IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AUSTIN I. STONE, an individual person, No. 88714-9-I
Appellant, DIVISION ONE
v. PUBLISHED OPINION
KING COUNTY, a political subdivision of
the State of Washington; and GEORGE
EPPLER, a KING COUNTY EMPLOYEE
who is an individual person,
Respondents.
FELDMAN, J. — Austin Stone appeals the trial court’s order dismissing his
legal malpractice and breach of fiduciary duty claims against his former criminal
defense attorney, George Eppler, on causation grounds under CR 12(b)(6). In the
underlying proceeding in which Eppler represented Stone, the court (referred to
herein as the sentencing court) erroneously imposed a sentence of supervised
probation. Stone alleges that Eppler had and breached a duty to ensure that the
sentencing court imposed a sentence of unsupervised probation in accordance
with the parties’ joint recommendation and the sentencing court’s stated intent.
The trial court below concluded that the sentencing court’s error is a superseding
cause and therefore severs the causal connection between Eppler’s breach and No. 88714-9-I
Stone’s injury. 1 Because the trial court erred in applying the controlling legal
principles regarding intervening acts and superseding cause to the alleged and
properly hypothesized facts, we reverse the court’s dismissal of these claims and
remand the matter for further proceedings consistent with this opinion.
I
Stone assigns error to the trial court’s dismissal of his claims under CR
12(b)(6). Accordingly, the following statement of facts accepts as true the
allegations contained in his complaint. See Tang Real Estate Invs., Corp. v.
Escrow Servs. of Wash., 30 Wn. App. 2d 602, 604, 546 P.3d 453 (2024).
Stone alleges that, in early 2022, he “was being prosecuted by the State of
Washington” and Eppler was his “attorney-in-fact to defend against the criminal
allegations.” During the representation, Eppler “reached a plea agreement with
the State of Washington on behalf of” Stone, which “involved unsupervised
probation.” Stone further alleges that the matter proceeded to a judgment and
sentence hearing on May 27, 2022, at which “the judge, the prosecutor, MR.
EPPLER, and MR. STONE all had the same understanding: MR. STONE was to
be placed on unsupervised probation.” Further, “[t]he oral ruling of the judge . . .
confirmed the unsupervised probation of MR. STONE.”
1 Because the sole issue on appeal is causation, we assume without deciding that Stone has
established the remaining elements of his claims, including breach and injury. Stone also asserted a negligent training claim against Eppler’s employer, King County. The trial court concluded that this claim is subsumed by Stone’s remaining claims under LaPlant v. Snohomish County, 162 Wn. App. 476, 271 P.3d 254 (2011), because Stone did not dispute that Eppler was acting in the course and scope of his employment at the time of the tortious conduct. Stone expressly concedes this point on appeal and does not assign error to this portion of the trial court’s ruling, so we need not— and do not—discuss this claim further.
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Notwithstanding this shared understanding, Stone’s complaint alleges that
the written judgment and sentence, which the parties provided to the sentencing
court at the hearing and the court accepted, “was erroneous and did not match the
oral ruling that was issued.” Instead of unsupervised probation, the judgment and
sentence imposed a 12-month term of probation supervised by the Washington
State Department of Corrections (DOC). Following this hearing, Stone did not
contact DOC before leaving Washington because he believed the judgment and
sentence had specified unsupervised probation. When he later returned to
Washington, he was arrested and “subjected to solitary confinement” and
“electronic home monitoring in the State of Washington” because he had failed to
report to DOC for his supervised probation. Stone succeeded in obtaining a
corrected judgment and sentence.
Stone thereafter filed a complaint and amended complaint against Eppler
asserting claims for legal malpractice and breach of fiduciary duty. Both claims
allege that Eppler had and breached a duty to Stone to “use due care” when
reviewing the “Judgment and Sentence paperwork” and “to ensure the Judgment
and Sentence paperwork was an accurate reflection of the Judicial Officer’s oral
rulings.” Eppler filed a motion to dismiss the claims under CR 12(b)(6). He argued
that “[b]ecause the judge was presented with all material information . . . the
judge’s order . . . was an intervening, superseding cause for any alleged error by
Eppler.” The trial court granted Eppler’s motion and dismissed Stone’s claims with
prejudice. This timely appeal followed.
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II
Stone argues the trial court erred in dismissing his legal malpractice and
breach of fiduciary duty claims on causation grounds under CR 12(b)(6). We
agree.
