Opinion
No. 61916-1-I.
March 2, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-4-04207-2, Suzanne M. Barnett, J., entered June 24, 2008.
Reversed by unpublished per curiam opinion.
When a party opposing summary judgment presents sufficient evidence to establish that genuine issues of material fact exist, summary judgment of dismissal is improper. Laura Burwash appeals a summary judgment dismissing her petition contesting the validity of her father's will and community property agreement. Her claims are based on allegations that the documents are the product of undue influence or were executed at a time when her father lacked the capacity to execute them. Because there are material disputed facts and competing reasonable inferences, we reverse the grant of summary judgment.
FACTS
Stuart C. Rippee died on August 3, 2007. At the time of his death, he was married to Denise Rippee Rippee and Denise were married for more than 20 years and had no children. Rippee was also survived by a daughter from a previous marriage, Laura Burwash, as well as two grandsons. Over the years, Rippee attempted to maintain a close relationship with his daughter, her husband, and his grandsons. However, it is not disputed that the relationship between Denise and Burwash was contentious at best.
For clarity, we use Denise's first name to distinguish her from her late husband.
Eight years before his death, Rippee was diagnosed with prostate cancer. At times between the diagnosis and his death, Rippee used strong pain medications, including OxyContin and morphine "popsicles," to control his pain. As Rippee's cancer spread throughout his body, he became more dependent on the pain medication and his wife Denise. Over the years, Denise objected to Rippee's relationship with his daughter and his grandsons and restricted interactions between them, isolating her husband from his daughter and grandsons. When Rippee's cancer progressed to the point that he was mostly housebound, Denise prohibited Burwash's visits with her father at the Rippee home. Burwash resorted to calling her father or visiting him when he was hospitalized.
Denise admitted these facts in reply to Burwash's petition to set aside the community property agreement and will. See reply to petition, admitting paragraph 2.11 of the verified petition. Clerk's Papers (CP) at 153.
In late November 2005, Rippee signed a will devising his entire estate to his wife. The "Family" paragraph acknowledged the existence of his daughter, but misspelled her name. There was no mention of his grandsons. Rippee executed a community property agreement (CPA) on the same day.
Although there are copies of a CPA in the record, there is no stamped copy showing if and when it was filed with the superior court.
Six days after Rippee's death, the will was filed with the superior court. However, there was no petition for probate, no notice provided to any interested parties, and no personal representative appointed. Despite having an allegedly sizeable estate, Rippee's will left nothing to Burwash or to his grandsons.
After Rippee's death, Burwash was surprised to learn that her father left nothing to her or to her sons. Believing that the will and CPA were not what her father intended, on February 20, 2008, Burwash filed a 17-page verified petition under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, to contest the validity of the will and CPA. The action was brought as a TEDRA petition because no formal probate of Rippee's will was started. Burwash claimed the will and CPA were executed at a time when Rippee lacked sufficient capacity to execute the documents or were the product of undue influence. A show cause hearing was held on March 14, 2008, to determine whether the court had jurisdiction to hear the matter. Denise argued that the court lacked jurisdiction to hear a will contest because it was not timely filed. The court commissioner disagreed because no formal probate was started to begin the running of a limitations period. A trial date was set for June 9, 2008, on the issues presented by Burwash's petition. On April 7, 2008, Burwash timely commenced discovery by serving interrogatories and requests for production of documents on Denise and counsel. The responses were due May 10, 2008.
Burwash paid a filing fee to commence her petition. Denise was timely served with the petition, the order to show cause, and the citation. The petition was filed under the same cause number given to the filing of Rippee's will because that was the location of the original will.
On April 8, 2008, Denise filed a motion for summary judgment claiming there were no issues of fact as to whether Rippee was competent at the time he signed the will or CPA, whether Denise was in a confidential relationship with Rippee at the time he signed the documents, or whether Rippee was under any undue influence at the time of the signing of the will or CPA on November 28, 2005. Included with the motion were a number of unsworn declarations of witnesses offered to establish the competency of the deceased. The declarations were from a physician, an attorney, and several friends and neighbors of Denise and Rippee. There was no declaration from the person who prepared the will or CPA. There was a declaration of witnesses attached to the will, but no affidavit of attending witnesses and no additional declarations from any person claiming to be present at the time Rippee executed the documents. A declaration from Denise was presented below, but it is not in the record before this court.
