          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of          )      No. 76444-6-1
WILLIAM ROSS TAYLOR,                    )      (Consolidated with No. 76840-9-1)
                                        )
                        Deceased.       )       DIVISION ONE
                                        )
PATRICIA CAIARELLI,                     )
                                        )
                        Appellant,      )
                                        )
                V.                      )
                                        )
REUBEN TAYLOR, JR., EMILY               )       UNPUBLISHED OPINION
TAYLOR, and the marital community       )
thereof,

                        Respondents,

CHARLES E. TAYLOR 11 and
ELIZABETH TAYLOR,

                        Defendants.             FILED: May 20, 2019

       SCHINDLER, J. — This is the third appeal in this case. The legal guardian of

A.C.T., Patricia Caiarelli, filed a Trust and Estate Dispute Resolution Act(TEDRA),

chapter 11.96A RCW,action against Charles E. Taylor II, individually and as the

personal representative of the estate of William Ross Taylor, and Reuben and Emily

Taylor to impose a constructive trust on nonprobate assets. Caiarelli alleged the will

established William's intent to have his brother Charles and his father Reuben hold the
No. 76444-6-1 (Consol. with No. 76840-9-1)/2

nonprobate assets as trustees for A.C.T.1 Caiarelli also alleged the family exerted

undue influence on William. In the first appeal, we reversed the decision on summary

judgment to award three AIG life insurance policies and a Fidelity individual retirement

account to Charles as the beneficiary and five Northwestern Mutual life insurance

policies to William's father Reuben. On remand, the trial court dismissed the undue

influence claims against Reuben and Emily. A jury found William designated Charles to

hold the nonprobate assets in trust for A.C.T. and in the alternative, Charles unduly

influenced William to designate him as the beneficiary. The trial court entered a

judgment on the jury verdict against Charles for $1,422,077.54 and awarded Caiarelli

attorney fees and costs. We affirmed the jury verdict but reversed the decision to

dismiss the undue influence claim against Reuben and Emily. On remand, a jury found

Reuben and Emily exerted undue influence over William to designate Reuben as the

owner of the insurance policies. The court entered judgment on the jury verdict in the

amount of $451,491.33. Caiarelli requested $1,085,325.29 for attorney fees and costs,

including $195,791.78 for attorney fees incurred in the first trial. The court awarded

Caiarelli $623,806.70 in attorney fees and costs against Reuben and Emily. Caiarelli

appeals the award of attorney fees, arguing the court abused its discretion by deducting

attorney fees for delay of the trial and declining to award any attorney fees incurred to

preserve the undue influence claim against Reuben and Emily. We affirm in part,

reverse in part, and remand.




        For purposes of clarity, we refer to the Taylor family members by their first names.


                                                   2
No. 76444-6-1 (Consol. with No. 76840-9-1)/3

TEDRA Action

        The facts are set forth in In re Estate of Taylor, 159 Wn. App. 1003, 2010 WL

5464751, and In re Estate of Taylor, No. 68222-9-1 (consolidated with No. 68224-5-1)

(Wash. Ct. App. May 19, 2014)(unpublished), http://www.courts.wa.gov/opinions/pdf/

682229.pdf, and will be repeated only as necessary.

        William Ross Taylor and Patricia Caiarelli were married in November 2001.

A.C.T. was born in May 2002.

        In 2003, William lost his job and Caiarelli filed for dissolution of the marriage.

William prepared a will directing that in the event of his death, all of his assets were to

be held in trust for his son A.C.T., including the "Charles Schwab accounts(Schwab

IRA's,[2] Schwab One, etc.), my Fidelity accounts (401K, ESPP,[3] etc.), and all other

checking and savings accounts under my name." William named his brother Charles E.

Taylor II as the trustee, his father Reuben Taylor Jr. as the alternative trustee, and his

mother Emily Taylor as the second alternative.

        The court entered the final decree in the dissolution of the marriage in February

2005.

        In July 2005, William started working at a new company. William transferred his

Fidelity IRA and named his brother Charles as the primary beneficiary and his father

Reuben as contingent beneficiary. William purchased three AIG life insurance policies

and designated Charles as primary beneficiary and Reuben as contingent beneficiary.

That same month, William also signed a change of owner designation, transferring his

ownership of five Northwestern Mutual life insurance policies to his father Reuben.


