JOHN ROSSMEISSL, Bankruptcy Judge
The plaintiffs Linda Bays and Kelly Case are suing the defendant Lambarths for the tort of outrage. This matter comes before the court upon motions for summary judgment relating to the tort of outrage filed by Linda Bays [AP #557], Kelly Case [AP #570] and Doug Lambarth [AP #539].
PROCEDURAL HISTORY
Doug Lambarth, individually and his marital community, were among the original defendants named in Linda Bays' "Complaint for Damages and for Injunctive Relief" filed in Stevens County Superior Court. [AP #1, pg 7-20]. Ms. Bays complained about Mr. Lambarth's conduct during his representation of David Bays in their dissolution case and in David Bays' bankruptcy case. The acts complained of involve his conduct as David Bays' attorney. The state court lawsuit was removed to bankruptcy court and became this adversary proceeding. [AP #1].
Linda Bays and Kelly Case filed an amended complaint in this adversary proceeding. [AP #104]. The Lambarths were named among the defendants in the amended complaint.
The amended complaint included numerous other causes of action against the Lambarths and the other defendants. Defendants Lambarth filed a motion to dismiss the various causes of action against them. [AP #187]. Upon that motion, this court dismissed with prejudice a number of causes actions against the Lambarths. [AP #198 ¶ s 3, 5 and 9]. One of those claims dismissed was the plaintiffs' claims for malpractice. [AP #198 ¶ 9]. The court retained jurisdiction over the plaintiffs' causes of action against the Lambarths for Slander of Title and Quiet Title, [AP #198 ¶ 4], Substantial Abuse of the Bankruptcy Laws [AP #198 ¶ 6], Offset [AP #198 ¶ 7] and Outrage [AP #198 ¶ 8].
The plaintiffs' causes of action against the Lambarths for substantial abuse of the bankruptcy laws and slander of title were dismissed on summary judgment. [AP #s 506 and 518].
On Linda Bays oral motion the court ordered the dismissal of Linda Bays' setoff claim against the Lambarths. [AP #633].
The summary judgment motions currently before the court brought by the Lambarths [AP #539], Linda Bays [AP #557], and Kelly Case [AP #570] relate to the outrage cause of action.
FACTS
Many of the matters Linda Bays complains about in support of her outrage claim against the Lambarths occurred in the course of Mr. Lambarth's representation of David Bays in the dissolution case. For example, Linda Bays contends that David Bays paid off the real estate contract on the Kettle Falls residence in satisfaction of a contract obligation David had to her for cleaning up his Ione residence. David Bays took the position that he had loaned the money to Linda and that he had been assigned the vendors interest in the real estate contract to secure Linda's obligation to him. Mr. Lambarth, as David's attorney, championed David's version of the facts in the dissolution and prevailed at trial. Linda Bays appealed the trial court's judgment but lost that appeal in the Court of Appeals and further review was denied by the Washington Supreme Court.
Ms. Bays is extremely dissatisfied with the results of the dissolution and subsequent appeal. Her outrage claim is based on the argument that the dissolution judgment was wrongfully decided and that her version of the facts are the true facts. Essentially, her complaint regarding Mr. Lambarth is that he successfully represented his client and convinced the trial court that David Bays' position was correct, a result upheld upon appellate review.
Ms. Bays also complains about Mr. Lambarth's conduct as David Bays' attorney in his bankruptcy case. These complaints have been analyzed in depth in this court's decision on the Substantial Abuse of the Bankruptcy Laws cause of action. [AP #503]. That decision should be considered as part of the rationale and analysis supporting this decision on the outrage cause of action.
Ms. Bays' position is that Mr. Lambarth's representation of Mr. Bays in the bankruptcy constituted intentional acts on his part to inflict emotional distress upon her amounting to the tort of outrage. She also complains that Mr. Lambarth throughout both the dissolution and the bankruptcy conspired with others including the defendants in this adversary proceeding to deprive her of her property and rights.
Kelly Cases's claim of outrage against Mr. Lambarth is based in part on Lambarth's attempt to adjudicate his interest in property in the Bays' dissolution. This court has concluded that attempt failed. [AP #515]. The balance of Mr. Case's outrage claim against Lambarth is dependent and derivative upon his mother Linda Bays' claim.
DISCUSSION
A. Claim Preclusion/Issue Preclusion
Linda Bays' bases her outrage claim against Mr. Lambarth on the premise that he successfully convinced the trial and appellate courts that David Bays' version of the facts was true, when in fact her version was true. It is based on the premise that the decisions in the Bays v. Bays dissolution at trial and the appellate levels were wrong. The fatal flaw with her argument is that Ms. Bays is bound by the dissolution judgment, as is this court. State v. Mullin-Coston, 152 Wash.2d 107 at 113 95 p. 3d 321 at 324 (2004); In re Harman, 250 F.3d 1240 at 1246 (9th Cir. 2001). [See also AP #515 at pg 3]. She is precluded from making that claim and this court is precluded from accepting it.
