      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PAMELA J. BRIDGEN, an individual,  )
and THE PAMELA J. BRIDGEN          )             No. 78581-8-I
LIVING TRUST,                      )
                                   )             DIVISION ONE
             Petitioners,          )
                                   )
      v.                           )             UNPUBLISHED OPINION
                                   )
WINDERMERE REAL ESTATE CO.,        )
a Washington corporation; EDWARD   )
KRIGSMAN, in his individual and    )
representative capacity; THOMAS A. )
FAIRHALL, as Trustee of the        )
Södergren Family Trust; and        )
THE SŐDERGREN FAMILY TRUST, )
                                   )
             Respondents.          )             FILED: May 28, 2019
________________________________ )

       LEACH, J. — This case arises out of a house purchase. Pamela J. Bridgen

and the Pamela J. Bridgen Living Trust (collectively Bridgen) seek discretionary

review of the trial court’s disqualification of Bridgen’s counsel, Valerie Anne Lee.

RPC 3.7 provides for possible disqualification of counsel when she is likely to be

a necessary witness. Bridgen claims that the respondents did not satisfy the

three-part test for disqualification our Supreme Court established in Public Utility

District No. 1 of Klickitat County v. International Insurance Co. (PUD No. 1).1

Because the record does not show that (1) Lee’s testimony would be material to


       1   124 Wn.2d 789, 812, 881 P.2d 1020 (1994).
No. 78581-8-I / 2



the issues being litigated, (2) is not obtainable elsewhere, and (3) would be

prejudicial to Bridgen, RPC 3.7 does not authorize Lee’s disqualification. We

reverse and remand.

                                      FACTS

       In August 2015, Bridgen purchased waterfront property on Lake

Washington (Property).      Bridgen claims that the home was marketed as

“architecturally significant” because Ralph Anderson, a well-known architect,

“designed and implemented” a remodel in the 1970s. In October 2017, she filed

this lawsuit for violations of the Unfair Business Practices−Consumer Protection

Act (CPA)2 and negligent misrepresentation, claiming that Anderson neither

designed the remodel nor was involved in the remodel work and the construction

made the home unsafe for habitation.

       Bridgen hired Lee to represent her in this lawsuit. Lee owns her own law

practice and has represented Bridgen in various matters over the years. Bridgen

and Lee are also friends and business partners.        Together they own an

environmental consulting business and investment property.      They also own

property individually. Bridgen signed a waiver of potential conflicts that could

arise from their friendship or business dealings.




       2   Ch. 19.86 RCW.
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No. 78581-8-I / 3



        On May 21, 2018, the Södergren Family Trust and its trustee, Thomas

Fairhall (collectively Södergren), asked the trial court to disqualify Lee from

representing Bridgen under RPC 3.7. They claimed that Lee was a necessary

fact witness “intimately involved in the events underlying [Bridgen’s] claims.” On

May     25,   2018,   Windermere     Real    Estate     Company   and   Windermere

representative Edward Krigsman (collectively Windermere) also asked the trial

court to disqualify Lee under RPC 3.7 and as a result of her alleged conflicts of

interest.

        The trial court denied Bridgen’s request for oral argument on the

disqualification requests. It then granted Södergren’s request to disqualify Lee

without entering findings of fact or conclusions of law.          It did not rule on

Windemere’s request.

        Bridgen asked the trial court to stay the disqualification for 45 days to

allow Bridgen to retain counsel and also to extend all deadlines by 45 days.

When Södergren and Windermere opposed these requests, the trial court denied

them.

        Bridgen asked this court for discretionary review of the trial court’s

decisions to disqualify Lee and to deny her request to extend the case schedule.

A commissioner of this court granted review and stayed all case scheduling

dates in the trial court pending this court’s review.