        2 Individual retirement accounts.
        3 Employee stock purchase plan.



                                               3
No. 76444-6-1 (Consol. with No. 76840-9-1)/4

       In September 2005, William died in a boating accident. The will was admitted to

probate and Charles was appointed as the personal representative of the estate.

William's last will and testament made two bequests and left the remainder of his estate

to A.C.T. Charles identified the Charles Schwab accounts, Fidelity IRA, and AIG life

insurance policies as nonprobate assets. Charles obtained the proceeds of the AIG

policies and Fidelity IRA. Reuben obtained the proceeds for the five Northwestern

Mutual policies.

      In 2006, Caiarelli as the legal guardian of A.C.T. filed a Trust and Estate Dispute

Resolution Act(TEDRA), chapter 11.96A RCW, action against Charles individually and

as the personal representative of the estate, seeking an order that A.C.T. was entitled to

the proceeds of all probate and nonprobate assets identified in the will and owned by

William at the time of his death. In November 2008, the court ruled as a matter of law

that the Charles Schwab IRA should be distributed to Charles as trustee for A.C.T. In

2009, the court consolidated the probate and TEDRA actions.

       On March 9, the court found "extensive mishandling of the Estate."4 The court

removed Charles as the personal representative of the estate and denied the

appointment of all Taylor family members to serve as alternate representatives. The

court appointed Michael Longyear as the administrator of the estate.

       The court ruled on summary judgment that Charles was entitled to the proceeds

of the three AIG policies and the Fidelity IRA and Reuben was entitled to the proceeds

of the five Northwestern Mutual life insurance policies.




       4 Taylor, 2010 WL   5464751, at *2.


                                             4
No. 76444-6-1 (Consol. with No. 76840-9-1)/5

First Appeal

       In the first appeal, we reversed the summary judgment decision to award the

Charles Schwab IRA to Charles as the trustee for A.C.T. We remanded for entry of an

order awarding the Charles Schwab IRA to Charles in his personal capacity. We

reversed the summary judgment decision that Charles was the owner of the Fidelity IRA

and the three AIG polices and that Reuben was the owner of the five Northwestern

Mutual insurance policies. We concluded there were material issues of fact whether

"William intended to leave these assets to his son by entrusting them to his father and

brother in a representative capacity."5

       On remand, Caiarelli amended the TEDRA petition to also name William's

parents Reuben and Emily Taylor and his sister Elizabeth Taylor. Caiarelli alleged the

will established William's intent that all his assets be held in a trust for the benefit of

A.C.T. and Charles, Reuben, Emily, and Elizabeth unduly influenced William to transfer

assets to Charles and Reuben.

       Judge James Rogers presided over the November 2011 trial. The court

dismissed the claims against Emily and Elizabeth early in the trial. The court dismissed

the claims against Reuben at the end of the plaintiff's case. The jury returned a verdict

against Charles. The jury found William intended to designate Charles as the trustee

for A.C.T. for the Fidelity IRA and the AIG policies and alternatively, that Charles unduly

influenced William to designate him as beneficiary. The court entered judgment on the

jury verdict against Charles for $1,422,077.54.




       5 Taylor, 2010 WL 5464751, at *5-*6.



                                               5
No. 76444-6-1 (Consol. with No. 76840-9-1)/6

       Caiarelli filed a motion for an award of $983,972.46 in attorney fees and costs

under TEDRA, RCW 11.96A.150. The court awarded "discretionary" attorney fees and

costs against Charles for the petitioner Caiarelli in the amount of $525,344.46 and

against the estate for the special personal representative in the amount of $400,963.13.

      The court entered extensive findings of fact and conclusions of law on the award

of attorney fees under TEDRA. The court used a "percentage reduction" in reducing the

amount of fees awarded.

      24. Caiarelli counsel acknowledge that some of the fees claimed for the
          claims against Emily. . . during the time period December 2004 -
          August 2005 should be deducted but unfortunately, the general entries
          in counsel time records allow only some of that time to be specifically
          accounted for by time entries, because some of the work for trial was
          done for various parties at once.
      25. Caiarelli counsel acknowledge that some of the fees claimed for the
          claims against Reuben W. Taylor, Jr. should be deducted, but
          unfortunately, the general entries in counsel time records allows only
          some of that time to be specifically accounted for by time entries,
          because some of the work for trial was done for various parties at
          once.
      26. There was some commonality of fact on the monetary claims against
          Charles E. Taylor, Hand Reuben W. Taylor, Jr.