The issue presently before this court is not one of claim preclusion (res adjudicata). Rather it is one of issue preclusion (collateral estoppel). Linda Bays is suing Douglas Lambarth for outrage because he successfully represented David Bays in obtaining a judgment which she views as wrong. The fundamental premise of her outrage claim against Mr. Lambarth is that the judgment is unjust, resulting in emotional distress, for which he is partly responsible.
Ms. Bays' collateral attack upon the dissolution decree necessarily implicates the doctrine of issue preclusion.
This court has discretion in regard to the application of issue preclusion. In re Lopez, 367 B.R. 99 at 107 (9th Cir. BAP 2007). The Full Faith and Credit Act ( 28 U.S.C. § 1738) requires that this court give state court judgments the same preclusion effect such judgment would enjoy under state law. In re Lopez, 367 B.R. at 106.
The elements of issue preclusion under Washington law were stated in the case of State v. Mullin-Coston, where the court said:
The party seeking to enforce the rule must show that: "(1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of
collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of [the] doctrine must not work an injustice."
152 Wash.2d 107, 114 95 P.3d 321, 324 (2004) (citing
State v. Bryant, 146 Wash 2d 90, 98-99,
42 P.3d 1278 (2002)).
The court will analyze how these elements apply to Linda Bays' claim of outrage against Douglas Lambarth.
1. Identical Issue
Linda Bays seeks to challenge the correctness of the final judgment entered in the dissolution. The issues are identical.
2. Final Judgment as the Merits
The decision in the dissolution court was appealed and affirmed. It is final.
3. Against a Party or Person in Privity
Although Douglas Lambarth was not a party to the dissolution case, as David Bays' attorney throughout that case Douglas Lambarth was in privity with his client.
4. Work as Injustice
Linda Bays contends that the dissolution trial should have been continued because her medical condition precluded her from attending and representing herself. She sought a continuance but that was denied and the trial proceeded in her absence. Post trial, she challenged the findings and conclusions of the trial court but these motions were denied as well. She appealed the trial court's judgment to the Court of Appeals which affirmed the decision. The Supreme Court denied review. During that process Ms. Bays either raised or had the opportunity to raise the same issues she complains of here.
Accordingly, it does not work an injustice to preclude Ms. Bays' challenge to the dissolution court's findings conclusions and decree as it relates to her claim of outrage against Lambarth.
B. Legal Malpractice
In her outrage claim, Ms. Bays questions the quality of the legal work performed by Mr. Lambarth for his client David Bays. Ms. Bays' outrage complaints against Mr. Lambarth is a legal malpractice suit. All of the allegations against Mr. Lambarth are directed against his actions as Mr. Bays' attorney during both the dissolution and bankruptcy proceeding.
State law determines whether an attorney owes a duty to a party. In Hizey v. Carpenter, 119 Wash.2d 251, 261 (1992), Washington State has clearly established the elements necessary to a legal malpractice claim:
To establish a claim for legal malpractice, a plaintiff must prove the following elements; (1) the existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.
If a plaintiff is not the attorney's client or in privity with the attorney's client, in order to have a cause of action for malpractice the plaintiff must show some other basis upon which the attorney owed the plaintiff a duty. Stangland v. Brock, 109 Wash.2d 675, 681 (1987).
An attorney owes no duty to a third party in an adversarial relationship. The Washington Supreme Court has clearly stated that
Existence of a duty to an adversary party beyond the courtesy and respect owed all participants in the legal process . . . would interfere with the undivided loyalty an attorney owes a client and would diminish an attorney's ability to achieve the most advantageous position for a client.
Bowman v. Two,
104 Wash.2d 181, 188-189 (1985).
Ms. Bays has failed to make a prima facie malpractice claim against Mr. Lambarth. She persists in relying on these malpractice type allegations in support of her outrage claim.
Likewise she relies on Mr. Lambarth's alleged poor performance in meeting requirements under bankruptcy law and procedures in David Bays' bankruptcy case. This court has examined in detail the actions complained of in its decision on Ms. Bays's cause of action for substantial abuse of the bankruptcy law and found she had no claim. [AP #503]. She persists in relying on those actions in support of her outrage claim.
C. Civil Conspiracy
Linda Bays has also alleged a conspiracy against her in support of their claim of outrage.
A recent statement of what is required to prove civil conspiracy is found in All Star Gas, Inc., Of Washington v. Bechard, 100 Wash.App. 732, 998 P.2d 367 (2000). The court ruled:
To establish a civil conspiracy, All Star must prove by clear, cogent, and convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy.
Wilson v. State, 84 Wash.App. 332, 350-51,
929 P.2d 448 (1996),
cert. denied, 522 U.S. 949,
118 S.Ct. 368,
139 L.Ed.2d 286 (1997). "Mere suspicion or commonality of interests is insufficient to prove a conspiracy."
Id. "[When] the
facts and circumstances relied upon to establish a conspiracy are as consistent with a lawful or honest purpose as with an unlawful undertaking, they are insufficient."
