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Askew v. Gillingham

May 12, 1997

WILLIE O. ASKEW, WILLIAM G. BARRY, DAVID C. BLISS, RODNEY BYNUM, SHARON COLEMAN-ASKEW, TIMOTHY L. COOK, WILLIAM A. DAILEY, MARTHA DAVIS-ROBINS, PATRICIA L. DAVIS, GREG HARRISON, STEPHEN J. HEURION, TONI BLACK HEURION, ERNEST R. HOLLINGSWORTH, LINDA M. HOLLOWAY, GEOFFREY A. JACKSON, MICHAEL LAWRENCE KEARNS, H. RICHARD LEROY, LARRY MURPHY, TALIA S. NELSON, BRIEN O'FARRELL, STEVE C. PORTER, DERRICK ROUNTREE, ROBERT L. SANDERS, SR., VIRGINIA M. SAWTELLE, JEFFREY SHIPP, JERRY E. SMITH, ROBERT V. THAXTON, AND EDWARD J. WESTMORELAND, APPELLANTS,
v.
PAUL GILLINGHAM AND KENNETH JENNINGS, RESPONDENTS.



Appeal from Superior Court of King County. Docket No: 93-2-24205-1. Date filed: 07/13/95.

Authored by Ann L. Ellington. Concurring: William W. Baker, Mary K. Becker.

The opinion of the court was delivered by: Ellington

COX, J. -- Willie Askew and 27 other King County corrections officers (collectively, Askew) appeal the trial court's orders on cross-motions for summary judgment. The order granting summary judgment dismisses legal malpractice claims against Paul Gillingham and Kenneth Jennings. Askew first claims that genuine issues of material fact precluding summary judgment remained as to the facts of Askew's employment. Second, he claims that the trial court abused its discretion by considering legal opinions expressed in a lawyer's deposition that was submitted in support of Gillingham's motion for summary judgment.

Askew also argues that the trial court should have granted him summary judgment on causation. He claims that Gillingham was collaterally estopped here from denying the merits of certain claims adjudicated in other cases.

We affirm both orders on the respective motions.

In the early 1980s, Gillingham, an attorney whose practice included a substantial proportion of employment cases, met Kenneth Jennings and hired him as an intern. Jennings was then a law student and part-time counselor at the King County Department of Youth Services (DYS). Jennings felt that he and others at DYS had been mistreated. The department had a practice of hiring so-called "on call" or extra-help workers who actually worked full-time but received less compensation than workers designated full-time.

Gillingham commenced an action against King County, claiming that the difference in pay and benefits violated a King County ordinance guaranteeing equal pay for equal work. *fn1 After the trial court granted partial summary judgment to the workers in the case, the County settled the claims.

Other on-call county workers contacted Gillingham, who commenced two other actions on their behalf, Gates v. King County *fn2 and Alexander v. King County. *fn3 The cases were consolidated. The Gates plaintiffs included a small number of Department of Adult Detention (DAD) workers. Unlike the plaintiffs in the other actions and most of their co-plaintiffs in Gates, the DAD workers were covered by a collective bargaining agreement (CBA) with King County. The trial court granted summary judgment to the Gates claimants, and the County eventually settled those claims.

In July 1988, Askew and his co-plaintiffs, on-call DAD workers represented by Jennings and Gillingham, commenced an action, Anderson v. King County. *fn4 Although Gillingham disputed below whether he was Askew's attorney, he does not challenge here the trial court's ruling that he was. On October 28, 1988, the Anderson trial court granted summary judgment to the County because plaintiffs [Askew and co-plaintiffs] failed to exhaust their remedies under the applicable collective bargaining agreement, and plaintiffs' complaint is hereby dismissed with prejudice and with costs, provided that plaintiffs may refile their claim that the classification as applied violates the equal protection clauses of the state and federal constitutions at such time as they exhaust their remedies under the collective bargaining agreement.

The court also determined that the County's payment of overtime did not violate federal, state or local law, and that the CBA's distinctions between on-call and other job descriptions did not constitute a facial equal protection violation. Approximately one month later, the trial court denied Askew's motion for reconsideration. The court noted that there were remedies under the CBA.

Shortly after the Anderson decision, Gillingham contacted Jared Karstetter, the union's business and legal advisor. Karstetter told him that the union's position was that Askew and his co-plaintiffs had no actionable grievance. Under the CBAs, "no individual may, without Union concurrence, make use of the provisions of this [grievance procedure]." Gillingham took no further action in the case.

Askew and his co-plaintiffs here are 28 of the plaintiffs in Anderson. Several of them met with Gillingham in March 1992 to discuss the status of the litigation. In September 1993, Askew and his co-plaintiffs commenced this legal malpractice action, alleging that Gillingham and Jennings had handled their claims negligently after the October 1988 dismissal. In April 1995, the trial court granted Askew's motion for partial summary judgment. The court ruled that Gillingham and Askew had an attorney-client relationship that gave rise to four duties. They included the duty (1) to file a grievance under the CBA, (2) to request a stay of the Anderson trial court's dismissal order pending resolution of the grievance process, (3) to appeal the dismissal if the stay was not granted, and (4) to pursue the action in superior court if the grievance process generated no relief. Almost three months later, the trial court entered an order on cross-motions for summary judgment, dismissing Askew's claims. A letter that accompanied the motion informed counsel that the basis of the dismissal was the Judge's conviction that Askew could not win the underlying case i.e., the Anderson case.

Askew appeals.

I

Deposition ...


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