                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 23, 2018




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    BRADFORD BALINT and DANICE                                       No. 50685-8-II
    BALINT, husband and wife,

                                 Appellants,
                                                               UNPUBLISHED OPINION
          v.

    MICHAEL J. WYNNE and MARY S.
    WYNNE, individually, and as husband and
    wife, and MICHAEL J. WYNNE, P.S.,

                                 Respondents.


         MAXA, C.J. – Bradford and Danice Balint appeal the trial court’s order granting summary

judgment in favor of Michael and Mary Wynne and Michael J. Wynne, P.S. (collectively

Wynne) on the Balints’ legal negligence claim. The claim arose after attorney Wynne drafted a

quitclaim deed for execution by David Balint, Bradford’s1 father, a few days before David died

of cancer. The deed conveyed to the Balints, without consideration, property that David owned.

         A court subsequently quieted title to the property in David’s estate on the grounds that

the Balints, who had moved into David’s house to care for him, had exerted undue influence on

David in the execution of the deed. The Balints then filed suit against Wynne, alleging that he

was negligent in failing to recognize a conflict of interest in representing both them and David


1
 This opinion refers to individuals with the last name of Balint by their first names to avoid
confusion. No disrespect is intended.
No. 50685-8-II


and in not advising them about a possible undue influence claim. The trial court granted

summary judgment in favor of Wynne, ruling that the Balints had failed to produce required

expert testimony showing that Wynne breached a duty. The court later denied the Balints’

combined motion for reconsideration and motion to admit additional evidence: an expert

declaration stating an opinion that Wynne had breached his duty of care.

       We hold that (1) the trial court did not err in granting summary judgment in favor of

Wynne when the Balints did not submit expert testimony stating that Wynne had breached the

standard of care owed to the Balints, and (2) the Balints’ motion for reconsideration and to admit

additional evidence was untimely under CR 59(b) because it was filed more than 10 days after

the trial court entered its summary judgment order. Accordingly, we affirm the trial court’s

summary judgment and reconsideration orders.

                                                 FACTS
Background

       The Balint family had a long history of working with Wynne. Wynne represented David,

David’s mother, and the Balints.

       In mid-2004, David was diagnosed with esophageal cancer. He was told that he had

between a year and 18 months to live. David and the Balints informed Wynne of David’s

medical situation.

       In September, Bradford directed Wynne to draft health care and financial powers of

attorney for David naming the Balints as attorneys in fact for David. At a September 22 meeting

involving David, the Balints and Wynne, David executed powers of attorney placing the Balints

in charge of his financial and personal affairs. The same day, the Balints each executed a power

of attorney and a healthcare directive that Wynne had prepared for them. Wynne invoiced David

and the Balints separately for those services.



                                                   2
No. 50685-8-II


       On November 2, David’s mother deeded to him real property consisting of approximately

9.08 acres in Ridgefield. Wynne drafted the deed. David lived in a structure on the property.

Later in November, the Balints moved into a different structure on the property to care for David.

       In approximately August 2005, David became much more infirm. The Balints began

calling Wynne, at David’s request, to schedule an appointment to draft a deed for David to

transfer the Ridgefield property to the Balints.

       David was hospitalized for pneumonia and congestive heart failure from September 11 to

September 15. The hospital discharged David into hospice care at the Balints’ home. David was

taking a number of medications, including morphine, that affected his mental state. David was

forgetful, confused, fatigued, and weak.

       On September 27, Wynne came to the Balints’ home so David could sign the quitclaim

deed. David was in a hospital bed, next to which was a table full of medications. Wynne met

privately with David. David told Wynne that he wanted to transfer the property and that he

understood what he was signing. David then executed the quitclaim deed, which gifted the

Ridgefield property to the Balints without consideration.

       Wynne did not have any conversation with the Balints about David’s medical situation.

He did not ask them about David’s illness, why he was in a hospital bed, or why he was

surrounded by medications. Wynne also did not interview David to determine whether he had

the capacity to sign the deed. Wynne did not learn and was not informed that David was

receiving hospice care for terminal cancer, that David had been confused since his discharge

from the hospital, or that David was taking medication that could affect his mental state.

