                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         July 12, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II
    In the Matter of the Estate of:                                No. 47536-7-II

    ROBERT RIDLEY,                                                consolidated with

                                      Deceased.                    No. 47403-4-II

    KIMLY PROM, individually,

                                      Appellant,

       v.

    PHILIP CARVER, as Personal Representative
    of the Estate of Robert Ridley; and
    RIVERVIEW COMMUNITY BANK, a
    Washington financial institution,
                                                             UNPUBLISHED OPINION
                                  Respondents,

       and

    JENNA SUY and PAULLA SUY, wife and
    husband, and their marital community
    comprised thereof,

                                  Respondents.

            MELNICK, J. — Kimly Prom appeals the trial court’s summary judgment dismissal of her

Trust and Estates Dispute Resolution Act (TEDRA)1 petition against Philip Carver, the personal

representative (PR) of Robert Ridley’s Estate (Estate), and Riverview Community Bank

(Riverview). Because the nonprobate assets in dispute were not in the Estate or under its control,




1
    Ch. 11.96A RCW.
47536-7-II / 47403-4-II


and because Riverview has statutory immunity, we affirm the trial court. We also award attorney

fees to Carver, as PR of the Estate, and Riverview.

                                                FACTS

          After immigrating to this country from Cambodia, Prom and her sister, Jenna Suy, 2

developed and maintained a 30-year, family-like relationship with Ridley and his wife. Ridley’s

wife passed away in 2009. In May 2012, Ridley became terminally ill and required constant care.

Suy and Prom both provided care for him.

          As part of his estate planning, Ridley met with his attorney, Sam Gunn. Gunn prepared a

last will and testament and set up a revocable living trust agreement for Ridley. Philip Carver was

named both the PR for the Estate and the trustee for the trust.3

          On June 29, 2012, Ridley asked his longtime banker from Riverview, Collette Tynan, to

come to his house to prepare a payable on death (POD) agreement for his checking account. Gunn

was also at the house. Initially, Ridley indicated he wanted two beneficiaries: Prom and Suy.

Prom said she heard Ridley tell Gunn and Tynan that he wanted Prom and Suy to share the

$500,000 in his checking account. Ridley told Tynan they did not need to execute the POD

designation that day and to come back after the weekend. Tynan’s assistant created a POD

agreement that listed both Prom and Suy as beneficiaries. Tynan asked Prom for her social security

number and driver’s license; however, Prom did not know whether the POD designation form

included her name. She never saw an account record with her name on it. Ridley may or may not

have signed this document.




2
 Prom’s lawsuit also names Suy and her marital community as defendants; however, neither is a
party in this appeal.
3
    Prom’s lawsuit only involves the Estate. It does not involve the trust.


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47536-7-II / 47403-4-II


       On July 2, Tynan returned to Ridley’s house with a prepared POD agreement for Ridley’s

signature. In front of Tynan, Suy told Ridley that he should make her the sole beneficiary because

Prom “will not be able to make the money grow” and Suy “will take care of [Prom].” Clerk’s

Papers (CP) at 263, 262. Ridley asked Tynan to create a POD beneficiary account that listed Suy

as the sole beneficiary. Tynan did not remember the details of the conversation, but she moved

closer to Ridley to independently talk to him. She verified that he wanted one beneficiary on the

account. As a result, Tynan shredded the prior document and created a new version per Ridley’s

request. Ridley signed the newly prepared POD beneficiary document and gave it to Tynan. On

this same date, Ridley transferred $569,000 from his checking account into the trust.

       Ridley continued to write checks from his checking account. He eventually overdrew the

account and approved a transfer of $200,000 from the trust back into the checking account. Gunn

and a bank employee made this suggestion to Ridley. Gunn did not know there was a POD

designation on the checking account. After the checks cleared, Gunn asked Ridley if he wanted

to transfer more money into the checking account from the trust. Ridley refused and wanted to

leave everything the way it was.

       After Ridley died on July 8, Riverview paid Suy $139,865.89, the balance of Ridley’s

checking account per the POD agreement.

I.     PROCEDURAL HISTORY

       On December 20, 2013, Prom filed a TEDRA petition for an award of nonprobate assets

and a determination of rights against Suy, Suy’s husband, their marital community, Carver, and

Riverview. Prom alleged many different causes of action. As relevant to this case, she claimed




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47536-7-II / 47403-4-II


Suy unduly influenced Ridley into naming Suy the sole beneficiary of the POD account. Prom

sought half of the proceeds from the account per Ridley’s original direction. Prom sought to

rescind the POD agreement, and recover the funds transferred from the checking account to the

trust.

