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                                                                                           V?
               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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In re Estate of STUART RIPPEE,                    NO. 70136-3-1


LAURA BURWASH,                                    DIVISION ONE


                           Appellant,

                      v.



DENISE RIPPEE,                                    UNPUBLISHED OPINION

                           Respondent.            FILED: May 12, 2014



        Lau, J. — Summary judgment as a matter of law is improper where reasonable

minds could differ on the facts controlling the litigation's outcome. In this dispute, Stuart

Rippee's widow Denise Rippee1 and adult daughter Laura Burwash2 dispute the validity

of Rippee's will and community property agreement. The record here amply

demonstrates material factual disputes and competing reasonable inferences from the

evidence on Burwash's claims of undue influence and testamentary capacity. Because

the trial court improperly granted summary judgment dismissal in Denise's favor, we

reverse and remand for trial.

        1 For clarity, we refer to Stuart Rippee as "Rippee" and Denise by her first name.

        2 Burwash's maiden name was Laura S. Rippee. We refer to her as "Burwash"
for clarity.
70136-3-1/2



                                          FACTS

      The facts in this case are well known to the parties. See In re Estate of Rippee,

noted at 149 Wn. App. 1009, 2009 WL 502400 (Rippee I). In Rippee I, we reversed

summary judgment dismissal in Denise's favor because Burwash presented sufficient

evidence to create genuine issues of material fact on her undue influence and

testamentary capacity claims. Rippee I. 2009 WL 502400 at *5-6. Three years of

discovery ensued.

      The trial court set the case for trial. Denise moved for summary judgment

dismissal, arguing that the lack of material factual issues entitled her to judgment

against Burwash as a matter of law. After oral argument, the trial court found no

material fact issues remained as to the undue influence and testamentary capacity

claims. It entered an order dismissing Burwash's Trust and Estate Dispute Resolution

Act, chapter 11.96A RCW (TEDRA) petition.

       Burwash unsuccessfully moved for reconsideration based on (1) procedural

irregularities, including the shortened time granted to hear the motion for summary

judgment, (2) error in imposing a clear, cogent, and convincing standard on summary

judgment, and (3) improper grant of summary judgment given that issues of material

fact remained. Burwash appeals.

                                        ANALYSIS

       Summary Judgment Dismissal

       We review a summary judgment order de novo, performing the same inquiry as

the trial court and considering facts and reasonable inferences in the light most

favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45

                                          -2-
70136-3-1/3



P.3d 1068 (2002). Summary judgment is proper if no genuine issue of material fact

remains and the moving party is entitled to judgment as a matter of law. CR 56(c). A

genuine issue of material fact exists where reasonable minds could differ regarding the

facts controlling the outcome of the litigation. Wilson v. Steinbach, 98 Wn.2d 434, 437,

656 P.2d 1030 (1982). The nonmoving party may not rely on mere allegations, denials,

opinions, or conclusory statements but must set forth specific admissible facts indicating

a genuine issue for trial. CR 56(e); Int'l Ultimate. Inc. v. St. Paul Fire & Marine Ins. Co.,

122 Wn. App. 736, 744, 87 P.3d 774 (2004).

       After Rippee I, the parties expended three years on discovery.3 Upon

completion, Denise moved again for summary judgment dismissal. Like her first

summary judgment motion, Denise claims no issues of material fact exist as to the

undue influence and testamentary capacity claims. We disagree. The record here

amply demonstrates remaining material fact issues that require a trial to resolve. The

trial court erred when it granted Denise's summary judgment motion as a matter of law.4

       Remaining Issues

       The parties also raise various procedural and evidentiary challenges. Given our

disposition, we address only one—Burwash's challenge to the trial court's order

granting Denise's motion to amend her reply to the TEDRA petition.5 Because the
amendment results in no prejudice, the trial court properly allowed the amendment.6


       3 Generally, necessary discovery is completed before moving for summary
judgment.

       4 Given our decision, we need not address Burwash's motion for reconsideration.

       5The trial court is better positioned to address any remaining issues on remand.
                                           -3-
70136-3-1/4



      Attorney Fees

       Both parties request appellate attorney fees under RAP 14.3 and RCW

11.96A.150. The requests are premature and should abide the final determination

following remand and trial.

                                    CONCLUSION


      We reverse and remand for trial.




WE CONCUR:




       6 Prejudice is the most important factor in considering a motion to amend. Wilson
v. Horslev, 137 Wn.2d 500, 505, 974 P.2d 316 (1999). To evaluate prejudice, the court
examines whether the amendment would cause undue delay or unfair surprise. Caruso
v. Local 690 of Int'l Bhd. of Teamsters, 100 Wn.2d 343, 349-50, 670 P.2d 240 (1983).
Leave to amend pleadings is to be "freely given when justice so requires." CP 15(a).
