Respected trial lawyer and co-founder of Lee Smart dies at 84

Nelson T. “Tom” Lee, co-founder of the Lee Smart law firm, died December 13, 2004 after a long illness. He was 84.

A native of Pontiac, Illinois, Tom and his family moved to Chelan, Washington and then to Grand Coulee. He completed high school while working on the dam. Tom went on to college, attending the University of Washington while working in the Seattle shipyards. He then attended the University of Washington Law School, where he served on the Board of Editors of the Washington Law Review. He earned his Juris Doctor degree and was admitted to the Washington state bar in 1945.

In the late 1940s, Tom co-founded Elliott & Lee, which succeeded a law firm that began in 1913. It evolved into Elliott, Lee, Carney & Thomas and later Lee, Carney & Smart.

In 1972, John Patrick Cook and others joined the firm, whose name changed to Lee, Smart, Cook, Dunlap & Biehl. By 1982, the firm became Lee Smart, P.S., Inc.

Throughout its history, Lee Smart has devoted its practice to litigation, especially insurance defense. Tom’s 39-year career encompassed a wider range of cases, including not just defense of civil litgation but also plaintiff’s claims, probate matters, and landlord-tenant law. Tom tried all kinds of cases, from auto and slip-and-fall claims to complex product-liability and malpractice actions.

Tom was married to Atha Cantlon Lee for 62 years. Together they had four children, two unofficially adopted children, and nine grandchildren. For the past 40 years, Tom and Atha lived and ranched in Bothell. Tom retired from Lee Smart in 1984.

Tom was a tenacious and tireless trial lawyer. He never shied away from a courtroom fight. Opposing lawyers respected his toughness and his unfailing integrity. Tom instilled the same honesty, fearlessness, and work ethic in other lawyers in the Lee Smart firm. Those qualities are standards to which the firm’s lawyers continue to aspire today.

Economic-loss rule no defense to real estate claim
By Matthew D. Taylor

The economic-loss rule, which limits the types of damages a plaintiff may recover in tort, does not apply to a real estate buyer’s claim of fraud, the Washington Court of Appeals recently held.

David L. Martin and Ketia Wick won a defense verdict after a two-week jury trial in Arhu v. Yamamoto, a wrongful-death medical-malpractice action. Plaintiff alleged a failure to educate and provide proper post-operative treatment after a knee arthroscopy. The patient developed a deep-vein thrombosis that resulted in a fatal pulmonary embolism. … Ketia Wick has co-authored "Defending Damages and Causation: Allegations of Delayed Diagnosis of Cancer," an article published in the November 2004 issue of For the Defense, the national publication of the Defense Research Institute. The co-author is Dr. Michael Retsky, a member of the faculty at Harvard Medical School. The article addresses claims of delayed diagnosis of cancer and demonstrates that the older theory of doubling times for certain types of cancer is not accurate.

Tammy L. Williams and Christina L. Smith won a favorable verdict in the six-day jury trial of Forsman v. Bitterling. Plaintiff claimed neck and back problems, post-traumatic stress disorder, and a closed head injury with cognitive difficulties after defendant rear-ended her on Interstate 5. Tammy and Christina filed a $15,000 offer of judgment prior to trial, which plaintiff did not accept. Plaintiff asked the jury for a verdict of $250,000. Tammy requested a defense verdict or, in the alternative, an award of $20,000 with comparative fault of 75 percent on the plaintiff. The jury returned a verdict of $25,000 for the plaintiff but found plaintiff 60 percent at fault. The net verdict for plaintiff was $10,000 — less than the amount of the Offer of Judgment, and as a result, plaintiff must pay defendant's statutory costs and attorney fees. … Tammy Williams also obtained dismissal for want of prosecution in Anderson v. Guckenheimer Enterprises, a premises-liability action.

The Alejandres sued Bull for fraudulent and negligent misrepresentation. Evidence at trial showed that Bull had experienced ongoing septic problems during her ownership of the house. At one point she did her laundry outdoors to lessen the load on her septic system. She hired various septic services over the years to restore the system to good working order, but she rejected their advice to hook up to the city sewer or to overhaul the septic system, because those measures were too expensive. When Bull later listed the property for sale, she filled out a disclosure form that denied any defects in the septic system, because it was working when she filled out the form.

Bull asserted several defenses, including the economic-loss rule. Under that rule, one who sues in tort may not recover purely economic damages. An award of those kinds of damage depends on a breach of contract. At trial, Bull moved to dismiss the action on this basis and because the Alejandres failed to prove the elements of fraudulent or negligent misrepresentation. The trial court agreed and dismissed the action. The Alejandres appealed.

The Court of Appeals agreed with Bull as to the Alejandres’ negligent-misrepresentation claim. Under Washington case law, the parties ordinarily spell out in the contract between them the allocation of risk and future liability, and a tort claim should not disturb that agreed result. That allocation of risk is what the parties bargained for at arm’s length.

Here, however, the court concluded that in an earnest-money agreement, “the parties normally do not bargain for and provide for the allocation of risk and future liability.” Moreover, a property buyer “cannot reasonably be held to a standard of negotiating for the possibility that the other party will deliberately misrepresent terms critical to the contract.” Thus the Alejandre court followed courts of other states that permit recovery of economic losses in fraud claims.

Bull also argued that she did not intentionally or negligently misstate the septic system’s condition, because its true condition was discovered only after the Alejandres’ repair person had torn into it. The Court of Appeals disagreed, noting that a jury could conclude that Bull’s knowledge of the septic system’s history of repeated failures was enough to show that she knew she was selling a home with a failed septic system.

Bull contended that the Alejandres had no right to rely on her alleged misrepresentation. The Court of Appeals disagreed. Not even a septic inspector hired by the Alejandres’ bank while the transaction was pending had found the defects in the septic system. There was evidence from which a jury could find that Bull hid the true condition of the septic system from the Alejandres.

Around The Firm

Washington Law & Politics magazine continues to recognize Lee Smart’s many up-and-coming younger lawyers. The magazine’s Rising Stars for 2005 include Lee Smart lawyers Dirk J. Muse and Ketia Berry Wick.

David L. Martin and Ketia Wick won a defense verdict after a two-week jury trial in Arhu v. Yamamoto, a wrongful-death medical-malpractice action. Plaintiff alleged a failure to educate and provide proper post-operative treatment after a knee arthroscopy. The patient developed a deep-vein thrombosis that resulted in a fatal pulmonary embolism. … Ketia Wick has co-authored "Defending Damages and Causation: Allegations of Delayed Diagnosis of Cancer," an article published in the November 2004 issue of For the Defense, the national publication of the Defense Research Institute. The co-author is Dr. Michael Retsky, a member of the faculty at Harvard Medical School. The article addresses claims of delayed diagnosis of cancer and demonstrates that the older theory of doubling times for certain types of cancer is not accurate.

Tammy L. Williams and Christina L. Smith won a favorable verdict in the six-day jury trial of Forsman v. Bitterling. Plaintiff claimed neck and back problems, post-traumatic stress disorder, and a closed head injury with cognitive difficulties after defendant rear-ended her on Interstate 5. Tammy and Christina filed a $15,000 offer of judgment prior to trial, which plaintiff did not accept. Plaintiff asked the jury for a verdict of $250,000. Tammy requested a defense verdict or, in the alternative, an award of $20,000 with comparative fault of 75 percent on the plaintiff. The jury returned a verdict of $25,000 for the plaintiff but found plaintiff 60 percent at fault. The net verdict for plaintiff was $10,000 — less than the amount of the Offer of Judgment, and as a result, plaintiff must pay defendant's statutory costs and attorney fees. … Tammy Williams also obtained dismissal for want of prosecution in Anderson v. Guckenheimer Enterprises, a premises-liability action.

Jeffrey P. Downer and Frank A. Cornelius, Jr. won summary judgment of dismissal of Horstman v. Costco, a premises-liability claim in which plaintiff suffered multiple femur fractures and incurred more than $75,000 in medical bills. ... Jeff Downer also won summary judgment of dismissal of Richter v. Costco, a premises-liability claim involving a serious knee injury and surgery … Jeff Downer and Daniel G. Lloyd won summary judgment of dismissal in Page v. Harvey, a legal-malpractice case. The defendant attorney had represented plaintiff-husband in a dissolution action. In the dissolution action, the husband sought to vacate the decree more than a year after it had been entered. The wife had received the couple's house in the divorce and later sold it for more than the husband thought it was worth. The court denied the plaintiff's motion, ruling that he had suffered no damages even if grounds for vacating the decree existed. The plaintiff then sued the defendant-attorney for legal malpractice. Jeff and Dan persuaded the court that collateral estoppel, or "issue preclusion," barred the plaintiff from asserting damages in the legal-malpractice action.

Michelle A. Corsi won the appeal in the case of Nielsen Brothers v. Solid Trading v. Parker, a real-estate-malpractice case. Michelle previously had obtained dismissal of plaintiff's Consumer Protection Act claim before trial and went on to win a defense verdict at trial. … Michelle Corsi also won dismissal of a federal legal-malpractice case, McKay v. John Doe. Plaintiff McKay alleged that defendant attorneys committed fraud and violated the Racketeer Influence and Corrupt Act (RICO) when representing plaintiff in an action concerning bankruptcy of his dairy farm. The court agreed with Michelle that McKay did not meet the strict requirements for pleading fraud under the federal rules. The court then dismissed McKay's RICO claims because he did not properly allege mail and wire fraud. The court gave McKay 45 days to file a legally sufficient complaint. McKay filed an amended complaint that failed to cure the pleading defects, so the court granted Michelle's second motion to dismiss, this time with prejudice.

Joel E. Wright and Alan M. Singer obtained summary judgment of dismissal in Clarin v. Hood, a real-estate-malpractice action. Their client represented the plaintiff property buyer, who sued for breach of contract and negligent misrepresentation. In response to Joel and Alan's summary judgment motion, plaintiff sought to add claims of breach of fiduciary duty and violation of the Consumer Protection Act. The court agreed that plaintiff had failed to raise any facts to support the previously pleaded claims and also refused to permit the belatedly raised claims. The court dismissed the action.

Duncan K. Fobes and Leslie L. Lewallen won summary judgment of dismissal in Billingsley v. Tukwila School District. Plaintiff sued for an injury she suffered while attempting to cross a steel cable at her son's soccer game. The District moved for summary judgment on the basis that it is immune from such suits under Washington's Recreational Use statute, RCW 4.24.210. Plaintiff argued that the supposedly excessive slack in the cable created a latent danger. But the court agreed with Duncan and Leslie that the condition, not the danger it poses, must be latent, granted the motion, and dismissed the action.