       Wynne did not discuss with the Balints the risk that the quitclaim deed might be

challenged by Bradford’s siblings on the grounds that the Balints had unduly influenced David.




                                                   3
No. 50685-8-II


Wynne also did not express any concern about whether the Balints had a fiduciary or

confidential relationship with David.

       David died on October 2. His will, executed in 1993, had disinherited Bradford. A court

appointed Jason Balint, David’s other son, as the personal representative of David’s estate.

Voiding of Quitclaim Deed

       In June 2006, Jason, acting as the personal representative of David’s estate, filed a

complaint against the Balints to quiet title to the Ridgefield property in the estate. The estate

alleged that the quitclaim deed was void because David was incompetent on the date of

execution. The estate also alleged that the Balints had breached their fiduciary duties to David

and exercised undue influence over him.

       After a bench trial, the court concluded that the Balints had breached their fiduciary duty

to David by obtaining the quitclaim deed. The court ruled that the Balints had failed to meet

their burden at trial, imposed on them because they had a confidential relationship with David, to

establish that the quitclaim deed was valid. The court also concluded that Wynne did not

adequately advise David before he signed the quitclaim deed, that David did not execute the deed

with a full understanding of the facts, and that David lacked capacity to execute the documents.

       As a result, the court ruled that title to the Ridgefield property was quieted in favor of the

estate and required the Balints to sign a quitclaim deed transferring title to the estate. The court

also required the Balints to pay $50,000 in attorney fees to the estate.

Legal Negligence Lawsuit and Summary Judgment

       In July 2011, the Balints filed a complaint against Wynne, alleging legal negligence. The

Balints asserted two claims: (1) Wynne had a conflict of interest because he represented both

David and them, Wynne did not disclose the conflict, and Wynne did not advise them to seek




                                                  4
No. 50685-8-II


independent counsel before David deeded them the property; and (2) Wynne was negligent in

failing to advise them that there was a potential allegation that they had exerted undue influence

over David and in failing to advise them that they were in a confidential and fiduciary

relationship with David.

       In his subsequent deposition, Bradford testified that David was not incapacitated when he

executed the quitclaim deed. He stated that David had the mental capacity to convey the

property and that David was of sound mind. Bradford also testified that the court ruling in the

quiet title lawsuit was wrong and that he and his wife did not exert undue influence over David.

       Wynne filed a summary judgment motion. His primary argument was that the Balints

could not show a breach of duty without expert testimony establishing the standard of care with

which he was required to comply.2 In response, the Balints argued that the evidence created a

question of fact regarding Wynne’s negligence and that expert testimony was not necessary. The

Balints did not submit any expert testimony regarding the standard of care.

       On May 3, 2017, the trial court filed a written memorandum opinion and order granting

Wynne’s summary judgment motion. The court stated that the evidence was sufficient to show

that Wynne owed a duty to the Balints in performing legal services. However, the court ruled

that the Balints had failed to produce competent evidence that Wynne had breached that duty.

The court stated that expert testimony was required under the facts of the case to establish the

standard of care and how Wynne breached that standard. The trial court scheduled a presentation

of the judgment of dismissal for May 19.




2
 Wynne also argued that the Balints could not show that any breach of duty was the proximate
cause of any damages. The trial court denied summary judgment on proximate cause.



                                                 5
No. 50685-8-II


Motion for Reconsideration and for Admission of Additional Evidence

       On May 17, the Balints filed a motion for reconsideration and for admission of additional

evidence. The Balints sought to admit the declaration of James Senescu, an attorney with

expertise in estate planning and matters relating to elder law. In the declaration, Senescu stated

his opinion that Wynne owed a duty to the Balints to make sure that they would not be adversely

affected by the quitclaim deed. Senescu stated that Wynne knew or should have known that,

because of the Balints’ relationship with David, the property could be deemed transferred under

undue influence. He believed that Wynne should have taken steps to determine whether David

was free from undue influence, including seeking independent counsel to assist. As a result,

Senescu offered the opinion that Wynne had breached his duty of care.