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No. 78581-8-I / 4



                              STANDARD OF REVIEW

         This court reviews a trial court’s decision to disqualify counsel under RPC

3.7 for an abuse of discretion.3 A court abuses its discretion when it makes a

manifestly unreasonable decision or bases its decision on untenable grounds or

reasons.4

                                     ANALYSIS

                            Disqualification under RPC 3.7

         Bridgen contends that the trial court should not have disqualified Lee. We

agree.       “Disqualification of counsel is a drastic remedy that exacts a harsh

penalty from the parties as well as punishing counsel; therefore, it should be

imposed only when absolutely necessary.”5           RPC 3.7 provides for possible

disqualification of counsel, stating, “A lawyer shall not act as advocate at a trial in

which the lawyer is likely to be a necessary witness.”6

         In PUD No. 1, our Supreme Court established the showing required for

disqualification under RPC 3.7: (1) “‘the attorney will give evidence material to

the determination of the issues being litigated,’” (2) “‘the evidence is unobtainable

elsewhere,’” and (3) “‘the testimony is or may be prejudicial to the testifying



         3 State v. O’Neil, 198 Wn. App. 537, 543, 393 P.3d 1238 (2017).
         4 State v. Slocum, 183 Wn. App. 438, 449, 333 P.3d 541 (2014).
         5 In re Firestorm 1991, 129 Wn.2d 130, 140, 916 P.2d 411 (1996).
         6 RPC 3.7(a).

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No. 78581-8-I / 5



attorney’s client.’”7 And when these factors are met, a lawyer likely to be a

necessary witness still may represent her client if

              (1) the [lawyer’s] testimony relates to an uncontested issue;
              (2) the [lawyer’s] testimony relates to the nature and value of
       legal services rendered in the case;
              (3) disqualification of the lawyer would work substantial
       hardship on the client; or
              (4) the lawyer has been called by the opposing party and the
       court rules that the lawyer may continue to act as an advocate.[8]

When applying RPC 3.7, “courts have been reluctant to disqualify an attorney

absent compelling circumstances.”9

A. Findings of Fact and Conclusions of Law

       As a preliminary issue, Bridgen claims that a trial court must make findings

of fact and conclusions of law to support an order disqualifying counsel. We

disagree.

       Bridgen relies on American States Insurance Co. ex rel. Kommavongsa v.

Nammathao10 to support her claim. There, Division Three of this court held that

the trial court abused its discretion by disqualifying counsel because he was not

a necessary witness.11 It stated that while the trial court failed to make the

necessary findings about the materiality and necessity of counsel’s testimony

       7 PUD No. 1, 124 Wn.2d at 812 (quoting Cottonwood Estates Inc. v.
Paradise Builders, Inc., 128 Ariz. 99, 105, 624 P.2d 296 (1981)).
      8 RPC 3.7(a)(1)-(4).
      9 PUD No.1, 124 Wn.2d at 812.
      10 153 Wn. App. 461, 220 P.3d 1283 (2009).
      11 Nammathao, 153 Wn. App. at 467.

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No. 78581-8-I / 6



and any resulting prejudice to counsel’s client, the record established that

counsel was not a necessary witness.12 Division Three thus relied on the record

to review the trial court’s disqualification order. This court has similarly held,

“[Although i]t is best practice to enter written findings and conclusions identifying

the specific grounds relied on for disqualification,” an appellate court may review

a disqualification order if the record allows it to evaluate the trial court’s

decision.13 Here, without trial court findings supporting its order disqualifying

Lee, the record still allows this court to evaluate the trial court’s consideration of

the PUD No. 1 factors.

B. The PUD No. 1 Factors

       Bridgen contends that the record does not support Lee’s disqualification

under RPC 3.7 because Södergren and Windermere did not make a showing of

the PUD No.1 factors. We agree.

       This court examines the PUD No. 1 factors in the context of Bridgen’s

complaint, which asserted two claims, violation of the CPA and negligent

misrepresentation. Bridgen based both claims on an allegation that she relied on

an allegedly untrue representation that Anderson designed and was involved in

an earlier remodel of the Property.


