      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MICHAN RHODES,                           )       No. 77532-4-1
                                         )
               Appellant,                )      DIVISION ONE
                                         )
               v.                        )       UNPUBLISHED OPINION
                                         )
ROBERT GOULD,                            )
                                         )
               Respondent.               )      FILED: March 25, 2019
                                         )



      HAZELRIGG-HERNANDEZ, J. —      A party seeking summary judgment may not

raise new issues in rebuttal. Because the court improperly considered issues first

raised in Robert Gould's reply brief, we reverse and remand.

                                      FACTS

      Michan Rhodes hired attorney Robert Gould to represent her in a

malpractice claim against Emily Rains. Rhodes and Gould executed a contingent

fee agreement for the purposes of that representation. Rhodes explained the

circumstances regarding her claim, including the fact that she had stopped paying

Rains when she discovered the malpractice. Gould did not inform her that it was

possible Rains would file a counterclaim if Rhodes filed suit.

      Rains filed a counterclaim for unpaid wages and other matters. Gould

withdrew from representing Rhodes eight months prior to the trial date. Rhodes
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subsequently hired Lawrence Linville to represent her. Later, she dismissed

Linville and hired Dan Young to represent her against Rains. Neither of the

subsequent attorneys accepted a contingency fee agreement with Rhodes.

       Rhodes won a judgment from Rains, but her attorney fees significantly

exceeded the amount of the judgment. Rhodes filed this malpractice suit against

Gould, alleging breach of contract, legal malpractice, Consumer Protection Act

(CPA)1 violations, and breach of fiduciary duty. The breach of contract, legal

malpractice, and CPA claims were all dismissed on a summary judgment motion.

Gould filed a second motion for summary judgment on the breach of duty claim.

Gould argued that he did not breach his fiduciary duty by withdrawing as counsel.

Rhodes did not argue in response that the withdrawal was a breach of fiduciary

duty, but instead argued that Gould had breached his fiduciary duties by failing to

disclose material information. Rhodes did not file any new motions or request

cross summary judgment in response. Gould argued in reply that Rhodes had not

shown proximate cause or damages as to the failure to disclose material

information. Rhodes filed a motion to strike the reply, arguing that the court should

not consider the proximate cause or damages issues because they were not raised

in the initial motion for summary judgment. The court denied the motion to strike,

deciding that Gould's reply was"reasonable, since Ms. Rhodes raised these issues

in her Response." The court granted summary judgment on the basis that Rhodes

had failed to meet the burden regarding proximate cause and damages.



1 Chapter 19.86 RCW



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                                   ANALYSIS

I.     Summary Judgment Procedure

       We review summary judgment orders de novo, "'taking all facts and

inferences in the light most favorable to the nonmoving party." Jackowski v.

Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (2012), (quoting Biggers v. City of

Bainbridge Island, 162 Wn.2d 683,693, 169 P.3d 14(2007)). "Summary judgment

is appropriate only if the moving party shows that 'there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of

law." Jackowski, 174 Wn.2d at 729(quoting CR 56(c)). A material fact determines

the outcome of the litigation in whole or in part. Atherton Condo. Apt.-Owners

Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990),

(citing Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7(1974)). "Any doubts as

to the existence of a genuine issue of material fact is resolved against the moving

party." Atherton Condo. Apt.-Owners Ass'n Bd. Of Dirs., 115 Wn.2d at 516.

       The moving party bears the burden of raising "all of the issues on which it

believes it is entitled to summary judgment." White v. Kent Med. Ctr., Inc., P.S.,

61 Wn. App. 163, 168, 810 P.2d 4 (1991). "The court will ordinarily refuse to

consider new issues raised by the moving party in its rebuttal to the response

because the nonmoving party has no opportunity to respond." 14A KARL B.

TEGLAND, WASH Pc. CIVIL PROCEDURE §25.4, at 105 (2nd ed. 2009). If the

moving party fails to raise all issues susceptible to resolution by summary


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judgment, "it may either strike and refile its motion or raise the new issues in

another hearing at a later date." White, 61 Wn. App. at 169.

       The "purpose [of summary judgment] is not to cut litigants off from their

right of trial by jury if they really have evidence which they will offer on a trial, it is

to carefully test this out, in advance of trial by inquiring and determining whether

such evidence exist." Keck v. Collins, 184 Wn.2d 358, 369, 357 P.3d 1080(2015)

(emphasis in original) (quoting Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d

605 (1960))(citing Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)).

       White v. Kent Med. Ctr., Inc., P.S., controls the outcome of this case. In

White, the defendant doctors moved for summary judgment. 61 Wn. App. at 167.

After White filed responsive materials, defendants raised the issue of proximate

cause for the first time in their reply brief. Id. The trial court erroneously granted

summary judgment on the proximate cause issue. Id. at 169. The defendants in

White argued that it was proper to address proximate cause in their rebuttal

materials because evidence submitted by White in her response brief included

testimony concerning causation. Id. at 168.           This court found that "White's

responsive materials did not seek summary judgment on or otherwise put into

issue the question of proximate cause." Id. at 169.

       Here, Gould failed to raise the issues of proximate cause or damages in its

motion for summary judgment. Rhodes's response does not seek summary

judgment or otherwise put into issue the questions of proximate cause or damages.

Nowhere does Gould argue that it does. The trial court erred by considering the

proximate cause and damages arguments raised in Gould's reply brief. If Gould


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wished for the court to consider those arguments, Gould should have struck and

refiled his motion or raised the new issues in another hearing at a later date.

       Gould argues that his reply was properly considered by the court because

Rhodes raised a different theory of breach of fiduciary duty than Gould addressed

in his motion for summary judgment. But as the moving party, Gould bore the

burden of raising every issue on which he was entitled to judgment as a matter of

law. Gould's failure to address that claim in two successive summary judgment

motions does not vitiate Rhodes' claim, nor does it permit the court to consider

arguments first raised in a reply brief.

       Gould relies on Molloy v. City of Bellevue for the proposition that raising an

entirely new cause of action in response to a motion for summary judgment cannot

be successful. 71 Wn. App. 382, 386, 859 P.2d 613(1993). Molloy does not apply

to this case. In Molloy, plaintiff responded to a motion for summary judgment by

arguing a wrongful termination theory that was not present in the plaintiff's

complaint. 71 Wn. App. at 386. Here, the claim that Gould breached his fiduciary

duties to Rhodes by failing to disclose significant information to her is contained in

the complaint.

       Gould notes the dicta in Molloy that "even if the complaint did contain a

claim for wrongful termination, this claim was subsequently abandoned by Molloy."

71 Wn. App. at 387. Gould argues that Rhodes abandoned her failure to disclose

claim, relying on her response to the first motion for summary judgment and her

deposition answers where she indicated at one point during examination that she

was unable to recall what Gould had failed to disclose. However, Rhodes clearly


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identified Gould's failure to warn her of the possibility of a counterclaim by Rains.

And as discussed above, Rhodes did not bear the burden of raising the failure to

disclose issue in response to the first summary judgment motion. Considering the

evidence in the light most favorable to the nonmoving party, Rhodes, she has not

abandoned this claim.

       Gould requests attorney ;fees under RAP 18.1. As Gould is not the

prevailing party, we decline to award any attorney .fees.

       The trial court based the order granting summary judgment on proximate

cause and damages. Those issues were not properly before the court—therefore,

we decline to reach them.       We reverse and remand the order for further

proceedings.




WE CONCUR:




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