Burwash opposed the motion for summary judgment and moved to strike the declarations, arguing they were not made under oath, lacked personal knowledge, or were based on facts inadmissible at trial. Burwash also requested a CR 56(f) continuance to complete discovery. Finally, in a verified petition, Burwash set forth detailed facts, arguments, and citations to authority as to why there were issues of material fact regarding Rippee's testamentary capacity and whether he had been unduly influenced due to his medical condition, medication, isolation, and other factors.
On the day before discovery was due, the trial court granted the motion for summary judgment dismissing Burwash's claims. The order implicitly denied the motion to strike and the motion for a CR 56(f) continuance. The trial court also denied a motion for reconsideration. This appeal followed.
ANALYSIS
In Denise's brief of respondent, she includes a section entitled "Assignment of Error." A party seeking cross review must file a notice of appeal. RAP 5.1(d). No cross-appeal was filed. In the concluding section of her brief, Denise also submits that summary judgment should be affirmed for five reasons. But the first three reasons are procedural issues not properly raised. Again, there is no cross-appeal, and there is nothing in the record to review. The remaining conclusions — Burwash did not present any declaration supporting the petition and did not make a motion for continuance until after the judge decided the case — are not supported by the record. Burwash's TEDRA petition setting forth claims and argument was verified and provides the underlying support for the petition. Additionally, Burwash's opposition to the motion for summary judgment set forth a CR 56(f) motion to continue the hearing to conduct further discovery. Accordingly, we do not address Denise's purported cross-appeal. Hoel v. Rose, 125 Wn. App. 14, 105 P.3d 395 (2004).
Further, Denise's brief fails to respond to any of the issues set forth by the appellant that are determinative of the appeal. This court "is not obligated to decide all the issues raised by the parties, but only those that are determinative." Hoberg v. City of Bellevue, 76 Wn. App. 357, 363, 884 P.2d 1339 (1994) (citing Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 165, 795 P.2d 1143 (1990)). An argument will not be considered if it is inadequately briefed. State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993). By failing to argue in response to Burwash's claims on appeal, we presume that Denise concedes these arguments because she has offered no argument or case law to rebut Burwash's evidence. State v. Ward, 125 Wn. App. 138, 144, 104 P.3d 61 (2005). Nevertheless, we address Burwash's challenge to the order granting summary judgment.
Motion to Strike
Burwash contends that the trial court abused its discretion when it considered declarations filed in support of Denise's summary judgment motion. For reasons explained below, Burwash moved to strike the declarations and a letter submitted to show Rippee's competency. The order granting summary judgment states that the court considered these declarations; thus, the court implicitly denied Burwash's motion to strike.
Burwash moved to strike the declarations of Don Running, James J. Dore, Sr., Renaldo Guerrero, Earl Riley, Celestia Higano, Hanne Peterson, and Phillip E. McClure. Burwash also moved to strike the letter of Ralph A. Rossi, M.D.
A court's decision to admit or exclude evidence lies within its sound discretion. We will not overturn evidentiary rulings unless the trial court has manifestly abused its discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). Although a ruling on a motion to strike is discretionary, a court may not consider inadmissible evidence when ruling on a motion for summary judgment. King County Fire Prot. Dists. No. 16, No. 36 No. 40 v. Hous. Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994).
CR 56(e) is explicit in its requirements which serve the ultimate purpose of a summary judgment motion. Affidavits (1) must be made on personal knowledge, (2) shall set forth such facts as would be admissible in evidence, and (3) shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355, 359, 753 P.2d 517 (1988); Blomster v. Nordstrom, Inc. 103 Wn. App. 252, 259-60, 11 P.3d 883 (2000). See CR 56(e). The emphasis is on facts that the declarant could testify to from personal knowledge and that would be admissible in evidence. Ultimate facts or conclusions of fact are insufficient. Grimwood, 110 Wn.2d at 359. Similarly, conclusory statements of fact will not suffice. Blomster, 103 Wn. App. at 260. And legal conclusions are insufficient to raise a question of fact. Snohomish County v. Rugg, 115 Wn. App. 218, 224, 61 P.3d 1184 (2002). In addition, inadmissible hearsay cannot be considered in ruling on a motion for summary judgment. Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986) (citing Charbonneau v. Wilbur Ellis Co., 9 Wn. App. 474, 512 P.2d 1126 (1973)).