The court concluded, "[R]easonable billing judgment was not always exercised" and

reduced the fees by 10 percent. The court further "offset[]the remaining TEDRA"

attorney fees by 30 percent to take into account "the claims lost at trial" and time spent

on unsuccessful or unnecessary work, including "some reduction in fees for time on

claims against Emily and Elizabeth Taylor."

       Charles appealed the order denying the motion for judgment notwithstanding the

verdict, and Caiarelli cross-appealed the decision to dismiss Reuben and Emily.




                                              6
No. 76444-6-1 (Consol. with No. 76840-9-1)/7

Second Appeal

      In the second appeal, we affirmed the judgment on the verdict and the award of

attorney fees against Charles but reversed dismissal of the claim of undue influence

against Reuben and Emily. We concluded the trial court erred by excluding evidence of

undue influence that was discovered during trial and should have been admitted. The

court remanded for trial on whether Reuben and Emily exerted undue influence over

William. We awarded attorney fees and costs on appeal against Charles, Reuben, and

Emily under TEDRA.

      On remand, the case was reassigned to another judge. After a five-day trial in

2016, the jury found Reuben and Emily exerted undue influence over William to "gift the

five (5) Northwestern Mutual Life Insurance policies" to Reuben. The court entered

judgment on the jury verdict for the principal amount of $193,184.77 and prejudgment

interest in the amount of $258,306.56. The court imposed a constructive trust in favor

of A.C.T. in the amount of $451,491.33, plus post interest in the amount of 12 percent

per annum."6

       Caiarelli filed a motion for an award of $1,085,325.29 in attorney fees and costs

under TEDRA, RCW 11.96A.150. Caiarelli argued the court should award "all attorney

fees requested by" Caiarelli's counsel for work performed related to the 2016 trial and

the $195,791.78 Judge Rogers deducted for the claims against Reuben and Emily.

Caiarelli asserted the 2012 order states the "fees requested" by Caiarelli's counsel

"were reasonable," "the claims against Reuben and Emily which were lost have now

been won," and the court should award prejudgment interest on the $195,791.78."



       6   Reuben and Emily paid the judgment.


                                                 7
No. 76444-6-1 (Consol. with No. 76840-9-1)/8

       In opposition, Reuben and Emily argued the court should reduce the amount of

fees awarded to Caiarelli, taking into account the amount in controversy, late disclosure

of an expert witness resulting in "double trial preparation," and duplicative billing.

       On March 20, 2017, the court entered an order awarding Caiarelli attorney fees

of $605,842.00 and costs of $17,964.48. The court concluded Caiarelli "should in equity

be awarded attorney fees and costs for the work her attorneys performed." The court

found the hourly rates of the attorneys for work performed during the 2016 trial were

reasonable. The court deducted attorney fees for three different categories: (1)"[W]ork

on motions that were either unsuccessful or which were never presented to the Court,"

(2)"work performed between June 24, 2016 and October 10, 2016 (a delay caused by

an untimely disclosure of Dr. Duthie as an expert witness)," and (3) work during and

after trial that "the Court deemed to be duplicative of work performed by other

attorneys."

       The order states the court "declines to award any of the legal fees incurred by

Ms. Caiarelli in conjunction with the November 2011 trial." The court rejected the

argument that Caiarelli was entitled to an award of $195,791.78. The court states there

is "no finding by Judge Rogers that these fees were reasonable," the evidence

presented in the 2016 trial "was significantly different," and additional "extensive legal

research was performed before to the second trial, indicating that what had been done

previously was of little use in the second trial."

Third Appeal

       Caiarelli appeals the 2017 "Order on Petitioner's Motion for Attorney Fees [and]

Costs." Caiarelli contends the court abused its discretion by reducing the award of fees




                                               8
No. 76444-6-1 (Consol. with No. 76840-9-1)/9

for the work performed between June 24, 2016 and October 10, 2016 and declining to

award attorney fees of $195,791.78 for work performed in the first trial related to the

undue influence claim against Reuben and Emily.

