IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER NORBERG, No. 86435-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION LORI J. GUEVARA, individually,
Respondent.
DÍAZ, J. — Lori Guevara represented Christopher Norberg in his divorce
from Beth Elaine Boel. Afterwards, Norberg sued Guevara for legal malpractice,
alleging she negligently failed to seek a ruling from the trial court that a document
the couple executed during their marriage constituted a “standard” community
property agreement (CPA). Such an agreement would have immediately
converted all their separate property into community property, resulting—Norberg
claims—in a more favorable distribution of assets for him. Guevara successfully
moved for summary judgment, and Norberg now claims the trial court erred in
granting it and dismissing his claims with prejudice. We affirm because Norberg
did not establish that there is a genuine issue of material fact that Guevara
breached the duty of care, which was necessary for him to survive summary
judgment. However, we deny Guevara’s request for attorney fees on appeal.
I. BACKGROUND No. 86435-1-I/2
A. Underlying Dissolution Proceeding
Before marrying Norberg in 1995, Boel had been married to a Belgian man
who died in 1988. Following his death, she received a life estate interest in Belgian
“usufruct” rights, which her deceased husband had held as a shareholder of
chemical and investment companies. The interest granted her annual distributions
of approximately $385,000 until her death.
In 2003, Norberg and Boel signed a document entitled “Community Property
Agreement” (“2003 agreement”). In the first paragraph, the 2003 agreement
provides that the parties entered into it pursuant to RCW 26.16.120. The
agreement characterizes the statute as governing “agreements between husband
and wife for the fixing of the status and disposition of community property to take
effect upon the death of either.” The 2003 agreement further specifies that it “is
executed for estate planning purposes only, and not for any other use.”
Norberg and Boel subsequently purchased real estate with funds from
Boel’s “usufruct” earnings. In 2008, they purchased a home on Bainbridge Island
and, in 2013, they purchased a 50% interest in a second home in Sedona, Arizona,
for $750,000.
In 2019, Norberg filed for divorce and, in 2021, he retained Guevara to
represent him at trial. Guevara asked the court to equitably divide Norberg and
Boel’s marital estate and, while she had the 2003 agreement admitted as an
exhibit, she did not seek a ruling that it was a “standard” CPA or otherwise ask the
court to rely on it or use it in its distribution of property.
In September 2021, the court divided the property, finding in pertinent part
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that the Belgian “usufruct assets” were Boel’s “separate property.” It also awarded
the home on Bainbridge Island to Boel, finding she acquired the property using her
Belgian income and that Norberg “did not dispute the separate property character
of this asset.” To Norberg, the court awarded a 50% share of Norberg and Boel’s
interest in the net proceeds of the sale of the Arizona home.
B. Present Action and Motion for Summary Judgment
In June 2023, Norberg sued Guevara for legal malpractice and negligence,
seeking $1.5 million in damages because she failed to seek a ruling at his
dissolution trial that the 2003 agreement converted all separate property
immediately to community property, as a “standard” CPA would.
In September 2023, the court denied Norberg’s “motion for declaratory
judgment,” which asked the court to find the 2003 agreement was a “standard
Washington state ‘three-prong’ community property agreement that vests upon
execution by the parties.” The court ultimately ruled it was simply an “estate
planning document.”
Guevara subsequently moved for summary judgment. In support, she
submitted a sworn declaration in which she explained why she did not ask the court
to interpret the 2003 agreement in the way Norberg now understands the
document. Namely, she asserted that—as reflected in notes she took
contemporaneously—Norberg told her that he and Boel entered into the 2003
agreement for estate planning purposes in advance of the birth of their son.
Guevara also claimed that he told her that he understood that the 2003 agreement
was effective only when he or Boel died. Guevara also stated that, based on her
3 No. 86435-1-I/4
own legal research, she could not successfully make the argument that the
document converted all property at the time it was executed. And she decided she
could not ethically so argue.
In support of her motion, Guevara also submitted a declaration from
Norberg’s prior attorney. That attorney asserted he had withdrawn a summary
judgment motion arguing that the entire marital estate was community property,
after viewing Boel’s response. Guevara stated Norberg told her his counsel
withdrew the motion because he thought it “was not winnable.” The former
attorney also “determined he could not ethically defend [Norberg’s] arguments”
concerning the 2003 agreement.