A
This court reviews a trial court’s order granting a motion to dismiss under
CR 12(b)(6) de novo. Wahkiakum Sch. Dist. No. 200 v. State, 2 Wn.3d 63, 77,
534 P.3d 808 (2023). Dismissal under CR 12(b)(6) is appropriate if “‘it appears
beyond doubt that the plaintiff can prove no set of facts, consistent with the
complaint, which would entitle the plaintiff to relief.’” Bowman v. John Doe Two,
104 Wn.2d 181, 183, 704 P.2d 140 (1985) (quoting Orwick v. Seattle, 103 Wn.2d
249, 254, 692 P.2d 793 (1984)). “We presume the facts in the complaint are true
and reject the motion to dismiss if ‘[a]ny hypothetical situation conceivably raised
by the complaint . . . is legally sufficient to support the plaintiff’s claim.’” Tavaglione
v. Dehkhoda & Qadri, P.C., 34 Wn. App. 2d 515, 520, 568 P.3d 1158 (2025)
(quoting Jackson v. Quality Loan Serv. Corp. of Wash., 186 Wn. App. 838, 843,
347 P.3d 487 (2015)). “Documents whose contents are alleged in a complaint but
which are not physically attached to the pleading may also be considered in ruling
on a CR 12(b)(6) motion to dismiss.” Rodriguez v. Loudeye Corp., 144 Wn. App.
709, 726, 189 P.3d 168 (2008).
“In a tort action against attorneys that alleges legal malpractice and breach
of a fiduciary duty of loyalty during the representation, the plaintiff must allege and
identify the source of the duty, that a breach occurred resulting in injury, and that
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the breach proximately caused the injury.” Arden v. Forsberg & Umlauf, P.S., 189
Wn.2d 315, 323, 402 P.3d 245 (2017). Broadly stated, “[a]n act generally is a
proximate cause of an injury if it produces the injury.“ Roemmich v. 3M Company,
21 Wn. App. 2d 939, 952, 509 P.3d 306 (2022). Here, however, Eppler alleges,
and the trial court ruled, that the sentencing court’s error is a superseding cause
and therefore severs the causal connection between Eppler’s tortious conduct and
Stone’s injury.
In Roemmich, we set forth the legal principles that govern the superseding
cause analysis as follows:
[W]hen a new, independent act breaks the chain of causation, it
supersedes the original act as the proximate cause of the injury.
[Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998)]. The
Restatement of Torts defines “superseding cause” as “an act of a
third person or other force which by its intervention prevents the actor
from being liable for harm to another which his antecedent
negligence is a substantial factor in bringing about.” RESTATEMENT
(SECOND) OF TORTS § 440 (AM. LAW INST. 1965).
In determining whether an intervening act constitutes a superseding
cause we consider “whether (1) the intervening act created a
different type of harm than otherwise would have resulted from the
actor’s negligence; (2) the intervening act was extraordinary or
resulted in extraordinary consequences; [and] (3) the intervening act
operated independently of any situation created by the actor’s
negligence.” Campbell v. ITE Imperial Corp., 107 Wash.2d 807, 812-13, 733 P.2d 969 (1987) (citing RESTATEMENT § 442). The act has to
be “‘so highly extraordinary or unexpected that [it] can be said to fall
[out of] the realm of reasonable foreseeability as a matter of law,’”
and “‘[i]f the acts . . . are within the ambit of the hazards covered by
the duty imposed upon the defendant, they are foreseeable and do
not supersede the defendant’s negligence.’” Cramer v. Dep’t of
Highways, 73 Wash. App. 516, 521, 870 P.2d 999 (1994) (some
alterations in original) (internal quotation marks omitted) (quoting
Brashear v. Puget Sound Power & Light Co., 33 Wash. App. 63, 69,
651 P.2d 770 (1982), rev’d on other grounds, 100 Wash.2d 204, 667
P.2d 78 (1983)). Thus, “‘only intervening acts which are not
reasonably foreseeable are deemed superseding causes.’” State v.
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Frahm, 193 Wash.2d 590, 600, 444 P.3d 595 (2019) (internal
quotation marks omitted) (quoting Crowe, 134 Wash.2d at 519, 951
P.2d 1118).
Id. at 952-53. We further noted, “Whether a third party’s intervening act rises to
the level of a superseding cause is generally a question of fact for the jury, but it
may be determined as a matter of law if reasonable minds could not differ as to
the foreseeability of the act.” Id. at 953.