Lewis Pacific Dairymen's Ass'n v. Turner, 50 Wash.2d 762, 772,
314 P.2d 625 (1957).
Ibid.,
100 Wash.App. 740, 998 P.2d 372.
Ms. Bays claims that Mr. Lambarth conspired against her. The acts about which she complains, took place during the course of hotly contested dissolution and bankruptcy cases when Mr. Lambarth was serving as David Bays' lawyer.
Her allegations of conspiracy are conclusory and are not supported by evidence. She has not presented evidence of any agreement between Lambarth and any of the other alleged co-conspirators except the agreement to act as David Bays' attorney in these cases. Discussions over lunch or in the course of preparing and conducting litigation "are as consistent with a lawful or honest purpose as with an unlawful undertaking . . . "Ibid. The evidence presented is insufficient to support a claim of conspiracy against Mr. Lambarth under even the preponderance standard much less the clear, cogent and convincing standard applicable in Washington.
D. Outrage
Washington only allows recovery for outrage in the absence of other tort remedies. Rice v. Janovich, 109 Wash.2d 48 at 62, 742 P.2d 1230 at 1239 (1987). The court has found that the evidence presented by Ms. Bays against Mr. Lambarth is insufficient to support claims of malpractice, abuse of the bankruptcy laws, and civil conspiracy. It remains to be seen whether the actions of Mr. Lambarth complained of by Ms. Bays support a viable claim of outrage.
"`[O]utrage' and `intentional infliction of emotional distress' are synonyms for the same tort. Kloepfel v. Bokor, 149 Wash.2d 192 at 194 FN1, 66 P.3d 630 at 631 FN1 (2003). As outlined by the Washington State Supreme Court:
The tort of outrage requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress. (Citations omitted).
Ibid,
149 Wash.2d at 196, 66 P.3d at 633.
Ms. Bays presented evidence that Mr. Lambarth had knowledge of Ms. Bays' mental and physical state. The plaintiffs' evidence on the second and third of these elements of the tort of outrage is at least arguable under the facts presently before the court. Accordingly, the court will focus on whether the conduct complained of here was "extreme and outrageous."
It is clear in Washington that the actions triggering a finding of outrage must be very unusual.
. . . It is the law of this state that liability can be found only where the conduct had been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community . . .
Woodward v. Steele,
32 Wash. App. 152, at 155-156, 646 P.2d 167, at 169-170 (1982).
Even if the conduct complained of is truly extreme and outrageous it still might be privileged.
. . . [T]he conduct although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he's done no more than insist upon his legal rights
in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.
Ibid,
32 Wash. App. at 155-156, 646 P.2d at 170 (1982).
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.
Restatement (Second) of Torts, Section 46, Comment h.
This court has already ruled that David Bays' activities in the dissolution and bankruptcy cases did not support a viable claim of outrage by Linda Bays. [AP #647]. All of the actions taken in those cases were done on behalf of David Bays by his attorney Douglas Lambarth. It follows that since David's actions don't support Linda's outrage claim, neither do his attorney's.
All the complained-of activities took place in the context of court cases. The actions in the dissolution case have been reviewed by the state courts. It is possible that outrageous behavior could be found in the prosecution of litigation. This court's review of the actions complained of here in the prosecution of the Bays' litigation do not as a matter of law reach the threshold of outrageous behavior, "atrocious and intolerable in a civilized society." Litigants and their attorneys have a certain freedom in their attempts to enforce perceived legal rights in litigation. It is to the benefit of society that parties be given greater license in the assertion of their rights when pursuing litigation in the courts than they would have in pursuit of self-help extra judicial remedies. The conduct complained of by Linda Bays here does not amount to the extra ordinary conduct necessary to prove the tort of outrage.
Kelly Case's outrage claim is based in part on Lambarth's attempt to litigate Mr. Case's rights in property in the Bays' dissolution. The court has concluded that Kelly Case is not bound by the dissolution decree as it relates to his interests in property. [AP #515 pg. 7]. The extent of these interests will be decided at another time. That attempt although ill conceived does not amount to outrageous conduct.
The remainder of Kelly Case's cause of action is based on Mr. Lambarth's conduct towards Linda Bays, his mother. The facts don't support her claim of outrage. His claim is no better than hers. Both plaintiffs fail to make a prima facie case of outrage against the Lambarths.
CONCLUSION
The plaintiffs Linda Bays and Kelly Case have failed to make a prima facie case of outrage against Douglas Lambarth individually or his martial community. The actions complained of were not outrageous.
An order shall be entered granting the Lambarth's motion for summary judgment against the plaintiffs on their claims of outrage. The plaintiffs' motions for summary judgment in their favor on the tort of outrage should be denied and their claims for outrage dismissed.