JoLynn Reugh-Kovalsky v. Thomas Culbertson and Lukins & Annis, P.S. ( 2021 )

FILED
DECEMBER 14, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JOLYNN REUGH-KOVALSKY, ) No. 37664-8-III
individually and as the former personal )
representative of the Estate of Wendell )
Reugh, )
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
THOMAS CULBERTSON and )
LUKINS & ANNIS, P.S., )
)
Respondents. )
LAWRENCE-BERREY, J. — Wendell Reugh was a wealthy businessman. The
administration of his estate has generated multiple lawsuits.
In this appeal, JoLynn Reugh-Kovalsky, Mr. Reugh’s daughter, challenges the trial
court’s second summary judgment ruling. That ruling resulted in the dismissal of her
remaining legal malpractice claims against the lawyer and the firm that represented her
father and later his estate. We affirm.
No. 37664-8-III
Reugh-Kovalsky v. Culbertson
FACTS
K. Wendell Reugh is survived by his three adult children: James R. Reugh, Mark
W. Reugh, and appellant JoLynn Reugh-Kovalsky. His estate proceedings have persisted
for many years. The instant case concerns the trial court’s summary dismissal of Ms.
Reugh-Kovalsky’s malpractice claims against her father’s former attorney, Thomas
Culbertson, and the law firm he works for, Lukins & Annis, P.S.1 The background
information and procedural history most relevant to this appeal follow.
General overview of estate
Mr. Reugh’s wealth consisted of personal assets valued at $32 million,
miscellaneous trusts valued around $10 million, and a limited liability company valued at
almost $58 million. The bulk of his probate and nonprobate estate went either to his
children or to a testamentary trust. According to his estate plan, the testamentary trust
would receive around $28 million and each of his three children would receive about $1.9
million upfront and just over $12.5 million seven years later (when the children were
permitted to terminate the LLC). This appeal involves the testamentary trust.
1
We refer to respondents collectively as Mr. Culbertson. At times, the context
plainly means Mr. Culbertson only.
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Will and testamentary trust
In January 2011, Mr. Reugh executed his Last Will and Testament (Will). Article
III of the Will contained a pour-over clause:
I give my residuary estate to the Trustee of the K. WENDELL
REUGH REVOCABLE LIVING TRUST dated January 4, 2011, wherein I
am the Settlor and the Trustee, to be held, administered, and distributed in
accordance with the provisions of said Trust Agreement as if it had
constituted a part thereof on the date of my death.
Clerk’s Papers (CP) at 386 (emphasis added). The Will appointed Dominic Zamora and
James Simmons as co-personal representatives (PRs), but if either of them were unable or
unwilling to serve, they were to nominate three individuals and his three children, by
majority vote, would designate one of the said nominees to serve as co-PR.
Contemporaneous with the Will, Mr. Reugh executed his revocable living trust
(Trust). The Trust appointed Mr. Zamora and Mr. Simmons to succeed Mr. Reugh as
trustee and contained the same process as the Will for nominating and designating a
replacement co-trustee.
Article II of the Trust read in part: “The Settlor hereby transfers to the Trustee the
sum of One Hundred Dollars ($100.00).” CP at 391. The trust did not receive $100.00,
or any funds, before Mr. Reugh’s death. Article VI of the Trust provided for several
distributions to be made upon Mr. Reugh’s death, including distributions to his children.
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The Trust directed that the remainder of the trust estate pass to a charitable
foundation or a charitable donor-advised fund to be created by Mr. Reugh. If no such
foundation had been established by the time of Mr. Reugh’s death, “said remainder shall
be distributed to the Inland Northwest Community Foundation[2] [INWCF], to be held as
an endowed donor-advised fund known as the Wendell and MaryAnn Reugh Family
Fund.” CP at 396. The advisors of that fund were to be Mr. Reugh’s three children.
Mr. Reugh’s death and subsequent events
On March 22, 2015, Mr. Reugh died. He had not yet established a charitable
foundation. According to Mr. Culbertson, Mr. Zamora called him two days before Mr.
Reugh’s death—while Mr. Reugh was doing poorly in the hospital—advising that Mr.
