IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISIONE ONE
GEOFF MINOR, an individual; and No. 88718-1-I
MINOR ENTERPRISES, LLC, d/b/a The
Metal Shop Gold & Silver, a Washington ORDER GRANTING MOTION
Limited Liability Company, TO PUBLISH OPINION
Appellants,
v.
MARK KIMBALL, an individual; and
MDK LAW, a Washington Limited
Liability Company,
Respondents.
Appellants Geoff Minor and Minor Enterprises, LLC, filed a motion to
publish the opinion filed on July 27, 2026. Respondents Mark Kimball and MDK
Law filed an answer to the motion. The court has determined that the motion for
publication should be granted. Now, therefore, it is hereby
ORDERED that the motion to publish is granted.
FOR THE PANEL:
Judge
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GEOFF MINOR, an individual; and No. 88718-1-I
MINOR ENTERPRISES, LLC, d/b/a
The Metal Shop Gold & Silver, a DIVISION ONE
Washington Limited Liability Company,
PUBLISHED OPINION
Appellants,
v.
MARK KIMBALL, an individual; and
MDK LAW, a Washington Limited
Liability Company,
Respondents.
FELDMAN, J. — Geoff Minor and his business, Minor Enterprises (collectively
“Minor”), appeal from the trial court’s summary judgment dismissal of their legal
malpractice and breach of fiduciary duty claims against Minor’s former attorney,
Mark Kimball, and Kimball’s law firm, MDK Law (collectively “MDK Law”), arising
out of MDK Law’s representation of Minor in a dispute with its landlord (the
Underlying Litigation). Applying Paradise Orchards General Partnership v.
Fearing, 122 Wn. App. 507, 94 P.3d 372 (2004), the trial court ruled that Minor’s
“failure to bring a CR 60(b) motion in the [Underlying Litigation] is a defense to this
case.” Because Paradise Orchards does not support the trial court’s dismissal of
Minor’s claims, we reverse the court’s order granting MDK Law’s motion for No. 88718-1-I
summary judgment, vacate its order denying Minor’s competing motion for partial
summary judgment, and remand for further proceedings.
I
In July 2023, Minor hired MDK Law to provide legal services for issues
arising out of a dispute with Minor’s landlord and property manager. As
demonstrated in its billing entries, MDK Law reviewed Minor’s lease terms, drafted
a notice of breach to the landlord, and drafted a complaint (the Underlying
Complaint) that it then filed on January 12, 2024. MDK Law initially billed a total
of $21,331 on the case but wrote off nearly two thirds of this total, collecting $8,400
from Minor. Attorneys James Ware and Leighton Bowman had performed the
majority of the legal services on the matter, but Kimball also worked on the matter
and his name was included on the signature block of the Underlying Complaint.
Following this initial activity, Minor and MDK Law’s relationship soured. On
February 8, 2024, Minor e-mailed Ware the following:
I think you missed the most important parts of that last email. I would
like to stop the service process and have a detailed conversation with
you before moving forward. Please acknowledge that I have made
this request and that I have also requested a phone call with you
before doing anything else. Although maybe a sit down meeting is
more appropriate at this time. It seems that we are at a disconnect.
Ware responded, “I will tell the process server to pause service and schedule a
call. It will be sometime tomorrow afternoon.”
However, one defendant, Kennedy-Wilson Properties Northwest, LTD
(Kennedy-Wilson), had already been served with the Underlying Complaint. Ware
informed Minor of this occurrence on March 14:
2
No. 88718-1-I
So we recently found out that, in fact, one of the defendants was
served with the summons and complaint. No counsel has appeared
but we did have an attorney from another state reach out and state
that local counsel was being retained. This puts a small wrinkle into
our plan of sitting back for a couple of months. If counsel does
appear we may need to voluntarily dismiss the lawsuit. That’s no big
deal because you can refile it later in the year. I’ll keep you posted
if local counsel actually appears.
This concluded MDK Law’s work on the Underlying Litigation.
