 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ESTATE OF DOUGLAS E. KAFKA, JR.,
KRISTEN M. KAFKA, individually and              No. 73327-3-I
as the personal representative for the
Estate of Douglas E. Kafka, Jr.,                DIVISION ONE
DOUGLAS E. KAFKA, SR., and SUSAN
G. KAFKA, as individuals and for the            UNPUBLISHED OPINION
marital community,

                       Appellants,

                  v.

                                                                                 cr-,


PROVIDENCE HEALTH & SERVICES,
an active Washington corporation;
PROVIDENCE HEALTH & SERVICES                                                    CO

WESTERN WASHINGTON, an active
Washington corporation, PROVIDENCE
                                                                               «..o
EVERETT MEDICAL CENTER, an
active Washington corporation, and
"Does" 1 through 40, inclusive,
                                                FILED: May 23, 2016
                       Respondents.

       Trickey, J. — In this medical malpractice case, the trial court granted
Providence Health &Services' summary judgment motion and denied the Kafkas'
motion for a continuance and their later motion for reconsideration. The motion for

reconsideration included a new expert witness declaration. The Kafkas appeal,

claiming, among other things, that the trial court erred by denying their motion for
reconsideration. Providence argues that the new expert witness declaration was
untimely, that it is not newly discovered evidence, and that it does not raise a
genuine issue of material fact.

       In Keck v. Collins, the Washington Supreme Court held that a trial court

must apply the Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036
No. 73327-3-1 / 2


(1997), factors in ruling on a motion to exclude untimely evidence submitted in

response to a summary judgment motion. 184 Wn.2d 358, 362, 357 P.3d 1080

(2015). We hold that Keck requires a trial court to consider the Burnet factors in

excluding untimely evidence submitted in support of a motion for reconsideration

as well. Here, the trial court did not state on the record or in its order denying

reconsideration whether it considered or excluded the new expert witness

declaration. Applying Keck here, it would have been error for the trial court to

exclude the expert witness declaration without analyzing the Burnet factors. 184

Wn.2d at 369.       Because we agree with the Kafkas that the expert witness

declaration raises a genuine issue of material fact, we cannot say that excluding it

or not considering it was harmless error. Therefore, we reverse and remand for

further proceedings.

                                         FACTS

       In March 2010, Douglas E. Kafka, Jr. was admitted to Providence Regional

Medical Center in Everett, Washington for an abscess in his left thigh, which he

had caused by injecting morphine. Providence suspected that he was continuing
to use drugs while at the hospital. To prevent his drug use, Providence restricted

Douglas, Jr.'s1 visitors and created a "Master Care Plan" to make sure that
Douglas, Jr. was taking all his prescribed medications at the appropriate time.2
       In April 2010, while still at Providence, Douglas, Jr. died from respiratory

and cardiac arrest caused by "accidental acute multidrug intoxication from


1There are several members of the Kafka family involved in this appeal. For clarity, we
refer to them collectively as the Kafkas and use their first names to refer to individuals.
We intend no disrespect.
2 Clerk's Papers (CP) at 32, 60, 265.
No. 73327-3-1 / 3


oxycodone and diphenhydramine."3

       Douglas E. Kafka, Sr. and Susan Kafka, Douglas, Jr.'s parents, and Kristen

Kafka, Douglas Jr.'s sister and the personal representative of his estate, alleged

that Providence negligently caused Douglas Jr.'s death. Acting pro se, they filed

suit against Providence in April 2014.4

       In September 2014, Providence filed its first motion for summary judgment,

noted for hearing on October 14, 2014. When Douglas, Sr. appeared at the

October 14 hearing without representation, the trial court continued the hearing

until November 14. On the day of the November 14 hearing, their first attorney

filed a notice of appearance on behalf of the Kafkas. Providence renoted the

motion for November 25, 2014.

       On November 24, 2014, their attorney filed a motion for a continuance and

a response to the motion for summary judgment on behalf of the Kafkas. His
response included declarations from Kristen and Douglas, Sr., describing their
efforts to secure expert testimony from Barbara Baggenstos, an advanced
registered nurse practitioner. Providence agreed to strike its November 25, 2014
motion. On December 5, 2014, he filed a notice of intent to withdraw, effective

December 15. With the agreement of the Kafkas, Providence re-noted the

summary judgment hearing for February 5, 2015.

