Main Case Number: 01-05127, Adversary Number: A03-00237.United States Bankruptcy Court, E.D. Washington.
August 28, 2008
DECISION RE: LINDA BAYS’ AND KELLY CASE’S CAUSES OF ACTION FOR OUTRAGE (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) AGAINST GARY STENZEL, INDIVIDUALLY AND HIS MARITAL COMMUNITY
JOHN ROSSMEISSL, Bankruptcy Judge
The plaintiffs Linda Bays and Kelly Case are suing the defendant Stenzels 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 Gary Stenzel [AP #553].
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PROCEDURAL HISTORY
Gary Stenzel, 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. Stenzel’s his representation of her in her dissolution case with David Bays and in David Bays’ bankruptcy case. The acts complained of involve his conduct as her attorney. This 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 Stenzels were named among the defendants in the amended complaint. Count IX of this amended complaint is specifically directed against Gary Stenzel and seeks recovery for attorney malpractice in both the dissolution case and the bankruptcy. [AP #104 pg 32].
The amended complaint included numerous other causes of action against the Stenzels and the other defendants. Defendants Stenzel filed a motion to dismiss the various causes of action against them. [AP #149]. This court dismissed with prejudice a number of causes actions against the Stenzels. [AP #199 ¶ s 3 and 5]. The court remanded the plaintiffs’ claims for malpractice to the Superior Court. [AP #199 ¶ 9]. The court retained jurisdiction over the plaintiffs’ causes of action against the Stenzels for Slander of Title and Quiet Title, [AP #199 ¶ 4], Substantial Abuse of the Bankruptcy Laws [AP #199 ¶ 6], Offset [AP #199 ¶ 7] and Outrage [AP #199 ¶ 8]. On oral motion of Linda Bays and Kelly Case the court subsequently ordered the dismissal of the plaintiffs’
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substantial abuse of bankruptcy and set off claims against the Stenzels. [AP # 580, 630, and 633].
The summary judgment motions currently before the court by the Stenzels [AP #533], Linda Bays [AP #557, and Kelly Case [AP #570] relate to the outrage cause of action.
FACTS
Linda Bays [AP #562] and Kelly Case [AP #574] have filed declarations in support to their claims of outrage against Gary Stenzel. The gravamen of their claim is that Gary Stenzel failed to adequately represent Linda Bays as her attorney in the dissolution and in David Bays’ bankruptcy case. Mostly, the allegations concern a number of omissions or failures on Mr. Stenzel’s part, when acting as Ms. Bays’ attorney. Specifically, the plaintiffs allege Mr. Stenzel failed to follow instructions, to sufficiently inform his client about her rights, to do adequate discovery, to object to an appraiser, to seek the removal of the trial judge assigned to the dissolution case, and to object on her behalf to Mr. Bays’ bankruptcy discharge. To a lesser extent, the allegations concern what Mr. Stenzel actually did for his client. These allegations include complaint about filing incorrect documents, withdrawing as her attorney on the eve of her trial and misinforming the bankruptcy judge about her wishes regarding the dismissal of the bankruptcy.
Finally, the plaintiffs allege Mr. Stenzel conspired with the other defendants against them. Again, all of the allegations relate to Mr. Stenzel’s conduct as Ms. Bays’ attorney, which is the
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subject of the pending malpractice lawsuit in Stevens County Superior Court.
DISCUSSION
The plaintiffs have alleged a conspiracy against them 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.
The plaintiffs claim that Mr. Stenzel conspired against them. The acts about which they complain, took place during the course of hotly contested dissolution and bankruptcy cases when Mr. Stenzel was serving as Linda Bays’ lawyer.
The plaintiffs’ allegations of conspiracy are conclusory and are not supported by evidence. The Plaintiffs have not presented evidence of any agreement between Stenzel and any of the other alleged co-conspirators. Discussions over lunch or in the course of preparing and conducting litigation “are as consistent with a
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lawful or honest purpose as with an unlawful undertaking . . .”Ibid. The evidence presented is insufficient to support a claim of conspiracy against Mr. Stenzel under even the preponderance standard much less the clear, cogent and convincing standard applicable in Washington.
In Washington, civil conspiracy is a separate tort. “[O]utrage should allow recovery only in the absence of other tort remedies.” Rice v. Janovich, 109 Wash.2d 48 at 62, 742 P.2d 1230
at 1239 (1987). Since Washington views civil conspiracy as a separate tort it would not allow recovery for both torts. Since civil conspiracy requires a higher burden of proof, it is easier to prove 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.
The plaintiffs present evidence that Mr. Stenzel 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
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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.
The actions and failures to act complained of by Linda Bays are common complaints of clients seeking to prove malpractice by their attorneys. There is nothing in the facts of this case which raise it to the higher level of outrageous conduct.
Legal malpractice is a separate tort. If proved the plaintiffs could recover the same damages available if they proved outrage. In light of the availability of another tort remedy, the exceptional remedy outrage is not available to the plaintiffs.Rice v. Janovich, 109 Wash.2d 48 at 62, 742 P.2d 1230 at 1239
(1987).
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Kelly Case’s course of action is based entirely on Mr. Stenzel’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 Stenzels.
CONCLUSION
The plaintiffs Linda Bays and Kelly Case have failed to make a prima facie case of outrage against Gary Stenzel individually or his martial community. The actions complained of were not outrageous. Whether these complaints constitute legal malpractice shall be tried in the Superior Court.
An order shall be entered granting the Stenzels’ 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.
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