Reugh “was contemplating or desiring a private foundation” rather than a donor-advised
fund. CP at 517. Mr. Culbertson offered to come to the hospital, but Mr. Zamora said
Mr. Reugh was not “‘in any condition to do that now.’” CP at 517.
Both Mr. Zamora and Mr. Simmons declined to serve as PR. Mr. Reugh’s three
children selected Ms. Reugh-Kovalsky and Steven Gill (Mr. Reugh’s longtime business
partner) to serve as co-PR’s.
2
The Inland Northwest Community Foundation is now known as “Innovia.” For
consistency with the record as a whole, we refer to the foundation as INWCF.
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On March 30, 2015, Mr. Culbertson wrote a letter to Ms. Reugh-Kovalsky
confirming her and Mr. Gill’s appointment as co-PRs of the estate and co-trustees of the
Trust. The letter read:
You and Steve [Gill] have retained our firm in your capacity as fiduciaries
for the estate and Trust and as such fiduciaries you are our clients (in your
fiduciary capacity) in these proceedings. We, therefore, do not represent
any beneficiaries. . . .
However, if the beneficiaries feel they need legal advice or otherwise need
legal representation unique to their personal situations, they may wish to
retain independent counsel to represent their interests.
CP at 1375-76 (emphasis added).
On April 15, 2015, Mr. Culbertson wrote another letter to Ms. Reugh-Kovalsky
and Mr. Gill, which read in part:
As co-personal representatives of the estate and co-trustees of the Living
Trust, your primary responsibilities are to take control of and protect estate
assets, pay creditors who properly file their claims, prepare an inventory of
estate assets, file the appropriate income tax returns and pay income tax, file
estate tax returns and pay estate tax, and distribute the assets according to
the trust’s terms.
CP at 377 (emphasis added).
Ms. Reugh-Kovalsky expressed concern that the Trust did not reflect her father’s
intentions because it gave his residuary estate to INWCF rather than a private foundation.
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She did not assert any personal interest in the $28 million trust. In mid-2015, Ms. Reugh-
Kovalsky and Mr. Gill made distributions to most of the named beneficiaries.
In June 2015, Ms. Reugh-Kovalsky and Mr. Gill retained additional counsel—
Joseph Delay—to advise them on the charitable aspects of the Trust. A meeting was set
up in December 2015 between Mr. Delay, Ms. Reugh-Kovalsky, Mr. Gill, and Ms.
Reugh-Kovalsky’s siblings to discuss the Trust administration.
On January 8, 2015, Mr. Culbertson wrote a follow-up letter to Ms. Reugh-
Kovalsky and Mr. Gill that provided, in part:
I want to be sure that you are clear on your duties and responsibilities as
fiduciaries and on the role Joe Delay and I serve as your attorneys.
In his final days, [Mr. Reugh] apparently made several statements
concerning his wishes which were at variance with the terms of his living
trust and other testamentary documents. Unfortunately, the law does not
attach any enforceable significance to such oral statements. Concerning the
Inland Northwest Community Foundation, there are four specific issues
which have come to light. . . . Third, [Mr. Reugh]’s wish that he had set up
a private foundation to be the residuary beneficiary rather than the
Community Foundation. . . .
You have retained Joe Delay to represent you (again, in your fiduciary
capacities) to deal with the Community Foundation with regard to matters
which concern it. Since the living trust provides that the Community
Foundation is the recipient of the residuary, every dollar that does not pass
to family and other specific devisees passes to the Community Foundation,
so each of the foregoing issues has a direct impact on the Community
Foundation. . . .
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[Ms. Reugh-Kovalsky], you have an obvious conflict of interest since on the
one hand you are one of the specific beneficiaries and on the other hand
you are a fiduciary as co-personal representative of [Mr. Reugh]’s estate
and co-successor trustee of his living trust. Conflicts of interest are
common and permissible in the context of trusts and estates; it is not the
conflict itself which gets people into trouble, but what they do in light of the
conflict.
As fiduciaries, there are a number of duties and responsibilities which you
owe to all the beneficiaries, but there are two duties which are paramount.
First, you have a duty of impartiality to the beneficiaries; that is, you
cannot favor the interests of any beneficiary or group of beneficiaries over
the interests of another beneficiary. Second, you have a duty of full
disclosure; that is, a duty to keep all the beneficiaries sufficiently informed
that they are in a position to protect their best interests. In short, you
cannot (consistent with your fiduciary duties) treat [INWCF] as an
adversary, as you might if you had a dispute with another party as to which
you owe no fiduciary duties.
