### FILED March 10, 2016 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE TAMMY WOLF SLACK, ) ) Appellant, ) ) v. ) ) LUCINDALUKE, ATTORNEYAT ) LAW&COWANMOORESTAMLUKE ) & PETERSON, LAWFIRM, ) ) Respondent. ) No. 32921-6-111

PUBLISHED OPINION

KORSMO, 

### J. -Thetrial court dismissedthis legal malpractice action at summary judgmentbecausetheplaintiff, Tammy WolfSlack, did nothave an attorney expertto testify thatherunderlying claim had some merit. Although we disagree withthat rationale,
we nonetheless concludethatbecausethe underlying legal action wouldnothave survived
a motion for summaryjudgment, Ms. Slack cannot establishhermalpractice cause of action. Accordingly, thejudgmentis affirmed. FACTS 1 Ms. Slackbeganworking for the Department ofCorrections (DOC) as a community victim liaison inAugust 2002. There she provided support services to crimevictims over a

1We statethe facts in a light most favorable to Ms. Slack since she was theparty responding to the summaryjudgmentmotion.No. 32921-6-III Slackv. Luke, etal.
nine county district; her initial office was in Pasco. Five months after starting with DOC, she was assigned to the Kennewick office. The Kennewick office was built in a depression in the ground; the first level was belowthe natural grade. As a result, the sewage neededto bepumped from the building rather than rely on a gravity drain system. On several occasions, power outages caused the sewage to overflow the ground floor drains. Ms. Slack contended that DOC did not properly remediate ensuingproblems by removing and replacing materials exposed to the contaminated water. She reported thatthe lower floor had a musty smell to it and that mold appeared to be growing in the walls and ceiling. In April 2004, after spending more hours at her desk than usual, Ms. Slackbegan suffering from pain in her wrist and back. Clerk's Papers (CP) at 553-54, 1893. This pain lasted all day and night. Id. Ms. Slack was subsequently diagnosed with a right shoulder impingement, sciatica, and carpal tunnel. Ms. Slackpromptly informed her DOC supervisor ofthese conditions. The supervisor then arranged for Ms. Slackto get in touch with the DOC's ergonomics consultant. 

### It appears that the consultant evaluated Ms. Slack's workstation, but failed to complete a report for some time. This caused significant delay; ultimately, it is unclear ifa new workstation was ever ordered. Ms. Slack also began experiencing migraines, nausea, and sinus infections which she blamed on the building. Ms. Slack also reported these problems to her supervisor. Around this time, a letter from Harborview Medical Center indicated Ms. Slack has 2No. 32921-6-III Slack v. Luke, etal. nonallergic rhinitis, which is sensitivity to certain airborne irritants without an allergic trigger. The letter suggests that the musty office could be exacerbating that condition and should be remediated. Ms. Slack'sphysician also believed that Ms. Slack was suffering based on her work. Ms. Slack suffered significant symptoms when she was in the building, but did not when she was away long enough. Ms. Slack was eventually diagnosed with a gene variance that makes her susceptible to moldy and musty environments.2 Ms. Slack began working from home, but still needed to visitthe office twice a week. She informed her supervisorthat the office needed to be cleaned ofmold. After a DOC air quality survey determined that the building's indoor mold was comparable to outdoor mold, DOC refused to take additional action since the air quality was typical of any other office. Ms. Slack asked for a new office and DOC allegedly refused3to transferherto another office. Instead, her supervisor said he would "preferto schedule me over the nine (9) counties that I covered from Wenatchee to Goldendale to various DOCS' offices." CP at 373. This assignmentthat would include making more lengthy drives than typical and make her sciatica worse. Instead, Ms. Slack immediatelyresigned her position effective in August 2006. She filed a tort claim in August 2009, alleging that