Washington also has adopted various provisions of the Third Restatement
of Torts (see, e.g., Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 608, 257 P.3d 532
(2011); Martinez v. Washington State Univ., 33 Wn. App. 2d 431, 473, 562 P.3d
802, review granted, 4 Wn.3d 1032, 570 P.3d 714 (2025)), which also speaks to
this issue. Relevant here, section 34 of the Third Restatement, entitled
“Intervening Acts and Superseding Causes,” provides as follows: “When a force
of nature or an independent act is also a factual cause of harm, an actor’s liability
is limited to those harms that result from the risks that made the actor’s conduct
tortious.” RESTATEMENT (THIRD) OF TORTS § 34 (AM. LAW INST. 2010). Comment a
to section 34 explains that the section recognizes “that there are always multiple
causes of an outcome and that the existence of intervening causes does not
ordinarily elide a prior actor’s liability.” Id. at cmt. a.
Our Supreme Court addressed these issues in a case involving an
intervening judicial decision in Tyner v. Department of Social and Health Services,
141 Wn.2d 68, 1 P.3d 1148 (2000). There, a Department of Social and Health
Services (DSHS) caseworker investigated whether Tyner had abused his children
and signed a declaration recommending that the children have no contact with
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Tyner pending completion of the investigation. Id. at 73. That same day, the
superior court granted an ex parte temporary order of protection, which prohibited
all contact between Tyner and his children. Id. The caseworker then filed a
dependency petition. Id. Following a hearing, the court entered an order
prohibiting all contact between Tyner and his children. Id. The caseworker then
completed his investigation and changed his final report to state that the
allegations of abuse were “unfounded.” Id. at 74. But the caseworker did not
provide the final report or its contents to the court. Id. Eventually, the court
dismissed the dependency petition on the State’s motion, finding that Tyner “had
cooperated with court-ordered services and had agreed to a future course of
conduct, and that dismissal was in the best interests of the children.” Id. at 75.
Tyner sued the State and other actors involved in his separation from his
children and asserted a claim for negligent investigation. Id. at 76. The jury found
in Tyner’s favor and awarded damages totaling $201,500. Id. This court
overturned the jury verdict, holding that “the court’s no-contact orders throughout
the case cut off any legal causation between the State’s negligence and Mr.
Tyner’s separation from his children.” Id. Our Supreme Court granted review.
Relevant here, the Supreme Court held “that a judge’s no-contact order will act as
superseding intervening cause, precluding liability of the State for negligent
investigation, only if all material information has been presented to the court and
reasonable minds could not differ as to this question.” Id. at 88. Because
reasonable minds could differ as to whether all material information was presented
to the superior court prior to entering its no-contact order, the Supreme Court held
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that the superior court’s decision issuing the no-contact order was not a
superseding cause of Tyner’s alleged injury. Id. at 88. The Supreme Court
therefore reversed this court’s prior decision and reinstated the jury’s verdict in
Tyner’s favor. Id. at 89.
Lastly, courts in other states have also adopted these legal principles. For
example, in Kiribati Seafood Co., LLC v. Dechert LLP, the Supreme Judicial Court
of Massachusetts stated:
Where an attorney makes a reasonable and correct argument of law
and loses because of judicial error that was not foreseeable, the
attorney cannot be found negligent for failing to prevent or mitigate
that legal error.
But where the judicial error is foreseeable, such as where a
judge or an appellate court has indicated an intention to rule in a
manner that the attorney believes to be an error of law, then an
attorney has an obligation to take reasonable and prudent steps to
prevent or mitigate that error.
478 Mass. 111, 118, 83 N.E.3d 798 (2017). And in Stanfield v. Neubaum, the
Supreme Court of Texas likewise held:
When a judicial error intervenes between an attorney’s
negligence and the plaintiff’s injury, the error can constitute a new
and independent cause that relieves the attorney of liability. To
break the causal connection between an attorney’s negligence and
the plaintiff’s harm, the judicial error must not be reasonably
foreseeable. . . . But if the judicial error alleged to have been a new
and independent cause is reasonably foreseeable at the time of the
defendant’s alleged negligence, the error is a concurring cause as
opposed to a new and independent, or superseding, cause.
