the proper resolution of the parties' claims and defenses on remand," the court wrote.