       RCW 11.96A.150 gives the trial court the discretion to award attorney fees.7

RCW 11.96A.150(1) states:

       Either the superior court or any court on an appeal may, in its discretion,
       order costs, including reasonable attorneys' fees, to be awarded to any
       party: (a) From any party to the proceedings;(b)from the assets of the
       estate or trust involved in the proceedings; or (c)from any nonprobate
       asset that is the subject of the proceedings. The court may order the
       costs, including reasonable attorneys' fees, to be paid in such amount and
       in such manner as the court determines to be equitable. In exercising its
       discretion under this section, the court may consider any and all factors
       that it deems to be relevant and appropriate, which factors may but need
       not include whether the litigation benefits the estate or trust involved.

       "In exercising its discretion under this section, the court may consider any and all

factors that it deems to be relevant and appropriate, which factors may but need not

include whether the litigation benefits the estate or trust involved." RCW 11.96A.150(1).

We review a trial court's decision to award attorney fees under TEDRA for an abuse of

discretion. In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004).

       We will uphold an attorney fee award unless the trial court manifestly abused its

discretion. Berryman v. Metcalf, 177 Wn. App. 644, 656-57, 312 P.3d 745 (2013). A

court abuses its discretion when its decision is manifestly unreasonable or based on

untenable grounds or reasons. Chuonq Van Pham v. Seattle City Light, 159 Wn.2d

527, 538, 151 P.3d 976 (2007).




       7  Because the unambiguous language of RCW 11.96A.150 gives the court the discretion to award
attorney fees, we reject Caiarelli's argument that review is de novo.


                                                 9
No. 76444-6-1 (Consol. with No. 76840-9-1)/10

        We review findings of fact to determine whether the findings are supported by

substantial evidence and support the trial court's conclusions of law. In re Estate of

Haves, 185 Wn. App. 567, 609, 342 P.3d 1161 (2015); 224 Westlake, LLC v. Engstrom

Props., LLC, 169 Wn. App. 700, 720, 281 P.3d 693(2012).

        Reduction of Fee Award for Trial Delay

        Caiarelli contends the court erred by reducing the award of fees for work

performed during a three and a half-month trial delay between June 24 and October 10,

2016.

        "A determination of reasonable attorney fees begins with a calculation of the

'lodestar'"—the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate. 224 Westlake, 169 Wn. App. at 734. The court should discount

hours "spent on unsuccessful claims, duplicated effort, or otherwise unproductive time."

Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597,675 P.2d 193 (1983). The

trial judge "'who has watched the case unfold . . . is in the best position to determine

which hours should be included'"and excluded from an award of reasonable attorney

fees. 224 Westlake, 169 Wn. App. at 7358 (quoting Chuang Van Pham, 159 Wn.2d at

540).

        Caiarelli contends the disclosure of expert witness Dr. Bruce Duthie was not

untimely and the billing records do not support the amount of the deduction. The record

does not support her argument.




        8   Alteration in original.


                                             10
No. 76444-6-1 (Consol. with No. 76840-9-1)/11

       On remand, the parties agreed to a trial date of May 11, 2015. After granting

Caiarelli's motion to conduct additional discovery, the court continued the trial to

September 28, 2015. The new case schedule states, "Both parties have filed

disclosures" for primary witnesses. The court set July 6, 2015 as the deadline for

disclosure of possible additional witnesses.

       On July 6, Caiarelli filed the "Disclosure of Possible Primary and Additional

Witnesses." Caiarelli identified Dr. James K. Boehnlein as a possible expert witness:

      Dr[.] Boehnlein is an expert in human psychiatry. He has testified in both
      federal and state courts. His expertise is the result of knowledge gained
      from his education, training, and teaching and practice in medical specialty
      of psychiatry. . . .



       Qualifications: Medical doctor teaching and practicing psychiatry.

Caiarelli described the anticipated testimony of Dr. Boehnlein as follows:

       Based upon his education, training and experience as medical
       psychiatrist, Dr. Boehnlein may provide an expert opinion based on
       reasonable medical probability/ more likely than not, that William R
       Taylor's [sic] was suffering from anxiety/depression and likely more easily
       influenced by his Taylor family members than he likely would have been
       but for the anxiety/depression and significant stresses he was
       experiencing.

       Reuben, Emily, and personal representative Longyear entered into settlement

discussions in July. The court ordered Caiarelli to participate "in any mediation" and

instructed "all parties and counsel" to "negotiate in good faith." Reuben, Emily, and

Longyear entered into a CR 2A agreement and filed a motion to approve the settlement.

