In Re The Estate Of: Stuart Rippee; Denise Rippee, Res. V. Laura Burwash, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Estate of STUART RIPPEE,
LAURA BURWASH,
Appellant,
v.
DENISE RIPPEE,
Respondent.
NO. 70136-3-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	May 12, 2014
V?
ro
Lau, J. — Summary judgment as a matter of law is improper where reasonable
minds could differ on the facts controlling the litigation's outcome. 	In this dispute, Stuart
Rippee's widow Denise Rippee1 and adult daughter Laura Burwash2 dispute the validity
of Rippee's will and community property agreement. 	The record here amply
demonstrates material factual disputes and competing reasonable inferences from the
evidence on Burwash's claims of undue influence and testamentary capacity. 	Because
the trial court improperly granted summary judgment dismissal in Denise's favor, we
reverse and remand for trial.
1 For clarity, we refer to Stuart Rippee as "Rippee" and Denise by her first name.
2 Burwash's maiden name was Laura S. Rippee. 	We refer to her as "Burwash"
for clarity.
o
"-H
O -

70136-3-1/2
FACTS
The facts in this case are well known to the parties. 	See In re Estate of Rippee,
noted at 149 Wn. App. 1009, 2009 WL 502400 (Rippee I). In Rippee I, we reversed
summary judgment dismissal in Denise's favor because Burwash presented sufficient
evidence to create genuine issues of material fact on her undue influence and
testamentary capacity claims. 	Rippee I. 2009 WL 502400 at *5-6. Three years of
discovery ensued.
The trial court set the case for trial. 	Denise moved for summary judgment
dismissal, arguing that the lack of material factual issues entitled her to judgment
against Burwash as a matter of law. After oral argument, the trial court found no
material fact issues remained as to the undue influence and testamentary capacity
claims. 	It entered an order dismissing Burwash's Trust and Estate Dispute Resolution
Act, chapter 11.96A RCW (TEDRA) petition.
Burwash unsuccessfully moved for reconsideration based on (1) procedural
irregularities, including the shortened time granted to hear the motion for summary
judgment, (2) error in imposing a clear, cogent, and convincing standard on summary
judgment, and (3) improper grant of summary judgment given that issues of material
fact remained. 	Burwash appeals.
ANALYSIS
Summary Judgment Dismissal
We review a summary judgment order de novo, performing the same inquiry as
the trial court and considering facts and reasonable inferences in the light most
favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45
-2-

70136-3-1/3
P.3d 1068 (2002). 	Summary judgment is proper if no genuine issue of material fact
remains and the moving party is entitled to judgment as a matter of law. 	CR 56(c). A
genuine issue of material fact exists where reasonable minds could differ regarding the
facts controlling the outcome of the litigation. Wilson v. Steinbach, 98 Wn.2d 434, 437,
656 P.2d 1030 (1982). 	The nonmoving party may not rely on mere allegations, denials,
opinions, or conclusory statements but must set forth specific admissible facts indicating
a genuine issue for trial. CR 56(e); Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co.,
122 Wn. App. 736, 744, 87 P.3d 774 (2004).
After Rippee I, the parties expended three years on discovery.3 Upon
completion, Denise moved again for summary judgment dismissal. 	Like her first
summary judgment motion, Denise claims no issues of material fact exist as to the
undue influence and testamentary capacity claims. We disagree. The record here
amply demonstrates remaining material fact issues that require a trial to resolve. 	The
trial court erred when it granted Denise's summaryjudgment motion as a matter of law.4
Remaining Issues
The parties also raise various procedural and evidentiary challenges. 	Given our
disposition, we address only one—Burwash's challenge to the trial court's order
granting Denise's motion to amend her reply to the TEDRA petition.5 	Because the
amendment results in no prejudice, the trial court properly allowed the amendment.6
3 Generally, necessary discovery is completed before moving for summary
judgment.
4 Given our decision, we need not address Burwash's motion for reconsideration.
5The trial court is better positioned to address any remaining issues on remand.
-3-

70136-3-1/4
Attorney Fees
Both parties request appellate attorney fees under RAP 14.3 and RCW
11.96A.150. The requests are premature and should abide the final determination
following remand and trial.
CONCLUSION
We reverse and remand for trial.
WE CONCUR:
6 Prejudice is the most important factor in considering a motion to amend. Wilson
v. Horslev, 137 Wn.2d 500, 505, 974 P.2d 316 (1999). To evaluate prejudice, the court
examines whether the amendment would cause undue delay or unfair surprise. 	Caruso
v. Local 690 of Int'l Bhd. of Teamsters, 100 Wn.2d 343, 349-50, 670 P.2d 240 (1983).
Leave to amend pleadings is to be "freely given when justice so requires." 	CP 15(a).