On May 3, Ware followed up with Minor about the final payment for MDK
Law’s legal services. Ware messaged Minor:
As for withdrawing from the lawsuit, my intent was to withdraw from
the pending lawsuit once you got new counsel so that the company
was not without counsel in the lawsuit for any period of time. A
company cannot represent itself pro se so the company will need
counsel to appear in the case. Further, from a perception standpoint,
it looks much better to have counsel replace us rather than we
withdraw, your company is without counsel for a period of time, and
then new counsel appears. Let me know how you would like to
proceed.
Minor responded on May 6, stating:
My apologies. I did not understand the process. I thought you were
going to send me withdrawal paperwork first and then I would finalize
things. Your way makes much more sense as you have explained it.
I have not retained new counsel as of yet, so I appreciate you waiting
to withdraw until I have done so. I will start working on that. I have
paid the final invoice through the portal and will follow up with you
once I have retained new counsel.
According to Kimball, Minor also instructed MDK Law “not to do any further work
on his case.”
In June 2024, Ware left MDK Law. Soon thereafter, on June 19, a former
paralegal at MDK Law e-mailed Minor, stating:
I am following up with you whether you have retained new counsel
for your lawsuit yet? James Ware is no longer with MDK Law so
3
No. 88718-1-I
please use this email as contact moving forward. I look forward to
hearing back from you and hope that you are doing well.
Minor never responded to this email, and MDK Law never contacted Minor again
regarding the ongoing litigation.
Meanwhile, the Underlying Complaint had been filed and the case had been
assigned to Judge David Keenan in King County Superior Court. An order setting
civil case schedule providing the parties with discovery deadlines was entered on
January 12, 2024. Between July and September 2024, counsel for KennedyWilson made numerous attempts to contact MDK Law to comply with the court’s
ordered discovery deadlines. But throughout this time, MDK Law failed to respond
to Kennedy-Wilson’s discovery requests, request for a trial continuance stipulation,
follow-up e-mails regarding discovery requests and the request for a trial
continuance, and an e-mail requesting a CR 26(i) conference,
Counsel for Kennedy-Wilson also sent MDK Law an Outlook invitation for a
CR 26(i) conference scheduled for September 6, which Kimball declined on
September 3. In the following weeks, MDK Law also failed to respond to several
follow-up e-mails and phone calls from opposing counsel. Finally, on September
11, Kimball answered one of opposing counsel’s phone calls and stated that he
would provide an update in a day or two. But Kimball never followed up or
answered opposing counsel’s subsequent phone calls or e-mails.
On October 1, 2024, Kennedy-Wilson filed a motion to compel Minor to
comply with discovery requests and a motion for an order to show cause regarding
Minor’s failure to comply with the case scheduling order. When MDK Law did not
respond to either motion, Judge Keenan granted the motions. Judge Keenan
4
No. 88718-1-I
ordered Minor to provide complete discovery responses within 10 days and to
appear at a hearing on October 29, 2024 “to show cause as to why the Court
should not sanction Plaintiff for failing to comply with the Court’s Case Schedule.”
When MDK Law failed to provide any discovery responses within 10 days as
ordered by the court, Kennedy-Wilson filed a motion to compel Minor’s compliance
with the court’s orders and a motion for fees.
MDK Law failed to appear at the show cause hearing. Consequently, on
November 7, 2024, Judge Keenan dismissed the Underlying Complaint with
prejudice “[a]s a sanctions [sic] of Plaintiff for failure to prosecute this lawsuit and
for failing to follow the case schedule” and awarded Kennedy-Wilson its “costs in
preparing and filing its Motion to Compel and Motion for an Order to Show Cause
in the amount of $2,138.50.” MDK Law did not inform Minor that the lawsuit had
been dismissed. Instead, Minor learned that its case had been dismissed from a
third party in February 2025.
