# Beverly Young, App. & Estate Of Bojilina H. Boatman, App./x-resp., V. Brian Boatman, Resp./x-app.

> Court of Appeals of Washington · May 10, 2021

URL: https://www.frixlaw.com/law-library/cases/4685528

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** May 10, 2021
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4685528

## How later opinions describe it (automated extraction)

- holding a court may deem novelty a relevant factor in its consideration of request for fees under TEDRA

## Opinion text

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Estate of
BOJILINA H. BOATMAN. No. 80933-4-I
(consolidated with
Nos. 81000-6-I, 81200-9-I,
THE ESTATE OF BOJILINA H. 81201-7-I, and 81202-5-I)
BOATMAN,
ORDER GRANTING MOTION
Appellant/Cross Respondent, FOR RECONSIDERATION
AND WITHDRAWING AND
v. SUBSTITUTING OPINION

BRIAN BOATMAN, Individually and as
Trustee of the Brian Boatman
Revocable Living Trust,

Respondent/Cross Appellant,

BEVERLY YOUNG,

Appellant.

The appellant, Beverly Young, has filed a motion for reconsideration of the

opinion filed on April 12, 2021. The motion sought clarification of the scope of the

attorney fee award. The panel determined a response to the motion was not

necessary. The court has determined that the motion should be granted, and that

the opinion should be withdrawn and a substitute opinion filed; now, therefore, it is

hereby

ORDERED that the motion for reconsideration is granted; it is further
No. 80933-4-I/2

ORDERED that the opinion filed on April 12, 2021 is withdrawn; and it is

further

ORDERED that a substitute unpublished opinion shall be filed.

2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of
BOJILINA H. BOATMAN. No. 80933-4-I
(consolidated with
Nos. 81000-6-I, 81200-9-I,
THE ESTATE OF BOJILINA H. 81201-7-I, and 81202-5-I)
BOATMAN,
DIVISION ONE
Appellant/Cross Respondent,
UNPUBLISHED OPINION
v.

BRIAN BOATMAN, Individually and as
Trustee of the Brian Boatman Revocable
Living Trust,

Respondent/Cross Appellant,

BEVERLY YOUNG,

Appellant.

APPELWICK, J. — This consolidated appeal arises from attorney fees and

costs awarded in favor of Brian Boatman in a Trust and Estate Dispute Resolution

Act1 (TEDRA) action against the Estate and against Young, its personal

representative. Young asserts the trial court erred in awarding costs and attorney

fees in favor of Brian Boatman and against Young. She asserts the trial court erred

in denying her motion to vacate the order as void. The Estate asserts the trial court

erred in the amount of costs and attorney fees awarded in favor of Brian Boatman

and argues no award should have been entered against either the Estate or

1
Chapter 96A RCW.

Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80933-4-I/2

Young. Brian asserts the trial court erred in declining to find the other Boatman

siblings were parties and find them jointly and severally liable with the Estate and

Young for the awarded costs and attorney fees. Both Brian and Young request

attorney fees and costs on appeal. The award against Young was error. The

award of costs against the Estate was error in part. The trial court did not err in

denying costs and fees in favor of Brian for Phase I, against other siblings in Phase

II, or in exercising its discretion in the amount of fees awarded. We affirm in part,

vacate in part, and remand.

FACTS

In 2007, Bojilina Boatman began living in her son Brian Boatman’s2 home

full-time. Brian was responsible for her care until her death in 2013. Bojilina’s five

other children (Boatman siblings) then filed an initial TEDRA petition against Brian

seeking recovery for assets transferred from Bojilina to Brian while he was serving

as her attorney-in-fact (Phase I). Brian filed a response and counterclaim as an

individual and as attorney-in-fact of the estate of Bojilina Boatman (Estate) asking

for attorney fees. He moved to dismiss the petition on the grounds that the

Boatman siblings were not parties and had no standing to bring the action.

In 2014, the trial court dismissed the Phase I petition for lack of standing.