II.       SUMMARY JUDGMENT

          On September 10, 2014, Carver moved for summary judgment. He argued that all of

Prom’s claims should be dismissed against him because she had no “admissible evidence” to

support her claims. CP at 90. He argued that Prom’s assertion that Ridley promised to make her

a beneficiary of the POD account was barred by the “Deadman Statute.”4 CP at 88. On September

25, Riverview joined Carver’s motion.

          On September 29, Prom filed a lengthy response in opposition to the motion for summary

judgment and Riverview’s joinder. She filed over 400 pages of documents. She argued genuine

disputes of material fact existed. She also argued admissible evidence existed. In support of her

response, Prom included receipts of deposits for Ridley’s checking account, his agreement to

establish a revocation living trust, the POD agreement with Suy listed as the beneficiary, a bank

statement of the checking account, e-mails from Gunn, and a handwritten letter by Suy to the trial

court.5




4
    RCW 5.60.030.
5
  Prom also provided the deposition testimony of Suy, Gunn, Tynan, Val Berrissoul, and Jennifer
Konopasek, another Riverview employee, as support. Prom’s and Gunn’s deposition testimonies
were the same testimony included in the motion for summary judgment. Konopasek testified that
if a signature was missing, an account agreement would be invalid.


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47536-7-II / 47403-4-II


       Riverview replied to Prom’s arguments and claimed insufficient evidence supported her

contentions or claims. It noted that when Ridley passed away, Prom was not a beneficiary on the

POD account, and that Riverview could not be liable under RCW 30.22.120.6

       Carver also replied and argued that Prom had not shown a viable action against the Estate

because she had not shown that there was undue influence, that she was the beneficiary of the POD

account when Ridley died, or that the Estate had control or possession of the disputed money when

Ridley died.

       On November 10, 2014, the trial court heard arguments on the summary judgment motion.

The trial court granted Carver’s and Riverview’s motion for summary judgment. It subsequently

entered written orders.

III.   MOTION FOR RECONSIDERATION

       On December 22, 2014, Prom filed a motion for reconsideration of the trial court’s order

granting summary judgment to Riverview. Riverview responded that the motion should be denied

because Prom merely reargued the points made in her response to the summary judgment motion.

       The trial court declined to hear oral arguments on the motion for reconsideration and

entered a written order denying Prom’s motion.

IV.    MOTION FOR ATTORNEY FEES

       Carver filed a motion for attorney fees pursuant to RCW 11.96A.150. Carver requested

fees in the amount of $32,438.50, and costs in the amount of $2,419.26. Carver argued the trial

court should use its discretion to award fees and costs because the litigation was time consuming,

expensive, and extensive.



6
   Chapter 30.22 RCW is recodified as chapter 30A.22 RCW pursuant to LAWS OF 2014 ch. 37, §
4, effective January 5, 2015. The content of the statute remains the same. We will use the current
recodified chapter throughout this opinion.


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47536-7-II / 47403-4-II


        Prom responded to Carver’s motion arguing it would be inequitable to impose the fees on

her and fees are not awarded based on a prevailing party standard under TEDRA. She argued that

Carver’s proposed fees included “at least $10,172.52 in non-compensable fees and costs.” CP at

609.

        Riverview filed its own motion for attorney fees pursuant to TEDRA, requesting $16,680

in attorney fees and $1,441 in taxable costs. Prom responded to Riverview’s motion for attorney

fees, and again argued it would be inequitable to impose personal liability on Prom and that the

requested fee amount improperly included “at least $5,023.50 in non-compensable fees and costs.”

CP at 599. Prom requested that the court determine the reasonableness of attorney fees under the

Loadstar method.

        On January 9, 2015, the trial court heard arguments on the motions for attorney fees. The

trial court granted Carver’s motion for attorney fees in the amount of $25,950.40 and costs in the

amount of $2,419.26. The trial court entered findings of fact and conclusions of law for Carver’s

motion.7 In relevant part, the trial court’s findings of fact stated:

                4. In this case, respondent Carver pled his right to fees, and petitioner had
        fair warning that fees could be awarded. The estate should not have to bear the
        costs and fees of this litigation.
                5. The litigation was time consuming and expensive, involving numerous
        depositions in Vancouver, Washington and Seaside, Oregon, with travel time there
        and back. Further, the parties exchanged extensive documentary discovery and
        interrogatories and answers. The amount of work done by Carver’s attorneys was
        reasonable for the litigation and issues involved.