494 S.W.3d 90, 99 (Tex. 2016). The court also observed that “[c]ourts in other
jurisdictions have similarly acknowledged that judicial error can constitute a new
and independent cause that can relieve an attorney from liability for alleged
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malpractice, as long as the attorney did not contribute to the error and the error
was not otherwise foreseeable.” Id. (collecting cases).
B
Applying the foregoing legal principles here, the trial court erred in
dismissing Stone’s claims on causation grounds. As noted previously, “‘only
intervening acts which are not reasonably foreseeable are deemed superseding
causes.’” Roemmich, 21 Wn. App. 2d at 953 (quoting Frahm, 193 Wn.2d at 600).
Where, as here, a lawyer fails to correct a judgment and sentence that does not
accurately reflect the parties’ recommended sentence and the sentencing court’s
stated intent, it is reasonably foreseeable that the court could impose an erroneous
sentence. Additionally, the sentencing court’s error did not create a different type
of harm than otherwise would have resulted from Eppler’s tortious conduct, and
the court’s error was neither extraordinary nor did it result in extraordinary
consequences given Eppler’s conduct. To the contrary, an erroneous sentence is
precisely the sort of harm that results from the risks that made Eppler’s conduct
tortious.
For similar reasons, the sentencing court’s error was not independent of
Eppler’s tortious conduct, as the court did not make an independent decision to
adopt a sentence that varied from the parties’ joint recommendation and the court’s
oral statement at the sentencing hearing. Rather, the sentencing court’s error was
dependent on Eppler’s initial mistake. And lastly, similar to the caseworker’s
negligent investigation in Tyner, Eppler misled the sentencing court by failing to
verify the accuracy of the proposed judgment and sentence. Thus, as in Tyner,
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we cannot conclude that “all material information has been presented to the court
and reasonable minds could not differ as to this question.” 141 Wn.2d at 88.
Whether analyzed under the Second Restatement of Torts, the Third Restatement
of Torts, or Tyner (which does not cite the relevant restatement provisions),
consistent with case law in other jurisdictions, the sentencing court’s error is not a
superseding cause of Eppler’s injury.
Additionally, the superseding cause analysis is not in any event wholly
dispositive. Critical here, “‘[a]n intervening force is one which actively operates in
producing harm to another after the actor’s negligent act or omission has been
committed.’” State v. Mee Hui Kim, 134 Wn. App. 27, 42, 139 P.3d 354 (2006)
(emphasis added) (quoting RESTATEMENT (SECOND) OF TORTS § 441(1) (AM. LAW
INST. 1965)). In addition to alleging that Eppler failed to verify the accuracy of the
judgment and sentence before it was provided to the sentencing court, Stone’s
complaint can fairly be read to allege that Eppler failed to do the same after the
sentencing court entered the judgment and sentence. This court is also “required
to deem as true any assertions consistent with the complaint, even if made for the
first time on appeal.” Bravo v. Dolsen Companies, 125 Wn.2d 745, 750, 888 P.2d
147 (1995). In his opening brief, Stone specifically references Eppler’s “failure to
correct the inaccurate Judgment and Sentence after the sentencing hearing.”
(Emphasis added.) And in his reply brief, Stone likewise states, “even after the
judge’s act Eppler continued to owe a duty to Stone and continued to be in breach
of that duty by failing to correct the judgment and sentence.” (Emphasis added.)
As to this alleged breach, the sentencing court’s error is not an intervening act
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because it occurred before—rather than after—Eppler failed to correct the
erroneous judgment and sentence following the sentencing hearing. 2 It therefore
cannot be a superseding cause. See Roemmich, 21 Wn. App. 2d 952-53 (quoted
above).
C
Eppler’s contrary arguments lack merit. Eppler claims “only the sentencing
court had the authority to impose or correct any sentence, thereby making any
errors of Stone’s public defense attorney . . . not actionable in tort.” This argument
fails. In Tyner, the superior court similarly had sole authority to order separation
of Tyner from his children. But the dispositive issue in Tyner was whether the
superior court had been provided all material information, not whether it had sole
authority to grant or deny relief. More fundamentally, Eppler’s argument conflates
superseding cause and concurrent causation. Although the sentencing court here
had sole authority to impose Stone’s erroneous sentence and erred in doing so, it
did so based on the inaccurate judgment and sentence that Eppler failed to correct
at or after the sentencing hearing. Thus, in addition to the sentencing court’s error,
Eppler’s tortious conduct caused Stone’s injury. See Carroll v. Akebono Brake
Corp., 22 Wn. App. 2d 845, 883, 514 P.3d 720 (2022) (“‘[t]here may, of course, be
more than one proximate cause of an injury’”) (quoting Smith v. Acme Paving Co.,
16 Wn. App. 389, 396, 558 P.2d 811 (1976)); see also RESTATEMENT (THIRD) OF
2 Eppler emphasizes in his briefing that he subsequently withdrew as Stone’s attorney and, citing
In re Disciplinary Proceeding Against DeRuiz, 152 Wn.2d 558, 573, 99 P.3d 881 (2004), he argues “an attorney terminates representation by filing a formal notice of withdrawal.” To be clear, our discussion in the text above relates to the discrete interval of time after the sentencing hearing and before Eppler filed his formal notice of withdrawal.