       The court struck the September 2015 trial date pending a decision on whether

the personal representative has authority "to settle TEDRA claims against" Reuben and

Emily "without the agreement of" Caiarelli. The court ruled Caiarelli was a necessary


                                             11
No. 76444-6-1 (Consol. with No. 76840-9-1)/12

party and denied the motion to approve the CR 2A agreement. The court rescheduled

the trial date for June 27, 2016.

         Approximately eight months later on May 20, 2016, Caiarelli filed a Disclosure of

Possible Primary and Additional Witnesses. For the first time, Caiarelli identified Dr.

Duthie as a possible expert witness:

         Dr. Duthie is an expert clinical psychologist and forensic psychologist. He
         has testified in both federal and state courts. His expertise is the result of
         knowledge gained from his education, training, teaching and practice. In
         addition to his private practice, Dr. Duthie taught Forensic Psychology and
         psychological evaluations at Antioch University, Seattle, in its Psychology
         Doctorate program.



         Qualifications: Clinical and Forensic Psychologist. Board certified by
         American Board of Forensic Psychology.

Caiarelli provided the following description of the anticipated testimony for Dr. Duthie:

         Based upon his education, training and expertise as a clinician and
         forensic psychologist, Dr. Duthie may testify and provide expert opinions
         based on reasonable psychological probability, more likely than not, that
         William R. Taylor was suffering from psychosis, anxiety/major depression
         and was more easily influenced by his Taylor family members than he
         likely would have been but for his mental illness and significant stresses
         he was experiencing.

On May 31, Caiarelli filed a witness list identifying Dr. Duthie as an expert witness at

trial.

         Before trial, Reuben and Emily filed a motion in limine to exclude the testimony of

Dr. Duthie. Reuben and Emily argued Dr. Duthie "was not previously disclosed as a

witness" and Caiarelli "never supplemented discovery responses with the scope and

basis of the testimony now sought to be offered."




                                               12
No. 76444-6-1 (Consol. with No. 76840-9-1)/13

       At the hearing on the motion in limine, Caiarelli argued Dr. Boehnlein "could not

be available to testify in this time frame, so we substituted" Dr. Duthie. Caiarelli argued

the testimony of Dr. Duthie "is identical to the witness that was disclosed and laid out in

the July 2015 disclosure. The only thing that changed is the name."

       The court denied the motion to exclude Dr. Duthie's testimony. The court ruled,

"Testimony from a psychologist with regard to what the health records reveal as to

William's mental state is incredibly relevant; it's the crux of the undue influence claim."

But the court ruled that Reuben and Emily should have "the opportunity to question this

specific" witness because he "could have completely different reactions, professionally,

to the records." The court continued the trial to October 17, 2016.

       King County Local Civil Rule (KCLCR)26(k)(1) states, "Each party shall, no later

than the date for disclosure designated in the Case Schedule, disclose all persons with

relevant factual or expert knowledge whom the party reserves the option to call as

witnesses at trial." For expert witnesses, the party must include "[a] summary of the

expert's opinions and the basis therefore and a brief description of the expert's

qualifications." KCLCR 26(k)(3)(C). The case schedule in this case required the parties

to disclose all possible primary witnesses by February 23, 2015 and all possible

additional witnesses by July 6, 2015. Caiarelli did not disclose Dr. Duthie as a witness

until almost a year later on May 20, 2016.

       Caiarelli argues she timely disclosed and "substantially complied" with the

disclosure requirements because the description of the anticipated testimony from Dr.

Duthie "was essentially identical" to Dr. Boehnlein's. The uncontroverted record

supports finding Caiarelli did not timely disclose Dr. Duthie as a witness. Caiarelli's



                                             13
No. 76444-6-1 (Consol. with No. 76840-9-1)/14

argument also ignores the trial court finding that Dr. Duthie is a different expert witness

with different qualifications and bases for his opinions.

        Caiarelli contends the trial court abused its discretion by taking "block

deductions," rather than reducing the attorney fee award to only specific billing entries

that were for work "related to Dr. Duthie," for work performed between June 24 and

October 10, 2016. The record shows the court did not reduce the attorney fee award for

work related specifically to Dr. Duthie. The court deducted fees incurred as a result of

the delay of the trial from June 24 to October 10 that resulted in both parties "preparing

for trial twice."9

        The court did not abuse its discretion by deducting attorney fees for work

performed between June 24, 2016 and October 10, 2016.