As noted above, Burwash challenged the declarations. The sworn declaration of Don Running, a long-time acquaintance of Rippee, contained his statement that "[b]ased on my long standing dealings with [Rippee] and my contacts with him, it is my belief that during the fall of 2005 [he] had the mental capacity to enter into a binding contractual agreement and execute a Will." But Running does not recount underlying facts based on personal knowledge that he spoke or saw Rippee at the time of the execution of the documents or that he specifically spoke to Rippee about the will or CPA. A declaration based on "information and belief" is insufficient. Klossner v. San Juan County, 93 Wn.2d 42, 45, 605 P.2d 330 (1980). The declaration does not meet the requirements of CR 56(e).
Burwash next challenges James J. Dore Sr.'s declaration. That declaration merely sets forth legal argument about Burwash's failure to timely bring a motion for a will contest and offered conclusory statements regarding undue influence and fraud. This declaration also does not meet the requirements of CR 56(e).
The unsworn declarations of Reynaldo Guerrero, Earl Riley, Celestia Higano, and Hanne Peterson were identical in wording except for their names. They did not contain a recitation that they were given under penalty of perjury. These documents stated, "[Declarant's name] being fully advised about the facts and being familiar with the case makes the following declaration in regards to the physical and mental health of Stuart Rippee at the time he executed his will and CPA on November 28, 2005." The declarations further state that the declarants were in contact with the deceased and that he was competent and of sound mind and capable of executing a will. The declarations are not sufficient because it is impossible to determine whether the declarant actually had personal knowledge or was merely advised about the facts. The declarations were not signed under penalty of perjury and contained conclusions of fact and law without evidentiary facts showing personal knowledge. These declarations also do not comply with the requirements of CR 56(e).
These declarations also state that the will was filed with the superior court on that date, which is factually incorrect. But there is no evidence that the declarants were present when Rippee executed the will and CPA.
Phillip E. McClure signed a similar declaration, except that he crossed out the November 28 date and wrote in September and October. But his declaration contains the same flaws as the declarations discussed above.
Burwash also challenged a letter from Dr. Rossi, which was not attached to any declaration or otherwise authenticated. It opined that during the entire course of treatment, Rippee remained fully lucid and competent and was able to make decisions on his own. But nowhere in the letter did Rossi state facts about when he treated him or other salient personal facts. Thus, the letter does not meet the requirements of CR 56(e).
Although Denise submitted revised declarations from McClure and Rossi in response to the motion to strike, she failed to cure the material deficiencies.
Because the declarations do not satisfy the requirements under CR 56(e), the trial court erred when it considered these declarations in granting Denise's motion for summary judgment.
Standard of Review on Summary Judgment
We review summary judgment orders de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). A court may grant summary judgment if the pleadings, affidavits, and depositions establish there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151 Wn.2d at 861. The burden is on the moving party to prove that there is no genuine issue of material fact that could influence the outcome of a trial. Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). But a genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982); Barrie Hosts of Am., Inc., 94 Wn.2d 640, 618 P.2d 96 (1980). On review, the nonmoving party is entitled to have the court look at the evidence in a light most favorable to her and against the moving party. Herron v. Tribune Publ'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987). The party opposing the motion must set forth specific facts to show that genuine issues of material fact exist. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). The materials opposing the motion may consist of new declarations, factual materials already on file, or some combination of the two. 14A Karl B. Tegland,
Washington Practice § 25.6, at 96 (2003).
Testamentary Capacity
Burwash asserts she raised a genuine issue of material fact as to Rippee's testamentary capacity at the time he executed his will. A person is possessed of testamentary capacity if at the time he assumes to execute a will (or CPA), he has sufficient mind and memory to understand the transaction in which he is then engaged. He must comprehend generally the nature and extent of the property that constitutes his estate and of which he is contemplating disposition and he must recollect the objects of his bounty. In re Estate of Bottger, 14 Wn.2d 676, 685, 129 P.2d 518 (1942).
The question whether Rippee had the capacity to make a will or a CPA is an issue of fact, not law. In re Estate of Kessler, 95 Wn. App. 358, 373 n. 28, 977 P.2d 591 (1999). Denise claimed in her motion for summary judgment that Burwash provided no support in fact or law for her position that her father did not have capacity to make a will or CPA.