       12
        Nammathao, 153 Wn. App. at 467.
       13
        Foss Maritime Co. v. Brandewiede, 190 Wn. App. 186, 197, 359 P.3d
905 (2015).
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No. 78581-8-I / 7



      I. Lee’s Testimony Would Not Concern Material Evidence

      Södergren and Windermere claim that Lee has knowledge material to

Bridgen’s decision to purchase, inspect, and remodel the Property. Evidence is

material “when it logically tends to prove or disprove a fact in issue.” 14 Among

other elements, the CPA claim required that Bridgen show causation and injury

to property and the negligent misrepresentation claim required a showing of

causation, damages, and reliance on the defendant’s false representations.15

      Södergren asserts that Lee’s use of “we” in a response e-mail to Debbie

Jefferson, a real estate agent involved in selling the Property, shows Lee’s

personal involvement in Bridgen’s decision to purchase the Property. On August

7, 2015, Lee wrote Jefferson the following:

      I just read your email to Pam who is reclining on the couch after a
      hard day. Dramatic reading I might add.

      We think 1.4.

      I have worked up my energy level to remodel the place. We are
      buying for the special view and waterfront in our neighborhood.
      Also you can’t find a better proximity to my house.

      It takes a lot of imagination and diligence to make it a home that
      befits the architectural significance of the shell. Pam wants to retire
      and just sit on the deck and tells me we should could care less

      14 State v. Gersvold, 66 Wn.2d 900, 902, 406 P.2d 318 (1965).
      15  Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P.2d 531 (1986) (listing the elements of a CPA action);
Ross v. Kirner, 162 Wn.2d 493, 499, 172 P.3d 701 (2007) (listing the elements of
negligent misrepresentation).
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No. 78581-8-I / 8


       what the inside is like . . . okay . . . I want to sail and kayak but I do
       care about the inside. However, I know I can make it right at a level
       we can afford. We also will add close to a million to the value by
       the revisions . . . that is my goal as well as improving the aesthetics
       and creating a true livable space that is more faithful to the
       architect’s original vision, which I imagine I know . . . .

       BTW, where did the fridge go and what about the hydraulic lift?

       So we write tomorrow and present Sunday. Pam will have a letter
       of financial availability for full cash.

       All a little nerve racking but the office will sell and neither of us want
       to give 100K to the IRS. I really do love real estate. It has served
       us well and we are also frugal gals, but I have never felt we denied
       ourselves enjoyment by being frugal the way we do it. So it all
       works . . . no it’s not like options . . . that’s the point. I make sure it
       is not, but I do like to make money on our purchases.

(Alterations in original.)

       Södergren asserts that the only reasonable interpretation of Lee’s use of

“we” is that she was “intimately involved” in negotiating the offer price, the

reasons for buying the Property, the plans to remodel, and the intended use of

the Property. Södergren also cites 17 e-mails related to negotiating the sale of

the Property to which Lee was a party. Although Jefferson cc’d Lee on these e-

mails, the above quoted e-mail was the only response that Lee wrote. Lee stated

that she did not read any of the e-mails except the e-mail to which she replied.

And Jefferson testified that she cc’d Lee because at the time of the Property

negotiations, she mistakenly assumed Lee and Bridgen were domestic partners.




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No. 78581-8-I / 9



      Bridgen’s and Lee’s declarations support that Bridgen purchased the

Property alone over a seven-day period. Lee was not present (1) on August 5,

2015, when Bridgen called Jefferson to inquire about purchasing the Property,

(2) on August 7 when Jefferson first showed Bridgen the Property, (3) on August

9 when Bridgen attended an open house held by Krigsman, Windermere’s

representative, where Krigsman described Anderson’s involvement in the

remodel, and when Bridgen prepared and signed an initial offer, or (4) on August

12 when Bridgen made her revised final offer and Södergren accepted.            In

addition, Lee did not review the purchase and sale agreement (PSA), the PSA

lists Bridgen as the sole buyer of the Property, Lee acquired no interest in the

Property, and Lee did not contribute any funds toward its purchase.

      During the purchase process, Lee was involved in two minor instances.

First, she wrote the e-mail response quoted above. Bridgen stated that she was

at Lee’s for a social visit when Lee checked Lee’s e-mail and read her Jefferson’s

e-mail.   Bridgen tried calling Jefferson with no reply, so she asked Lee to

respond to Jefferson saying that she would like to make an offer at $1.4 million.