In response to Guevara’s motion for summary judgment, Norberg did not
contest that he made those prior statements about the 2003 agreement to
Guevara, or the contemporaneous reasons behind his counsel’s tactics.1 Instead,
Norberg attached to a declaration from the attorney litigating the malpractice suit
two sets of discovery responses. In the first—a supplemental answer to an
interrogatory—Norberg disclosed an expert witness, Duncan Connelly, who was
“expected to testify on the standard of care relevant to legal malpractice claims,”
and who
[would] testify . . . regarding Ms. Guevara’s actions as a breach of the standard of care, and what actions Ms. Guev[a]ra could or should have taken to avoid breaching her duties to Mr. Norberg, potentially including efforts to seek summary judgment on the interpretation of
1 In support of his motion for declaratory judgment, Norberg’s submitted a declaration, stating only that, “[p]rior to trial, [he] told Ms. Guevara about the community property agreement[—][s]he dismissed it,” and “[he] tried to highlight facts she was overlooking, like the community property agreement, but she was nonresponsive.” 4 No. 86435-1-I/5
the Community Property Agreement. Mr. Connelly will testify that Ms. Guevara’s conduct in the underlying case breached the relevant standard of care and that her actions fell below the standard of care and diligence expected of an attorney in Washington.
In the second discovery response—an amended witness disclosure—
Norberg stated that Connelly would “offer testimony [that] Ms. Guev[a]ra should
have . . . argue[d] the Community Property Agreement at the core of this case or
[have] s[ought] summary judgment on the interpretation of that agreement.”
Neither response contains a sworn declaration from Connelly, and neither
one otherwise addresses the alleged breach of the duty of care.
After hearing argument from both parties in February 2024, the court
granted Guevara’s summary judgment motion and dismissed Norberg’s claims
with prejudice. Among its conclusions, it held that, while Norberg’s attorney had
argued during the hearing that “Guev[a]ra’s declaration contained false
statements/misrepresentations,” he “submitted no sworn declarations or
admissible evidence from [Norberg] or any other individual controverting
[Guevara]’s assertions.” Norberg timely appeals.
II. ANALYSIS
A. Summary Judgment on Norberg’s Legal Malpractice Claim
1. Law
a. Summary Judgment Standards
Summary judgment is appropriate where the materials and evidence in the
record “show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” CR 56(c); see Ranger
Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008).
5 No. 86435-1-I/6
We review summary judgment orders de novo, and in assessing summary
judgment awards, we employ a two-step burden-shifting analysis. TracFone, Inc.
v. City of Renton, 30 Wn. App. 2d 870, 875, 547 P.3d 902 (2024). First, the party
moving for summary judgment bears a burden to show that there is no genuine
issue of material fact, which is one upon which the outcome of the litigation
depends. Walston v. Boeing Co., 181 Wn.2d 391, 395-96, 334 P.3d 519 (2014);
Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977). Then, the onus to
present evidence shifts to the party opposing summary judgment, who must
present evidence showing that a genuine issue of material fact remains. Walston,
181 Wn.2d at 396.
When, as here, the party moving for judgment is a defendant, it may meet
its initial summary judgment burden by pointing out there is an absence of
evidence to support the nonmoving party’s case. Young v. Key Pharm., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989).
Then, to defend against judgment, the opposing party must respond with
more than conclusory allegations, speculative statements, or argumentative
assertions of the existence of unresolved factual issues. Ruffer v. St. Frances
Cabrini Hosp. of Seattle, 56 Wn. App. 625, 628, 784 P.2d 1288 (1990). It also
cannot rely on inadmissible hearsay in response, Dunlap v. Wayne, 105 Wn.2d
529, 535-36, 716 P.2d 842 (1986), as a court ruling on a summary judgment motion
cannot consider it. ER 801(c); CR 56(e). 2 For example, an attorney’s affidavit
2 “‘Hearsay’ is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” and it is inadmissible if it does not fit within an exception. ER 801(c); ER 802. 6 No. 86435-1-I/7
which merely relates assertions made by a client constitutes hearsay and does not
set forth facts which would be admissible in evidence, as required to survive
summary judgment. Welling v. Mount Si Bowl, Inc., 79 Wn.2d 485, 489, 487 P.2d
620 (1971).
To succeed in defeating summary judgment, a nonmoving party generally
must adduce affidavits as evidence from affiants who are competent to testify that
set forth facts based upon personal knowledge. CR 56(e); Hill v. Sacred Heart
Med. Ctr., 143 Wn. App. 438, 449, 177 P.3d 1152 (2008). The nonmoving party
may also rely on affidavits that reference other sworn statements in the record
based on personal knowledge. Hill, 143 Wn. App. at 449. However, we have held
“documents are not rendered admissible as evidence solely because the moving
party filed them with a motion for summary judgment.” In re Estate of Ferara, 29
Wn. App. 2d 139, 156, 540 P.3d 194 (2023).
If the nonmoving party does not present admissible evidence demonstrating
a genuine issue of material fact, it has not met its burden, and summary judgment
for the movant is appropriate. Pac. Nw. Shooting Park Ass’n v. City of Sequim,
158 Wn.2d 342, 351, 144 P.3d 276 (2006).
We may affirm a trial court’s disposition of a summary judgment motion on
any basis supported by the record on appeal. Performance Constr., LLC v. Glenn,
195 Wn. App. 406, 415, 380 P.3d 618 (2016).
b. Elements of a Legal Malpractice Claim
To establish a claim for legal malpractice, a plaintiff must prove: (1) the
existence of an attorney-client relationship; (2) an act or omission by the attorney
7 No. 86435-1-I/8
in breach of the duty of care; (3) damage to the client; and (4) proximate causation
between the attorney’s breach of the duty and the damage incurred. Hizey v.
Carpenter, 119 Wn.2d 251, 260–61, 830 P.2d 646 (1992). 3
As to the second element, a breach of a duty in a legal malpractice claim is
the failure to exercise “the degree of care, skill, diligence, and knowledge
commonly possessed and exercised by a reasonable, careful, and prudent lawyer
in the practice of law” in the applicable jurisdiction. Id. at 261. Expert testimony is
“often required to determine whether an attorney’s duty of care was breached.”
Geer v. Tonnon, 137 Wn. App. 838, 851, 155 P.3d 163 (2007). As our Supreme
Court has explained, “[b]y its very nature, an action for professional negligence in
the preparation and conduct of specific litigation involves matters calling for special
skill or knowledge [which are] proper subjects for expert testimony.” Walker v.
Bangs, 92 Wn.2d 854, 857-58, 601 P.2d 1279 (1979). Therefore, other than in
malpractice cases where the nature of the charged negligence is “within the
common knowledge of lay persons,” id., plaintiffs are “ordinarily required to present
expert testimony setting forth an industry specific standard of care.” Singh v.
Zurich Am. Ins. Co., 5 Wn. App. 2d 739, 757, 428 P.3d 1237 (2018).
What’s more, in assessing claims an attorney breached their duty of care,
this court has applied the “attorney judgment rule.” Clark County Fire Dist. No. 5
3 Aside from proof of an attorney-client relationship, the elements of negligence
and legal malpractice are the same. See Sherry v. Diercks, 29 Wn. App. 433, 437, 628 P.2d 1336 (1981). The trial court found Norberg’s negligence claim was duplicative of his legal malpractice claim. And Norberg did not assign error to this holding, which obviates our need to consider that cause of action further. RAP 2.4(a); RAP 10.3(a)(4); RAP 10.3(g); Unigard Ins. Co. v. Mut. of Enumclaw Ins. Co., 160 Wn. App. 912, 922, 250 P.3d 121 (2011). 8 No. 86435-1-I/9
v. Bullivant Houser Bailey P.C., 180 Wn. App. 689, 704, 324 P.3d 743 (2014).
Under that rule:
[A]n attorney cannot be liable for making an allegedly erroneous decision involving honest, good faith judgment if (1) that decision was within the range of reasonable alternatives from the perspective of a reasonable, careful and prudent attorney in Washington; and (2) in making that judgment decision the attorney exercised reasonable care.
Id.
In Clark County Fire Dist., we surveyed examples of cases where a plaintiff
made an insufficient showing that an attorney’s decision was not within the range
of reasonable choices from the perspective of a reasonable, careful and prudent
attorney in Washington. Id. at 701-06. We specifically held that “[m]erely providing
an expert opinion that the judgment decision was erroneous or that the attorney
should have made a different decision is not enough” evidence to establish breach
in order to avoid summary judgment dismissal of a legal negligence claim. Id. at
706. Ultimately, “whether a defendant has breached the duty of care generally is
a question of fact . . . for the jury,” but “this is no different than in any other
negligence case, where a defendant can obtain summary judgment on the issue
of breach of duty if reasonable minds could reach only one conclusion.” Id. at 705
(citation omitted).
2. Discussion
To meet her initial burden of production, Guevara provided evidence that
she made the decision not to seek a ruling on the 2003 agreement based upon (a)
what Norberg told her the intent and effective date of the document was, (b)
learning of a previous, unsuccessful attempt to make such an argument, and (c)
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her own legal review 4 and assessment of her ethical duties. Thus, she met her
initial burden to show the absence of a genuine issue of material fact that she
breached her duty of care. Young, 112 Wn.2d at 225. The burden then shifted to
Norberg. Walston, 181 Wn.2d at 395-96.
