IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re Estate of STUART RIPPEE, LAURA BURWASH, Appellant,

v. DENISE RIPPEE, Respondent. NO. 70136-3-1 DIVISION ONE

UNPUBLISHED OPINION FILED: May 12, 2014 V?

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Lau, J. —Summaryjudgment as a matter of law is improperwhere reasonable minds could differ on the facts controlling the litigation's outcome. In this dispute, Stuart 

### Rippee'swidow DeniseRippee1 and adult daughterLaura Burwash2 dispute thevalidity ofRippee'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 ofundue influence and testamentary capacity. Because 

### the trial court improperlygranted summaryjudgment dismissal inDenise's favor, we

reverse and remand for trial. 

### 1Forclarity, we refer to Stuart Rippee as "Rippee" and Denise by her first name. 2Burwash's maiden name was Laura S. Rippee. We refer to her as "Burwash" for clarity. o

"-H O
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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 summaryjudgmentdismissal 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 summaryjudgment dismissal, arguing thatthe lack ofmaterial factual issues entitled hertojudgment 

### 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. Itentered 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 hearthe 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 ofmaterial fact remained. Burwash appeals. ANALYSIS Summary Judgment Dismissal 

### We review a summaryjudgmentorder 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. AllstateIns. Co., 146 Wn.2d291, 300, 45 -2-70136-3-1/3 P.3d 1068 (2002). Summaryjudgment is proper if no genuine issue ofmaterial fact remains and the moving party is entitled to judgment as a matter of law. CR 56(c). A genuine issue ofmaterial fact exists where reasonable minds could differ regarding the facts controlling the outcome ofthe 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). 

### AfterRippee I, the parties expended three years on discovery.3 Upon completion, Denise moved again for summaryjudgment dismissal. Like her first summaryjudgment 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 whenit granted Denise's summaryjudgmentmotion as a matter oflaw.4 Remaining Issues 

### The parties also raise various procedural and evidentiary challenges. Given our disposition, we address onlyone—Burwash's challenge to the trial court's order 

### granting Denise'smotion to amend herreply to theTEDRA petition.5 Because the 

### amendment results in noprejudice, thetrial courtproperly allowed theamendment.6
3Generally, necessary discovery is completed before moving for summary judgment. 

### 4Given our decision, we need not address Burwash's motion forreconsideration. 

### 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:



### 6Prejudice is the most important factor inconsidering 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. ofTeamsters, 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).