CP at 98-99 (some alterations in original).
On March 2, 2016, Ms. Reugh-Kovalsky and Mr. Gill terminated Mr. Culbertson
as their counsel. Among other concerns, Ms. Reugh-Kovalsky believed Mr. Culbertson
had a conflict of interest because he was listed as one of 33 attorney advisors on
INWCF’s website. Ms. Reugh-Kovalsky and Mr. Gill eventually hired Amber Myrick to
represent them as co-PRs and co-trustees.
On April 27, 2016, Ms. Reugh-Kovalsky sent an e-mail to Ms. Myrick expressing
her confidence that Ms. Myrick could help her fund a family foundation in lieu of the gift
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to INWCF. Shortly thereafter, Ms. Reugh-Kovalsky’s siblings also hired attorneys. On
July 7, 2016, her siblings’ attorneys wrote to the INWCF threatening litigation.
Ms. Reugh-Kovalsky and her siblings then hired current attorney Mary Schultz.
On January 27, 2017, Ms. Schultz sent a letter to INWCF’s counsel explaining that Mr.
Reugh’s Trust was invalid and that Mr. Reugh never intended his residuary estate to pass
to INWCF. Ms. Schultz advised INWCF that the beneficiaries intended to claim their
father’s assets and would proceed accordingly.
Procedural history: three lawsuits
Trust invalidity lawsuit
On February 27, 2017, Ms. Reugh-Kovalsky and her siblings petitioned the
Spokane County Superior Court to declare their father’s Trust invalid. They alleged Mr.
Reugh failed to create a valid trust in January 2011, pointing to the fact that the Trust had
never been funded during his lifetime. After several years of litigation, Judge Anthony
Hazel dismissed the trust invalidity action as time barred. Ms. Reugh-Kovalsky and her
siblings appealed, and filed contemporaneous with this opinion, we affirmed the trial
court’s dismissal order. See In re Estate of Reugh, No. 37255-3-III (Wash. Ct. App.
Dec. 14, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/372553_unp.pdf
(Reugh II).
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Removal lawsuit
While the trust invalidity action was pending, INWCF filed a motion to remove
Ms. Reugh-Kovalsky and Mr. Gill as co-PRs and co-trustees. The trial court granted the
motion and appointed Northwest Trustee & Management Services, LLC to the fiduciary
positions. In granting the motion, the trial court noted that Ms. Reugh-Kovalsky’s “claim
to funds that would otherwise be distributed to INWCF . . . created an irreconcilable
conflict of interest.” In re Estate of Reugh, 10 Wn. App. 2d 20, 41, 447 P.3d 544 (2019)
(Reugh I). We affirmed the trial court’s removal of Ms. Reugh-Kovalsky and Mr. Gill as
co-PRs/trustees. Id. at 62-68. Our Supreme Court denied review. 194 Wn.2d 1018, 455
P.3d 128 (2020).
Current malpractice lawsuit
On March 21, 2018, Ms. Reugh-Kovalsky filed a legal negligence action against
Mr. Culbertson. As a former PR, she sought damages caused by Mr. Culbertson’s alleged
malpractice in the preparation of her father’s estate. In her personal capacity, she sought
damages based on Mr. Culbertson’s allegedly negligent representation of her as PR for
the advice that caused her removal and for not timely informing her that the unfunded
trust was invalid.
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First partial summary judgment
On January 31, 2019, Mr. Culbertson moved for partial summary judgment to
dismiss claims asserted by Ms. Reugh-Kovalsky in her capacity as former PR. Ms.
Reugh-Kovalsky requested that the motion be stayed because Judge Hazel’s removal
order was on appeal and reversal of that order would permit her to pursue this action.
On March 22, 2019, the trial court heard arguments. The court granted Ms.