        On January 22, 2015, a second attorney filed a limited notice ofappearance
for "plaintiffs Estate of Douglas E. Kafka, Jr., et al." and moved to continue the


3 CP at 33.
4The Kafkas requested mediation with Providence, which tolled the statute of limitations
for their claims.
No. 73327-3-1 / 4


summary judgment hearing noted for February 5.5 He stated, in later declarations,

that he had not met with Kristen, the personal representative of Douglas, Jr.'s

estate, until February 2, 2015. The Kafkas did not confirm their motion to continue,

and it was stricken.

       At the February 5, 2015 summary judgment hearing, the Kafkas moved

orally for a continuance, arguing that they had a new expert reviewing the case
and needed time to obtain her declaration. The court denied their motion and

granted summary judgment to Providence. There is no record ofthat hearing.
       On February 17, 2015, the Kafkas moved for reconsideration of the trial
court's grant of summary judgment to Providence and denial of its motion for a
continuance. They did not file an expert declaration with their motion, but informed
the court that they had an expert who was reviewing the case and would testify on
their behalf. On February 24, 2015, the Kafkas filed a reply to Providence's
response to their motion, informing the court that the expert they had identified was
withdrawing from the case. On March 2, 2015, the Kafkas filed a declaration from
Karen Wanek, a registered nurse, as an expert witness. On March 3, 2015, the
court entered an order denying the Kafkas' motion for reconsideration. On the
morning of March 4, 2015, Providence moved to strike Wanek's declaration. The
Kafkas filed another reply brief in support of Wanek's declaration that afternoon.

The Kafkas appeal.




5 CP at 235-36.
No. 73327-3-1 / 5



                                    ANALYSIS

                    Service of Motion for Summary Judgment

      The Kafkas claim that Providence did not properly serve Kristen with its

motion for summary judgment. They argue that this improper service impacts

Providence motion for summary judgment in two ways. First, it shows that the

court should have granted them a continuance because it provides a good reason

for their delay in securing expert testimony. Second, it is an independent basis for

denying summary judgment because there were genuine disputes about whether
service was proper. We reject both arguments because service was proper.

       Civil Rule 5 governs the service of summary judgment motions. CR 5(a). It
provides that, after service ofthe initial complaint, a party may serve another party
by mailing the pleadings to the opposing party's last known address. CR 5(b)(1).
To effect service by mail, the party must deposit the pleadings "in the post office,
addressed to the person on whom they are being served, with the postage
prepaid." CR 5(b)(2)(A). When withdrawing from representing a client, an attorney
must file a notice of intent to withdraw that includes "the names and last known

addresses of the persons represented by the withdrawing attorney." CR 71(c)(1).
       The application of court rules to a particular set of facts is a question of law
that this court reviews de novo. Browerv. Pierce Ctv., 96 Wn. App. 559, 562, 984

P.2d 1036 (1999).

       The only facts in dispute here are whether the Kafkas informed Providence
that Kristen did not live with her parents. The Kafkas claim that Douglas, Sr. told
Providence's attorneys that Kristen did not live with him and Susan in October
No. 73327-3-1 / 6


2014 and that Kristen told Providence's attorneys that she did not live with her

parents in November 2014. Providence claims this never happened.

       But neither party disputes that the Kafkas' first attorney filed his notice of

intent to withdraw in December 2014, after both alleged disclosures to

Providence's attorney.     That notice listed one address for all the Kafkas and

directed that "all future pleadings in this matter should be directed to them at said

address."6 Therefore, Kristen's last known address of record was the same as her

parents'. As stated in its certificate of service, Providence mailed a copy of its

motion for summary judgment to all three Kafkas at that address. Accordingly,

Providence properly served all the Kafkas with its motion for summary judgment.

                    Continuance of Summary Judgment Motion

       The Kafkas contend that the trial court abused its discretion when it denied

their motion to continue Providence's summary judgment hearing. Specifically,

they argue that the court should have allowed them more time to obtain the affidavit
of an identified expert witness. We reject this argument because the Kafkas had
been in contact with that expert witness for months and did not offer a good reason

for their delay in obtaining her affidavit.