The Boatman siblings appealed. Brian moved for an award of attorney fees, on

which the court deferred ruling, pending resolution of the appeal.

2
For clarity, Brian Boatman and Bojilina Boatman will be referred to by their
first names.

2
No. 80933-4-I/3

In 2016, this court affirmed the trial court’s dismissal of the Boatman

siblings’ claims based on lack of standing. Young v. Boatman, No. 72643-9-I, slip.

op. at 1 (Wash. Ct. App. Feb. 8, 2016) (unpublished), https://www.courts.wa.

gov/opinions/pdf/726439.pdf. We explained that RCW 11.96A.030(5)’s definition

of “party” includes estate beneficiaries, and under RCW 11.96A.080 any party may

have a judicial proceeding related to such matters. Id. at 9-10. However, TEDRA

expressly states that it doesn’t supersede other provisions of Title 11 RCW. Id. at

10. And, under RCW 11.48.010, only the personal representative has the authority

to maintain and prosecute actions on behalf of the Estate. Id. at 10-11. Still, we

held that Brian had a conflict of interest as personal representative with respect to

the Estate’s pursuit of claims against him. Id. at 13-14. We ordered the trial court

to appoint an interim personal representative on remand “to determine whether to

pursue an action on behalf of the Estate against Brian as the attorney-in-fact for

Bojilina.” Id. at 14.

Following remand, the court-appointed interim personal representative

issued a report concluding that a claim was warranted on behalf of the Estate

against Brian as attorney-in-fact. Brian ultimately resigned as personal

representative. Beverly Young, one of the Boatman siblings, was appointed by the

court as personal representative of the Estate.

The Estate, with Young acting as personal representative, then filed and

served a TEDRA petition against Brian (Phase II). The only parties to the Phase

II petition were the Estate as the petitioner and Brian (individually and as trustee

for the Brian Boatman Revocable Living Trust) as the respondent. The petition

3
No. 80933-4-I/4

asked for an award of attorney fees and costs pursuant to RCW 11.96A.150. Brian

answered and counterclaimed for attorney fees and costs pursuant to RCW

11.96A.150 and RCW 11.94.120.

On November 6, 2019, following a bench trial, the court entered findings of

fact and conclusions of law finding in favor of Brian and denying all of the Estate’s

claims. It found,

Since Brian Boatman is the prevailing party, the Court HEREBY
ORDERS that the Personal Representative pay Brian Boatman’s
attorney’s fees and costs, in accordance with RCW 4.84.030. Brian
Boatman’s attorney shall submit a cost bill for the Court’s analysis
and the Court will issue an order against the Personal
Representative for such fees and costs as it deems reasonable.

The Estate moved for reconsideration, arguing awards under RCW 4.84.030 are

limited to allowable costs and could be imposed only against the Estate. The trial

court denied the motion for reconsideration but reserved on the issue of attorney

fees.

Brian then moved for entry of judgment on attorney fees and costs incurred

in both TEDRA petitions. He requested fees and costs in Phase I. He also

requested fees and costs in the Phase II against the Boatman siblings, or in the

alternative, against Young in both her individual capacity and in her capacity as

personal representative of the Estate.

On December 20, 2019, the trial court entered an order on entry of

judgments for attorney fees and costs. The order concerned an award of attorney

fees and costs pursuant to RCW 11.96A.150 and RCW 4.84.030. The court

declined to award attorney fees related to the Phase I petition, as that was a matter

4
No. 80933-4-I/5

of first impression. It also declined to find that the Boatman siblings were parties

against whom attorney fees and costs could be awarded. However, the trial court

awarded $12,835.97 in costs and $111,574.00 in attorney fees to Brian against

Young “individually and as Personal Representative of the Estate of Bojilina

Boatman, jointly and severally.”

On January 3, 2020, the Estate filed a notice of appeal on the findings of

fact and conclusions of law and order after trial, the order denying the Estate’s

motion for reconsideration, and the order on entry of judgments for attorney fees

and costs.