But in her verified petition and in her pleading opposing the motion for summary judgment, Burwash asserted there was a question of material fact whether Rippee had the capacity to execute the will at the time because of the specific circumstances of his health, his isolation, and because his will did not address the scope and nature of his property, misspelled the name of his only child, and omitted mentioning his grandsons, the natural objects of his bounty. Burwash argued, "The possession of testamentary capacity involves an understanding by the testator of the transaction in which he is engaged, a comprehension of the nature and extent of the property which is comprised in his estate, and a recollection of the natural objects of his bounty." Dean v. Jordan, 194 Wn. 661, 668, 79 P.2d 331 (1938).
Whether the will is natural or unnatural is a question to be determined in each case as warranted by the facts, especially given the potential beneficiaries who are excluded. In determining the question of what is just or unjust, natural or unnatural, the history of the testator's family is to be considered, as well as the moral equities and obligations that appear as a result. A will may be unnatural when it is contrary to what the testator, from his known views, feelings, and intentions, would have been expected to make. In re Estate of Miller, 10 Wn.2d 258, 267, 116 P.2d 526 (1941). Rippee, Burwash, and his grandsons had an affectionate and loving relationship, and yet through the operation of the CPA or the will, Rippee disinherited the natural objects of his bounty.
As stated above, on summary judgment, inferences are construed in the light most favorable to the nonmoving party. Burwash presented sufficient evidence to create a genuine issue of material fact as to Rippee's competency at the time he signed the will and CPA.
Undue Influence
Burwash also raised an issue of whether Rippee had been unduly influenced in the creation of the will and CPA. Even if it is established that Rippee possessed testamentary capacity or the capacity to execute a CPA, these documents could be set aside if it is shown that a beneficiary exercised undue influence over the maker. In re Estate of Lint, 135 Wn.2d 518, 535, 957 P.2d 755 (1998) (citing Dean, 194 Wash. at 671-72). To invalidate a will, the undue influence must be something more than mere influence, and the influence must be shown which, "'at the time of the testamentary act, controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgment and choice.'" Kessler, 95 Wn. App. at 377 (quoting Bottger, 14 Wn.2d at 700).
In reply to Burwash's petition to set aside the CPA and will, Denise admitted that she had been antagonistic to Burwash, objected to her husband's maintaining a relationship with his daughter and grandsons, and that her objections increased over the course of her marriage to Rippee. At trial, the evidence necessary to establish undue influence must be clear, cogent, and convincing. Lint, 135 Wn.2d at 535 (citing In re Estate of Mitchell, 41 Wn.2d 326, 249 P.2d 385 (1952)). But that is not the burden to survive a motion for summary judgment. The Lint court noted that despite the "rather daunting burden" placed on will contestants and those claiming undue influence in the execution of documents, a presumption of undue influence may be raised by showing suspicious facts and circumstances. The Kessler and Lint courts quote the Dean court:
Nevertheless certain facts and circumstances bearing upon the execution of a will may be of such nature and force as to raise a suspicion, varying in its strength, against the validity of the testamentary instrument. The most important of such facts are: (1) That the beneficiary occupied a fiduciary or confidential relation to the testator; (2) that the beneficiary actively participated in the preparation or procurement of the will; and (3) that the beneficiary received an unusually or unnaturally large part of the estate. Added to these may be other considerations, such as the age or condition of health and mental vigor of the testator, the nature or degree of relationship between the testator and the beneficiary, the opportunity for exerting an undue influence, and the naturalness or unnaturalness of the will. . . .
The combination of facts shown by the evidence in a particular case may be of such suspicious nature as to raise a presumption of fraud or undue influence and, in the absence of rebuttal evidence, may even be sufficient to overthrow the will. In re Beck's Estate, 79 Wash. 331, 140 P. 340 [(1914)].
Dean, 194 Wash. at 671-72.
Considering the factors listed in Dean with the facts and circumstances here, the evidence presented by Burwash raises, at the very least, a rebuttable presumption of undue influence and presents a material question of fact sufficient to defeat summary judgment.
Taking all reasonable inferences from these facts in favor of Burwash, there is evidence that Rippee may have lacked capacity or been under undue influence at the time he executed the CPA and will due to his isolation, health, medication, and nature of his relationship with his wife. The trial court erred in granting summary judgment for Denise because the evidence submitted raises genuine issues of material fact.
In light of our disposition, we do not address the CR 56(f) continuance issue. We reverse the summary judgment dismissal.