       When a party moves for summary judgment, the opposing party may

request a continuance if it needs additional time to obtain affidavits that will justify
its opposition tosummary judgment. CR 56(f). The party should support its motion
for a continuance with affidavits that provide a reason why the party is unable to

obtain the witness's affidavit in time for summary judgment. CR 56(f). "[T]he court



6 CP at 260.
No. 73327-3-1 / 7


has a duty to give the party a reasonable opportunity to complete the record before

ruling on the case." Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990).

But it "may deny a motion for a continuance when (1) the moving party does not

offer a good reason for the delay in obtaining the evidence; (2) the moving party

does not state what evidence would be established through the additional

discovery; or (3) the evidence sought will not raise a genuine issue of fact."

Coggle, 56 Wn. App. at 507.

       In Coggle v. Snow, this court held that the trial court abused its discretion

by denying a motion for continuance when the plaintiff had a good reason for delay.
56Wn. App. at 508. There, the plaintiff's original counsel, who was retiring, asked
another attorneyto take over the case shortly after the defendant filed for summary

judgment. Coggle, 56 Wn. App. at 501-02. Within a few days, the plaintiffs new
attorney filed a motion to continue the summary judgment hearing accompanied
by his declaration that he had prepared a declaration for the plaintiff and that an
expert had examined the plaintiff but needed more time to complete his affidavit.
Coggle, 56 Wn. App. at 502. The trial court denied his motion. Coggle, 56 Wn.
App. at 503. The Court of Appeals reversed, holding that the short time between
the new attorney's appearance and the motion for summary judgment was a good
reason for the plaintiff's inability to obtain affidavits from the plaintiff and expert.
Coggle, 56 Wn. App. at 508. The court also noted that the trial court should not
penalize the plaintiff "for the apparently dilatory conduct of his first attorney."
Coggle, 56 Wn. App. at 508.

       In Butler v. Joy, even the failure to comply with the strict rules of CR 56(f)
No. 73327-3-1 / 8



was not fatal to the plaintiff's motion for a continuance. 116 Wn. App. 291, 300,

65 P.3d 671 (2003). There, the plaintiff had received two continuances on the

defendant's motion for summary judgment, one while she was pro se and one after

retaining counsel. Butler, 116 Wn. App. at 294. Her attorney withdrew. Butler,

116 Wn. App. at 294.      Then the defendant filed a new motion for summary

judgment on different grounds than the earlier motion. Butler. 116 Wn. App. at

294. The plaintiff retained a new attorney one day before the summary judgment

hearing. Butler, 116 Wn. App. at 299. The attorney moved orally for a continuance

at the hearing. Butler, 116 Wn. App. at 299. The trial court denied the motion.

Butler, 116Wn. App. at 295.

       Again, the Court ofAppeals reversed. Butler, 116 Wn. App. at 299-300. It
acknowledged that the attorney's motion did not satisfy CR 56(f)'s requirements
but held that the trial court should have granted it because the plaintiff's attorney

"deserved an opportunity to prepare a response." Butler, 116 Wn. App. at 299-
300. The court did notwant the plaintiff to be "hobbled by legal representation that

has had no time." Butler. 116 Wn. App. at 300.

       This court reviews a trial court's decision to deny a continuance for an abuse

of discretion. Coggle, 56 Wn. App. at 504. It is an abuse of discretion if the court

bases its decision on untenable grounds orfor untenable reasons. Coggle, 56 Wn.

App. at 507.

       Here, the Kafkas' motion to continue the summary judgment hearing is

difficult to review because their attorney moved orally for a continuance at the

summary judgment hearing, which was not reported or recorded. It appears that


                                          8
No. 73327-3-1 / 9


their second attorney argued he had learned of a new theory of liability only three

days before the summary judgment hearing, when he met with Kristen for the first

time. Before that, they had pursued a theory of liability based on Providence's

allegedly negligent prescription of OxyContin. The expert retained to support that

theory did not find any negligence.

      The new theory, which the Kafkas describe as a "systems error" theory, was

that the hospital staff failed to monitor Douglas, Jr.'s use of his prescribed

medications.7 They argued that they needed a continuance to secure the affidavit

from an expert, Nurse Baggenstos, whose affidavit would support that theory. On

appeal, the Kafkas repeat their claim that the newtheory of liability was notevident

until three days before the February 5 summary judgment hearing.

       But, although this theory of liability, and the accompanying expert may have
been new to their attorney, they were not new to the Kafkas themselves. The

record shows that both Douglas, Sr. and Kristen were in contact with Baggenstos

in November 2014. In a declaration she filed with the court in November 2014,

Kristen identified both this theory of liability and Baggenstos as a possible expert.