       Wynne moved to strike the Balints’ motion as untimely under CR 59(b) and Clark

County Local Civil Rule (LCR) 59(b) because it was not filed within 10 days after the trial court

filed its summary judgment order. In supplemental briefing, Wynne also argued that the trial

court should not consider Senescu’s declaration on reconsideration because it was not newly

discovered evidence.

       The trial court opted not to decide the motion on procedural grounds, even though the

court stated that the motion probably was untimely. Instead, the court denied the motion for

reconsideration because Senescu’s declaration did not qualify as newly discovered evidence.

The court then entered a judgment of dismissal.3

       The Balints appeal the trial court’s grant of summary judgment in favor of Wynne and

the trial court’s denial of their motion for reconsideration.



3
 The Balints filed a second motion for reconsideration, which the trial court denied. The Balints
do not appeal that ruling.



                                                  6
No. 50685-8-II


                                           ANALYSIS

A.     FAILURE TO ESTABLISH LEGAL NEGLIGENCE

       The Balints argue that the trial court erred in granting summary judgment in favor of

Wynne. They claim that expert testimony was not required to establish a question of fact

regarding whether Wynne breached a duty he owed to them. We disagree.

       1.   Standard of Review

       We review a trial court’s ruling on summary judgment de novo. Schibel v. Eymann, 189

Wn.2d 93, 98, 399 P.3d 1129 (2017). “Summary judgment is appropriate where there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Id.; see also CR 56(c). When evaluating the evidence on summary judgment, we must view all

facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.

Piris v. Kitching, 185 Wn.2d 856, 861, 375 P.3d 627 (2016). A factual issue may be resolved as

a matter of law on summary judgment if reasonable minds could reach only one conclusion.

Halme v. Walsh, 192 Wn. App. 893, 901, 370 P.3d 42 (2016).

       A defendant can move for summary judgment based on the contention that there is an

absence of evidence to support the plaintiff’s claim. Zonnebloem, LLC v. Blue Bay Holdings,

LLC, 200 Wn. App. 178, 183, 401 P.3d 468 (2017). The burden then shifts to the plaintiff to

present specific facts that rebut the defendant’s contention and show a genuine issue of material

fact. Id. Summary judgment is appropriate if a plaintiff fails to present sufficient evidence on all

essential elements of the claim. Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey PC,

180 Wn. App. 689, 699, 324 P.3d 743 (2014).




                                                 7
No. 50685-8-II


       2.    Legal Background

       A legal negligence claim requires proof of four elements: (1) the existence of a duty of

care the attorney owes to the plaintiff, (2) the attorney’s breach of that duty of care, (3) damage

to the plaintiff, and (4) proximate causation between the breach of duty and the damage. Clark

County Fire Dist., 180 Wn. App. at 700-01; see also Arden v. Forsberg & Umlauf, PS, 189

Wn.2d 315, 323, 402 P.3d 245 (2017). The standard of care for an attorney is to “ ‘exercise the

degree of care, skill, diligence, and knowledge commonly possessed and exercised by a

reasonable, careful, and prudent lawyer in the practice of law’ in Washington.’ ” Arden, 189

Wn.2d at 328 (quoting Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d 646 (1992)).

       When the alleged negligence is an error of professional judgment, we apply the attorney

judgment rule in determining when the judgment decision breaches an attorney’s duty of care.

Clark County Fire Dist., 180 Wn. App. at 701, 704. Under this rule, an attorney cannot be liable

if a judgment decision was “within the range of reasonable alternatives from the perspective of a

reasonable, careful, and prudent attorney” and the attorney exercised reasonable care in making

that decision. Id. at 704.

       The existence of a duty is a question of law. Arden, 189 Wn.2d at 323. Here, the trial

court ruled that there was sufficient evidence of a relationship between Wynne and the Balints to

create a duty of care.4 Wynne does not challenge this ruling, and therefore we do not address the

existence of a duty.




4
 Even if the Balints technically were not Wynne’s clients regarding execution of the quitclaim
deed, under certain circumstances an attorney can owe a duty of care to nonclients. See Stewart
Title Guar. Co. v. Sterling Sav. Bank, 178 Wn.2d 561, 565-66, 311 P.3d 1 (2013) (recognizing a
multifactor test for determining whether an attorney can be liable to a nonclients for
malpractice).