After Minor learned the Underlying Litigation had been dismissed, it filed the
instant action against MDK Law on March 18, 2025, alleging legal malpractice and
breach of fiduciary duties. Both Minor and MDK Law filed motions for summary
judgment. MDK Law, relying on Paradise Orchards, argued Minor could not
establish proximate cause because it never filed a CR 60(b) motion to vacate
Judge Keenan’s November 2024 order dismissing the Underlying Complaint with
prejudice. Minor, in turn, argued the court should enter partial summary judgment
in its favor on the issue of liability and requested disgorgement of the fees it paid
to MDK Law.
5
No. 88718-1-I
The court held a hearing on the parties’ summary judgment motions. MDK
Law’s argument focused on proximate cause, and it stated that the trial court “could
assume for limited purposes of argument that the standard of care was violated.”
The court questioned Minor’s counsel as to why he had not filed a CR 60 motion,
and expressed confusion as to why Minor had not “even attempted to try the
underlying issues of the initial complaint.” The court subsequently granted
summary judgment in favor of MDK Law and denied Minor’s motion for partial
summary judgment. In its order granting MDK Law’s motion, the court concluded:
Pursuant to Paradise Orchards . . . , the failure to bring a CR 60(b)
motion in the underlying case is a defense to this case. Because
plaintiffs have not sought relief they cannot prove they would have
fared better but for Defendants’ conduct.
In its order denying Minor’s motion, the court likewise stated:
There is a question as to whether Defendant’s actions are the
proximate cause of Plaintiff’s harm. “[P]roximate cause boils down
to whether the client would have fared better but for the attorney’s
malpractice.” Paradise Orchards General Partnership v. Fearing,
122 Wn. App. 507 (2004) citing Lavigne v. Chase, Haskell, Hayes &
Kalamon, 112 Wn. App. 677, 683 (2002) (citation omitted).
Minor filed a motion for reconsideration regarding both orders, which the trial court
denied. This timely appeal followed.
II
Minor argues the trial court erred in granting MDK Law’s summary judgment
motion and denying its motion for partial summary judgment based on Paradise
Orchards. We agree.
We review a trial court’s summary judgment ruling de novo. David v.
Freedom Vans LLC, 4 Wn.3d 242, 248, 562 P.3d 351 (2025). We undertake the
6
No. 88718-1-I
same inquiry as the trial court and consider the evidence and the reasonable
inferences from it in the light most favorable to the nonmoving party. State v. City
of Sunnyside, 3 Wn.3d 279, 296, 550 P.3d 31 (2024). “As this case is here on
cross motions for summary judgment, we take the facts in the light most favorable
to the nonmoving party with respect to the particular claim.” Anderson v. Akzo
Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d 857 (2011). Summary
judgment is appropriate where “there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.” Horvath v. DBIA
Services, 5 Wn.3d 898, 908, 580 P.3d 969 (2025); CR 56(c).
“To prevail in a legal professional negligence case, the plaintiff client must
demonstrate that the outcome of the underlying litigation for which the
representation was provided would have been more favorable to the client than
the result actually obtained but for the defendant attorney’s negligence.” Geer v.
Tonnon, 137 Wn. App. 838, 840, 155 P.3d 163 (2007). The plaintiff must establish
four elements:
(1) [t]he 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.
Piris v. Kitching, 185 Wn.2d 856, 861, 375 P.3d 627 (2016) (quoting Hizey v.
Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992)). Similarly, “[i]n a tort
action against attorneys that alleges . . . 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 the breach proximately caused the
7
No. 88718-1-I
injury.” Arden v. Forsberg & Umlauf, P.S., 189 Wn.2d 315, 323, 402 P.3d 245
(2017).
In Washington, both cause in fact and legal causation are encompassed
within the element of proximate cause. Lowman v. Wilbur, 178 Wn.2d 165, 169,
309 P.3d 387 (2013). 1 “Cause in fact refers to the “‘but for” consequences of an
act—the physical connection between an act and an injury.’” Galassi v. Lowe’s
Home Ctrs., LLC, 4 Wn.3d 425, 440, 565 P.3d 116 (2025) (quoting Meyers v.