On January 6, 2020, The Estate filed a motion to vacate the December 20

order as to Young in her individual capacity. She argued the fee order was void

because she was not a party to the Phase II petition and therefore the trial court

lacked the authority and jurisdiction to impose fees or costs against her. On

January 21, 2020, the court denied her motion. Judge Robert E. Olsen held that

as the successor judge he was barred from granting the requested relief because

then-Judge Raquel Montoya-Lewis had presided over the trial. That same day,

Young filed a notice of appeal on the December 20, 2020 fees order.

On January 22, 2020, Judge Pro Tem Montoya-Lewis3 entered a

“Findings/Conclusions and Order re Award of Attorneys’ Fees and Cost[s]” and a

“Judgment on Attorneys’ Fees.”4 The order reiterated that attorney fees would not

3
Justice Montoya-Lewis was sworn as an associate justice of the
Washington State Supreme Court on January 6, 2020.
4
These orders were not properly submitted for signature, as RAP 7.2 limits
the authority of the trial court to act in a case after review is accepted by the
appellate court.

5
No. 80933-4-I/6

be awarded in relation to Phase I nor against the Boatman siblings who were not

parties in the case. The court awarded attorney fees and costs in the amount of

$111,574.00 under RCW.96A.150 and $13,035.975 in costs under RCW 4.84.010

and .080 against Young in her capacity as personal representative, but not as an

individual.

This court consolidated the appeals, designating Young in her individual

capacity as appellant, the Estate as appellant/cross-respondent, and Brian

individually and as Trustee of the Brian Boatman Revocable Living Trust as

respondent/cross appellant.

DISCUSSION

The Estate first argues the trial court erred in awarding attorney fees under

RCW 11.96A.150 against the Estate and Young. Next, the Estate argues the trial

court erred in awarding excessive costs under chapter 4.84 RCW.

Young also asserts the trial court erred in awarding attorney fees and costs

in favor of Brian and against Young as an individual who was not a party to the

suit. Therefore, she also asserts the court erred in denying her motion to vacate.

Brian counters that he is entitled to his reasonable attorney fees and costs.

And, he asserts the trial court erred in declining to find that the other Boatman

siblings in this matter were parties subject to an order requiring payment of

reasonable attorney fees and costs incurred in both TEDRA matters.

5
This is a $200.00 increase in the cost award from the December 20 order.
The record does not indicate the reason for the increase.

6
No. 80933-4-I/7

The general rule in Washington, commonly referred to as the “American

rule,” is that each party in a civil action will pay its own attorney fees and costs.

Berryman v. Metcalf, 177 Wn. App. 644, 656, 312 P.3d 745 (2013). But, trial courts

may award attorney fees when authorized by contract, statute, or a recognized

ground in equity. Id.

Whether a party is entitled to attorney fees is an issue of law that we review

de novo. Little v. King, 147 Wn. App. 883, 890, 198 P.3d 525 (2008). Whether

the fee award is reasonable is a matter of discretion for the trial court, which we

will alter only if we find an abuse of discretion. Bloor v. Fritz, 143 Wn. App. 718,

747, 180 P.3d 805 (2008). Discretion is abused when the trial court exercises it

on untenable grounds or for untenable reasons. Berryman, 177 Wn. App. at 657.

The burden of demonstrating that a fee is reasonable is on the fee applicant. Id.

I. Fees and Costs Awarded in Phase II Against Young

Young asserts the trial court erred in awarding attorney fees and costs

against Young as an individual. She asserts that she is not a party under TEDRA

and therefore the court had no authority or jurisdiction to order fees and costs

against her in this matter.

The fees order awarded attorney fees under RCW 11.96A.150 and costs

under RCW 4.84.030 against Young “individually and as a Personal

Representative of the Estate . . ., jointly and severally.”

As with trustees of a trust, personal representatives of an estate owe a

fiduciary duty to the heirs of the estate and must conform to the laws governing

trustees. In re Estate of Ehlers, 80 Wn. App. 751, 761-62, 911 P.2d 1017 (1996).