Reugh-Kovalsky’s request for a stay, pending the outcome of Reugh I, 10 Wn. App. 2d
20. Reugh I was filed on August 20, 2019.
On September 18, 2019, the trial court lifted the stay and granted Mr. Culbertson’s
motion for partial summary judgment. The court’s order read, in part:
5. [Mr. Culbertson] offer[s] three arguments which [he] allege[s]
warrant dismissal of claims on behalf of the deceased and his estate
(collectively “the Estate”): (1) Ms. Reugh-Kovalsky lacks standing to assert
claims on behalf of the Estate; (2) any claim to recover damages are beyond
the scope of the survival statute . . . and (3) Wendell Reugh did not suffer
any compensable loss.
6. [Mr. Culbertson’s] first argument is dispositive of this
motion.
....
8. Ms. Reugh-Kovalsky lacks standing to bring a claim on
behalf of her father or the estate, as she is not the personal representative of
the estate. All claims brought by Ms. Reugh-Kovalsky seeking to claim on
behalf of her father, Wendell Reugh, or seeking damages allegedly suffered
by him, or seeking to recover damages or other relief on behalf of her
father’s estate are hereby dismissed with prejudice. Ms. Reugh-Kovalsky’s
claims alleged against [Mr. Culbertson] to recover alleged personal
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damages to her arising from [his] representation of her as a personal
representative or trustee are unaffected by this decision.
9. The Court does not rule on the other two bases for dismissal
offered in the motion because those bases are now moot.
CP at 284 (emphasis added).
Second summary judgment
On January 2, 2020, Mr. Culbertson moved for summary judgment on the
remaining malpractice claims. Mr. Culbertson argued that he advised Ms. Reugh-
Kovalsky solely in her capacity as a PR, and PRs are fiduciaries who have the duties to
defend and follow the terms of the testamentary instruments they administer. Because
this was the advice he gave Ms. Reugh-Kovalsky, Mr. Culbertson argued he was entitled
to an order terminating the case.
Ms. Reugh-Kovalsky opposed the motion. In support, she filed expert declarations
supporting her position that Mr. Culbertson violated the standard of care and breached his
fiduciary duty throughout the course of representation.
On January 2, 2020, Ms. Reugh-Kovalsky advised Mr. Culbertson via e-mail that
she would move to amend her complaint. On January 27, Ms. Reugh-Kovalsky filed that
motion. She argued her request must be considered at summary judgment because it
related back to the original complaint and arose in part from Mr. Culbertson’s pending
summary judgment motion.
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On January 31, 2020, the trial court heard argument on Mr. Culbertson’s second
summary judgment motion. Mr. Culbertson reiterated that the only claims remaining
were those brought by Ms. Reugh-Kovalsky “as a former PR, alleging negligence to her
in her fiduciary capacity as PR. It is not a suit by a beneficiary.” Report of Proceedings
(RP) (Jan. 31, 2020) at 6.
Ms. Reugh-Kovalsky reiterated her position that her amended complaint—which
she acknowledged was not before the court that day—related back to the original
complaint; thus, summary dismissal was not appropriate.
Mr. Culbertson explained that many of the facts and issues raised by Ms. Reugh-
Kovalsky did not pertain to Mr. Culbertson’s representation of her as PR and were
therefore not relevant. He framed the case as follows:
[W]e’re looking for guardrails for this case. . . . And there’s two paramount
legal issues that need resolution so that we can have guardrails in this case.
And we can take up all of these other issues if the Complaint gets amended
and if it relates back . . . but let’s get some guardrails that say the duties of a
PR and the advice Ms. [Reugh-]Kovalsky got about the duties of a PR were
by the book, and there was no error there as a matter of law.
And the [other] issue of whether the trust was invalid because of a
lack of funding is also a dead end because, by law, funding was
accomplished here. If they want to raise other ancillary attacks about the
trust as beneficiaries in some other case, then that’s for another case or for
an amended case but not for this case.
RP (Jan. 31, 2020) at 37-38 (emphasis added).
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The court took the matter under advisement. On April 16, 2020, the court issued a
letter ruling advising the parties that it would dismiss Ms. Reugh-Kovalsky’s remaining
claims.
On May 6, 2020, the trial court entered an order granting Mr. Culbertson’s motion
for partial summary judgment. The order read, in part:
[Mr. Culbertson] argued that Ms. [Reugh-]Kovalsky’s allegations of
negligent legal advice fail as a matter of law because Mr. Culbertson
correctly advised her as to the law. [Ms. Reugh-Kovalsky] submitted a
declaration from an attorney who disagrees. However, this disagreement as
to an interpretation of law . . . does not create a material issue of fact.