2 The diagnosis appears to have occurred after she left DOC. 3At the time ofresignation, her supervisor was looking into reassigning Ms. Slack to another office location. CP at 1784-85. 3No. 32921-6-III Slack v. Luke, etal.
DOC failed to accommodate her disabilities. The Office ofFinancial Management (OFM) acknowledged the claim and began an investigation. Ms. Slack met with Gregory Rhodes, a western Washington attorney, concerning suing DOC under the Washington LawAgainst Discrimination (WLAD), ch. 49.60 RCW, for failing to accommodate her medical conditions. Mr. Rhodes declined to represent her due to the distance involved. Ms. Slack then met with Lucinda Luke for the first time on September 15, 2009. Ms. Slack contends thatMs. Luke agreed at the close ofthe meeting to represent her.4 The two signed aretainer agreement, but Ms. Slackwas not required to deposit any money. Ms. Slack left materials for Ms. Luke to review and the two agreed to meet again on October 5, 2009. Ms. Luke subsequently canceled that meeting, but did send a $260 bill for herreview ofthe materials; Ms. Slackpaid the bill. In an e-mail on October 13, Ms. Slack expressed concern to Ms. Luke thather claim was expiring. Ms. Luke did not respond to the e-mail, butthe two met again on October 20. The statute oflimitations on a WLAD claim expired on October 30, 2009. No WLAD action was ever commenced against DOC.5 Ms. Luke contacted OFM on

4Ms. Luke denied that she undertook to represent Ms. Slack and disagrees with many other factual allegations stated here. As noted previously, we view the evidence in a light most favorable to Ms. Slack for purposes ofthis opinion. 5 Represented by different counsel, Ms. Slack did pursue claims for carpal tunnel and occupational disease (mold exposure) in proceedings under the Industrial Insurance Act, Title 51 RCW, after leaving employment with DOC. 4No. 32921-6-111 Slackv. Luke, etal.
December 21, 2009, and learned that the statute oflimitationshad run. She conveyed that information to Ms. Slack and also advised that she had never agreed to take the case because it lacked merit. Ms. Slack's money was returned to her. Ms. Slackthen obtained counsel and brought a legal malpractice action against Ms. Luke and her firm. After discovery, both sides filed for summaryjudgment. Ms. Luke's motion provided a declaration from a long-time Tri-Cities attorney declaring that no local attorney would have filed suit on a WLAD accommodation claim. In tum, Ms. Slack presented declarations from two Washington attorneys stating that Ms. Luke had breached the standard ofcare for Washington attorneys by allowing the limitations period to expire without filing suit. They did not, however, address the merits ofthe underlying claim. Ms. Luke argued, inter alia, that Ms. Slack needed to support her case with expert evidence that her underlying claim had some merit. Although plaintiffs counsel disagreed that there was any need for an expert witness on the topic, the trial court agreed with the defense that Ms. Slack needed experttestimony to suggest her WLAD claim had

some merit. The trial court granted summaryjudgmentto Ms. Luke and her firm. The trial court did not discuss the defendants' remaining challenges. Ms. Slack timely appealed to this court and presented argumentto a panel. ANALYSIS The sole issue we need to address is whether a malpractice plaintiff, in light of evidence suggesting the underlying claim is without merit, needproduce or identify 5No. 32921-6-111 Slackv. Luke, etal.
evidence supporting that claim.6 We conclude that a plaintiffmust establish that the underlying claim itselfwould have survived a motion for summaryjudgment. Because Ms. Slack's underlying accommodation claim would have failed, we affirm. Initially, we note several basic principles governing summaryjudgment procedures, attorney malpractice actions, and WLAD accommodation claims. As has been stated many times and many ways, an appellate court will review a summary judgmentruling de novo and considerthe same evidence heard by the trial court, viewing that evidence in a light most favorable to the party responding to the summaryjudgment. Lybbertv. Grant County, 141 Wn.2d 29, 34, 1P.3d 1124 (2000). Ifthere is no genuine issue ofmaterial fact, summaryjudgmentwill be granted ifthe moving party is entitled to judgment as a matter oflaw. Id. "A defendant in a civil action is entitled to summary judgment ifhe can show that there is an absence or insufficiency ofevidence supporting

an element that is essential to the plaintiffs claim." TacomaAutoMall, Inc. v. Nissan N Am., Inc., 169 Wn. App. 111, 118, 279 P.3d 487 (2012). The movingparty bears the initial burden ofestablishing that it is entitled to judgmentbecause there are no disputed issues ofmaterial fact. Young v. KeyPharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Ifa defendant makes that initial showing, thenthe burden shifts to the plaintiffto establish there is a genuine issue for the