Ferndale Sch. Dist., 197 Wn.2d 281, 289, 481 P.3d 1084 (2021)). Legal causation,
in turn, “rests on policy considerations determining how far the consequences of a
defendant’s act should extend.” Paradise Orchards, 122 Wn. App. at 514. Thus,
as noted, causation in this context “boils down to whether the client would have
fared better but for the attorney’s negligence.” Lavigne v. Chase, Haskell, Hayes
& Kalamon, 112 Wn. App. 677, 683, 50 P.3d 306 (2002).
In granting summary judgment in favor of MDK Law, the trial court relied
solely on Paradise Orchards. There, attorney George Fearing represented
Paradise Orchards in a real estate transaction and drafted several documents
related to the transaction. 122 Wn. App. at 511. When the closing fell through,
Paradise Orchards sought specific performance from the buyers, but the trial court
ruled that the real estate contract Fearing had drafted did not allow for specific
performance. Id. at 511-12. Paradise Orchards did not appeal the trial court’s
ruling and instead settled with the buyers and filed a legal malpractice complaint
1 But see Zorchenko v. City of Federal Way, 31 Wn. App. 2d 390, 401-04, 549 P.3d 743 (2024)
(Feldman, J., concurring) (explaining that cause in fact and legal causation are separate and distinct elements of a negligence claim rather than elements of proximate cause).
8
No. 88718-1-I
against Fearing. Id. at 512. The court determined that the trial court in the
underlying real estate litigation erred because, contrary to that court’s ruling, the
contract Fearing had drafted for Paradise Orchards allowed for specific
performance. Id. at 512. And because the contract allowed for specific
performance, it necessarily followed that Fearing did not breach the applicable
standard of care nor did he proximately cause harm to Paradise Orchards.
Accordingly, the court entered judgment in favor of Fearing. Id. at 512-13.
Division Three of this court affirmed. Relevant here, the court held “the trial
court correctly reasoned the Franklin County court erred,” id. at 520, thus
confirming that Fearing had not breached the applicable standard of care. The
court then concluded:
Paradise could have challenged the earlier trial court’s erroneous
memorandum decision. It chose not to do so, thus giving up an
opportunity to have the error rectified. Paradise cannot say as a
matter of law that the error resulted in the unsatisfactory settlement
with Stormy Mountain. Hence, Paradise fails to establish the legal
causation element of its legal malpractice claim.
Id. at 520. In other words, the court held that, because Fearing had not breached
the applicable standard of care, Paradise Orchards could not establish the
elements of its legal malpractice claim, including causation.
The facts here are distinguishable from those in Paradise Orchards. Critical
here, there is at least a question of material fact as to whether MDK Law breached
the applicable standard of care and, accordingly, caused Minor’s alleged damages.
During its oral argument in the trial court, MDK Law conceded for the limited
purpose of its summary judgment motion that it had breached the standard of care.
And Minor presented a plethora of evidence that could establish a breach of the
9
No. 88718-1-I
standard of care, including that MDK Law overlooked or ignored numerous e-mails
from opposing counsel, declined an invitation for a CR 26(i) conference, ignored
orders from the trial court, and failed to appear to a show cause hearing. Because
MDK Law arguably breached the applicable standard of care, the trial court below
could not properly conclude as a matter of law (as the court did in Paradise
Orchards) that Minor’s failure to challenge the trial court’s decision in the
Underlying Litigation precluded it from establishing the causation element of its
legal malpractice claims. Accordingly, Paradise Orchards does not control the
result here.