7
 The findings of fact and conclusions of law were challenged by Prom in her assignments of error.
However, she did not address them in her argument, so we need not address whether there was
substantial evidence to support them. RAP 10.3(a)(6).


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47536-7-II / 47403-4-II


                6. The hourly rate charged is reasonable for the community, and reasonable
       for the reputations, experience, and abilities of the attorneys performing the
       services. However, the court will reduce the amount to $300 per hour on a
       discretionary basis.
                7. The overall amount of the fee is reasonable for the amount of money
       sought by plaintiff, and for the result obtained by defendant Carver (a win on
       summary judgment). However, the court will reduce the amount on a discretionary
       basis.
                ....
                11. The work done was not unnecessary, duplicative, or clerical in nature.
       There were no apparent wasted efforts unidentifiable costs, or vaguely worded time
       entries.
                12. Plaintiff sought between $300,000 and $ 400,000 in this proceeding.

CP at 630-31. The trial court’s conclusions of law stated:

                2. In exercising its discretion, the court may consider any factors it deems
       relevant and appropriate. In re Guardianship of Lamb, 173 Wn.2d 173, 198, 265
       P.3d 876 (2011).
                3. The amount sought in fees is not disproportionate to the amount at issue
       in the litigation.
                4. Carver adequately pled his right to fees, and the Ridley Estate should not
       have to bear the fees and costs caused by plaintiff’s action.
                5. The amounts sought by Carver are appropriate under the legal guidelines,
       and based on the findings and conclusions above.

CP at 631-32.

       The trial court granted Riverview’s motion for attorney fees in the amount of $16,680 and

costs in the amount of $1,441. The trial court entered findings of fact and conclusions of law for

Riverview’s motion. In relevant part, the trial court’s findings of fact stated:

              8. As between petitioner and Riverview, Riverview is the prevailing party.
              9. RCW 11.96A.150 allows the Court to award attorney’s fees as the Court
       deems equitable.
              10. A reasonable number of hours were spent by Riverview’s counsel on
       this matter. There was no wasteful or duplicative work performed. Work was not
       performed on unsuccessful claims or defenses.
              11. The hourly rates charged by Riverview’s counsel, from $275 to $300,
       were reasonable and are reasonable in this community.
              12. The following factors support the reasonableness of the total attorney
       fee award requested:


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47536-7-II / 47403-4-II


                      (1) The time and labor required, the novelty and difficulty of the
       questions involved, the skill requisite to perform the legal service properly and the
       hourly fee agreement between the lawyer and client;
                      (2) The fee customarily charged in the locality for similar legal
       services;
                      (3) The amount involved in the matter and the results obtained;
                      (4) The nature and length of the professional relationship between
       the Heurlin Potter firm and Riverview;
                      (5) The experience, reputation, and ability of the lawyer or lawyers
       performing the services; and
                      (6) That the fees charged were on specified hourly rates.

CP at 626-27. The trial court’s conclusions of law stated:

              1. Petitioner’s claims against Riverview, while arguable, were not legally
       supportable. It is therefore equitable for Riverview to be awarded reasonable
       attorney’s fees.
              2. The amount of attorney’s fees requested by Riverview, $16,680, is
       reasonable.
              3. The taxable costs requested by Riverview, $1,441, were necessarily
       incurred and are taxable.
              4. Judgment will be entered in favor of Riverview, and against petitioner, in
       the above amounts.

CP at 627.

       Prom appeals. 8

                                           ANALYSIS

I.     SUMMARY JUDGMENT

       Prom argues that the trial court erred by granting summary judgment to Carver and

Riverview because it misapplied the summary judgment standard, ignored that genuine issues of

material fact existed, and misinterpreted the law. We disagree. Prom failed to present evidence




8
  On January 29, 2015, the trial court ordered the proceedings between Prom and Suy stayed while
this case is on appeal.


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47536-7-II / 47403-4-II


that Riverview was not immune from suit under RCW 30A.22.120 and that the Estate was in

control of the money she sought to recover.

       A.      Standard of Review

       We review an order for summary judgment de novo, engaging in the same inquiry as the

trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary

judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We construe

all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d at 300.

       A party moving for summary judgment bears the burden of demonstrating that there is no

genuine issue of material fact. Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev.

Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). “A material fact is one upon which the outcome

of the litigation depends in whole or in part.” Atherton, 115 Wn.2d at 516. If the moving party

satisfies its burden, the nonmoving party must present evidence demonstrating that a material fact

remains in dispute. Atherton, 115 Wn.2d at 516. The evidence presented must set forth facts that

would be admissible in evidence. CR 56(e).

       The nonmoving party may not rest on allegations or denials from the pleadings. CR 56(e).

The response, by affidavits or as otherwise provided under CR 56, must set forth specific facts that

reveal a genuine issue for trial. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753

P.2d 517 (1988). “[C]onclusory statements of fact will not suffice.” Grimwood, 110 Wn.2d at

360. If the nonmoving party fails to demonstrate that a material fact remains in dispute, and

reasonable persons could reach but one conclusion from all the evidence, then summary judgment




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47536-7-II / 47403-4-II


is proper. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805

(2005).

          B.     Issues Based on Carver and Riverview’s Reply Briefs

          Prom argues that the trial court erred by permitting Carver and Riverview to raise new

issues in their replies to her summary judgment opposition. Specifically, she argues that for the

first time in its reply, Riverview argued that it was immune from liability, and, for the first time in

his reply, Carver argued that the Estate did not even have possession of the funds she sought.

Riverview and Carver assert they made these arguments in response to those made by Suy in her

response to their motion for summary judgment. We agree with Riverview and Carver.

          The moving party has the responsibility to raise in its motion all of the issues on which it

believes it is entitled to summary judgment. White v. Kent Med. Ctr., Inc., 61 Wn. App. 163, 168,

810 P.2d 4 (1991). “Allowing the moving party to raise new issues in its rebuttal materials is

improper because the nonmoving party has no opportunity to respond.” White, 61 Wn. App. at

168. “[T]he rule is well settled that the court will not consider issues raised for the first time in a

reply brief.” White, 61 Wn. App. at 168; RAP 10.3(c). In addition, nothing in CR 56(c) permits

the party seeking summary judgment to raise issues at any time other than in its motion and

opening memorandum. “Rebuttal documents are limited to documents which explain, disprove,

or contradict the adverse party’s evidence.” White, 61 Wn. App. at 168-69. “Explaining why a

respondent’s argument is incorrect is a proper subject for a reply brief.” New Cingular Wireless

PCS, LLC v. City of Clyde Hill, 187 Wn. App. 210, 220 n.5, 349 P.3d 53, review granted sub nom.,

184 Wn.2d 1018, 361 P.3d 746 (2015).




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47536-7-II / 47403-4-II


       Here, Carver and Riverview moved for summary judgment because Prom failed to

establish the claims she filed against them. Prom responded to the motion for summary judgment

and argued that a genuine issue of material fact existed as to whether the POD agreement should

be rescinded based on Suy’s undue influence over Ridley. She also argued that the original

shredded POD document, which Ridley may or may not have signed, should control. Carver and

Riverview filed replies to these specific arguments Prom raised. Both Riverview and Carver

continued to argue in their replies that because there was no genuine issue of material fact and

Prom still did not present evidence to support any claim against them, the trial court should grant

summary judgment. They were not creating new issues, they were explaining further why Prom’s

arguments were incorrect. Their arguments rebutted the arguments Prom made in her response.

       We also note that Prom neither moved to strike Carver’s or Riverview’s replies nor raised

any objection in her motion for reconsideration. Prom did not unequivocally object to the replies.

She substantively argued them in the trial court.9 Under RAP 2.5, Prom may not assert this specific

argument for the first time on appeal.

       Because Carver and Riverview responded to arguments Prom raised, the trial court did not

err.

       C.      Riverview and Carver Not Liable

       Financial institutions are released and discharged for claims under certain circumstances.

       In making payments of funds deposited in an account, a financial institution may
       rely conclusively and entirely upon the form of the account and the terms of the
       contract of deposit at the time the payments are made. . . . Unless a financial
       institution has actual knowledge of the existence of dispute between depositors,
       beneficiaries, or other persons claiming an interest in funds deposited in an account,
       all payments made by a financial institution from an account at the request of any

9
  Prom’s failure to make such a motion waives any objections to a deficiency in the report or how
it was presented on appeal. Bercier v. Kiga, 127 Wn. App. 809, 825, 103 P.3d 232 (2004).