        Denial of Attorney Fees Incurred in First Trial

        Caiarelli contends the court abused its discretion in declining to award attorney

fees of $195,791.78 incurred in the first trial for the undue influence claim the court

dismissed against Reuben and Emily.

        Below, Caiarelli argued she was entitled to prejudgment interest on the amount

Judge Rogers deducted of $195,791.78. Caiarelli asserted the court "should award the

$195,791.78 which Judge Rogers deducted for the claims against Reuben and Emily

which he dismissed." Caiarelli argued, "If the Guardian had not litigated the case

against Reuben and Emily Taylor prior to and during the November 2011 trial, she

would have lost the proceeds from the Northwestern Mutual policies."




        9 Likewise, the record does not support Caiarelli's argument that the court deducted
                                                                                             attorney fees
as sanctions against Caiarelli for discovery violations.


                                                   14
No. 76444-6-1 (Consol. with No. 76840-9-1)/15

      The order states, "This Court declines to award any of the legal fees incurred by

Ms. Caiarelli in conjunction with the November 2011 trial." The court rejected the

assertion that Judge Rogers found the $195,791.78 that he deducted "were

reasonable."

      This case first went to trial before Judge Jim Rogers in November 2011.
      Ms. Caiarelli prevailed on her claims against William's brother Charles, but
      her claims against Reuben and Emily Taylor were dismissed at the
      conclusion of trial. When awarding attorney fees against Charles, Judge
      Rogers deducted $195,791.78 from Ms. Caiarelli's fee request, finding that
      this sum was either work attributable to the dismissed claims against
      Reuben and Emily Taylor or was unnecessary or unreasonable. Ms.
      Caiarelli contends that Judge Rogers determined that the entire amount of
      the fees were reasonable, just not recoverable due to the dismissal of the
      claims. This Court disagrees. There was no finding by Judge Rogers that
      these fees were reasonable. In fact, he concluded that from July 2011 to
      November 1, 2011, counsel did not use reasonable billing judgment and
      reduced all fees requested by 10 percent. He then reduced the fees billed
      by another 30% to take into consideration claims lost at trial. That is the
      extent of the trial court's prior ruling on the legal fees incurred to prosecute
      claims against Reuben and Emily Taylor.[101

      Substantial evidence supports the court's finding. Judge Rogers found the

general billing records made it "impossible" to "separate time spent" on the dismissed

claims "by time entry only." Judge Rogers found the "amount of fees and costs" billed

by Caiarelli's counsel from filing the TEDRA action reasonable but "reasonable billing

judgment was not always exercised by Caiarelli counsel." Judge Rogers notes the

billing records demonstrate "the general 'kitchen sink' approach taken" and reduced the

fee request by 10 percent. The findings state that from July 2011 to trial, counsel "have

billed essentially full time, with what appears to be no regard to cost or other usual legal

business constraints." Judge Rogers further reduced the attorney fee award by 30

percent, or $195,791.78, "for the claims lost at trial" against Reuben and Emily and for


       10 Emphasis in original.


                                             15
No. 76444-6-1 (Consol. with No. 76840-9-1)/16

unsuccessful and unnecessary work. For example, the court notes Caiarelli "moved

very late for a trial continuance in the fall of 2011" that resulted in added expense, and

the parties incurred fees as "the result of Caiarelli counsel's unsuccessful motion

practice." The findings also state that Caiarelli's expert "note[d] billing errors or matters

billed unrelated to the issues herein" and that Caiarelli conceded in briefing that fees

"should be deducted for the unsuccessful Schwab appeal before trial." Further, in the

motion for reconsideration, Caiarelli concedes, "Judge Rogers did not enter a specific

finding stating that the 30% of the fees which he declined to award against Reuben and

Emily Taylor were reasonable."11

       We reject the argument that the law of the case doctrine required the court to

award $195,791.78 in attorney fees. Caiarelli asserts the "rule from the 2014 opinion

was that all reasonable fees should be awarded to [Caiarelli]" if she "prevailed at the

subsequent trial" on the undue influence claim. The law of the case doctrine "refers to

'the binding effect of determinations made by the appellate court on further proceedings

in the trial court on remand.'" Lutheran Day Care v. Snohomish County, 119 Wn.2d 91,

113, 829 P.2d 746 (1992)(quoting 15 LEWIS H. ORLAND & KARL B. TEGLAND,

WASHINGTON PRACTICE: JUDGMENTS § 380, at 55 (4th ed. 1986)). Although we awarded

attorney fees on appeal under RCW 11.96A.150, we did not address the award of

attorney fees if Caiarelli prevailed at trial.