In response, Norberg did not present evidence showing that a genuine issue
of material fact remains as to breach because, first, the declaration he submitted
from his counsel did not “set forth such facts as would be admissible in evidence.”
CR 56(e) (emphasis added); Dunlap, 105 Wn.2d at 535-36. His counsel’s
declaration and the two attached discovery responses—mere summaries of
expected expert testimony—were inadmissible hearsay statements, not sworn
affidavits based on personal knowledge of the putative proper affiant, i.e.,
Connelly. CR 56(e); ER 801(c); Hill, 143 Wn. App. at 449. Discovery responses
are not rendered admissible evidence simply because they are attached to an
attorney’s declaration or submitted in summary judgment proceedings. Welling,
79 Wn.2d at 489; Ferara, 29 Wn. App. 2d at 156. While a court “may permit”
affidavits filed in support of a summary judgment motion to be “supplemented” by
answers to interrogatories or other discovery, the underlying affidavit must be
admissible. CR 56(e) (emphasis added). As a result, because Norberg did not
4 It is true that “whether the attorney erred in interpreting or applying the law is a
legal issue reserved for the court.” Clark County Fire Dist., 180 Wn. App. at 705 n.6. But we need not reach whether the 2003 agreement was in fact a “standard” CPA. For purposes of this opinion, we may assume it was and still require that Norberg show Guevara’s “error in judgment” (in not making the argument) “was not within the range of reasonable choices from the perspective of a reasonable, careful and prudent attorney in Washington” or “even if the decision itself was within the reasonable range of choices, . . . she was negligent based on how that decision was made.” Id. at 706. 10 No. 86435-1-I/11
respond with evidence meeting his burden of production as the nonmoving party,
it was appropriate to enter summary judgment against him. CR 56(e); Pac. Nw.
Shooting Park Ass’n, 158 Wn.2d at 351.
Second, and more substantively, an affidavit itself “must set forth specific
facts showing that there is a genuine issue for trial.” CR 56(e); Ferara, 29 Wn.
App. 2d at 156. And Norberg’s summaries of anticipated expert testimony did not
create a question of fact that Guevara breached her duty. Even viewing the
summaries of the expert’s expected testimony in the light most favorable to
Norberg, the summaries of the expected testimony do not contain any claim in
more than conclusory language that Guevara breached the standard of care.
Again, the opposing party must respond with more than conclusory allegations or
argumentative assertions of the existence of unresolved factual issues. Ruffer, 56
Wn. App. at 628. The summaries of Connelly’s expected testimony are nothing
more than that and, thus, based on the record before us, “reasonable minds could
reach only one conclusion”: Guevara shifted the burden on breach of duty to
Norberg, who did not respond with admissible and “specific facts showing that
there is a genuine issue for trial.” Clark County Fire Dist., 180 Wn. App. at 705;
CR 56(e).
Therefore, we affirm the dismissal of his malpractice and negligence claims.
Glenn, 195 Wn. App. at 415.
B. Fees
Guevara seeks her fees on appeal because Norberg’s appeal is frivolous.
RAP 18.9 permits an appellate court to award a party attorney fees as
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sanctions when the opposing party files a frivolous appellate action. Reid v.
Dalton, 124 Wn. App. 113, 128, 100 P.3d 349 (2004). In determining whether an
appeal is frivolous, all doubts on the question must be resolved in favor of the
appellant, and an appeal that is simply affirmed because we reject its arguments
is not frivolous. Tiffany Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241,
119 P.3d 325 (2005). An appeal is only frivolous if, considering the entire record,
the court is convinced that the appeal presents no debatable issues upon which
reasonable minds might differ, and the appeal is so devoid of merit that there is no
possibility of reversal. Id.
Although we affirm, we disagree that Norberg’s appeal constitutes
“precisely the abuse of the appellate process that RAP 18.9 is intended to deter.”
The parties’ briefing largely revolves around whether the 2003 agreement is a
standard CPA, which is an issue that we do not deem to be so devoid of merit that
his appeal stood no possibility of success. Thus, while we resolve the matter on
alternate grounds, it is not frivolous. Tiffany, 155 Wn.2d at 241. RAP 18.9 does
not entitle Guevara to fees as sanctions.
III. CONCLUSION
We affirm the trial court’s summary judgment dismissal of Norberg’s lawsuit
and deny Guevara’s request for fees.
WE CONCUR: