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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DONALD J. ROKKAN, individually; and                 )      No.  29379-3-III
DONALD J. ROKKAN, personal                          )
representative of the Estate of Marsaelle F.        )
McHale, deceased,                                   )
                                                    )
                             Appellants,            )
                                                    )
                      v.                            )      Division Three
                                                    )
GESA CREDIT UNION, a corporation; and )
PAULA MILLER and JOHN DOE                           )
MILLER, wife and husband,                           )
                                                    )
                             Respondents.           )      UNPUBLISHED OPINION

       Korsmo, J.  --  Donald Rokkan, as both beneficiary and personal representative of 

the estate of Marsaelle McHale, filed suit against respondents Gesa Credit Union and 

Paula Miller.  The trial court granted judgment for respondents on the majority of the

claims, and a jury rejected the remaining claims.  Mr. Rokkan appeals.  We affirm.  

No. 29379-3-III
Rokkan v. Gesa Credit Union

                                            FACTS

       In March 2000, Marsaelle McHale picked up a check in the amount of $94,832.09

from U.S. Bank.  She then proceeded to Gesa Credit Union's Richland Branch (Gesa) to 

deposit the check.  Oneta Denson accompanied Ms. McHale. 

       While Ms. McHale was entering the building, Gesa employee and longtime friend

Paula Miller was on her way down the front staircase on a work-related errand.  The two 

visited and walked to member services representative Cindy Cook's desk so that Ms.

McHale could conduct a transaction.  According to respondents, Ms. Miller then left 

before Ms. McHale conducted her business.  According to Ms. Denson, Ms. Miller 

stayed near during the entire transaction.  

       Ms. McHale used the check, along with money in her account, to purchase three

term share certificates with six-month maturity dates that would automatically renew and 

continue to accrue interest.  Although not required, she named beneficiaries for each one. 

Ms. Denson states that Ms. Cook suggested that it would be "wise" to do so. Ms. Cook 

denies saying this.  

       The first and second certificates each were for $75,000 and named Ms. McHale's

brother as beneficiary on one certificate and her niece and nephew as joint beneficiaries

on the other.  The third certificate was for $50,000 and named Ms. Miller as beneficiary. 

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Rokkan v. Gesa Credit Union

According to Ms. Denson, Ms. McHale was uncertain whom to name as beneficiary for 

the third certificate.  She allegedly turned to Ms. Miller and said, "[h]ow about you, 

Paula?"  Ms. Miller and Ms. Cook deny that this occurred.  Ms. Miller testified that she

did not know she was a beneficiary until Ms. McHale died in 2005.

       Ms. McHale was given a copy of each certificate; the original certificates 

remained on file at Gesa. She subsequently received maturity notices and account 

statements reflecting the fact that she had these three term share accounts at Gesa in 

addition to her checking and savings accounts.  Mr. Rokkan, a close friend of Ms. 

McHale, had her power of attorney.  He was aware of the accounts, but was unaware 

there were any beneficiaries. 

       At some point during this time, Mr. Rokkan called Gesa to ask what course of 

action to take regarding the term share accounts. Ms. Miller advised him to continue 

letting them accrue interest.  This he did.  According to Mr. Rokkan, Ms. McHale told 

him that she wanted him to have the certificates, which were turned over to the named 
beneficiaries upon her death.1

       In April 2008 Mr. Rokkan filed suit.  The suit alleged abuse of an elderly person, 

negligent estate planning, misrepresentation, fraudulent concealment, breach of fiduciary 

       1 Mr. Rokkan was the primary recipient of the remainder Ms. McHale's estate,
which was valued in excess of $600,000. 
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No. 29379-3-III
Rokkan v. Gesa Credit Union

duty, violation of the Washington Consumer Protection Act2 (CPA), negligence, 

negligent supervision, and conversion.  During pretrial motions, Mr. Rokkan sought 

permission to discuss his conversations with Ms. McHale regarding her intent that he 

receive the term share accounts.  The court suppressed the statements pursuant to the 

Dead Man statute, RCW 5.60.030. 

       Trial began in June 2010.  After Mr. Rokkan rested his case, the court entertained 

Gesa's motion for judgment as a matter of law.  The court granted the motion as to the 

CPA, negligent estate planning, fraudulent concealment, negligence, and negligent 

supervision claims.  Mr. Rokkan unsuccessfully sought reconsideration of the court's 

order concerning the CPA claim.

       At the conclusion of Gesa's case-in-chief, Mr. Rokkan again requested 

reconsideration of the dismissal of the CPA claim.  The court again denied the request.  

On July 9, 2010, the jury found in favor of respondents on the final two claims; the 

verdict was filed with the court that day.  On July 16, Mr. Rokkan filed a motion for a 

new trial and scheduled it for hearing on August 13. However, he did not properly note 

the hearing before the trial court.  In its response, Gesa requested dismissal of the motion

based upon his failure to comply with CR 59.  Mr. Rokkan then filed a motion for leave 

to file a motion for a new trial. 

       2 Chapter 19.86 RCW.
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No. 29379-3-III
Rokkan v. Gesa Credit Union

       A hearing was held on September 7, 2010. The court denied the motion as 

untimely and also denied the motion for leave to file another motion for a new trial.  Gesa 

prepared an order consistent with the court's decision.  The order, filed September 8,

stated that the jury verdict started the 30-day appeal period.  Mr. Rokkan filed his notice 

of appeal on September 15.

                                         ANALYSIS

       This appeal argues that the trial court erred in granting judgment as a matter of law

on the CPA, negligence, fraudulent concealment, and negligent supervision and training

claims.  Mr. Rokkan also asserts that the trial court erred by denying his motion for 

judgment as a matter of law and by excluding evidence pursuant to the Dead Man statute. 

Both parties request attorney fees in the matter.  Gesa also contends that these issues are 

not properly before the court because the appeal was not filed within 30 days of the jury 

verdict. We will first address the timeliness argument before discussing the appellant's 

contentions.

       Timeliness

       It is fundamental that a party cannot appeal until entry of a final judgment, order 

or other decision.  CR 54(a); CR 58; RAP 2.2(a); RAP 5.2(c).  Once a final judgment is 

entered, a party has 30 days from that date by which to file a notice of appeal.  RAP 

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No. 29379-3-III
Rokkan v. Gesa Credit Union

5.2(a).  A jury verdict must be reduced to judgment by a court in order to become final.  

Cox v. Charles Wright Acad., Inc., 70 Wn.2d 173, 179-180, 422 P.2d 515 (1967). 

Moreover, an appeal from a post-trial motion brings with it the underlying action.  RAP 

2.4(c).  

       Despite the axiomatic nature of these rules, Gesa argues the jury verdict was the 

date that began the appeal period rather than the September 8, 2010 final order that

resolved the post-trial motions and memorialized the verdict.  Gesa cites no authority 

holding that a trial court can alter either the time for appeal or the orders from which an 

appeal can be taken. The trial court entered its final order on September 8, 2010; that 

was the first appealable order entered in this case.  RAP 2.2(a)(1).  The notice of appeal

was filed seven days later. It was timely.  RAP 5.2(a).  Accordingly, the appeal is 

properly before this court. 

       CPA Claim

       Mr. Rokkan first contends that the trial court erred in granting judgment as a 

matter of law regarding his CPA claim. We review de novo a trial court's decision to 

either grant or deny a judgment as a matter of law.  Schmidt v. Coogan, 162 Wn.2d 488, 

491, 173 P.3d 273 (2007).  "Judgment as a matter of law is not appropriate if, after 

viewing the evidence in the light most favorable to the nonmoving party and drawing all 

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No. 29379-3-III
Rokkan v. Gesa Credit Union

reasonable inferences, substantial evidence exists to sustain a verdict for the nonmoving 

party."  Id. Substantial evidence is that which would convince an unprejudiced, thinking 

mind of the truth of the declared premise.  Cowsert v. Crowley Maritime Corp., 101 

Wn.2d 402, 405, 680 P.2d 46 (1984).  

       In order to prevail on a CPA claim, a private plaintiff must demonstrate that the 

defendant (1) engaged in an unfair or deceptive act or practice (2) in trade or commerce, 

that (3) affects a public interest (4) injurious to either business or property, and (5) that 

the defendant's act caused the damage.  Hangman Ridge Training Stables, Inc. v. Safeco 

Title Ins. Co., 105 Wn.2d 778, 787-793, 719 P.2d 531 (1986).  

       The public interest element may be established by considering five relevant 

factors.  Those five factors are:

              (1) Whether the acts or practices were committed in the course of the 
       defendant's business?
              (2) Are the acts part of a pattern or generalized course of conduct?
              (3) Were repeated acts committed prior to the act involving plaintiff?
              (4) Is there a real and substantial potential for repetition of 
       defendant's conduct after the act involving plaintiff?
              (5) If the act complained of involved a single transaction, were many 
       consumers affected or likely to be affected by it?

Id. at 790.  It is not necessary that all factors be present, nor is any single factor 

dispositive in determining whether an alleged CPA violation involves the public interest. 

Id. at 791.  Here, the trial court granted judgment against the CPA claim after determining 

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No. 29379-3-III
Rokkan v. Gesa Credit Union

it failed the public interest element because four of the five factors were absent.  Mr. 

Rokkan challenges that assessment. 

       It is readily apparent the acts complained of occurred in the course of business.  

Accordingly, the first factor of the public interest test is present.  However, even taking 

all evidence in Mr. Rokkan's favor, the only indication of the allegedly untoward conduct 

is the testimony given by Ms. Denson, which only details the single transaction at Gesa.  

Accordingly, the second factor is not present, as there is no evidence that the alleged 

misbehavior is part of a pattern or generalized course of conduct.  The third factor is 

absent for this same reason; there is no evidence of prior similar acts.  There is likewise 

no evidence that there was a "real and substantial" potential for repetition of the alleged 

conduct.  On the contrary, Ms. Miller and Ms. Cook testified that, as a rule, they did not 

give advice as to whether someone should name a beneficiary.  Ms. Denson's testimony 

might well speak to one event but it does not prove a real and substantial potential for 

repetition.  Finally, there is no evidence that many consumers were likely to be affected 

by the alleged wrongful behavior.  In sum, there is insufficient evidence in the record to

suggest that there is a public interest in the single transaction that occurred.  The trial 

court did not err in granting judgment on this claim.

       Negligence Based Claims

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Rokkan v. Gesa Credit Union

       Appellant next contends that the trial court erred in granting judgment as a matter

of law regarding the negligence claims because Ms. Denson's testimony was substantial 

evidence that Ms. Miller breached her duty to refrain from self-dealing and that Ms. Cook 

was negligent in advising that it would be "wise" to name beneficiaries to the term share 

accounts.  The essence of the latter argument is that Ms. Cook negligently impacted Ms. 

McHale's estate planning. 

       However, even when Ms. Denson's testimony is considered most favorably, Ms. 

Miller was not involved in the transaction, but was merely present.  There is nothing to 

suggest a violation of a duty to avoid self-dealing, if such a duty existed.  Accordingly, 

the trial court did not err on this point. 

       Nor was there error in dismissing the negligence claim regarding Ms. Cook's 

actions. Taking the record in the light most favorable to Mr. Rokkan, Ms. Denson 

testified that it was Ms. Cook's idea to make a beneficiary designation, and that she told 

Ms. McHale that it would be "wise" to do so. Even if this was a negligent statement that 

could impact estate planning, the record is clear that Ms. McHale engaged in the relevant 

estate planning in 2002 after creating the term share accounts. Gesa's actions did not 

alter the estate planning; the estate planning simply failed to account for the certificates.  

       Mr. Rokkan next argues that the trial court committed error in dismissing his

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No. 29379-3-III
Rokkan v. Gesa Credit Union

fraudulent concealment claim because substantial evidence shows that Ms. Miller failed 

to notify him of her interest in the certificate when she advised him to make no changes 

in the related accounts.

       Fraudulent concealment occurs where one who has a duty to disclose fails to do 

so.  Oates v. Taylor, 31 Wn.2d 898, 903, 199 P.2d 924 (1948).  Fraudulent concealment 

occurs when: 

              "(1) One who fails to disclose to another a fact that he knows may 
       justifiably induce the other to act or refrain from acting in a business 
       transaction is subject to the same liability to the other as though he had 
       represented the nonexistence of the matter that he has failed to disclose, if, 
       but only if, he is under a duty to the other to exercise reasonable care to 
       disclose the matter in question.
              (2) One party to a business transaction is under a duty to exercise 
       reasonable care to disclose to the other before the transaction is 
       consummated,
              (a) matters known to him that the other is entitled to know because 
       of a fiduciary or other similar relation of trust and confidence between 
       them; and
              (b) matters known to him that he knows to be necessary to prevent 
       his partial or ambiguous statement of the facts from being misleading."

Richland Sch. Dist. v. Mabton Sch. Dist., 111 Wn. App. 377, 385, 45 P.3d 580 (2002)

(quoting Restatement (Second) of Torts §551 (1977)), review denied, 148 Wn.2d 1002 

(2003).  "'That duty arises where the facts are peculiarly within the knowledge of one 

person and could not be readily obtained by the other; or where, by the lack of business

experience of one of the parties, the other takes advantage of the situation by remaining 

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No. 29379-3-III
Rokkan v. Gesa Credit Union

silent.'"  Colonial Imports, Inc. v. Carlton Nw., Inc., 121 Wn.2d 726, 732, 853 P.2d 913 

(1993) (quoting Oates, 31 Wn.2d at 904).  

       However, even when taking all inferences in Mr. Rokkan's favor, the evidence 

was insufficient to submit this claim to a jury.  Even if Ms. Miller had knowledge that she 

was one of the named beneficiaries on the term share accounts, it was not knowledge that 

was peculiar to her.  Mr. Rokkan had the ability to simply look through the relevant 

paperwork to find the copies of the certificates that were given to Ms. McHale at the time 

they were created.  It was even possible for him to present his power of attorney at the 

bank and view the certificates in order to ascertain the beneficiaries.  The fact that Ms. 

Miller was one of the certificate beneficiaries could have been readily obtained by Mr. 

Rokkan had he been inclined to do so, and was therefore not peculiar.  The trial court did 

not err in granting judgment on this point. 

       Mr. Rokkan next challenges the trial court's denial of his motion for judgment as a 

matter of law that Ms. Miller and Ms. Cook were acting within the scope of their 

employment.  To this end he also challenges the trial court's denial of a portion of his 

jury instruction that stated that Ms. Miller and Ms. Cook were acting within the scope of 
their employment.3  

       3 Mr. Rokkan also challenges instructions 7 and 8 as impermissibly inviting the 
jury to find against Mr. Rokkan on the issue of scope of employment.  We will not 
consider this challenge since he did not take exception to the instructions below.  RAP 
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No. 29379-3-III
Rokkan v. Gesa Credit Union

       However, it is apparent from the record that there was a genuine issue regarding 

whether they were acting within the scope of their employment since Gesa had policies in 

place specifically prohibiting self-dealing.  Construing this in a light most favorable to 

Gesa, there was substantial evidence that if self-dealing occurred, Ms. Miller and Ms. 

Cook were engaged in a frolic rather than acting within the scope of their employment.  

Thus, the trial court did not err in denying the motion, nor did it err in denying the 

challenged portion of the instruction. 

       Mr. Rokkan also contends that the trial court erred in not submitting his negligent 

supervision and training claims to the jury.  The heart of his argument is that substantial 

evidence exists to support the claim because Gesa had in place a policy that was intended 

to prevent employees from using their positions for personal gain, yet it did not act to 

prevent the alleged injuries.  Moreover, Mr. Rokkan argues that, because Gesa employees 

were supposed to inform customers of the potential for assets to pass outside their will if 

beneficiaries are named, Gesa was negligent in training.  

       An employer cannot be held liable for negligently supervising an employee unless 

the employer knew, or in the exercise of reasonable care should have known, that the 

employee presented a risk of danger to others.  Thompson v. Everett Clinic, 71 Wn. App. 

548, 555, 860 P.2d 1054 (1993), review denied, 123 Wn.2d 1027 (1994).  The employer 

2.5(a).
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No. 29379-3-III
Rokkan v. Gesa Credit Union

may only be held liable for acts beyond the scope of employment if it had knowledge of 

"the dangerous tendencies of its employee." Id. 

       As noted previously, there is no evidence in the record that Ms. Miller used her 

position for personal gain.  Because Ms. Miller was not the employee conducting the 

transaction, it could hardly be stated that she was using her position as an employee for 

personal gain -- the most that could be said is that she was using her influence as a friend, 

but that is simply insufficient.  

       Nor do we accept the argument that Gesa failed to properly train its employees as 

to the legal effects of creating beneficiaries.  It is illegal in this state for a nonattorney to 

give legal advice.  Chapter 2.48 RCW, et seq.  Thus, it would be illegal for Gesa 

employees to state that beneficiary designations could bypass estate planning since that 

would constitute legal advice.  Gesa can hardly be negligent in failing to train its 

employees to unlawfully give legal advice.  

       Dead Man Statute

       Mr. Rokkan's last argument is that the trial court erred by excluding his proposed 

testimony about his conversation with Ms. McHale regarding her desires for the term 

share certificates.  He believes ER 803(a)(3) controls over RCW 5.60.030 when the two 

conflict.

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No. 29379-3-III
Rokkan v. Gesa Credit Union

       We need not discuss this argument.  The excluded evidence was not germane to 

the previously discussed causes of action which were dismissed as a matter of law.  None 

of those claims failed because of this testimony.  Similarly, neither of the two issues 

submitted to the jury -- breach of fiduciary duty and negligent misrepresentation -- were 

affected by the ruling.  The evidence merely went to damages rather than any issue of 

liability on those two theories.  Any error would have been harmless.

       The parties' requests for attorney fees are denied.  The judgment is 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.

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Siddoway, J.

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