IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAN RHODES, ) No. 77532-4-1 ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) ROBERT GOULD, ) ) Respondent. ) FILED: March 25, 2019 )
HAZELRIGG-HERNANDEZ, J. — A party seeking summary judgment may not
raise new issues in rebuttal. Because the court improperly considered issues first
raised in Robert Gould's reply brief, we reverse and remand.
FACTS
Michan Rhodes hired attorney Robert Gould to represent her in a
malpractice claim against Emily Rains. Rhodes and Gould executed a contingent
fee agreement for the purposes of that representation. Rhodes explained the
circumstances regarding her claim, including the fact that she had stopped paying
Rains when she discovered the malpractice. Gould did not inform her that it was
possible Rains would file a counterclaim if Rhodes filed suit.
Rains filed a counterclaim for unpaid wages and other matters. Gould
withdrew from representing Rhodes eight months prior to the trial date. Rhodes No. 77532-4-1/2
subsequently hired Lawrence Linville to represent her. Later, she dismissed
Linville and hired Dan Young to represent her against Rains. Neither of the
subsequent attorneys accepted a contingency fee agreement with Rhodes.
Rhodes won a judgment from Rains, but her attorney fees significantly
exceeded the amount of the judgment. Rhodes filed this malpractice suit against
Gould, alleging breach of contract, legal malpractice, Consumer Protection Act
(CPA)1 violations, and breach of fiduciary duty. The breach of contract, legal
malpractice, and CPA claims were all dismissed on a summary judgment motion.
Gould filed a second motion for summary judgment on the breach of duty claim.
Gould argued that he did not breach his fiduciary duty by withdrawing as counsel.
Rhodes did not argue in response that the withdrawal was a breach of fiduciary
duty, but instead argued that Gould had breached his fiduciary duties by failing to
disclose material information. Rhodes did not file any new motions or request
cross summary judgment in response. Gould argued in reply that Rhodes had not
shown proximate cause or damages as to the failure to disclose material
information. Rhodes filed a motion to strike the reply, arguing that the court should
not consider the proximate cause or damages issues because they were not raised
in the initial motion for summary judgment. The court denied the motion to strike,
deciding that Gould's reply was"reasonable, since Ms. Rhodes raised these issues
in her Response." The court granted summary judgment on the basis that Rhodes
had failed to meet the burden regarding proximate cause and damages.
1 Chapter 19.86 RCW
2 No. 77532-4-1/3
ANALYSIS
I. Summary Judgment Procedure
We review summary judgment orders de novo, "'taking all facts and
inferences in the light most favorable to the nonmoving party." Jackowski v.
Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (2012), (quoting Biggers v. City of
Bainbridge Island, 162 Wn.2d 683,693, 169 P.3d 14(2007)). "Summary judgment
is appropriate only if the moving party shows 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." Jackowski, 174 Wn.2d at 729(quoting CR 56(c)). A material fact determines
the outcome of the litigation in whole or in part. Atherton Condo. Apt.-Owners
Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990),
(citing Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7(1974)). "Any doubts as
to the existence of a genuine issue of material fact is resolved against the moving
party." Atherton Condo. Apt.-Owners Ass'n Bd. Of Dirs., 115 Wn.2d at 516.
The moving party bears the burden of raising "all of the issues on which it
believes it is entitled to summary judgment." White v. Kent Med. Ctr., Inc., P.S.,
61 Wn. App. 163, 168, 810 P.2d 4 (1991). "The court will ordinarily refuse to
consider new issues raised by the moving party in its rebuttal to the response
because the nonmoving party has no opportunity to respond." 14A KARL B.
TEGLAND, WASH Pc. CIVIL PROCEDURE §25.4, at 105 (2nd ed. 2009). If the
moving party fails to raise all issues susceptible to resolution by summary
3 No. 77532-4-1/4
judgment, "it may either strike and refile its motion or raise the new issues in
another hearing at a later date." White, 61 Wn. App. at 169.
The "purpose [of summary judgment] is not to cut litigants off from their
right of trial by jury if they really have evidence which they will offer on a trial, it is
to carefully test this out, in advance of trial by inquiring and determining whether
such evidence exist." Keck v. Collins, 184 Wn.2d 358, 369, 357 P.3d 1080(2015)
(emphasis in original) (quoting Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d
605 (1960))(citing Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)).
White v. Kent Med. Ctr., Inc., P.S., controls the outcome of this case. In
White, the defendant doctors moved for summary judgment. 61 Wn. App. at 167.