Courts determine what the law is. This Court agrees that [Mr. Culbertson
is] entitled to judgment as a matter of law on [Ms. Reugh-Kovalsky]’s
claims that Mr. Culbertson provided incorrect legal advice.
CP at 1213-14.
Regarding the alleged conflicts of interest, the court ruled:
It is important to note the scope of [Mr. Culbertson’s] representation of Ms.
[Reugh-]Kovalsky, which are the only remaining claims. Ms. [Reugh-]
Kovalsky’s individual claims as a beneficiary have been addressed in other
related litigation.
The undisputed evidence is that [Mr. Culbertson] represented her
solely in her capacity as personal representative and trustee and not in her
individual capacity or as a beneficiary. Mr. Culbertson clearly advised her
as such and referred her to separate counsel. Any alleged malpractice is
limited to that scope of representation. As noted above, this Court agrees
that the advice relating to that representation was correct. Given the limited
scope of the representation and correct legal advice, no damages are
attributable to [Mr. Culbertson’s] representation of Ms. [Reugh-]Kovalsky
in her capacity as personal representative or trustee.
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CP at 1214. In a handwritten notation following this paragraph, the court noted:
A prior partial summary judgment entered 9.18.19 disposed of all
other claims, leaving only claims against [Mr. Culbertson] to recover
alleged personal damages to [Ms. Reugh-]Kovalsky “arising from [his]
representation of her as a P.R. or trustee” . . . , which is what this present
motion [and] order addresses. As noted above, [Ms. Reugh-]Kovalsky’s
claims as an individual beneficiary were not brought in this case, but in a
separate case, which did not name Lukins or Culbertson as defendants.
CP at 1214. The court did not address the validity of the Trust nor did it rule on
Ms. Reugh-Kovalsky’s motion to amend, but succinctly stated: “All claims are
dismissed.” CP at 1214.
Motion to reconsider
On May 15, 2020, Ms. Reugh-Kovalsky filed a motion to reconsider/reopen the
court order entered May 6 on grounds of error or law, CR 59(8); entry of a decision
contrary to law, CR 59(7); and substantial justice has not been done, CR 59(9).
Ms. Reugh-Kovalsky presented five arguments. First, the summary judgment
order went beyond the relief requested: Mr. Culbertson sought a limited ruling about
whether the representation was correct as a matter of law, not an outright dismissal of her
amended complaint. Second, the trial court misunderstood the nature of her malpractice
claims, which arose from Mr. Culbertson’s conflicts of interest and improper solicitation
of her after her father’s death. Third, Mr. Culbertson did not refer Ms. Reugh-Kovalsky
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to separate counsel to represent her in her capacity as a beneficiary; Attorney Delay was
hired to assist her as co-trustee. Fourth, the court erred in ignoring the fact that Mr.
Culbertson failed to tell Ms. Reugh-Kovalsky of the statute of limitation for will
reformation, even knowing it was her duty as PR to inform the beneficiaries “so that they
could protect their own rights.” CP at 1222 (emphasis omitted). Finally, Mr. Culbertson
should be estopped from asserting contradictory positions within the court. In support of
this claim, she points out that years ago, Mr. Culbertson represented Mr. Reugh in
reforming his wife’s will to comport with her intent.
With her motion, Ms. Reugh-Kovalsky included a declaration from counsel with
numerous lengthy exhibits. On May 22, she filed a motion to supplement briefing with
additional authority.
Mr. Culbertson opposed reconsideration, arguing that Ms. Reugh-Kovalsky’s
motion improperly discussed claims raised in her proposed amended complaint that were
never accepted. He noted those claims were new because they were asserted on Ms.
Reugh-Kovalsky’s behalf as beneficiary of Mr. Reugh’s estate and should not be a basis
to reconsider the existing claims. He further argued the motion to amend was untimely,
contrary to the evidence, and disruptive.
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The trial court considered the matter without additional oral argument pursuant to
CR 59(e)(3). On June 29, 2020, the court denied reconsideration, finding there was
insufficient cause shown to alter its decision.
On July 21, 2020, Ms. Reugh-Kovalsky appealed. Designated in her appeal are the
May 6, 2020 order granting partial summary judgment and the June 29, 2020 order
denying reconsideration.3
ANALYSIS
Ms. Reugh-Kovalsky contends the trial court erred in granting Mr. Culbertson’s
second summary judgment motion. We discuss the relevant standard of review before
addressing her arguments in turn.
We review summary judgment rulings de novo and perform the same inquiry as
the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
Summary judgment is proper when, after viewing the pleadings, affidavits, and
depositions in the light most favorable to the nonmoving party, there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.
3
Ms. Reugh-Kovalsky notes that the order on reconsideration includes the letter
ruling from April 2020 and the first summary judgment order from September 2019. She
clarifies in her briefing that she does not appeal the first summary judgment order.
Appellant’s Reply Br. at 9.
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CR 56(c). “‘A material fact is one upon which the outcome of the litigation depends in
whole or in part.’” Webb v. Wash. State Univ., 15 Wn. App. 2d 505, 515, 475 P.3d 1051(2020) (quoting Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115
Wn.2d 506, 516, 799 P.2d 250 (1990)). Summary judgment is appropriate only if
reasonable persons could reach but one conclusion from all of the evidence and
inferences drawn therefrom. SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d 40(2014).
Scope of relief
Ms. Reugh-Kovalsky first contends the trial court’s ruling went beyond the relief
requested in Mr. Culbertson’s motion for summary judgment. Specifically, she argues
that Mr. Culbertson moved to dismiss the claims arising from allegedly improper advice
he gave her as PR, but the trial court erroneously dismissed the claims in her amended
complaint. We disagree.
Mr. Culbertson’s second summary judgment motion sought to terminate the case.
The trial court did just that. During the summary judgment hearing, Mr. Culbertson
correctly explained that the remaining issue was whether he provided correct legal advice
to Ms. Reugh-Kovalsky in her capacity as a PR. Although Mr. Culbertson implied that
additional claims existed when it asked for “guardrails” on the litigation, he explained
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that guardrails were needed if the trial court granted Ms. Reugh-Kovalsky’s motion to
amend. The trial court never granted the motion to amend. We conclude that Mr.
Culbertson’s second summary judgment motion sought to dismiss Ms. Reugh-Kovalsky’s
remaining claims and the trial court’s ruling did not exceed that request.
Validity of trust
Ms. Reugh-Kovalsky’s remaining claim was that Mr. Culbertson failed to timely
advise her that the trust was invalid for lack of funding. If the trust was declared invalid,
Mr. Reugh would have died partly intestate and the sizable bequest to INWCF would be
distributed to his children.
The creation of trusts is governed by statute.
A trust may be created by:
(1) Transfer of property to another person as trustee during the
trustor’s lifetime or by will or other disposition taking effect upon the
trustor’s death;
(2) Declaration by the owner of property that the owner holds
identifiable property as trustee; or
(3) Exercise of a power of appointment in favor of a trustee.
RCW 11.98.008 (emphasis added).
This court has interpreted the statute to mean that no separate documentation
transferring property is necessary where a trust is created by the trustor’s declaration.
See In re Estate of Wimberley, 186 Wn. App. 475, 504, 394 P.3d 11 (2015) (“When the
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trustor is also the trustee, no formal transfer of assets from the trustor to the Trust is
needed.”); see also In re Bowden, 315 B.R. 903, 909 (Bankr. W.D. Wash. 2004) (“Unlike
other trusts, creation of a trust by declaration does not require a transfer of legal title of
the property to the trustee.”).
Here, the Trust specifically provides: “The Settlor hereby transfers to the Trustee
the sum of One Hundred Dollars ($100.00).” CP at 391. The Trust also states that Mr.
Reugh is the Trustee. This declaration meets the statutory requirements as interpreted by
Washington courts. Accordingly, Ms. Reugh-Kovalsky’s argument that the Trust is
invalid because it was not funded during Mr. Reugh’s lifetime fails as a matter of law.
Moreover, there is an alternative method of funding a trust absent the inter vivos
declaration explained above. A testator may gift funds by a pour-over provision in a will
to any trustor if: “(1) the trust is identified in the testator’s will and (2) its terms are
evidenced . . . in a written instrument other than a will, executed by the trustor prior to or
concurrently with the execution of the testator’s will . . . .” RCW 11.12.250.
Under the statute:
The existence, size, or character of the corpus of the trust is immaterial to
the validity of the gift. Such gift shall not be invalid because the trust is
amendable or revocable . . . . Unless the will provides otherwise, the
property so given shall not be deemed to be held under a testamentary trust
of the testator but shall become a part of the trust to which it is given to be
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administered and disposed of in accordance with the terms of the instrument
establishing the trust . . . .
Id.Here, all of the statutory requirements are met for a valid pour-over provision to
fund the Trust. First, article III of Mr. Reugh’s Will specifically references the Trust.
Second, the Trust’s terms are evidenced in a separate written instrument executed
concurrently by Mr. Reugh, the trustor, in January 2011. The statute thus applies and
validates Mr. Reugh’s gift of his residuary estate to his Trust regardless of whether the
Trust contained the existing $100.00 corpus via inter vivos transfer discussed above.
In sum, Ms. Reugh-Kovalsky’s challenges to the validity of the Trust are contrary
to statute and case law. The Trust was validly created in January 2011 through Mr.
Reugh’s declaration transferring $100.00. Even if that were not a valid transfer, Mr.
Reugh’s Will funded the Trust by identifying the Trust, the terms of which are evidenced
in a separate and concurrently executed document. Any arguments based on the Trust’s
alleged invalidity are accordingly devoid of merit.
Undeveloped assertions and claims outside of duties owed to a client
Malpractice suits, like negligence actions, present mixed questions of law and fact.
Halvorsen v. Ferguson, 46 Wn. App. 708, 713, 735 P.2d 675 (1986). The question of
whether an attorney errs regarding a legal matter is, of course, a question of law. Id.20
No. 37664-8-III
Reugh-Kovalsky v. Culbertson
Because this question is reserved for the court, “‘the opinions of expert witnesses on the
issue are irrelevant.’” Id. (quoting RONALD E. MALLEN & VICTOR B. LEVIT, Legal
Malpractice § 659, at 821 (2d ed. 1981)).
To prevail in a legal malpractice action, a plaintiff must prove: (1) an attorney-
client relationship exists that imposes on the attorney a duty of care to the client,
(2) an act or omission by the attorney in breach of the duty, (3) damage to the client, and
(4) proximate causation between the breach and the damage. Schmidt v. Coogan, 181
Wn.2d 661, 665, 335 P.3d 424 (2014). Experts may be used to determine whether the
attorney breached his or her duty. Walker v. Bangs, 92 Wn.2d 854, 857-58, 601 P.2d
1279 (1979). Proximate causation includes both cause in fact and legal causation, the
latter being determined as a matter of law by a judge. Ang v. Martin, 154 Wn.2d 477,
482, 114 P.3d 637 (2005). Legal causation presents the question of whether liability
should attach to the lawyer and may be decided as a matter of law only when reasonable
minds could reach but one conclusion. VersusLaw, Inc. v. Stoel Rives, LLP, 127 Wn.
App. 309, 328, 111 P.3d 866 (2005).
Ms. Reugh-Kovalsky argues Mr. Culbertson failed to rebut the “uncontroverted”
evidence that Mr. Culbertson committed malpractice. She offered three expert
declarations and points to Mr. Culbertson’s failure to refute those experts. She
21
No. 37664-8-III
Reugh-Kovalsky v. Culbertson
misunderstands the malpractice standards under which her claim operates. As discussed
above, whether advice is correct as a matter of law is for a court—not a legal expert—to
decide. The trial court stated as much. To the extent that Ms. Reugh-Kovalsky’s
malpractice claims depend on Mr. Culbertson’s allegedly incorrect instruction to treat the
Trust as valid, they fail as a matter of law.
Ms. Reugh-Kovalsky also argues that Mr. Culbertson never should have given her
PR advice in the first place due to his conflict of interest of also being one of 33 attorney
advisors listed on INWCF’s website. Whether circumstances create a conflict of interest
under the ethical rules is a question of law. Spencer v. Badgley Mullins Turner, LLC,
6 Wn. App. 2d 762, 800-01, 432 P.3d 821 (2018). We fail to see any conflict of interest
in representing a PR (charged with distributing money to a beneficiary) and being one of
numerous attorney-advisors for the beneficiary on unrelated matters. A conflict of
interest would have arisen if Mr. Culbertson had represented Ms. Reugh-Kovalsky as a
beneficiary while also representing INWCF as a beneficiary. But that is not the case here.