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TORTS § 34 cmt. a (AM. LAW INST. 2010) (“there are always multiple causes of an
outcome”). 3 Eppler’s contrary argument fails.
Like the trial court below, Eppler relies heavily on Flynn v. Pierce County,
16 Wn. App. 2d 721, 482 P.3d 980 (2021) (unpublished in part), to support his
superseding cause analysis. 4 That reliance is misplaced. Flynn was convicted of
rape and burglary. Id. at 723. At sentencing, DOC offered a Presentence
Investigation Report (PSI) that included offender scores of 7 and 8. Id. The State
offered its own PSI that included offender scores of 12 and 13, which, if accepted
by the court, would increase Flynn’s sentence by several years. Id. at 724.
Defense counsel did not contest the State’s offender scores despite errors in the
State’s calculations. Id. The court accepted the State’s offender score calculation
and sentenced Flynn to the high end of the standard range. Id. Flynn later filed a
legal malpractice claim against his defense counsel based on the attorney’s failure
to object to the incorrect offender scores. Id. at 726.
Like Stone’s claims in the trial court below, Flynn’s legal malpractice claim
against his former attorney was dismissed on causation grounds. Id. at ¶¶ 26-27.
Division Two of this court affirmed. Applying the legal principles set forth in Tyner,
as described above, Division Two reasoned:
Because the original sentencing court was presented with the correct
calculation of Flynn’s offender score by DOC, along with the
reasoning supporting that calculation as set forth in the PSI, and it
opted to adopt the erroneous calculation proffered by the State,
3 Thus, in Kiribati Seafood, the court explained: “Assuming for the sake of argument that the court
of appeals truly made an error of law, a reasonable finder of fact would conclude that there were two independent proximate causes of Kiribati’s loss: Dechert’s negligence . . . and the court's error of law . . . .” 478 Mass. at 120. The same reasoning is applicable here.
4 Although the portion of Flynn addressing proximate cause is unpublished, we may properly cite
and discuss unpublished opinions where, as here, doing so is “necessary for a reasoned decision.” GR 14.1(c).
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Flynn’s erroneous sentence was the product of independent
judgment by the court. The original sentencing court’s decision,
therefore, constituted an intervening and superseding cause of
Flynn’s harm.
Id. at ¶ 36. In other words, the court that sentenced Flynn was not misled and its
subsequent error was therefore both independent of the antecedent negligence
and not reasonably foreseeable. Here, in contrast, the sentencing court was given
only the incorrect judgment and sentence, which Eppler failed to correct both
during and after the sentencing hearing. On these alleged and properly
hypothesized facts, Flynn is inapposite. 5
III
The trial court erred in dismissing Stone’s legal malpractice and breach of
fiduciary duty claims under CR 12(b)(6). We reverse the court’s dismissal of these
claims and remand the matter for further proceedings consistent with this opinion.
WE CONCUR:
5 Eppler’s reliance on Bishop v. Miche, 137 Wn.2d 518, 973 P.2d 465 (1999), is similarly misplaced.
There, Bishop was killed in an automobile accident caused by Miche, who was intoxicated at the time of the accident. Bishop’s family thereafter filed a lawsuit against a county probation officer alleging that she should have prevented Miche from driving while on probation because Miche had several driving related convictions. Id. at 521-22. The trial court dismissed the claim on summary judgment because a district court judge had refused to revoke probation just prior to the Incident. Id. at 523. Because the district court judge made an independent decision after being presented with all material information, its decision severed the causal connection between the probation officer’s alleged negligence and Bishop’s alleged injury. As noted in the text above, that did not occur here.
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