Despite this, MDK Law argues Paradise Orchards is applicable because
Judge Keenan erroneously dismissed the Underlying Complaint with prejudice
when CR 41(b)(1) states, “[a]ny civil action shall be dismissed, without prejudice,
for want of prosecution.” But Judge Keenan dismissed the underlying lawsuit “[a]s
a sanctions [sic] of Plaintiff for failure to prosecute this lawsuit and for failing to
follow the case schedule.” (Emphasis added.) Because dismissal for failing to
follow a case schedule is not governed by CR 41(b)(1), Judge Keenan did not err
as a matter of law in dismissing the Underlying Complaint with prejudice. The
unique circumstances present in Paradise Orchards are not present here. MDK
law stretches Paradise Orchards beyond its facts.
Moreover, even if we were to assume (without deciding) that Judge Keenan
erred in dismissing the Underlying Complaint with prejudice, Paradise Orchards
does not require Minor to seek to have that order vacated under CR 60(b) prior to
filing a legal malpractice action. If Minor’s damages were caused solely by judicial
10
No. 88718-1-I
error and not by MDK Law’s legal malpractice, Paradise Orchards would apply and
Minor’s damages would not be recoverable from MDK Law. See Paradise
Orchards, 122 Wn. App. at 520. But “‘[t]here may, of course, be more than one
proximate cause of an injury, and the concurring negligence of a third party does
not necessarily break the causal chain from original negligence to final injury.’”
Estate of Shinaul M. v. Dep’t of Soc. & Health Servs., 96 Wn. App. 765, 770, 980
P.2d 800 (1999) (quoting Doyle v. Nor-West Pac. Co., 23 Wn. App. 1, 6, 594 P.2d
938 (1979)). Here, as discussed above, there is at least an issue of material fact
regarding whether MDK Law breached the applicable standard of care and thereby
caused harm to Minor. Unlike Paradise Orchards, this issue cannot properly be
decided in MDK Law’s favor on summary judgment.
Nor does the concurring opinion in Setterquist v. Law Offices of Ted D.
Billbe, PLLC, 792 Fed. Appx. 428 (9th Cir. 2019), support the trial court’s causation
analysis, as MDK Law asserted at oral argument. 2 First, Setterquist is an
unpublished federal decision. As counsel for MDK Law appropriately noted at oral
argument, such decisions are, at most, persuasive. See Kumar v. Gate Gourmet
Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014) (“Federal cases are not binding on
this court . . . .”). Second, the concurring opinion’s reasoning in Setterquist was
not shared by the majority opinion, which “concluded that plaintiff’s failure to
challenge the trial court’s decision was not necessarily fatal to establishing
proximate causation.” 792 Fed. Appx. at 430. Accordingly, contrary to MDK Law’s
2
Wash. Ct. of Appeals oral argument, Minor v. Kimball, No. 88718-1-I, (July 15, 2026), at 15 min., 20 sec. through 18 min., 22 sec. (on file with the court).
11
No. 88718-1-I
argument, the federal court’s reasoning in Setterquist does not support the trial
court’s causation analysis.
Lastly, Minor also assigns error to the trial court’s order denying its motion
for partial summary judgment. That order incorporates the trial court’s erroneous
discussion of causation and relies on Paradise Orchards. See supra at section I,
quoting the trial court’s order. As discussed above, Paradise Orchards does not
support the trial court’s causation analysis. Accordingly, in addition to reversing
the trial court’s order granting MDK Law’s motion for summary judgment, we
vacate the trial court’s order denying Minor’s motion for partial summary judgment
and remand Minor’s legal malpractice and breach of fiduciary duty claims for
further proceedings consistent with this opinion. 3
Reversed in part, vacated in part, and remanded.
WE CONCUR:
3 As the above discussion indicates, several legal principles are potentially applicable here as
defenses to Minor’s claims, including concurrent causation and superseding cause. Additionally, in Bullard v. Bailey, 91 Wn. App. 750, 759, 959 P.2d 1122 (1998), the defendant attorney argued that this court should “assign fault to Bullard [the former client] for failing to mitigate damages by not seeking to have the Cave settlement [the adverse outcome] vacated under CR 60(b).” We express no opinion as to the applicability of these legal principles and the proper resolution of the parties’ claims and defenses on remand.
12