6 In light ofthis disposition, we do not address Ms. Luke's alternative theories or Ms. Slack's response to those arguments. 6No. 32921-6-III Slackv. Luke, etal.
trier offact. Id. at 225-26. "Amaterial fact is one that affects the outcome ofthe litigation." Owen v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). While questions offact typically are leftto the trial process, they may be treated as a matter oflaw if"reasonable minds couldreach but one conclusion" from the facts. Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985). A party may not rely

on speculation orhaving its own affidavits accepted at face value. Seven Gables Corp. v. MGM/VA Entm 't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Instead, it mustput forth evidence showing the existence ofa triable issue. Id. In orderto sustain a legal malpractice action, the plaintiffmust show (1) the existence ofan attorney-client relationship which gives rise to a duty ofcare, (2) an act or omission by the attorney in breach ofthat duty, (3) damage to the client, and (4) proximate causation between the breach ofduty and the damage incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-261, 830 P.2d 646 (1992). The standard ofcare is uniform throughout the state ofWashington: "that degree ofcare, skill, diligence and knowledge commonly possessed and exercisedby a reasonable, careful and prudent lawyer in the practice oflaw in thisjurisdiction." Cook, Flanagan & Berstv. Clausing, 73 Wn.2d 393, 395, 438 P.2d 865 (1968). A legal malpractice trial effectively requires a trial within a trial onthe causation element. Thetrier-of-fact must decide ifthe underlying cause ofaction would have resulted in a favorable verdict for the client; only then is the suit against the attorney viable. Daugertv. Pappas, 104 Wn.2d 254, 258, 704 P.2d 600 (1985). Where the 7No. 32921-6-III Slackv. Luke, etal. underlying cause ofaction presents a legal question, ajudgemust decide the case rather than ajury. Id. at 258-259 Some states require expert testimony to establish the standard ofcare in a legal malpractice action. Walker v. Bangs, 92 Wn.2d 854, 858, 601 P.2d 1279 (1979). However, the "general rule is to permitbut not require expert testimony." Id. Washington does not require expert testimony "whenthe negligence charged is within the common knowledge oflay persons."7 Id. In orderto prove a WLAD reasonable accommodation claim, theplaintiffmust establish four factors: (1) the employee suffered from a disability, (2) she was qualified to do thejob, (3) she gave notice to her employer ofthe disability, and (4) the employer failed to adopt reasonable measures to accommodate the disability. Riehlv. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004). The accommodation mustbe medically necessary before the employerhas a duty to accommodate. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 643, 9 P.3d 787 (2000). The employerneed only reasonably accommodate a disability; it does not necessarily have to grantthe employee'spreferred accommodation. Id. With these principles in mind, we finally tumto the questions presentedbythis appeal. Ms. Slack argues that she was under no obligation topresent experttestimony

7 However, the Walker court ruled that establishing malpractice in the trial ofa maritime case did require testimony from an expert. Id. 8No. 32921-6-III Slackv. Luke, etal. supporting the merits ofthe WLAD case and that she presented a prima facie case. We agree with the first ofthose two contentions, but disagree with the second. In support ofher case, Ms. Slackpresented affidavits from two attorneys who both opined that Ms. Luke represented Ms. Slack and therefore had a duty to file a complaint against DOC before the statute oflimitations had run. In tum, Ms. Luke's expert disputed that she ever undertook representation8 ofMs. Slack and opined that no attorney would have filed the complaintbecause it lacked merit due to DOC's efforts to accommodate Ms. Slack. Itwas in this contextthat the summaryjudgmentpoint was argued. Ms.Luke contended that the merits ofthe case presented a legal, rather than factual, question that needed expert analysis. The trialjudge agreed with that contention. We conclude that was error. As noted previously, experttestimony is permitted in Washington, buttypically is not required ifthe attorney's negligence is within the "commonknowledge oflay persons." Walker, 92 Wn.2d at 858. Thejudge is trier-of-fact when the underlying case within a case presents a legal issue. See Daugert, 104 Wn.2d at 258-59 (it was error for juryto decide legal questions ofwhetherthe Washington Supreme Court would have granted apetition for review and reversed Court ofAppeals decision). In all cases raising factual questions, ajury must decide the merits ofthe underlying claim. See Brustv.