7
No. 80933-4-I/8

A personal representative stands in a fiduciary relationship to those beneficially

interested in the estate. In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d

1051 (1985). The personal representative must exercise the utmost good faith

and diligence in administering the estate in the best interests of the heirs. Id.

It is well established under Washington Law that ordinarily, trusts must bear

the general costs of administration of the trust—including the expenses of

necessary litigation. Allard v. Pac. Nat’l Bank, 99 Wn.2d 394, 408, 663 P.2d 104

(1983). But, where litigation is necessitated by the inexcusable conduct of the

fiduciary, the fiduciary individually must pay those expenses. Id. In Jones, our

Supreme Court held that the personal representative should personally pay

attorney fees because the litigation was necessitated by his multiple breaches of

fiduciary duty to the remaining beneficiaries. In re Estate of Jones, 152 Wn.2d 1,

6, 21, 93 P.3d 147 (2004). The court cited to Allard in finding that the personal

representative should personally the pay attorney fees. Id. at 21. It noted, “Allard

is a trust case, but still is applicable here since a personal representative has

fiduciary duties similar to those of a trustee, as he is acting in a trust capacity.” Id.

at n.16.

The statutory liability of a fiduciary for costs is similarly limited. RCW

4.84.150 provides,

In an action prosecuted or defended by an executor, administrator,
trustee of an express trust, or a person expressly authorized by
statute, costs shall be recovered as in an action by or against a
person prosecuting in his or her own right, but such costs shall be
chargeable only upon or collected of the estate of the party
represented, unless the court shall direct the same to be paid by the

8
No. 80933-4-I/9

plaintiff or defendant personally, for mismanagement or bad faith in
such action or defense.

Here, Young served as personal representative to the Estate in the same

fiduciary relationship as a trustee has to a trust. The court made no finding of fact

of a breach of fiduciary duties or inexcusable conduct on the part of Young as

personal representative to the Estate. Young sought appointment with agreement

from the Boatman siblings and with eventual agreement from Brian. She filed the

Phase II petition because the court-appointed interim personal representative,

found that the “pursuit of an action on behalf of the Estate against Brian Boatman”

was warranted.

Further, although RCW 11.96A.030(5)(c) defines “party” to include

“personal representatives,” RCW 11.96A.150(1) concerning attorney fees

provides,

Either the superior court or the court on appeal may, in its discretion,
order costs, including reasonable attorneys' fees, to be awarded to
any party: (a) From any party to the proceedings.

(Emphasis added.) As with the Phase I petition, it must be acknowledged that

“party” has different meanings in different sections of the statutory scheme. Even

if the statute could be read so broadly, in Phase II, Young was not acting in the

capacity of a party but in her appointed fiduciary capacity. Conforming to general

principles of Washington trust and estate law, Young should not have been

ordered to personally pay attorney fees in relation to Estate litigation.

9
No. 80933-4-I/10

The trial court erred in awarding $12,835.97 in costs and $111,574.00 in

attorney fees in favor of Brian against Young in her individual capacity. We vacate

the December 20, 2019 order as void as to Young individually and remand.6

II. Fees and Costs in Phase II Against the Estate

The Estate argues the trial court erred in awarding attorney fees and costs

under RCW 11.96A.150 against it. Further, it argues the court erred by awarding

excessive costs.

A. Attorney Fees

The order awarded attorney fees under RCW 11.96A.150. RCW

11.96A.150(1) grants broad discretion to the court in the award of attorney fees

and costs. In exercising its discretion under this section, the court may consider

any and all factors that it deems to be relevant and appropriate. Id. RCW

11.96A.150(1)(b) authorizes the court to award fees “from the assets of the estate

or trust involved in the proceedings.” We will not interfere with the trial court’s

decision to allow attorney fees in a probate matter, absent a manifest abuse of

discretion. In re Estate of Black, 116 Wn. App. 476, 489, 66 P.3d 670 (2003), aff’d,

153 Wn.2d 152, 102 P.3d 796 (2004).

The Estate argues that because the court-appointed interim representative

recommended that the Estate pursue claims against Brian, attorney fees should

not have been awarded against it for doing so. But, the issue is not whether the

6
Young asserts the fees order is void for lack of authority and jurisdiction.
Young also asserts the trial court erred in denying her motion to vacate pursuant
to the successor judge doctrine. Because we vacate the award on other grounds,
we need not consider these arguments.

10
No. 80933-4-I/11

Estate had a good faith basis to have pursued its claim. Having a good faith basis

to bring a claim does not eliminate the trial court’s discretion to award fees when

the Estate fails to prevail on the claim.

The Estate further argues the novel matter doctrine also supports reversing

an award of attorney fees in this case. It argues issues related to the first petition

as well as the nature of Young’s appointment were novel.

Here, In re the Estate of Berry, 189 Wn. App. 368, 379, 358 P.3d 426 (2015),

is instructive. “Whether a case involves novel or unique questions is a factor that

a court may deem relevant in its consideration of a request for attorney fees under

RCW 11.96A.150, and in Stover, we did deem it relevant.” Id. (citing In re Estate

of Stover, 178 Wn. App. 550, 564, 315 P.3d 579 (2013)). “But we did not hold that

it is always dispositive or even always relevant.” Id. As such, the novel matter

doctrine is not an absolute bar to fees in novel cases. It is a factor that the court

may consider. The novel legal issue in Phase I and the potential novelty of Young’s

appointment were both key parts of this case’s procedural history. We may safely

assume the trial court considered novelty as a factor.

The Estate has not demonstrated that the trial court abused its discretion.

We affirm the award of attorney fees against the Estate.

B. Costs

The Estate also argues the trial court erred by awarding excessive costs

under RCW 4.84.030. Brian asserted a claim for expenses of $12,835.97.

RCW 4.84.030 provides, “In any action in the superior court of Washington

the prevailing party shall be entitled to his or her costs and disbursements.” We

11
No. 80933-4-I/12

review an award of costs for abuse of discretion. Payne v. Paugh, 190 Wn. App.

383, 413, 360 P.3d 39 (2015).

Brian did not reply to these assertions, because he asserts these costs were

awarded under RCW 11.96A.150. Brian’s answer to the petition sought an award

of fees under RCW 11.96A.150 and RCW 11.94.120. But, that is not what the

court ordered. The court wrote in the December 20 fees order, “For clarification,

the Court found that Brian Boatman is entitled to attorney fees pursuant to RCW

11.96A.150, and costs in accordance with RCW 4.84.030.” This order was

proposed by counsel for Brian and adopted with few edits. It is clear the trial court

did not award costs under RCW 11.96A.150.

RCW 4.84.010 limits costs which may be recovered to a narrow range of

expenses, including filing fees, statutory attorney fees and witness fees, and

expenses associated with certain depositions. The Estate argues that Brian

submitted nothing to support the award of any of these expenses as taxable costs

under RCW 4.84.010, and that almost none of the listed items qualify as awardable

expenses.

Under RCW 4.84.010(7), a prevailing party is entitled to the costs of taking

depositions if the depositions were taken and used at trial as substantive evidence

or for impeachment purpose. Payne, 190 Wn. App. at 413. Of the 10 depositions

Brian listed, only Blake Boatman, Brent Boatman, and Young’s depositions were

taken by counsel for Brian. Of those, two pages of Brent Boatman’s deposition

12
No. 80933-4-I/13

were used for impeachment purposes during his cross-examination.7

Accordingly, the proper application of the pro rata share requirement set forth in

RCW 4.84.010(7) to the $782.05 total transcription cost would justify a maximum

cost award of $13.96 (2/112 x 782.05 = $13.96). The trial court erred in awarding

costs under RCW 4.84.030 for depositions not considered by the court.