Douglas, Sr. was also aware of Baggenstos and declared in November that they
had retained Baggenstos as an expert witness. By the end of November, the
Kafkas had already provided Baggenstos with most of Douglas, Jr.'s medical
records and expected Baggenstos to issue a favorable report.

        Two months after the Kafkas filed their declarations, their second attorney

appeared on their behalf. The Kafkas do not explain why they did not inform him


7 CP at 169; Br. of Appellant at 28.
No. 73327-3-1/10


about Baggenstos as soon as they retained him on January 22, 2015.8 They also

do not explain why neither they nor their first attorney secured an affidavit from

Baggenstos earlier.

      Providence had consistently pursued summary judgment on the basis that

the Kafkas had no medical expert testimony to support their claim. Therefore,

since September 2014, the Kafkas had reason to knowthat they needed to secure

expert testimony. Their second attorney sought expert testimony on their behalf,

focusing on a theory that Providence had negligently prescribed medication to
Douglas, Jr.     He switched to the systems error theory when the negligent
prescription theory appeared less viable. Accordingly, their delay in contacting
Baggenstos was due to a strategic decision, rather than retaining counsel at the
eleventh hour.

       In both Coggle and Butler, the court wanted to prevent plaintiffs from

suffering as a result of poor legal representation. Here, the Kafkas' own actions
caused them to be unprepared for Providence's motion. They failed to follow up
with Baggenstos after their first attorney withdrew and failed totimely provide their
second attorney with information about Baggenstos.

       The attorney's actions in this case are also distinguishable from those in
Coggle and Butler. Unlike the attorney in Coggle, the Kafkas' attorney did not

supply the court with affidavits to support the Kafkas' motion for a continuance. He
moved for a continuance orally at the summary judgment hearing. Unlike the


8Their attorney argues that he learned about Baggenstos when he finally met with Kristen,
"who had more complete knowledge of the case and was in contact with a potential
expert." Br. of Appellant at 21-22. But Douglas, Sr.'s November 2014 declaration shows
that he also knew about Baggenstos.

                                           10
No. 73327-3-1 /11


attorney in Butler, he had weeks to respond to Providence's motion for summary

judgement. He could have moved for a continuance earlier and supported it with

affidavits, as required by CR 56(f).

       Another difference is the Kafkas' familiarity with the basis of the summary

judgment motion. The defendant's second motion for summary judgment in Butler

was on new grounds. 116 Wn. App. at 294. Providence's February 5, 2015 motion

for summaryjudgment, on the other hand, was the same as it had been in October

2014. The Kafkas had known the substance of Providence's argument since

Providence served them with the original motion in September; they were not

forced to respond quickly to brand new legal arguments.

       In short, the Kafkas' failure to provide a good reason for their inability to

secure an affidavit from Baggenstos before Providence's summary judgment

hearing justifies the trial court's decision to deny the Kafkas' motion for a
continuance. The trial court did not abuse its discretion.

       The Kafkas also argue that the court erred because Providence did not
show that it would be prejudiced by the continuance. In the cases the Kafkas cite
for this argument, the moving party showed that it met the criteria for obtaining a
continuance first. See, e^, Coggle, 56 Wn. App. at 508. The Kafkas did not meet

that criteria.

                             Motion for Reconsideration

        The Kafkas argue the trial court abused its discretion by denying their
motion for reconsideration. Specifically, they argue that the trial courtshould have
considered the declaration of Nurse Wanek as newly discovered evidence that


                                         11
No. 73327-3-1/12


raised a genuine issue of material fact.9             Providence argues that Wanek's

declaration was untimely and does not qualify as newly discovered evidence.

Providence further argues that, even with Wanek's declaration, it is entitled to

summary judgment because the declaration does not raise a genuine issue of

material fact.

                                   Untimely Declaration

       Excluding "evidence that would affect a party's ability to present its case,"

because the party has failed to comply with discovery rules, "amounts to a severe

sanction." Keck, 184 Wn.2d at 368. Before imposing that sanction, the trial court

must consider, on the record, whether the discovery violation was willful, if the

other party will suffer substantial prejudice because ofthe violation, and if a lesser
sanction would suffice.       Burnet, 131 Wn.2d at 494.            Appellate courts cannot

perform a Burnet analysis when the trial court omits it. Jones v. Citv of Seattle,
179 Wn.2d 322, 338, 314 P.3d 380 (2013).