After White filed responsive materials, defendants raised the issue of proximate
cause for the first time in their reply brief. Id. The trial court erroneously granted
summary judgment on the proximate cause issue. Id. at 169. The defendants in
White argued that it was proper to address proximate cause in their rebuttal
materials because evidence submitted by White in her response brief included
testimony concerning causation. Id. at 168. This court found that "White's
responsive materials did not seek summary judgment on or otherwise put into
issue the question of proximate cause." Id. at 169.
Here, Gould failed to raise the issues of proximate cause or damages in its
motion for summary judgment. Rhodes's response does not seek summary
judgment or otherwise put into issue the questions of proximate cause or damages.
Nowhere does Gould argue that it does. The trial court erred by considering the
proximate cause and damages arguments raised in Gould's reply brief. If Gould
4 No. 77532-4-1/5
wished for the court to consider those arguments, Gould should have struck and
refiled his motion or raised the new issues in another hearing at a later date.
Gould argues that his reply was properly considered by the court because
Rhodes raised a different theory of breach of fiduciary duty than Gould addressed
in his motion for summary judgment. But as the moving party, Gould bore the
burden of raising every issue on which he was entitled to judgment as a matter of
law. Gould's failure to address that claim in two successive summary judgment
motions does not vitiate Rhodes' claim, nor does it permit the court to consider
arguments first raised in a reply brief.
Gould relies on Molloy v. City of Bellevue for the proposition that raising an
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAN RHODES, ) No. 77532-4-1 ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) ROBERT GOULD, ) ) Respondent. ) FILED: March 25, 2019 )
HAZELRIGG-HERNANDEZ, J. — A party seeking summary judgment may not
raise new issues in rebuttal. Because the court improperly considered issues first
raised in Robert Gould's reply brief, we reverse and remand.
FACTS
Michan Rhodes hired attorney Robert Gould to represent her in a
malpractice claim against Emily Rains. Rhodes and Gould executed a contingent
fee agreement for the purposes of that representation. Rhodes explained the
circumstances regarding her claim, including the fact that she had stopped paying
Rains when she discovered the malpractice. Gould did not inform her that it was
possible Rains would file a counterclaim if Rhodes filed suit.
Rains filed a counterclaim for unpaid wages and other matters. Gould
withdrew from representing Rhodes eight months prior to the trial date. Rhodes No. 77532-4-1/2
subsequently hired Lawrence Linville to represent her. Later, she dismissed
Linville and hired Dan Young to represent her against Rains. Neither of the
subsequent attorneys accepted a contingency fee agreement with Rhodes.
Rhodes won a judgment from Rains, but her attorney fees significantly
exceeded the amount of the judgment. Rhodes filed this malpractice suit against
Gould, alleging breach of contract, legal malpractice, Consumer Protection Act
(CPA)1 violations, and breach of fiduciary duty. The breach of contract, legal
malpractice, and CPA claims were all dismissed on a summary judgment motion.
Gould filed a second motion for summary judgment on the breach of duty claim.
Gould argued that he did not breach his fiduciary duty by withdrawing as counsel.
Rhodes did not argue in response that the withdrawal was a breach of fiduciary
duty, but instead argued that Gould had breached his fiduciary duties by failing to
disclose material information. Rhodes did not file any new motions or request
cross summary judgment in response. Gould argued in reply that Rhodes had not
shown proximate cause or damages as to the failure to disclose material
information. Rhodes filed a motion to strike the reply, arguing that the court should
not consider the proximate cause or damages issues because they were not raised
in the initial motion for summary judgment. The court denied the motion to strike,
deciding that Gould's reply was"reasonable, since Ms. Rhodes raised these issues
in her Response." The court granted summary judgment on the basis that Rhodes
had failed to meet the burden regarding proximate cause and damages.
1 Chapter 19.86 RCW
2 No. 77532-4-1/3
ANALYSIS
I. Summary Judgment Procedure
We review summary judgment orders de novo, "'taking all facts and
inferences in the light most favorable to the nonmoving party." Jackowski v.
Borchelt, 174 Wn.2d 720, 729, 278 P.3d 1100 (2012), (quoting Biggers v. City of
Bainbridge Island, 162 Wn.2d 683,693, 169 P.3d 14(2007)). "Summary judgment
is appropriate only if the moving party shows 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." Jackowski, 174 Wn.2d at 729(quoting CR 56(c)). A material fact determines
the outcome of the litigation in whole or in part. Atherton Condo. Apt.-Owners
Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990),
(citing Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7(1974)). "Any doubts as
to the existence of a genuine issue of material fact is resolved against the moving
party." Atherton Condo. Apt.-Owners Ass'n Bd. Of Dirs., 115 Wn.2d at 516.