Next, the Estate argues that there are no grounds authorizing the award for

expert witness fees as costs, such as those listed for John Fountaine. It relies on

Estep v. Hamilton, which noted that “our Supreme Court has recognized there are

no grounds for awarding expert witness fees as costs.” 148 Wn. App. 246, 263,

201 P.3d 331 (2008). Accordingly, the trial court erred in awarding costs under

RCW 4.84.030 for expert witness fees.

The Estate further argues the trial court erroneously ordered filing fees in

Phase II. Brian had already asserted a counterclaim in Phase I and was not

required to pay a second counterclaim filing fee. Further, as the trial court

ultimately granted the Estate’s motion to strike Brian’s jury demand, the Estate

argues he also was not entitled to an award of costs for his jury demand filing fee.

The Estate similarly notes Brian’s duplicative $200.00 statutory attorney fees

arising out of both Phase I and Phase II as being improperly awarded. We agree.

It was error to award these fees as costs under RCW 4.84.030.

Additionally, the Estate argues RCW 4.84.010 does not authorize a cost

award for miscellaneous court reporter fees. So, it asserts “Brian’s claims for such

7
Blake Boatman’s deposition was published and unsealed in an attempt to
impeach DeLisa Boatman, but this use was objected to by the Estate and the judge
agreed it was not appropriate.

13
No. 80933-4-I/14

fees totaling $10.00, with respect to Phase I, and $640.00, in connection with

Phase II, should have been denied.” Brian does not identify authorization by law

for the award of costs of court reporter fees in his affidavit of costs or memorandum

in support of entry of judgments on attorney fees and costs. Absent such authority,

these costs were awarded in error under RCW 4.84.030.

In total, with respect to the December 20 order, the Estate alleges the trial

court erred in awarding $450.00 in Phase I costs and $12,835.97 in Phase II costs.

It argues costs totaling $453.96 should have been awarded ($240.00 for one

counterclaim filing fee plus $13.96 pro rata share of Brent's deposition plus

$200.00 for one statutory attorney fee). We agree.

We direct the trial court to amend the judgment accordingly on remand.

III. Denial of Brian’s Requests for Certain Attorney Fees and Costs

A. Against the Boatman Siblings as Parties to the Proceeding

Brian asserts that while he argued the Boatman siblings were not the

appropriate petitioner in either phase, in Phase II the Boatman siblings were all

parties under the statutory scheme. He points to RCW 11.96A.030(5), which

provides in part,

(5) "Party" or "parties" means each of the following persons
who has an interest in the subject of the particular proceeding and
whose name and address are known to, or are reasonably
ascertainable by, the petitioner:

....

(c) The personal representative;

(d) An heir;

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No. 80933-4-I/15

(e) A beneficiary, including devisees, legatees, and trust
beneficiaries;

....

(i) Any other person who has an interest in the subject of the
particular proceeding.

The Boatman siblings were the petitioners in Phase I petition and pleaded

as persons interested in the matter in Phase II. So, Brian asserts that “[i]t cannot

be seriously argued” they were not unambiguously parties under 11.96A.030. But,

again, that term has different meaning throughout the statutory scheme. RCW

11.96A.030 states, “The definitions in this section apply throughout this chapter

unless the context clearly requires otherwise.”

In Phase I, this court noted the definition of a “party” under RCW 11.96A.030

includes beneficiaries. Boatman, No. 72643-9-I, slip. op. at 9. However, under the

plain and unambiguous language of Title 11 RCW, only the personal

representative has the authority to bring claims on behalf of the Estate against

Brian under RCW 11.48.010. Id. at 12. RCW 11.96A.080(2) expressly states that

the provisions of TEDRA do not supersede but instead supplement the other

provisions of Title 11 RCW. So, while all heirs are potentially “parties” under one

section of TEDRA, the definition of “party” was limited by context elsewhere in the

statutory scheme.