8Ms. Luke's theory was that she only agreed to give a second opinion on the case and billed only for the time to review the records and reach her conclusion. 9No. 32921-6-III Slackv. Luke, etal. Newton, 70 Wn. App. 286, 852 P.2d 1092 (1993) (question ofhow much ajudgewould have awarded for spousal maintenance was factual issue forjury). Marrying the first two doctrines together, Ms. Luke argued to the trial courtthat the evidentiary sufficiency of the WLAD claim presented a legal issue for determination by the court and was properly the subject ofan expert legal opinion. Ms. Slack contended that the merits ofher case
were for ajury, not ajudge, to decide. We think bothparties are partially correct. We agree with Ms. Slack that she was not required to present expert legal testimony concerning the adequacy ofher WLAD claim. Whetherher underlying claim had merit ultimately was a determination for ajury to decide. This was not a situation where experttestimony was needed to establish whether an attorney was negligent as in Walker. The trial court erred to the extentthat it required experttestimony from the plaintiffconcerning the merits ofher case. However, the defendant's argument did present a legal question for thejudgerather than a factual question for ajury. When aplaintiffpresents insufficient evidence to support her claim for relief, the trial court will dismiss the action instead ofpresenting it to thejury. CR 50(a)(l);Alejandre v. Bull, 159 Wn.2d 674, 689-91, 153 P.3d 864 (2007). This is essentially the same function performed at summaryjudgment. Ifthere is no legal basis for a case to proceed, summaryjudgmentis proper. Lybbert, 141 Wn.2d at 34. Many states apply this summaryjudgment standardto the causation element ofthe plaintiffs legal malpractice case, thereby requiring the plaintiffto demonstrate that her 10No. 32921-6-III Slackv. Luke, etal. underlying claim would itselfsurvive summaryjudgment. E.g., Niehoff v. Shankman & Assocs. Legal Ctr., 2000 ME 214, 763 A.2d 121; Rouse v. Dunkley & Bennett, PA, 520 N.W.2d 406 (Minn. 1994). See generally 4 RONALD E. MALLEN, LEGAL MALPRACTICE § 37:78, at 1649-50 (2016 ed.). We conclude thatthis standard is appropriate for use in Washington. At a trial on the merits ofthe WLAD claim, the trial court would be required under CR 50 to dismiss a legally insufficient case at the conclusion ofthe plaintiffs case. There is no reason to require a useless trial in a malpractice action involving a meritless underlying case. Accordingly, we hold that when the legal malpractice defendantpresents evidence thatthe unfiled underlying action was without merit, the plaintiffmust establish that her underlying case would survive a motion for summaryjudgment. Here, Ms. Luke presented evidence and argumentthat Ms. Slack's accommodation case was meritless. The ball then was in Ms. Slack's court. While the question ofwhether an employer adequately accommodated an employee normally presents a factual question for ajuryto decide, summaryjudgmentis appropriate on a WLAD accommodation claim when reasonable minds could reach but

one conclusion. Christiano v. Spokane CountyHealth Dist., 93 Wn. App. 90, 94-95, 969 P.2d 1078 (1998). We believe that is the situation here. DOC permittedMs. Slackto work from home. On these facts, that was an appropriate accommodation. It was in response to herrequest for a new office that her DOC supervisor indicated his preference

11No. 32921-6-III Slackv. Luke, etal.
for having her ride the circuit and use all ofthe field offices within her work region.9 There is no indication in the record that working from home was no longer available to Ms. Slack or that it failed to accommodate her conditions. Rather, it appears simply that she preferred another work option, but DOC would not give it to her. However, she does not have the right to herpreferred accommodation. Pulcino, 141 Wn.2d at 643. On this record, we conclude that DOC accommodated Ms. Slackby allowing her to work from home. Her WLAD accommodation claim would not have survived a CR 50 motion at trial and did not establish a viable claim in response to the summaryjudgment motion. Accordingly, we agree with the trial courtthat summaryjudgmentwas proper in this case. Affirmed.

WE CONCUR:
Lawrence-Berrey, J.

9 Although this evidence strongly suggests that DOC was still working with Ms. Slack to accommodate her medical problems, Ms. Slack disputes that fact and we do not decide this case on the basis that the accommodation process was still on-going at the time ofresignation. 12