## Facts

- Black Mountain Development Company (through trustee Larry Daugert) had a contract dispute with Black Mountain Ranch regarding defects and repairs in a recreation complex.
- The parties executed a settlement intended to fully resolve past, present, and future disputes and agreed to be bound by an independent appraiser’s findings.
- The appraiser concluded the problems stemmed from a design defect attributable to the developer; the developer refused to correct them.
- The ranch sued for breach of the settlement agreement; the trial court ruled for the developer, but the Court of Appeals reversed, enforcing the settlement absent fraud, mistake, or arbitrariness.
- The developer instructed its attorney, John Pappas, to petition for discretionary review in the Washington Supreme Court.
- Pappas filed the petition one day late and failed to follow proper extension procedures, eliminating further appellate review and leaving an adverse judgment in place.
- The developer sued Pappas for legal malpractice; duty and breach were essentially undisputed, and the case turned on proximate cause.
- The trial court submitted causation to the jury using a substantial-factor/lost-chance approach; the jury found a 20% chance that timely review would have been granted and the client would have obtained a better result, and judgment was entered against Pappas.

## Issues

1. In a legal malpractice claim based on failure to timely perfect an appeal, is causation in fact decided by the judge or by the jury?
2. Does causation permit a probabilistic “loss of chance” measure, or must the plaintiff prove traditional but-for causation that the appeal would have produced a more favorable outcome?

## Decision

- The Washington Supreme Court reversed the malpractice judgment and remanded.
- The court held that, in missed-appeal malpractice cases, causation in fact is a question for the court, not the jury.
- The court rejected the lost-chance/substantial-factor approach in this context and required proof of traditional but-for causation.
- On remand, the trial judge was directed to decide causation as a matter of law by reviewing the underlying record and applying the same standards that would have governed discretionary review and appellate disposition.

## Legal Principles

- In legal malpractice based on failure to perfect an appeal, the causation inquiry is whether the client would have obtained appellate review and a more favorable result but for the lawyer’s negligence.
- Because the inquiry requires legal evaluation of discretionary review standards and likely appellate outcomes on an existing record, it is determined by the judge rather than a lay jury.
- Washington does not permit recovery based on a percentage probability of a better appellate outcome (“loss of chance”) for missed-appeal legal malpractice.
- The proper method is a “case within a case” analysis in which the court evaluates the underlying proceeding as the appellate tribunal would have, using the same rules of review.

## Conclusion

The court required plaintiffs in missed-appeal legal malpractice cases to prove, as a matter of law and under a but-for standard, that timely appellate action would have produced a different outcome, and it disallowed jury-based probability assessments of a partially lost chance.


Daugert v. Pappas, 704 P.2d 600 (Wash. 1985)