The moving party bears the burden of raising "all of the issues on which it
believes it is entitled to summary judgment." White v. Kent Med. Ctr., Inc., P.S.,
61 Wn. App. 163, 168, 810 P.2d 4 (1991). "The court will ordinarily refuse to
consider new issues raised by the moving party in its rebuttal to the response
because the nonmoving party has no opportunity to respond." 14A KARL B.
TEGLAND, WASH Pc. CIVIL PROCEDURE §25.4, at 105 (2nd ed. 2009). If the
moving party fails to raise all issues susceptible to resolution by summary
3 No. 77532-4-1/4
judgment, "it may either strike and refile its motion or raise the new issues in
another hearing at a later date." White, 61 Wn. App. at 169.
The "purpose [of summary judgment] is not to cut litigants off from their
right of trial by jury if they really have evidence which they will offer on a trial, it is
to carefully test this out, in advance of trial by inquiring and determining whether
such evidence exist." Keck v. Collins, 184 Wn.2d 358, 369, 357 P.3d 1080(2015)
(emphasis in original) (quoting Preston v. Duncan, 55 Wn.2d 678, 683, 349 P.2d
605 (1960))(citing Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940)).
White v. Kent Med. Ctr., Inc., P.S., controls the outcome of this case. In
White, the defendant doctors moved for summary judgment. 61 Wn. App. at 167.
After White filed responsive materials, defendants raised the issue of proximate
cause for the first time in their reply brief. Id. The trial court erroneously granted
summary judgment on the proximate cause issue. Id. at 169. The defendants in
White argued that it was proper to address proximate cause in their rebuttal
materials because evidence submitted by White in her response brief included
testimony concerning causation. Id. at 168. This court found that "White's
responsive materials did not seek summary judgment on or otherwise put into
issue the question of proximate cause." Id. at 169.
Here, Gould failed to raise the issues of proximate cause or damages in its
motion for summary judgment. Rhodes's response does not seek summary
judgment or otherwise put into issue the questions of proximate cause or damages.
Nowhere does Gould argue that it does. The trial court erred by considering the
proximate cause and damages arguments raised in Gould's reply brief. If Gould
4 No. 77532-4-1/5
wished for the court to consider those arguments, Gould should have struck and
refiled his motion or raised the new issues in another hearing at a later date.
Gould argues that his reply was properly considered by the court because
Rhodes raised a different theory of breach of fiduciary duty than Gould addressed
in his motion for summary judgment. But as the moving party, Gould bore the
burden of raising every issue on which he was entitled to judgment as a matter of
law. Gould's failure to address that claim in two successive summary judgment
motions does not vitiate Rhodes' claim, nor does it permit the court to consider
arguments first raised in a reply brief.
Gould relies on Molloy v. City of Bellevue for the proposition that raising an
entirely new cause of action in response to a motion for summary judgment cannot
be successful. 71 Wn. App. 382, 386, 859 P.2d 613(1993). Molloy does not apply
to this case. In Molloy, plaintiff responded to a motion for summary judgment by
arguing a wrongful termination theory that was not present in the plaintiff's
complaint. 71 Wn. App. at 386. Here, the claim that Gould breached his fiduciary
duties to Rhodes by failing to disclose significant information to her is contained in
the complaint.
Gould notes the dicta in Molloy that "even if the complaint did contain a
claim for wrongful termination, this claim was subsequently abandoned by Molloy."
71 Wn. App. at 387. Gould argues that Rhodes abandoned her failure to disclose
claim, relying on her response to the first motion for summary judgment and her
deposition answers where she indicated at one point during examination that she
was unable to recall what Gould had failed to disclose. However, Rhodes clearly
5 No. 77532-4-1/6
identified Gould's failure to warn her of the possibility of a counterclaim by Rains.
And as discussed above, Rhodes did not bear the burden of raising the failure to
disclose issue in response to the first summary judgment motion. Considering the
evidence in the light most favorable to the nonmoving party, Rhodes, she has not
abandoned this claim.
Gould requests attorney ;fees under RAP 18.1. As Gould is not the
prevailing party, we decline to award any attorney .fees.
The trial court based the order granting summary judgment on proximate
cause and damages. Those issues were not properly before the court—therefore,
we decline to reach them. We reverse and remand the order for further
proceedings.
WE CONCUR: