Opinion

Estate Of Mildred G. Johnson

Court: Court of Appeals of Washington
Filed: Nov 8, 2016
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 3.3%

“LaFramboise’s approach to community liability remains good law.”

How later courts described this case

“LaFramboise’s approach to community liability remains good law.”
“Further, RCW 11.96A.150 allows costs in probate cases to any party, from any party, and is not limited by RCW 11.68.070.”

Written by the judges who cited it.

The opinion

Filed

Washington State

Court of Appeals

Division Two

November 8, 2016

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Estate of No. 47124-8-II

MILDRED G. JOHNSON

Deceased.

STEVEN C. JOHNSON,

Appellant,

GUARDIANSHIP SERVICES OF SEATTLE, UNPUBLISHED OPINION

substitute Personal Representative of the Estate

of Mildred G. Johnson; HOPE SOLEY,

Personal Representative of the Estate of July

Cohn; CHRIS JOHNSON; and JOY D.

WALTER,

Respondents.

LEE, J. — Steven Johnson appeals a series of orders and judgments entered against him by

the superior court for his actions as the personal representative of his mother’s estate. Johnson

argues that (1) this court should review the record de novo; (2) the Trust and Estate Dispute

Resolution Act (TEDRA)1 does not apply; (3) the appointment of a third party to review the case

and enter written reports to the court was in error; (4) the superior court erred in finding Johnson

breached his fiduciary duties; (5) the superior court erred in removing him as personal

Ch. 11.96A RCW.

No. 47124-8-II

representative; and (6) the superior court erred in entering judgments against him and his wife

individually and against their marital community.

We hold that (1) the superior court’s findings of fact are reviewed for substantial evidence,

and the removal of a personal representative and attorney fee judgments are reviewed for abuse of

discretion; (2) TEDRA applies to this case; (3) the appointment of a third party to review the case

was not in error, but the adoption of the third party’s reports was; (4) substantial evidence supports

that Johnson breached his fiduciary duties; (5) the superior court erred in removing Johnson as

personal representative; and (6) the superior court erred in entering judgments against Johnson’s

wife individually, but did not err in entering judgments against the marital community. Thus, we

affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

Mildred Johnson (decedent) executed a will in January 1999, and a codicil to her will in

May 2003; she passed away in November 2009. Her four children were the beneficiaries to her

will: Joy Walter, Judy Cohn, Chris Johnson, and Steven Johnson. The codicil provided that Steven

Johnson would serve as the personal representative with nonintervention powers.2

In this opinion, the appellant, Steven Johnson, will be referred to as “Johnson.” While Johnson

is a beneficiary, this opinion will follow the superior court’s lead and refer to Joy Walter, Judy

Cohn, and Chris Johnson with the term “beneficiaries.” Judy Cohn, one of the beneficiaries,

passed away during the probate proceedings and her estate is represented on appeal by her personal

representative, Hope Soley. For the purposes of this opinion, Judy Cohn and Judy Cohn’s estate

are one and the same.

No. 47124-8-II

Johnson filed a petition for probate on November 20, 2009. Johnson cited RCW

11.96A.0403 and former RCW 11.96A.050(3)4 in support of Pierce County having jurisdiction and

being a proper venue. Johnson was appointed personal representative with nonintervention powers

the same day and the probate was opened in Pierce County under RCW 11.96A.040 and former

RCW 11.96A.050(3).

Johnson filed a notice to creditors on November 30, 2009, and published it the following

day. Johnson prepared an inventory on June 3, 2011.

At the time of her death, decedent owned 10 percent of Live Love Laugh, LLC, (LLL)5;

42.5776 percent of Johnson Investment Company/Forest Park Estates, LLC (Forest Park).6

Decedent also owned 6.53 percent of SevenJs Investment Limited Partnership (SevenJs).7

RCW 11.96A.040 gives the superior court original jurisdiction in probate and trust matters.

Former RCW 11.96A.050(3) addressed the venue for proceedings pertaining to the probate of

wills and the administration and disposition of a decedent’s property. LAWS OF 2001, ch. 203, §10.

The sole asset of LLL was a 16-unit apartment complex in Seattle, Washington. Decedent was

the only member of LLL, but she and Judy Cohn managed the affairs of the company. The

remaining 90 percent of LLL was owned by the Live Laugh Love Irrevocable Trust, for which the

decedent was trustee. Johnson became trustee on the decedent’s death. Johnson made loans from

the estate to LLL, but those loans were repaid, and there are no allegations of wrongdoing on

Johnson’s part and relating to LLL that are pertinent to this appeal.

The sole asset of Forest Park was a 108-unit apartment complex in Everett, Washington. The

John A. Johnson Trust, for which the decedent was trustee, owned 34.5314 percent of Forest Park.

Johnson owned 20.4768 percent and Johnson’s wife, Gail Johnson, owned 2.4142 percent of Forest

Park. Johnson and his wife served as managers of Forest Park, as well as property managers of

the apartment complex. As compensation for the property management services, Johnson and his

wife received six percent of Forest Park’s gross rental receipts.

The sole asset of SevenJs was the Port Washington Marina in Bremerton, Washington. The

decedent owned 6.53 percent of SevenJs, Judy Cohn owned 45.6 percent, and Johnson owned

47.87 percent. The decedent was the only general partner; Judy Cohn and Johnson were limited

No. 47124-8-II

On February 8, 2013, Johnson filed a motion for instructions in Pierce County Superior

Court. The motion stated that Johnson wanted to sell Forest Park to himself and his wife for the

company’s fair market value and asked the court for instructions on the appropriate method of

valuation for the company. The beneficiaries responded that Johnson was proposing an

unreasonably low sale price. The superior court ordered the estate to obtain a current valuation of

the estate’s ownership interest in the company to establish the fair market value before Forest Park

could be sold.

On December 27, the beneficiaries filed a motion for a complete accounting, seeking a

proper distribution of the estate’s assets, and requesting attorney fees under RCW 11.96A.150 and

RCW 11.76.070. The beneficiaries alleged, among other things, self-dealing, conflicts of interest,

and breach of fiduciary duty for Johnson’s attempts to sell Forest Park to himself and for paying

himself approximately $85,000 for dealings related to SevenJs.

On January 23, 2014, Johnson responded by denying the beneficiaries’ allegations. On

January 27, a court commissioner entered an order requiring Johnson to file a complete certified

accounting of all of the estate’s financial activities and liabilities for court approval and to

distribute the estate’s voting and non-voting interests in Forest Park to the beneficiaries and

himself. The commissioner’s order reserved the issue of attorney fees. Under the commissioner’s

order, Johnson filed an “Interim Report of Affairs of Estate and Accounting of Personal

partners. Johnson managed the SevenJs property and received six percent of the gross receipts as

compensation for the property management services.

No. 47124-8-II

Representative” on March 13, 2014. Clerk’s Papers (CP) at 787 (some capitalization omitted).

Johnson moved for approval of his accounting and attorney fees for the estate on the same day.

On March 21, the beneficiaries moved to remove Johnson as the personal representative,

to appoint a successive personal representative, and for an award of attorney fees. The

beneficiaries alleged breach of fiduciary duty, conflict of interest, self-dealing, and waste. Johnson

denied the allegations and opposed the motion. On April 4, the beneficiaries also filed a

memorandum in opposition to Johnson’s motion to approve accounting.

A hearing on Johnson’s motion to approve his March 13 interim accounting and the

beneficiaries’ March 21 motion to remove Johnson was held on May 2. The superior court

deferred ruling to allow the parties to submit recommendations for a third party accountant to

review payments the estate had made while Johnson was personal representative relating to

SevenJs. The superior court stated at the end of the hearing,

I would not necessarily remove Mr. Johnson. In many ways, I think it has

been more the way things have played out. I do think that he was wrong about this

deal on [SevenJs], and I would like to have an independent person look at those

issues.

Verbatim Report of Proceedings (VRP) (May 2, 2014) at 32. No written order was entered.

The beneficiaries recommended former King County Superior Court Commissioner Eric

Watness.

The Beneficiaries believe that an attorney with a background in probate and

trust matters will best serve the Court in this matter. An accountant will not

necessarily understand the complex legal issues at play in this probate, while an

experienced attorney will both understand those issues and be able to complete an

accounting and investigation of the propriety of Steven Johnson’s use of Estate

assets in this probate. Such investigation will allow a complete recommendation to

be made to the Court regarding the amount to be reimbursed by Steven Johnson to

the Estate.

No. 47124-8-II

CP at 1822. Johnson recommended a retired Pierce County Superior Court Judge.

A hearing was held on May 23. A written order was entered the same day (May 23 Order).

The May 23 Order found that: (1) Johnson had a conflict of interest in attempting to purchase the

estate’s interest in Forest Park and in his continued operation of SevenJs; (2) the decedent was

dissociated as general partner from SevenJs upon her death and SevenJs should then have

dissolved and been wound up under RCW 25.10 et seq.; (3) Johnson did not have authority to incur

obligations on behalf of SevenJs; (4) Johnson breached his fiduciary duty to the estate and the

beneficiaries as a result of his conflicts of interest and self-dealing, but there was insufficient

evidence to determine that the breach was a result of intentional misconduct; (5) the beneficiaries’

attorney fees “in the amount of $48,511.15 through May 23, 2014,” were incurred as a result of

Johnson’s breach of fiduciary duties, and, therefore, should be paid by Johnson. CP at 1936-38.

The May 23 Order also appointed Commissioner Eric Watness and provided the scope of

his appointment.

(1) “Whether Steven Johnson acted improperly in intentionally failing to give

timely notice to creditors to Union Bank in relation to SevenJs shall be determined

by the special master”;

(2) “Whether [t]he Promissory Notes payable to Steven Johnson in relation to

SevenJs were authorized by SevenJs shall be investigated by the special master”;

(3) “The Estate was not [a] general partner [of SevenJs] at the time of Steven

Johnson’s alleged loans to SevenJs and the Estate did not guarantee any loans from

Steven Johnson to SevenJs. Whether the Estate has an obligation to repay any

alleged loans from Steven Johnson to SevenJs shall be investigated by the special

master”;

(4) “Steven Johnson has a conflict of interest with the Estate in the payment of

$85,096.69 from the Estate to himself in August, 2012. Whether and the amount

No. 47124-8-II

of such funds to be reimbursed by Steven Johnson to the Estate shall be determined

by the special master”;

(5) “Steven Johnson’s actions as Personal Representative should be investigated by

a Special Master, who will complete an Estate accounting, investigate Steven

Johnson’s actions as personal representative, and make recommendations to the

Court regarding the amount of funds to be repaid to the Estate by Steven Johnson

as a result of his breaches of fiduciary duties”;

(6) “Com. Eric Watness of JAMS in Seattle, Washington is hereby appointed as

Special Master in this proceeding for the purpose of investigating Steven Johnson’s

actions as personal representative of the Estate and his related management of

[SevenJs, Forest Park, and LLL]. The Special Master shall prepare a complete

Estate accounting to the Court, and shall report to the Court regarding the propriety

of Steven Johnson’ activities as personal representative, including but not limited

to Steven Johnson’s operation of SevenJs, an itemization and description of funds

paid directly or indirectly in relation to SevenJs, an itemization and description of

funds paid directly or indirectly to Steven Johnson personally, a discussion of

whether attorney fees paid by the Estate were proper Estate expenses or were

incurred for Steven Johnson’s personal benefit only, and whether administrator fees

charged by SevenJs are appropriate and reasonable. The Special Master shall

further recommend the amount of funds to be repaid to the Estate by Steven

Johnson related to his misuse or waste of Estate assets. Such Special Master Report

shall be filed within ninety (90) days of the date of this Order, with a copy of such

report provided to Steven Johnson’s counsel and the Beneficiaries’ counsel.”

(7) “Approval of the Personal Representative’s attorney fees and costs shall be

reviewed by the special master with a recommendation as to [the] reasonableness

and payment thereof.”

CP at 1937-41.8

Johnson moved for reconsideration of the May 23 Order. In a footnote to the motion,

Johnson stated he was not seeking reconsideration of the denial of his motion to approve the

interim accounting, the revocation of his nonintervention powers, or the appointment of

The parties signed a stipulated order stating Commissioner Watness was authorized to incur up

to 50 hours’ worth of fees at his normal rate, but he could apply to the court for more time if

necessary.

No. 47124-8-II

“Commissioner Watness as special master.” CP at 1944. The superior court denied the motion

for reconsideration.

On August 29, Commissioner Watness filed an “Interim Report and Request for

Instructions.” CP at 2031 (some capitalization omitted). In his interim report, Commissioner

Watness recommended the court grant him an additional 20 hours and authorization to retain a

forensic accountant to review the books of Forest Park.

On September 17, Commissioner Watness filed a “Second Interim Report of Special

Master.” CP at 2039 (some capitalization omitted). Commissioner Watness described his

investigation up to this point as follows:

Following my appointment I met with counsel for the parties to outline the project

and receive financial documents and pleadings. I have reviewed the legal pleadings

in this matter as well as exhibits and declarations from the parties and their

witnesses. I also conducted interviews of the principal parties to learn from them

their respective points of view and to discuss the evidence they think is germane to

my study. I conducted interviews of Richard Sanders, CPA for the estate as well

as Mildred Johnson during her lifetime, and Lamont Loo who was the attorney for

Ms. Johnson and now for the estate. The parties were given notice of these

meetings with me and have had an opportunity to participate. Finally, I have

reviewed legal documents that created and manage[d] the various entities that are

assets of the estate as well as account statements, account ledgers and report[ed]

tax records for each entity involved as well as Steven Johnson’s personal redacted

income tax forms.

CP at 2040. Under the section labeled “Conclusions from Special Master [I]nvestigation,”

Commissioner Watness made the following recommendations:

(1) That Johnson and his wife, “as a marital community and individually, shall

reimburse the Estate,”

(i) “$57,171.56 in unauthorized transfers Steven Johnson made from the

operating account of the Estate of Mildred Johnson to the operating

checking account for [SevenJs] and Labor and Industries after the

partnership was liquidated”;

No. 47124-8-II

(ii) “$85,096.60 for unauthorized withdrawals Steven Johnson paid from

the Estate account directly to Steven and Gail Johnson in December, 2012”;

(iii) “$4,000 in unsubstantiated expenditures from [SevenJs’] accounts”;

(iv) “$2,925.00 as attorney fees paid out of the Estate of Mildred Johnson

to Mark Roberts, attorney at law”;

(v) “Prejudgment interest on the forgoing damages at 12% per annum from

the date of disbursement”;

(vi) Attorney fees incurred by the Beneficiaries accruing after May 23, 3014

[sic] not previously ordered should be paid by Steven Johnson personally in

an amount to be determined based on proper documentation of fees and

costs”;

(vii) “$9,306.50 as attorney fees incurred by the firm of Davies Pearson

allocated to this investigation and services that also benefitted Steven

Johnson through the end of 2013. The court should reserve jurisdiction to

determine fees and costs accruing thereafter”;

(viii) “$21,337.23.00 [sic] as Special Master fees”; and

(ix) “Such other and further costs and fees for a forensic accountant and

further costs for the services of a Special Master to the extent such services

are ordered and incurred hereafter.”

(2) That “the court make the following findings,”

(i) “The Management Agreements for [Forest Park], [SevenJs], and [LLL]

retaining Steven or Steven and Gail Johnson and, in the case of [LLL], Hope

Soley are affirmed including the term that provided manager compensation

at the rate of 6% of gross receipts”;

(ii) “Johnson, as Personal Representative . . . , purposely and upon advice

of legal counsel for the estate delayed giving actual notice to Union Bank

[of decedent’s death]. The Bank was a known creditor under a Promissory

Note and Deed of Trust as well as the personal Guarantee of Mildred

Johnson for the mortgage against the Port Washington Marina owned by

[SevenJs]. This strategy was based on the hope that Union Bank would not

declare the Note in default on the death of Mildred Johnson, the sole

General Partner, before the expiration of 24 months following her death.

No. 47124-8-II

Mr. Johnson [became] qualified as the Personal Representative on Mildred

Johnson’s probate estate and timely published notice to creditors but

avoided giving actual notice to Union Bank. Such notice actually given

would have commenced a four month Creditor Claim period. In fact, Union

Bank did not give notice of Default until April 18, 2011 and filed a Creditor

Claim on June 14, 2012 that was too late having exceeded the 24 month

super-claim period for Creditor Claims”;

(iii) “Johnson without legal authority transferred $57,000 in funds from the

[Estate] to the operating account of [SevenJs] to pay the expenses of the

Port Washington Marina”;

(iv) “In December, 2012 Steven Johnson and Gail Johnson removed

$85,096.60 from the estate . . . without legal authority but upon legal advice

obtained from Mark Roberts, attorney at law, as reimbursement to

themselves for claims they had for loans to the partnership, accrued but

unpaid management fees and other contributions they personally made to

[SevenJs]”;

(v) “Johnson paid $2,925 for the legal services of Mark Roberts, Attorney

at Law, using funds belonging to the Estate of Mildred Johnson theorizing

that the legal services obtained were of benefit to the Estate but which

actually only benefitted Steven and Gail Johnson”;

(vi) “Johnson, as the Personal Representative, assumed management control

of [SevenJs] without legal authority despite the lack of a properly

designated general partner and failed to timely windup [SevenJs] according

to the terms of the partnership agreement as amended”;

(vii) “Promissory Notes created by Steven Johnson and payable to him by

[SevenJs] were executed without authority of the probate estate and should

be considered uncollectable against any assets other than those of

[SevenJs]”;

(viii) The “Estate was not the General Partner of [SevenJs] at the time of

Steven Johnson’s alleged loans to [SevenJs] and the Estate did not guarantee

any loans from Steven Johnson to [SevenJs]. The Court previously found

that Steven Johnson had a conflict of interest with the Estate in the payment

of $85,096.60. The Estate has no obligation to repay any loans from Steven

Johnson to [SevenJs]. To the extent that Steven Johnson collected funds

from the Estate in the amount of $85,096.60, those funds shall be

reimbursed to the probate estate”;

No. 47124-8-II

(ix) “Johnson inadequately managed [SevenJs] as the Personal

Representative of the estate by going well beyond his duty to accomplish

the sale of [SevenJs] assets pursuant to Partnership agreements and wind up

the partnership as required by Washington Partnership laws. The

Partnership Agreement specified that the Partnership property be sold in full

to one or both Limited Partners according to a specified process. That was

the full extent of the authority granted to the Personal Representative. No

additional authority was extended by the Will to the Personal

Representative to operate the Partnership beyond liquidation. No action

was taken by the remaining partners, Judy Cohn and Steven Johnson

individually and the Estate, to grant to Steven Johnson power to continue

operational control as PR or as the manager. Specifically, following the

expiration of the time period set by the Partnership Agreement and well past

even the 24 month Creditor claim period, Steven Johnson continued to

manage Port Washington Marina, loan funds to the Partnership, make

mortgage payments totaling over $70,000, collect revenues, pay ongoing

expenses, incur a management fee and allowed his unpaid management fees

to accumulate”;

(x) “Johnson, as Personal Representative, should take immediate steps to

secure $25,000 held in a Certificate of Deposit as an estate asset which was

originally for the benefit of the Department of Natural Resources”;

(xi) As personal representative, “Johnson transferred $12,000 improperly to

the [LLL] as loans, those funds were returned to the estate account with no

loss. An additional payment of $4,096.11 was properly made by the [Estate]

to [LLL]. No damages should be assessed against Seven [sic] Johnson for

transactions or management decisions of [LLL]”; and

(xv) “Johnson personally benefitted from services provided by Davies

Pearson and should contribute toward those services. And he should pay

for expenses and costs incurred to respond to the Beneficiaries’ Motions for

Accounting and to Remove Personal Representative. Any liability for

additional attorney fees, costs forensic accounting and Special Master fees

should be reserved.”

CP at 2042-45.

On September 25, the beneficiaries moved the superior court to confirm and adopt the

conclusions and recommendations in Commissioner Watness’s second interim report, and to order

distributions to the beneficiaries. Johnson argued that the report was still subject to change, the

No. 47124-8-II

conclusions and recommendations in the report were based on unsubstantiated facts, and the

superior court lacked personal and subject matter jurisdiction to grant the beneficiaries’ requests.

On October 3, the superior court heard arguments on the beneficiaries’ motion to confirm

and adopt Commissioner Watness’s second interim report and order distributions to the

beneficiaries. At the hearing, the superior court agreed to Commissioner Watness receiving more

time and to the appointment of a forensic accountant. And the superior court held that Johnson

“and the marital community of Steven and Gail Johnson” were required to pay the beneficiaries’

attorney fees and costs through May 23, 2014, as was previously held in the May 23 Order, with

interest at 12 percent per annum since May 23, 2014. CP at 2182-83.

At the October 3 hearing, Johnson also asked the superior court to clarify the extent of

Commissioner Watness’s appointment and authority. Johnson’s attorney argued:

First of all, it would help to have some clarification as to what Commissioner

Watness’ role and authority is. Is he a court-appointed expert under ER 706, which

gives us the opportunity to examine and cross-examine him, not unlike a GAL in a

domestic case who appears at a trial and is a witness in the case? Is he a discovery

Special Master under Civil Rule 53.3? Is he a referee and, therefore, a trier of fact

under RCW 4.48.020?

All of those—all of those statutes and rules implicate different procedures

by which the information or the presentation is preserved in an evidentiary

proceeding. . .

....

. . . We are not objecting to whatever time he does require. We recognize that he

has a role. Again, I don’t know under which authority he is proceeding in terms of

ultimate reporting, examination to meet the due process entitlement of these

proceedings and Mr. Johnson, again, examination, cross-examination, evidentiary

proceedings and so forth. That’s up to this Court to determine under which rule or

statute he is acting to help guide us as we go forward to a final report.

No. 47124-8-II

VRP (Oct. 3, 2014) at 13, 19-20. The superior court “reserve[d] ruling on the special master[’]s

report pending reconsideration by the special master.” CP at 2183.9 Judgment was entered the

same day in the amount of $48,511.15 against Johnson “and the marital community comprised of

Steven C. Johnson and Gail Johnson, husband and wife” in favor of the beneficiaries. CP at 2185.

On October 16, Commissioner Watness filed a “Report of Special Master Correcting,

Clarifying and Reconsidering Second Interim Report of Special Master.” CP at 2188 (some

capitalization omitted). In this report, Commissioner Watness stated that “[t]he Second Interim

Report is simply a report with recommendations. Findings have not been entered and will not be

entered until fully considered by the Trial Court.” CP at 2190. Commissioner Watness revisited

the issues relating to Forest Park, SevenJs, and attorney fees.10

On October 23, the beneficiaries again filed a motion to confirm and adopt Commissioner

Watness’s recommendations, direct partial distributions and enter judgment, and remove Johnson

After the superior court had made its oral ruling, counsel again stated her objection for the

record:

[I]n the interest of making sure the record is complete, my understanding of

TEDRA is that the Court has absolute discretion to award attorney’s fees from any

party to any party in a probate or trust proceeding.

It is my understanding, on behalf of Mr. Johnson as personal representative

of this estate, that the marital community and Ms. Johnson have not been made

parties to this proceeding. Therefore, imposition or entry of a judgment against

those nonparties, whether or not liability ultimately extends, is not proper; that the

judgment and the order should recite that, while judgment is against him

individually, that’s all it should say.

VRP (Oct. 3, 2014) at 50.

In this report, Commissioner Watness stated, “[u]ltimate responsibility for [attorney] fees should

be based on principles set forth in RCW 11.96A.150 and existing case law.” CP at 2191.

No. 47124-8-II

as personal representative. Johnson opposed the motion, again arguing that the beneficiaries’

motion was improper because it relied “on the Special Master’s interim recommendations—which

are not based on facts established through formal evidentiary proceedings,” and because the

superior court lacked personal and subject matter jurisdiction to enter judgments against Johnson,

Gail Johnson, or their marital community. CP at 2215.

On November 7, the superior court heard the beneficiaries’ motion to confirm and adopt

Commissioner Watness’s recommendations, direct partial distributions and enter judgment, and

remove Johnson as personal representative. The superior court stated that it could not discern, nor

had Johnson identified, anything in Commissioner Watness’s report that was disputed, which

would be a reason for the superior court to not adopt Commissioner Watness’s recommendations.

The superior court continued:

It wasn’t my sense that I’m delegating my decision-making. What I did do, I think,

is, to develop whatever the facts were. To the extent that they were contested, I

would say that you are probably right to having a trial. To the extent that they are

not contested, it seems to me that is more than a process that you get in a summary

judgment proceeding, far more.

VRP (Nov. 7, 2014) at 18.

Johnson then responded, “In which case, then this gets noted for summary judgment, and

we have a hearing on summary judgment.” VRP (Nov. 7, 2014) at 18. Johnson continued:

At some point in this process, procedure applies, whether it’s 20 days and fact-

finding of—on whatever basis, removal of Mr. Johnson at this juncture. 20 days.

Noting a motion for summary judgment for the presentation of all facts that show

the disputed facts, not just relying upon unsworn materials submitted by the special

master. If a summary judgment were to fail, proceeding to an evidentiary

proceeding on the merits.

Mr. Johnson, too, is entitled to submit in full form his position. . . . The

work of the special master was not to be the fact-finding proceeding. It was to be

No. 47124-8-II

the investigative proceeding for then submitting it—submitting all of the

information at one point in time before this court so the court can do a

comprehensive review.

VRP (Nov. 7, 2014) at 20-21. The superior court asked if Johnson could point to any fact that was

disputed from Commissioner Watness’s report and that this was Johnson’s opportunity to identify

what was disputed. Johnson again maintained that the current motion hearing was not the

appropriate proceeding for identification of a disputed issue of fact and that such was appropriate

after a motion for summary judgment was brought before the court.11

The superior court entered an order on November 7 adopting Commissioner Watness’s

recommendations and entering two judgments. The first judgment amended the previous attorney

fee judgment of $48, 511.15 to include the fees and costs up through the date of the hearing, which

brought the total amount to $90,438.95. The judgment debtor for the attorney fee judgment was

“Steven C. Johnson and Steven Johnson’s ½ interest in the marital community comprised of Steven

C. Johnson and Gail Johnson, husband and wife.” CP at 2230. The second judgment was for

$179,836.89, which was for the unauthorized transfers Johnson made out of the estate. The

judgment debtor for the unauthorized transfers judgment was “Steven C. Johnson individually,

and the [sic] Steven Johnson’s ½ interest in the marital community comprised of Steven C. Johnson

and Gail Johnson, husband and wife.” CP at 2234.

Johnson also argued that the motion to remove him as personal representative was not properly

before the court because the statute required 20 days’ notice on a motion to remove a personal

representative and the beneficiaries had made this motion less than 20 days prior. The beneficiaries

countered that the motion for his removal had been made several times, including as far back as

April 2014. This argument was not specifically addressed by the superior court in its ruling.

No. 47124-8-II

On reconsideration, the superior court ordered both judgments be entered “in favor of the

Estate against Steven C. Johnson and Gail Johnson, and the marital community comprised of

Steven C. Johnson and Gail Johnson, husband and wife, for the amounts specified” in each

respective judgment. CP at 2306. However, the judgment for attorney fees was awarded against

“Steven C. Johnson, and the marital community comprised of Steven C. Johnson and Gail Johnson,

husband and wife.” CP at 2309. And the judgment for unauthorized transfers was awarded against

“Steven C. Johnson and Gail Johnson, individually, and the marital community comprised of

Steven C. Johnson and Gail Johnson, husband and wife.” CP at 2312.

Johnson appeals.

ANALYSIS

A. STANDARD OF REVIEW ON APPEAL

As an initial matter, Johnson argues this court should review the decisions of the superior

court de novo. We review TEDRA’s application to this proceeding de novo. Sloans v. Berry, 189

Wn. App. 368, 373, 358 P.3d 426 (2015). But we review the superior court’s findings of fact for

substantial evidence, and the superior court’s decisions to remove Johnson as personal

representative and enter judgments for attorney fees against him for abuse of discretion.

Johnson contends that where, as here, the superior court did not hear testimony and instead

relied solely on a written record, the review on appeal is de novo. In support, Johnson relies on In

re Estate of Bowers, 132 Wn. App. 334, 131 P.3d 916 (2006). In determining that de novo was

the proper standard of review, the Bowers court noted that “[d]ecisions based on declarations,

affidavits, and written documents are reviewed de novo,” and further noted that, “[c]ourts have

No. 47124-8-II

also recognized that probate proceedings are equitable in nature and reviewed de novo on the entire

record.” Id. at 339.

The beneficiaries, on the other hand, rely on Foster v. Gilliam, 165 Wn. App. 33, 268 P.3d

945 (2011), review denied, 173 Wn.2d 1032 (2012), to support their position. In holding that the

substantial evidence standard applied, the Foster court reasoned:

Washington courts have applied a de novo standard in the context of a purely

written record where the trial court made no determination of witness credibility.

Dolan v. King County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011). And in general,

the standard of review is de novo in probate proceedings for decisions based on

declarations, affidavits, and written documents. In re Estate of Bowers, 132 Wn.

App. 334, 339–40, 131 P.3d 916 (2006). However, our Supreme Court has

indicated that even with a purely written record, the substantial evidence standard

is more appropriate in cases where the trial court reviewed an enormous amount of

documentary evidence, weighed that evidence, resolved inevitable evidentiary

conflicts and discrepancies, and issued written findings. Dolan, 172 Wn.2d at 310-

11.

Id. at 54.

Here, both parties agree that the written record is significant and no oral testimony was

taken. Commissioner Watness issued three reports, totaling 39 pages. The superior court also

reviewed at least eight motions consisting of factual and legal analysis, along with the supporting

declarations and exhibits—all of which totaled 644 pages—and held two oral arguments, before

entering the May 23 Order appointing Commissioner Watness. The motions were accompanied

by extensive declarations, affidavits, and supporting exhibits.12 Thus, we hold that the substantial

For example, on December 27, 2013, the beneficiaries filed a motion to direct Johnson to file a

complete accounting, determine proper asset distribution, and award attorney fees that consisted

of 23 pages of facts and legal authority. Attached to that motion were 411 pages of declarations

and exhibits in support of the motion. Johnson filed an accounting on March 13, 2014, pursuant

to the beneficiaries’ motion, that totaled 492 pages with the supporting declarations and exhibits.

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evidence standard is appropriate in this case because the superior court “reviewed an enormous

amount of documentary evidence, weighed that evidence, resolved inevitable evidentiary conflicts

and discrepancies, and issued written findings.” Foster, 165 Wn. App. at 54.

In addition, we review the superior court’s removal of Johnson as the personal

representative and the entry of attorney fees judgments are reviewed for abuse of discretion.

Under RCW 11.68.070, the trial court has discretion to remove a personal

representative who has nonintervention powers if the personal representative fails

to execute his or her trust faithfully or is subject to removal for any reason specified

in RCW 11.28.250. In re Estate of Beard, 60 Wash.2d 127, 132, 372 P.2d 530

(1962); In re Estates of Aaberg, 25 Wn. App. 336, 339, 607 P.2d 1227 (1980).

RCW 11.28.250 authorizes the court to revoke testamentary letters if it has reason

to believe the personal representative wasted, embezzled or mismanaged estate

property, or if the court finds for other reason such action is necessary. Aaberg, 25

Wn. App. at 339, 607 P.2d 1227. The trial court has broad discretion to remove an

executor, but its grounds must be valid and supported by the record. Id. (citing

Beard, 60 Wn.2d 127). If any one of the court’s reasons for removal is valid, the

court’s decision will not be disturbed on appeal. Id.

In re Estate of Ardell, 96 Wn. App. 708, 718, 980 P.2d 771, review denied, 139 Wn.2d 1011

(1999). We follow the holding of Ardell, 96 Wn. App. at 718.

Also, because TEDRA applies, we review attorney fee awards in probate proceedings for

abuse of discretion. RCW 11.96A.150; In re Estate of Evans, 181 Wn. App. 436, 450-52, 326

P.3d 755 (2014). RCW 11.96A.150 is part of the Trust and Estate Dispute Resolution Act, or

TEDRA. Ch, 11.96A RCW.

B. APPLICATION OF TEDRA

Johnson argues TEDRA was never invoked because no party initiated a TEDRA

proceeding by filing a petition under TEDRA. We disagree.

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TEDRA is codified in chapter 11.96A RCW. Effective July 28, 2013, RCW 11.96A.090

(2) requires that “[a] judicial proceeding under this title must be commenced as a new action.”

LAWS OF 2013, ch. 246, § 2. Before that, RCW 11.96A.090(2) stated, “[a] judicial proceeding

under this title may be commenced as a new action or as an action incidental to an existing judicial

proceeding relating to the same trust or estate or nonprobate asset.” LAWS OF 1999, ch. 42, § 302.

At all relevant times, RCW 11.96A.100(1) stated, “[a] judicial proceeding under RCW 11.96A.090

is to be commenced by filing a petition with the court.” And “if the proceeding is commenced as

an action incidental to an existing judicial proceeding relating to the same trust or estate or

nonprobate asset, notice must be provided by summons only with respect to those parties who

were not already parties to the existing judicial proceedings.” RCW 11.96A.100(2).

Here, Johnson filed a petition for an order to probate the estate on November 20, 2009.

The petition Johnson filed stated on the first page, “pursuant to RCW 11.96A.040 and RCW

11.96A.050(3), the petitioner elects to probate this estate in Pierce County, Washington.” CP at

2. The superior court granted the petition, citing the same statutory authority. On February 8,

2013, Johnson filed a motion for instructions in superior court under the same cause number. On

March 13, 2014, still under the same cause number, Johnson filed an interim report and accounting

along with a motion to approve the interim report and accounting.

Pierce County Superior Court had jurisdiction over the probate under RCW 11.96A.040.

And Pierce County Superior Court was a proper venue for the probate under RCW 11.96A.050.

Thus, under both the current statute and former RCW 11.96A.090 (1999), a judicial proceeding

under TEDRA was commenced as a new action when Johnson filed his petition for probate on

November 20, 2009. The superior court regained jurisdiction over the probate at least by March

No. 47124-8-II

13, 2014, when Johnson moved for instructions on February 8, 2013, and moved for approval of

his interim report and accounting on March 13, 2014. Ardell, 96 Wn. App. at 716. Therefore,

Johnson’s argument that TEDRA was never invoked fails.13

C. PROPRIETY OF COMMISSIONER WATNESS’S APPOINTMENT AND THE VALIDITY OF THE

PROCEEDINGS CONDUCTED

Johnson argues the superior court erred in appointing Commissioner Watness. We hold

that the superior court did not err in appointing Commissioner Watness to fulfill the duties to which

he was assigned. However, we hold that the superior court erred by adopting the facts, opinions,

and conclusions contained in Commissioner Watness’s reports.

TEDRA affords courts broad authority and discretion over probate and estate proceedings.

TEDRA provides that, “the courts shall have full and ample power and authority . . . to administer

and settle: (a) All matters concerning the states and assets of . . . deceased persons.” RCW

11.96A.020(1).14 Further, if TEDRA,

Johnson also waived the argument that TEDRA does not apply based on his court filings and

his counsel’s representations during oral argument. First, Johnson argued in his March 13 motion

to approve the accounting that RCW 11.96A.150 applied, and RCW 11.76.070 did not, in his

argument to the court that it should not award attorney fees to the beneficiaries. Second, in his

May 21 supplemental briefing, Johnson cited RCW 11.96A.150 as authority for his argument that

the estate should pay the beneficiaries attorney fees. Third, in Johnson’s May 30 motion for

reconsideration, Johnson argued “In ruling on this motion for reconsideration under CR 59(a), this

court should be guided by the purpose of chapter 11.96A RCW.” CP at 1949 (emphasis added);

see also CP at 1987-93 (reply in support of motion to reconsider). Johnson made the identical

assertion in his November 17 motion to reconsider. Fourth, at oral argument on October 3, Johnson

cited TEDRA as a reason for not imposing attorney fees against Johnson. Finally, at the November

7 oral argument, Johnson argued that his removal as personal representative at that time was no

appropriate under TEDRA and that the court had general jurisdiction of this matter under TEDRA.