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Finley v. Seligmann

March 31, 1997

JOSEPH C. FINLEY, APPELLANT,
v.
EUGENE D. SELIGMANN, THOMAS R. DREILING, AND ROBERT B. BECKERMAN, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 95-2-33174-2. Date filed: 02/12/96. Judge signing: Hon. Larry Jordan.

Authored by Susan R. Agid. Concurring: Ronald E. Cox, Walter E. Webster.

The opinion of the court was delivered by: Agid

AGID, J. -- Joseph C. Finley appeals the trial court's order dismissing his action for damages arising out of a writ of attachment filed against his property by the law firm of Seligmann, Dreiling and Beckerman. The trial court held that Finley failed to state a claim on which relief can be granted. We agree with the trial court that Finley's claim is barred by the applicable statute of limitations and affirm.

FACTS

Finley and the law firm of Seligmann, Dreiling and Beckerman (Dreiling) entered into a written fee agreement on March 15, 1991. Over the next six months, Dreiling provided Finley, also an attorney, with substantial legal services. When Finley failed to pay his outstanding legal bills, Dreiling withdrew. In February 1992, Dreiling filed an action against Finley to collect on the unpaid bills. Nine months later, an arbitrator awarded Dreiling $30,931, the amount of the fees owing. Finley requested a trial de novo, after which Dreiling received a judgment in its favor in the amount of $52,694.83. In an unpublished decision, we reversed a portion of the attorney fee award incorporated into that judgment. The approximate amount owing in December 1995 when this action was filed was $50,336.76.

In December 1992, after learning that sale of Finley's Medina residence was pending, Dreiling sought and obtained a writ of attachment on the Finley residence. The writ was recorded with the King County Recorder's Office on December 11, 1992, under Recorder's No. 9212110577, and was supported by a written undertaking. See RCW 6.25.080(1) (providing for the filing of a bond or undertaking to support a writ of attachment). Finley moved to discharge the writ on the ground that it was issued unlawfully and interfered with the pending sale of his residence. On February 5, 1993, Judge Marsha Pechman issued an order discharging the writ of attachment based on her Conclusion that, because the attached real property constituted a homestead, it was exempt from attachment. Judge Pechman also found that Dreiling did not act with malice or improper intent when it obtained the writ. Finley did not appeal that order.

On December 22, 1995, Finley filed this action for damages arising from the writ. Dreiling responded with a CR 12(b)(6) motion to dismiss for failure to state a claim on which relief could be granted. Judge Larry Jordan granted Dreiling's motion to dismiss. He ruled that Finley's complaint failed to state a claim on which relief could be granted because it was barred by the 3-year statute of limitations; Finley did not allege that there was an unlawful ground for issuing the writ and, in any event, there was a lawful ground for issuing it; and the complaint was barred by the doctrines of res judicata and collateral estoppel as a result of Judge Pechman's order.

Discussion

I. Statute of Limitations

Finley first contends that the trial court erred in concluding that his claim is barred by the 3-year statute of limitations. RCW 4.16.080 imposes a 3-year limitation on the filing of:

(1) An action for waste or trespass upon real property;

(2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the person or rights of another not hereinafter enumerated. Finley concedes RCW 4.16.080 governs an action for wrongful attachment. He argues, however, that because his action should be characterized as one for breach of Dreiling's written undertaking and that undertaking meets the requirements for a contract in writing, the 6-year statute of limitations in RCW 4.16.040 applies. But Finley concedes that he did not assert a breach of contract claim in his complaint. While he argues that the court should have granted him permission to amend his complaint to include such a claim, he also concedes that he never made such a request. Under these circumstances, there is no basis for concluding that the trial court erred in applying the 3-year statute of limitations to his complaint.

Finley argues in the alternative that even if the 3-year statute of limitations applies, it does not bar his claim for wrongful attachment because Dreiling's failure to withdraw the writ until it was discharged by the court on February 5, 1993, constituted a continuing series of wrongful acts giving rise to additional damages. Finley fails to cite any authority in support of this proposition. See State v. Young, 89 Wash. 2d 613, 625, 574 P.2d 1171, cert. denied, 439 U.S. 870, 58 L. Ed. 2d 182, 99 S. Ct. 200 (1978) (a court may assume that where no authority is cited, counsel has searched and found none). To attach real property in Washington, the creditor must file a copy of the writ of attachment and a description of the property with the county auditor. Pay ' N Save Corp. v. Eads, 53 Wash. App. 443, 449, 767 P.2d 592 (1989). Because the process of levying a writ of attachment on real property is complete once the writ is recorded, there is no basis for concluding that an action for wrongful attachment does not accrue at that time. Finley does not dispute that the writ of attachment was issued on December 11, 1992, ...


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