The Boatman siblings were not parties to the Phase II petition to which the

fees order pertained. Their interests as beneficiaries were represented by the

Estate through the personal representative. None of them appeared in an

individual capacity and none asserted any claim or interest different from the

15
No. 80933-4-I/16

Estate. And, even if we were to conclude that the siblings were parties to the

proceeding, the court had the discretion to award or not award fees from any party

to any other party.

We affirm the trial court’s denial of an award of attorney fees to Brian

payable by the other Boatman siblings in either TEDRA phase on the basis that

they were parties to the matter.8

B. Attorney Fees for Phase I

Brian argues that the trial court erred in determining that fees were not

appropriate in Phase I based on the novelty of the standing issue litigated because

standing is not a relevant concern. The case law he relies on does not involve

TEDRA actions. See Chuong Van Pham v. City of Seattle, 159 Wn.2d

527,543,151 P.3d 976 (2007); Boeing Co. v. Sierracin Corp., 108 Wn. 2d 38, 65,

738 P.2d 665 (1987).

RCW 11.96A.150(1) allows the court to consider any relevant factor in

awarding fees, including whether a case presents novel or unique issues. In re

Guardianship of Lamb, 173 Wn.2d 173, 198, 265 P.3d 876 (2011); see also Berry,

189 Wn. App. at 379 (holding a court may deem novelty a relevant factor in its

consideration of request for fees under TEDRA); Stover, 178 Wn. App. at 564

8
Brian also asserts if he had been personal representative, he would have
written to the Boatman siblings demanding they return money distributed by him
prior to Phase I. He further argues in failing to do so, Young has breached her
duty to Brian and should be removed as personal representative to the Estate.
That is not an issue before this court. We decline to remove Young as personal
representative to the Estate.

16
No. 80933-4-I/17

(declining to award fees because the TEDRA case presented a novel issue of

statutory construction).

Here, the Phase I litigation was pursuant to RCW 11.96A.150 and involved

a novel issue of statutory construction. We find that the trial court did not err in

declining to award Brian attorney fees in Phase I.

C. Amount of Attorney Fee Awarded

Brian further argues the trial court abused its discretion by reducing his fees

from $223,000.00 to $111,574.00. But, the larger number includes the fees he

requested for Phase I. In reference to attorney fees incurred during Phase II, Brian

argues that the trial court reduced his award by over $50,000.00.

Brian relies on Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933,

76 L. Ed. 2d 40 (1983), for the assertion that a plaintiff should recover a fully

compensatory fee where the plaintiff has obtained excellent results. But, no

Washington case has declared it an abuse of discretion merely to award attorney

fees under RCW 11.96A.150 that were not all of the requested attorney fees.

“Because of the ‘almost limitless sets of factual circumstances that might arise in

a probate proceeding,’ the legislature ‘wisely’ left the matter of fees to the trial

court, directing only that the award be made ‘as justice may require.’” Black, 116

Wn. App. at 489 (internal quotation marks omitted) (quoting In re Estate of

Burmeister, 70 Wn. App. 532, 539, 854 P.2d 653 (1993), rev’d on other grounds,

124 Wn.2d 282, 877 P.2d 195 (1994)).

We find that the court did not abuse its discretion by declining to award to

Brian all of the attorney fees he requested under RCW 11.96A.150.

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No. 80933-4-I/18

IV. Attorney Fees and Costs on Appeal

Both Brian and Young request reasonable attorney fees and costs on

appeal under RCW 11.96A.150. RCW 11.96A.150 grants extensive discretion to

courts to award attorney fees in “all proceedings governed by this title.”

Young was acting under her fiduciary duty as the Estate’s personal

representative. The trial court made no findings that she breached her fiduciary

duty or mismanaged the Estate. We find that she is entitled pursuant to RAP

18.1(a) to reasonable attorney fees and costs incurred attempting to vacate and in

appealing the award of attorney fees and costs against her as an individual. We

find that Brian is not entitled to attorney fees on appeal against any party.

We affirm in part, vacate in part, and remand.

WE CONCUR:

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4685528. Public record. Not legal advice.