                                                  8
No. 50685-8-II


       Whether an attorney has breached the duty of care generally is a question of fact. Clark

County Fire Dist., 180 Wn. App. at 705. But an attorney can obtain summary judgment on

breach of duty if reasonable minds can reach only one conclusion. Id.

       3.   Need for Expert Testimony

       The issue here is whether the Balints presented sufficient evidence that Wynne breached

the duty of care. Resolution of this issue depends on whether the Balints were required to

present expert testimony on the standard of care.

            a.    Legal Principles

       The Supreme Court recognized in Walker v. Bangs that expert testimony may be required

to establish a breach of duty in legal negligence claims:

       Law is admittedly a highly technical field beyond the knowledge of the ordinary
       person. By its very nature, an action for professional negligence in the preparation
       and conduct of specific litigation involves matters calling for special skill or
       knowledge – proper subjects for expert testimony.

92 Wn.2d 854, 857-58, 601 P.2d 1279 (1979) (citation omitted).

       However, the court in Walker did not adopt a rule that expert testimony on the standard

of care was mandatory. Id. at 858. Instead, the court stated that “expert testimony is not

necessary when the negligence charged is within the common knowledge of lay persons.” Id.

Courts more recently have confirmed this rule. Slack v. Luke, 192 Wn. App. 909, 916-17, 370

P.3d 49 (2016); Geer v. Tonnon, 137 Wn. App. 838, 851, 155 P.3d 163 (2007).

       But the court in Geer also emphasized that “[e]xpert testimony is often required to

determine whether an attorney’s duty of care was breached in a legal professional negligence

action.” 137 Wn. App. at 851 (emphasis added); see also Clark County Fire Dist., 180 Wn. App.

at 705 n.5 (stating that “a plaintiff generally must present expert testimony that the attorney




                                                 9
No. 50685-8-II


breached the standard of care” in a legal negligence case). The Supreme Court noted the

importance of expert testimony to establish a legal negligence claim:

       The expert must testify generally as to ethical requirements, concluding the
       attorney’s violations of the ethical rules constituted a deviation from the legal
       standard of care. Without this evidentiary link, the plaintiff risks dismissal of the
       malpractice case for failure properly to establish the breach of the duty of care.

Hizey, 119 Wn.2d at 265.

       When expert testimony is required and not provided, there is insufficient evidence that

the attorney breached any applicable duty and the attorney is entitled to summary judgment. See

Geer, 137 Wn. App. at 851-52.

            b.    Conflict of Interest Claim

       The Balints alleged in their complaint that Wynne had a conflict of interest because he

represented both David and them, that Wynne did not disclose the conflict, and that Wynne did

not advise them to seek independent counsel before David deeded them the property. The

Balints argue that lay persons can understand the concept of a conflict of interest without the

need for expert testimony. We disagree.

       First, lay persons would not necessarily know without expert testimony whether Wynne

had a conflict of interest under the facts of this case. The Rules of Professional Conduct (RPCs)

provide rules regarding conflicts of interest. E.g., RPC 1.7, 1.8, 1.9. The Balints relied on the

RPCs in the trial court in opposing summary judgment. But the RPCs do not set the standard of

care in legal negligence actions. LK Operating, LLC v. Collection Group, LLC, 181 Wn.2d 48,

90, 331 P.3d 1147 (2014); see also Hizey, 119 Wn.2d at 258-59. In fact, violation of the RPCs

may not even be used as evidence of malpractice and jury instructions may not refer to the RPCs.

Hizey, 119 Wn.2d at 259-60, 265-66. Instead, experts must address the legal standard of care

without explicitly referencing the RPCs. Id. at 265.



                                                10
No. 50685-8-II


        Here, without any guidance from the RPCs or expert testimony, a lay person could have

concluded that there was no conflict of interest. Wynne had done legal work for both David and

the Balints. And both David and the Balints had an interest in the deed Wynne drafted for

David’s execution. But there was no apparent conflict between David and the Balints. The

Balints actually requested that Wynne draft the deed for David to execute. David and the Balints

appeared to be working together to accomplish something they both wanted – transfer of David’s

property to the Balints.