Bridgen explained, “The meaning of the word ‘we’ in the e-mail is different

depending on where it is in the e-mail. It refers to me and Jefferson in the

context of the offer.” Second, Lee attended a preinspection of the Property on

August 10 with Bridgen, Jefferson, John Langmeyer, the general contractor

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No. 78581-8-I / 10



Bridgen hired to inspect the home, and a sewer inspector. Langmeyer testified

that Bridgen was his client and the only person to whom he reported.

      Although Lee had minimal involvement with Bridgen’s purchase of the

Property, Södergren claims Lee has knowledge material to three issues. First,

Södergren contends Lee has personal knowledge about the level of Bridgen’s

reliance on statements about Anderson’s involvement in the previous remodel of

the Property. It claims that because Lee does not mention Anderson in her

above-quoted e-mail response, her e-mail undermines Bridgen’s claim that

Bridgen relied on Anderson’s participation in the remodel when buying the

Property. Bridgen stated that she remembers conveying her “excitement” to Lee

on August 7 that Anderson was involved in designing the house. But other than

this instance, Bridgen stated that she cannot recall whether she discussed

Södergren or Anderson with Lee during the seven-day purchase period. And

Jefferson testified that she has no memory of any conversation with Bridgen

about the architectural history of the Property beyond telling Bridgen who

Anderson was.        Södergren contends that Lee’s testimony about her e-mail

response is thus material to issues of reliance, causation, and damages; it is

material to Bridgen’s claim that but for her belief about Anderson’s involvement,

she would not have purchased the Property or raised her offer from $1.4 million

to over $1.7 million. But due to Lee’s minimal involvement and the fact that

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No. 78581-8-I / 11



Södergren can present the e-mail evidence without Lee’s testimony, as

discussed below, her testimony about the circumstances surrounding her e-mail

is not material.

       Second, Södergren claims that Bridgen asked Lee’s advice about the

purchase price, which relates to damages. Södergren relies on an e-mail Lee

wrote in March 2018, in which she merely stated, “Bridgen was excited to show a

friend the house and to get my two cents on prices of houses in the

neighborhood where I live and also bring me to show off the home after closing.”

And Södergren contends that neither Lee nor Bridgen have denied that Bridgen

used their joint account and Lee’s investments to support her offer to purchase

the Property. But this speculation does not show that Lee’s testimony would be

material to a disputed issue. Further, Bridgen stated that she used her trust

account to pay the $85,000 in earnest money, she is the sole trustee and

beneficiary of her trust, and hers was the only signature on the PSA.      This

evidence does not show that Lee had sufficient involvement in the conversation

about purchase price to establish that her testimony would be material to the

issue of damages.

       Third, Södergren claims that the record demonstrates that Lee has

knowledge about the condition of the Property at the time of purchase and about

the scope of Bridgen’s desired remodel, which also relate to damages.

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No. 78581-8-I / 12



Södergren relies on Lee’s presence at the preinspection and an e-mail from

Jefferson about Lee’s involvement with Bridgen’s plans to remodel the home.

But multiple disinterested witnesses attended the preinspection, including

Jefferson, Langmeyer, and a sewer inspector.       And Lee’s participation in or

knowledge of a postsale remodel is not relevant to her claims.

       Södergren does not establish that the record shows that Lee’s testimony

would be material to any disputed issues.

       II. Lee’s Testimony Is Obtainable Elsewhere

       Södergren next claims that it cannot obtain from another source the

evidence it would present through Lee’s testimony. First, it asserts that Lee is

the only nonparty witness to the preinspection. Although Jefferson testified that

she did not remember anything about the preinspection, Langmeyer was also at

the inspection. His declaration shows that he remembers the inspection and

details his findings and opinions.

