Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, LLP

In 2003, Feature Realty and others (collectively, Feature) sued

Feature Realty Inc., et al. v. Preston Gates & Ellis LLP, et al., 79967-9

attorneys Terrence Butler, Jerry Neal, and the law firm of Preston Gates Ellis
(Preston) for malpractice.1 Although the cause of action arose from representation

that the attorneys provided for Feature in Spokane, Washington, Feature filed the

complaint in Los Angeles County, California. In response, Neal brought a motion to

quash service for lack of personal jurisdiction, and Preston brought a motion for an

indefinite stay due to forum non conveniens. The California court granted both

motions but rather than dismissing the case, gave Feature time to refile in

Washington. At the subsequent case conference in California six months later, the

court learned that Feature had not yet filed in Washington and that it was

considering continuing to pursue Butler in California while filing against the other

defendants in Washington. The California court stated that if Feature did so and if

Butler brought a motion for sanctions, it would be granted. The court indicated that

it would like to have a dismissal of the case. Feature subsequently filed the case in

King County, and then filed a request for dismissal in California. It then voluntarily

dismissed the first King County complaint and refiled with new counsel. The

defendants moved to have the case transferred to Spokane County. After that

motion was granted they moved for summary judgment, alleging that by twice

voluntarily dismissing the case, Feature could no longer proceed against them. We

must now decide whether the dismissal in the California court was unilateral and
voluntary for purposes of Washington's two-dismissal rule, CR 41(a)(4).2

I

Facts and Procedural History

In 1991, Feature retained Neal, a partner at Preston, to assist it with zoning

issues for a proposed development in the city of Spokane (City). In 1995, Feature

filed a lawsuit against the City, alleging that it improperly delayed a permit request.

Neal did not represent Feature in that lawsuit. The following year, the trial court

dismissed the lawsuit on summary judgment. In 1998, this court reinstated the

lawsuit, Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 972, 954 P.2d

250 (1998), and Feature retained Neal and California attorney Butler to represent it

in the subsequent litigation. Later that year Feature and the City entered into a

settlement agreement. However, because the city council had not approved the

settlement in an open, public meeting as required by Washington's Open Public

Meetings Act (Act), chapter 42.30 RCW, the City reneged on the agreement. Both

the United States District Court for the Eastern District of Washington and the Ninth

Circuit Court of Appeals declared the settlement void, as it did not comply with the

Act. Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003).

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