       This court reviews a trial court's decision to exclude untimely evidence for

an abuse ofdiscretion, subject to the use of the Burnet factors. Keck. 184 Wn.2d

at 368.

          The court held in Keck that Burnet applied to a case where the court

excluded as untimely a declaration attached to a motion opposing summary



9The Kafkas assert in their reply brief that they are seeking reconsideration on the basis
of abuse of discretion, error of law, newly discovered evidence, no evidence or inference
to justify the decision, and failure to do substantial justice, citing CR 59(a)(1), (4), (7), and
(9), respectively. The Kafkas' main argument was that Wanek's declaration was newly
discovered evidence. They mention that the grant ofsummary judgment was contrary to
law because they had established grounds for a continuance, and that summary judgment
was improper because ofthe disputed service. Both are addressed above.
                                               12
No. 73327-3-1/13


judgment. 184 Wn.2d at 368. Under Keck, a trial court must consider the Burnet

factors when deciding whether to exclude evidence submitted in support of a

motion for reconsideration.

       Here, it appears that the trial court did not consider Wanek's declaration,

though it did not explicitly exclude it.

       No one disputes that Wanek's declaration was untimely. But the Kafkas

filed it while the motion was still pending.     Therefore, the court should have

considered the declaration, or after considering it in light of the Burnet factors,

explicitly excluded it. There is no record ofthe court considering the willfulness of
the violation, the potential prejudice to Providence, and the availability of a lesser

sanction. Therefore, it would have been error for the court to exclude Wanek's

declaration as untimely.

        Erroneously excluding Wanek's declaration would be reversible error
unless the error was harmless. In re Dependency of M.P., 185 Wn. App. 108,118,

340 P.3d 908 (2014). The errorwould be harmless if Wanek's declaration was not

sufficient to raise a genuine issue of material fact.

                     Summary Judgment with Wanek Declaration

        Providence argues that, even with Wanek's declaration, the Kafkas have
not produced competent medical evidence to survive summary judgment.
Specifically, they argue that Wanek's declaration did not show that any breach by
Providence caused Douglas, Jr.'s death on a more probable than not basis. We

disagree.

        Courts shall grant summary judgment to a party when there is no genuine


                                           13
No. 73327-3-1 /14



issue as to any material fact and the moving party is entitled to judgment as a

matter of law. CR 56(c). We review summary judgment de novo, and view "all

facts and reasonable inferences in the light most favorable to the nonmoving

party." Eicon Const., Inc. v. E. Wash. Univ.. 174 Wn.2d 157, 164, 273 P.3d 965

(2012).

      To establish medical malpractice, the plaintiff must prove that the "health

care providers] failed to exercise that degree of care, skill, and learning expected

of a reasonably prudent health care provider" and that the providers' failure to do

so proximately caused the injury. RCW 7.70.040.

          In Keck, the trial court found that an expert's affidavit did not establish a

prima facie case of medical malpractice. 184 Wn.2d at 367. There, the expert
described the surgeons' actions and outlined othersteps the surgeons could have
taken, implying that a failure to do so fell below the standard of care. Keck, 184
Wn.2d at 371. The Supreme Court held that, when taken in the light most favorable
to the plaintiff, this was sufficient to establish the standard of care and breach.
Keck, 184 Wn.2d at 370-71. The court distinguished this declaration from those

containing conclusory remarks but lacking any description of how the doctors had
acted negligently or any factual basis for the opinions. Keck, 184 Wn.2d at 366-
67 (citing Guile Ballard Cmtv. Hosp.. 70 Wn. App. 18, 851 P.2d 689, review denied,
122 Wn.2d 1010, 863 P.2d 72 (1993)).