        The Balints apparently claim that David’s questionable competence and the potential that

undue influence could be found created a conflict of interest even though the parties appeared to

have a common interest. This complex conflict of interest claim is not something that lay

persons would be able to evaluate without expert assistance. And the Balints provided no actual

evidence on summary judgment to support their allegation that Wynne had a conflict of interest.

Therefore, expert testimony was required to create a question of fact on the existence of a

conflict of interest.

        Second, lay persons would not necessarily know the standard of care for an attorney who

represented the grantor in drafting a quitclaim deed and also represented the grantees on other

matters. The Balints argue that Wynne was required to disclose his representation of David to

them, but they obviously knew that Wynne was representing David regarding the deed because

they procured his representation. In addition, while the Balints claim that Wynne should have

advised them to seek independent counsel, a lay person would not be able to evaluate this claim

without expert assistance. And the Balints provided no actual evidence on summary judgment to

support their allegation that Wynne had certain obligations relating to the alleged conflict of




                                                 11
No. 50685-8-II


interest. Therefore, expert testimony was required to create a question of fact on a reasonable,

careful, and prudent attorney’s course of action even if there was a conflict of interest.

             c.   Failure to Advise Claim

       The Balints alleged in their complaint that Wynne was negligent in failing to advise them

that (1) there could be a potential allegation that they had exerted undue influence over David

and (2) they were in a confidential and fiduciary relationship with David. The Balints argue that

lay persons can understand that when there is a legal concept that must be discussed with a

client, the failure to discuss that concept is negligent. We disagree.

       Wynne was drafting a quitclaim deed at David’s request that would benefit the Balints,

who he also had represented on estate planning matters. And Wynne knew that David had

cancer and that the Balints had been caring for him. The trial court ruled that Wynne owed the

Balints a duty based on his relationship with them even though he technically did not represent

them regarding the quitclaim deed. But Wynne’s obligation to advise the Balints regarding

undue influence and confidential and fiduciary relationships is a complex question that lay

persons could not answer without expert assistance. And the Balints provided no actual evidence

on summary judgment to support their allegation that Wynne was required to advise the Balints

regarding these matters. Therefore, expert testimony was required to create a question of fact on

a reasonable, careful, and prudent attorney’s course of action in this scenario.

             d.   Alleged Plaintiff’s Dilemma

       Finally, the Balints argue that a plaintiff in a legal negligence action is placed in the

difficult position of having to guess whether expert testimony will be required in a particular

case. However, in any case a plaintiff must determine what evidence is necessary to establish a

claim. And case law makes it clear that a plaintiff in a legal negligence action runs the risk of




                                                 12
No. 50685-8-II


having the action dismissed on summary judgment if no expert testimony is presented. See

Hizey, 119 Wn.2d at 265.

       Further, here Wynne’s summary judgment motion was expressly based on the absence of

expert testimony to support the Balints’ claims. The Balints were on notice that they may need

to retain an expert at that time to address Wynne’s breach of duty, as they did on reconsideration.

       4.   Summary

       Because of the complexities of the Balints’ claims that Wynne breached a duty of care,

the Balints were required to present expert testimony on that issue to avoid summary judgment.

The Balints did not produce any expert testimony before the court granted Wynne’s summary

judgment motion. Accordingly, we hold that the trial court did not err in granting summary

judgment in favor of Wynne.

B.     MOTION FOR RECONSIDERATION

       The Balints argue that the trial court erred in declining to consider their expert declaration

submitted on reconsideration and therefore erred in denying their motion for reconsideration.

Wynne argues that the motion for reconsideration was untimely. We agree with Wynne.

       CR 59(b) states that a motion for reconsideration “shall be filed not later than 10 days

after the entry of the judgment, order, or other decision.” The rule was amended in 2005 to add

the “order, or other decision” language. CR 6(b) states that a court cannot extend the time for

taking action under CR 59(b). Therefore, trial courts have no discretionary authority to extend

the time period for filing a motion for reconsideration. Schaefco, Inc. v. Columbia River Gorge

Comm’n, 121 Wn.2d 366, 367-68, 849 P.2d 1225 (1993).