       Second, Södergren asserts that Lee is the only nonparty witness to her

discussions with Bridgen about Bridgen’s reasons for purchasing the Property

and purchase price.     But the probative value of Lee’s likely testimony about

Bridgen’s reasons for purchasing the Property and purchase price is low because

Södergren does not provide sufficient evidence showing that Lee’s knowledge of

these subjects is robust. And Södergren and Windermere can admit Lee’s e-mail

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No. 78581-8-I / 13



response to Jefferson through Jefferson’s testimony16 or submit a written request

for admission to authenticate the e-mail and then offer it as an exhibit.17

       Third, Södergren maintains that because Lee requested copies of any

architectural drawings of the Property from Jefferson and Bridgen “does not have

a specific recollection” about any conversation about the drawings, only Lee can

testify about this material evidence. But Lee requested these drawings in relation

to the postpurchase remodel. Bridgen stated that she had asked Lee to help her

with a minor remodel of the house. And it was not until after mutual acceptance

that Bridgen asked an agent involved in the sale whether the sellers had the

Anderson drawings of the house. As stated above, Lee’s involvement with a

postpurchase remodel is not relevant to Bridgen’s claims.

       Södergren does not show that it cannot obtain from another source any

relevant testimony Lee would offer about these issues.

       III. Lee’s Testimony Would Not Prejudice Bridgen

       Södergren also contends that Lee’s testimony would likely prejudice

Bridgen’s claims because Lee included in her response e-mail to Jefferson that

Bridgen was buying the Property “for the special view and waterfront.” After Lee


       16 ER 901(b)(10) (stating that an e-mail may be authenticated through the
testimony of the recipient).
       17 KING COUNTY SUPER. CT. LOCAL CIV. R. 26(b)(4) (stating a party may

serve unlimited “requests for admission . . . propounded to authenticate
documents”).
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No. 78581-8-I / 14



sent this e-mail, however, Bridgen visited the house alone and discussed

Anderson’s influence on it with a Windermere representative.           She then did

independent research into the architectural significance of the house and

Anderson. Finally, she negotiated the sale herself and raised her offer from $1.4

million to over $1.7 million. Södergren does not show that Lee had sufficient

involvement to provide material testimony, unobtainable elsewhere, that would

likely prejudice Bridgen.

       The trial court abused its discretion by disqualifying Lee under RAP 3.7.

Because resolution of this issue is dispositive, we do not address the parties’

other claims.

                        Trial Court Assignment on Remand

       Bridgen contends that this court should require reassignment on remand.

She cites the principle that “[i]t is fundamental to our system of justice that judges

be fair and unbiased.”18 The party claiming a violation of the appearance of

fairness must show a judge’s actual or potential bias.19 Bridgen asserts that the

trial court showed bias toward her and Lee by disqualifying Lee late in the case

without making necessary findings and without hearing oral argument and by

denying her request for a continuance so she could secure new counsel.


       18
        Chi., Milwaukee, St. Paul & Pac. R.R. v. Wash. State Human Rights
Comm’n, 87 Wn.2d 802, 807, 557 P.2d 307 (1976).
    19 State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703 (2017).

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No. 78581-8-I / 15



      As discussed above, the trial court did not err in not making findings

because the record allows for review. And, in King County, unless an exception

applies, “[a]ll nondispositive motions . . . shall be ruled on without oral

argument.”20    So, in King County, a trial court’s denial of a request for oral

argument does not necessarily show bias. In addition, “[j]udicial rulings alone

almost never constitute a valid showing of bias.”21       The trial court’s ruling

unfavorable to Bridgen does not warrant reassignment on remand. We deny

Bridgen’s reassignment request.

                                   Attorney Fees

      Södergren asks that this court award it attorney fees on appeal under the

PSA and RAP 18.1(a). RAP 18.1 allows a reviewing court to award a party

reasonable attorney fees if applicable law grants a party the right to recover

them. Here, the PSA states, “[I]f Buyer or Seller institutes suit against the other

concerning this Agreement, the prevailing party is entitled to reasonable

attorneys’ fees and expenses.”      But no party has prevailed on the merits of

Bridgen’s claims, so any fee request is premature.




      20   KING COUNTY SUPER. CT. LOCAL CIV. R. 7(b)(3).
      21   In Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).
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No. 78581-8-I / 16



                                 CONCLUSION

       We reverse and remand. Because the evidence in the record does not

satisfy the PUD No. 1 factors, the trial court erred in disqualifying Lee under RPC

3.7.




WE CONCUR:




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