Mr. Culbertson did not represent Ms. Reugh-Kovalsky as a beneficiary, and INWCF has
its own counsel in this matter.
Ms. Reugh-Kovalsky next argues Mr. Culbertson knew the Trust did not reflect
Mr. Reugh’s true intentions, yet failed to remedy the mistake in time, which was a breach
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No. 37664-8-III
Reugh-Kovalsky v. Culbertson
of his duty. The record does not support her argument. The record shows that Mr.
Reugh, from time to time after the Trust was executed, discussed with Mr. Culbertson
changes to how the residuary might be administered. But the discussions never
materialized into a decision to make a change until he was very ill in the hospital. Even
then, Mr. Culbertson offered to visit Mr. Reugh in the hospital but was told that Mr.
Reugh was too ill.
Ms. Reugh-Kovalsky’s argument relies on speculation, not facts. For example, she
points to an earlier version of Mr. Reugh’s Will, executed in 2009, which did not leave
his residuary estate to charity and created two trusts for the benefit of his heirs alone.
She also points to an e-mail Mr. Culbertson sent to Mr. Zamora in September 2010,
where Mr. Culbertson wrote:
[Mr. Reugh] is not, however, committed to a large gift to charity, and at one
point he asked when the foundation can end and be distributed to his family.
He is clearly uncomfortable with giving his family too much money, but on
the other hand he has discomfort with giving his estate to anyone other than
family.
Appellant’s Opening Br., App. A (unredacted version of CP at 493).
The question of whether Mr. Culbertson knew that the 2011 Trust did not reflect
Mr. Reugh’s true intentions is factual in nature. “We consider all facts and reasonable
inferences in the light most favorable to the nonmoving party, but the nonmoving party
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No. 37664-8-III
Reugh-Kovalsky v. Culbertson
may not rely on speculation.” Specialty Asphalt & Constr. LLC v. Lincoln County, 191
Wn.2d 182, 191, 421 P.3d 925 (2018). Similarly, “[q]uestions of fact may be determined
on summary judgment as a matter of law where reasonable minds could reach but one
conclusion.” Swinehart v. City of Spokane, 145 Wn. App. 836, 844, 187 P.3d 345 (2008).
Ms. Reugh-Kovalsky has not supported her assertion with nonspeculative
evidence. That Mr. Reugh’s 2009 Will did not leave money to charity does not
demonstrate that the validly executed 2011 Will and Trust was contrary to Mr. Reugh’s
true intentions and it especially does not demonstrate that Mr. Culbertson knew of this
alleged fact. Similarly, the 2010 e-mail between Mr. Culbertson and Mr. Zamora does
not demonstrate that Mr. Reugh’s 2011 Will and Trust were contrary to his intentions or
that Mr. Culbertson knew of this alleged fact.
Finally, Ms. Reugh-Kovalsky argues that her claim involves more than a single
piece of legal advice, but instead encompasses a pattern of deceitful acts by Mr.
Culbertson in the course of representation. Again, the scope of representation is limited
to Mr. Culbertson’s representation of Ms. Reugh-Kovalsky as a PR. Her arguments are
unsupported by the summary judgment record and require a trier of fact to engage in
broad speculation. They thus fail to present genuine issues of material fact.
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No. 37664-8-111
Reugh-Kovalsky v. Culbertson
AMENDED COMPLAINT
Ms. Reugh-Kovalsky contends the trial court erred by dismissing her amended
complaint. Mr. Culbertson responds that the trial court never granted her motion to
amend so it could not have erred by dismissing it. In her reply brief, Ms. Reugh-
Kovalsky argues the trial court erred by not allowing her to file an amended complaint.
This argument was not raised in her opening brief, and we will not consider an issue
raised for the first time in a reply brief. In re Marriage ofBernard, 165 Wn.2d 895, 908,
204 P .3d 907 (2009).
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
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Pennell, C.J.
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