           Here, Wanek declared that she had reviewed the records in the case,

summarized Douglas, Jr.'s history with Providence as she understood it, and then
opined that the nurses had breached the standard of care and that that breach


                                            14
No. 73327-3-1/15


caused Douglas, Jr.'s death:

              [l]t is clear that the level of care provided by the nursing staff
      responsible for Mr. Kafka's care deviated from and fell below the
      minimum accepted standard of care required of nurses in that they
      failed to exercise the degree of skill, care, and learning expected for
      a patient like Douglas Kafka as follows:
              ... Based on the autopsy findings it is clear that the hospital's
      actions or lack thereof allowed Mr. Kafka to obtain and self-
      administer medications in what ultimately proved to be a fatal dose.
            According to the Institute of Medicine, 'Patients must rely on
      health care professionals and institutions for their safety and well-
      being." It was the responsibility of Providence Regional Medical
      Center to provide a safe environment for Mr. Kafka. Despite a clear
      understanding of the risks, the hospital utterly failed to take basic
      measures to assure Mr. Kafka's safety, which ultimately led to his
      death.'10!

      The declaration shows that Wanek believes that Douglas, Jr.'s death would

have been prevented if the nursing staff had implemented a plan to control
Douglas, Jr.'s access to medication earlier and actually carried it out. It is also
clear that she believes a failure to do both of those was a breach of the standard

of care.   Relying on this declaration, a jury could find that Providence had
negligently caused Douglas, Jr.'s death. Therefore, there are disputed issues of
material fact and Providence is not entitled to summary judgment.

       Providence argues that Wanek's declaration does not establish causation
because it does not "reasonably exclude as a possibility every other hypothesis."11
That is not a requirement at summary judgment.             Providence's reliance on
O'Donoghue v. Riggs to support this argument is misplaced. 73 Wn.2d 814, 824,
440 P.2d 823 (1968). That case does not hold that an expert must list all other
possible causes of an injury in his or her declaration and then exclude them to

10 CP at 32-33.
11 Br. of Respondent at 17.
                                          15
No. 73327-3-1/16


survive summary judgment.       Instead, it held that an expert did not establish

causation with the required level of medical certainty when he could not, during

cross-examination at trial, exclude alternate theories put forth by the defense.

O'Donoghue, 73 Wn.2d at 823. There was no indication that this is required at

summary judgment. O'Donoghue, 73 Wn.2d at 823-24.

                           Newly Discovered Evidence

      But an analysis of the merits of Wanek's declaration assumes that the trial

court would have considered it. Although the trial court abused its discretion by

excluding the declaration on the grounds that it was untimely, it could still have

exercised its discretion to exclude it as not newly discovered.

       The court may reconsider and vacate an order or decision upon motion if
the aggrieved party shows that there is "[njewly discovered evidence, . . . which
the party could not with reasonable diligence have discovered and produced atthe
trial" that "materially affect[s its] substantial rights." CR 59(a)(4). In order for
evidence to qualify as newly discovered, the party offering it must not have been
able to discover it before the decision "'by the exercise of due diligence.'" Go2Net,

Inc. v. C I Host, Inc.. 115 Wn. App. 73, 88-89, 60 P.3d 1245 (2003) (internal
quotation marks omitted) (quoting Holadav v. Merceri. 49 Wn. App. 321, 329, 742
P.2d 127 (1987)). "The decision to consider new oradditional evidence presented
with a motion for reconsideration is squarely within the trial court's discretion."

Martini v. Post. 178 Wn. App. 153, 162, 313 P.3d 473 (2013).

       "Where a party believes that proffered evidence is not properly before the
trial court, it must move the trial court to strike such evidence from the record."


                                         16
No. 73327-3-1/17


Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 755, 162

P.3d 1153 (2007).     If the trial court denies that motion, the aggrieved party must

assign error to the evidentiary ruling to challenge its inclusion in the record on

appeal. Jacob's Meadow, 139 Wn. App. at 756. The Court of Appeals can review

evidentiary rulings, but it cannot make its own evidentiary rulings.         Jacob's

Meadow, 139 Wn. App. at 756.

       The Kafkas argue that Nurse Wanek's declaration is newly discovered

evidence because it is "based on a 'new and previously unavailable liability

theory.'"12 Providence objected to Wanek's declaration on the grounds that it was

not newly discovered evidence two days after the Kafkas filed it. The trial court

denied the Kafkas' motion for reconsideration on the day in between. It never ruled

on Providence's objections to the motion.

       Because we cannot make evidentiary rulings, we do not decide whether

Wanek's declaration is newly discovered evidence.

       We reverse and remand for further proceedings consistent with this opinion.




                                                      "TV* <^k t nj         l\ c^\

WE CONCUR:




            ^y, t                                    V/li^P^ X
12 Br. of Appellant at 42 (quoting CP at 56).
                                                17