       Here, the trial court’s summary judgment order was not a “judgment.” CR 54(a)(1)

defines a judgment as the written “final determination of the rights of the parties in the action




                                                 13
No. 50685-8-II


and includes any decree and order from which an appeal lies.” The trial court did not enter a

judgment of dismissal when it granted summary judgment.

       The question here is whether the trial court’s summary judgment order constituted an

“order” for purposes of CR 59(b). CR 54(a)(2) defines an order as “[e]very direction of a court

or judge, made or entered in writing, not included in a judgment[.]” An order generally contains

a formal caption and is formally labeled as an order. In re Marriage of Tahat, 182 Wn. App.

655, 672, 334 P.3d 1131 (2014).

       Here, the trial court’s summary judgment order was in writing, was filed as a pleading

that included a formal caption, and was specifically identified as a “Memorandum of Opinion

and Order Deciding Defendants’ Motion for Summary Judgment.” Clerk’s Papers (CP) at 147

(emphasis added). Further, the contents contained a heading entitled “Order” and the following

language:

       Based on the records and files herein, and the decision noted above, and the court being
       fully advised, now, therefore, it is hereby ORDERED as follows:

       1. Defendants’ motion for summary judgment, filed March 29, 2017, as it concerns the
       issue of breach of duty, is granted.

CP at 151-52. This summary judgment order was a written direction by the trial court not

included in a judgment and therefore satisfied the definition of “order” in CR 54(a)(2).

       The Balints argue that only a final or appealable judgment, order, or other decision

triggers the 10 day filing requirement under CR 59(b). But CR 59(b) does not contain such

limiting language. And an order and certainly an “other decision,” as distinguished from a

judgment, almost always will not be final or appealable. The Balints’ proposed interpretation

would render the phrase “order, or other decision” in CR 59(b) virtually meaningless. We

interpret the rule to give effect to all the language used without rendering any portion




                                                 14
No. 50685-8-II


meaningless or superfluous. G-P Gypsum Corp. v. Dep’t of Revenue, 169 Wn.2d 304, 309, 237

P.3d 256 (2010).

       The Balints also emphasize that when the trial court filed its summary judgment order,

the court expressly recognized that a final judgment still needed to be entered and scheduled the

presentation for such a judgment. But this fact is irrelevant. The plain language of CR 59(b)

provides that a party must file a motion for reconsideration within 10 days from the judgment or

order challenged. Once again, the Balints’ proposed interpretation of the rule would render

meaningless the requirement that a party must file its motion to reconsider an order within 10

days from the entry of that order.

       We hold that the trial court’s summary judgment order constituted an “order” for

purposes of CR 59(b) and therefore that the Balints were required to file their motion for

reconsideration within 10 days after that order was filed.5 It is undisputed that the Balints did not

file their motion for reconsideration until 14 days after the trial court filed the summary

judgment order. Accordingly, we hold that the motion for reconsideration was untimely.6




5
  The Balints also argue that the 10 day requirement does not apply to its motion for admission of
additional evidence. However, the motion to admit additional evidence was part of the motion
for reconsideration. And apart from the motion for reconsideration, the motion to admit
additional evidence would have been meaningless because the trial court already had granted
summary judgment.
6
 Even if the Balints’ motion had not been untimely, the trial court did not err in declining to
consider Senescu’s declaration on the ground that it did not qualify as newly discovered evidence
under CR 59(a)(4). The Balints acknowledge that Senescu’s declaration could have been
obtained before the summary judgment hearing. The decision to consider new or additional
evidence on reconsideration “is squarely within the trial court’s discretion.” Martini v. Post, 178
Wn. App. 153, 162, 313 P.3d 473 (2013).



                                                 15
No. 50685-8-II


                                          CONCLUSION

        We affirm the trial court’s summary judgment and reconsideration orders.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.


 We concur:



 WORSWICK, J.



 JOHANSON, J.




                                                 16