       11 Because substantial evidence supports the court's findings, Caiarelli is not entitled to
prejudgment interest.

                                                    16
No. 76444-6-1 (Consol. with No. 76840-9-1)/17

       The court also found that the evidence presented in the second trial was

"significantly different" and that "very little of the legal work for the first trial was relied on

in the second trial."

       First, from this Court's review of the November 2011 trial minutes and its
       observation of the 2016 trial, the evidence presented by Ms. Caiarelli was
       significantly different. In the first trial, counsel had no psychological expert
       to testify about the impact of William's mental state on his decision-making
       when making inter vivos gifts. In the second trial, Ms. Caiarelli presented
       the testimony of Dr. Duthie on this issue. In the first trial, Ms. Caiarelli did
       not call her divorce attorney to testify about the dissolution decree and
       William's obligation to provide life insurance sufficient to cover his child
       support obligation to [A.C.T.]. This testimony was presented in the second
       trial. This Court finds that very little of the legal work for the first trial was
       relied on in the second trial. Counsel's billing statements show that
       extensive legal research was performed before the second trial, indicating
       that what had been done previously was of little use in the second trial.
       For these reasons, the Court rejects the fee request of $195,791.78 in
       attorney fees incurred in the November 2011 trial. Because the Court
       refuses to award this sum, it need not address Ms. Caiarelli's contention
       that she should be awarded prejudgment interest on this sum.

        Caiarelli contends substantial evidence does not support the finding that the

evidence presented in the 2011 trial was significantly different from the evidence

presented in the 2016 trial. Substantial evidence supports finding that the evidence

presented in 2011 was "significantly different" than in 2016.

        Preliminarily, we reject Caiarelli's argument that the court erred by considering

the trial minutes from the 2011 trial. The minutes of the 2011 trial are a part of the

record.12 See In re Adoption of B.T., 150 Wn.2d 409, 415, 78 P.3d 634 (2003).

        The record shows that unlike the first trial, the second trial focused exclusively on

the claim that Reuben and Emily unduly influenced William to change ownership of the



        12 CJC 2.9(C) states, "A judge shall not investigate facts in a matter pending or impending before
that judge, and shall consider only the evidence presented and any facts that may properly be judicially
noticed, unless expressly authorized by law."


                                                    17
No. 76444-6-1 (Consol. with No. 76840-9-1)/18

five Northwestern Mutual insurance policies. In the second trial, Caiarelli presented

new evidence of phone records and charts showing the extent of the communication

between William, Reuben, and Emily during the summer of 2005. Dr. Duthie presented

extensive expert testimony about William's mental state in the months leading to his

death in September 2005.

       Although substantial evidence supports the court's finding that the evidence at

the second trial was significantly different and that Judge Rogers did not find the

$195,791.78 was either reasonable or the deduction was only related to the dismissed

claims, we conclude the court abused its discretion in declining to award any

reasonable attorney fees for the work that resulted in preserving the claim against

Reuben and Emily of undue influence over William. The 2012 order awarding fees

notes the "issues surrounding the various Northwestern Mutual Life Insurance policies

were separate facts and occupied significant time and effort by the parties." Following

the second trial, the court found:

      The work of [plaintiff's counsel] resulted in a substantial benefit to
      [A.C.T.]'s trust. Without the work of [plaintiff's counsel], there would be no
      funds to put into a trust for [A.C.T.]. [A.C.T.] would have received no
      funds from the Northwestern Mutual policies if the Respondents had
      prevailed.

       On remand, the court should award some amount of reasonable attorney fees for

the work that preserved the claim against Reuben and Emily of undue influence over

William to change ownership of the five Northwestern Mutual insurance policies.




                                            18
No. 76444-6-1 (Consol. with No. 76840-9-1)/19

      We affirm in part, reverse in part, and remand.13




WE CONCUR:




                     9.




      13 We   decline to award Caiarelli attorney fees on appeal under TEDRA.


                                                 19