                                                11
47536-7-II / 47403-4-II


       depositor to the account and/or the agent of any depositor to the account . . . shall
       constitute a complete release and discharge of the financial institution from all
       claims for the amounts so paid.

RCW 30A.22.120.

       In this case, the record is void of any evidence presented at summary judgment to show

that Riverview had actual knowledge a dispute existed when it distributed the funds pursuant to

the POD agreement. Therefore, the trial court did not err by granting summary judgment to

Riverview.

       Funds in a POD account belong to the POD designated beneficiary upon the death of the

depositor. RCW 30A.22.100, RCW 30A.22.160. The undisputed evidence demonstrated that the

funds in dispute were paid to Suy pursuant to the POD designation. There is no evidence to show

that the transaction involved Carver or that the Estate had any control over the funds that were

disbursed.

       Prom seems to argue that Carver had potential liability because the funds were transferred

between the POD account and the trust. However, Prom only sued Carver in his capacity as the

PR of the Estate, not the trustee of the trust. This position is solidified by Prom’s position that the

POD account should have been disbursed to her and Suy. None of this activity would involve

Carver because the funds were not part of the Estate.

       Prom also argues that Riverview and Carver are liable because of undue influence. We

have found no evidence of undue influence in the summary judgment materials. However, even

if Ridley was unduly influenced by Suy, that would not affect our decision. There is no evidence

that Riverview had actual knowledge of a dispute.




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47536-7-II / 47403-4-II


II.    MOTION FOR RECONSIDERATION

       Prom argues that the trial court abused its discretion by denying her motion for

reconsideration because it committed significant errors at summary judgment that warrant reversal.

We disagree.

       A.      Standard of Review
       “‘We review a trial court’s denial of a motion for reconsideration for abuse of discretion.’”

Davies v. Holy Family Hosp., 144 Wn. App. 483, 497, 183 P.3d 283 (2008) (quoting Kleyer v.

Harborview Med. Ctr., 76 Wn. App. 542, 545, 887 P.2d 468 (1995)). “A trial court abuses its

discretion only if its decision is manifestly unreasonable or rests upon untenable grounds or

reasons.” Davies, 144 Wn. App. at 497. “An abuse of discretion exists only if no reasonable

person would have taken the view adopted by the trial court.” Holaday v. Merceri, 49 Wn. App.

321, 324, 742 P.2d 127 (1987).

       B.      The Trial Court Did Not Abuse Its Discretion

       On December 22, 2014, Prom filed a motion to reconsider the trial court’s summary

judgment grant to Riverview pursuant to CR 59(a)(1), (7), (8), and (9). A party is entitled to

reconsideration of rulings where there is any one of the following:

                (1) Irregularity in the proceedings of the court, jury, or adverse party, or any
       order of the court, or abuse of discretion, by which such party was prevented from
       having a fair trial;
                ....
                (7) That there is no evidence or reasonable inference from the evidence to
       justify the verdict or the decision, or that it is contrary to law;
                (8) Error in law occurring at the trial and objected to at the time by the party
       making the application; or
                (9) That substantial justice has not been done.

CR 59(a). In her motion to reconsider, Prom reiterated the arguments she made at summary

judgment. She did not identify any new reason she was entitled to reconsideration of the ruling.



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47536-7-II / 47403-4-II


The trial court had tenable grounds for denying the motion for reconsideration and did not abuse

its discretion.

III.    MOTION FOR ATTORNEY FEES
        Prom argues that the trial court erred by granting Carver and Riverview attorney fees and

that it abused its discretion in determining the reasonable amount of such fees. We disagree.

        A.        Standard of Review

        To determine whether the trial court properly awarded attorney fees, we apply a dual

standard of review. Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012). We review

the initial determination of whether there is legal basis to award attorney fees de novo. Gander,

167 Wn. App. at 647. If there is a legal basis for awarding attorney fees, we review “a discretionary

decision to award or deny attorney fees and the reasonableness of any attorney fee award for an

abuse of discretion.” Gander, 167 Wn. App. at 647. A trial court abuses its discretion when its

decision is manifestly unreasonable or based on untenable grounds or reasons. Ermine v. City of

Spokane, 100 Wn. App. 115, 119-20, 996 P.2d 624 (2000).

        “When a question of law requires interpretation of a statute, our objective is to carry out

the legislature’s intent.” Kitsap Bank v. Denley, 177 Wn. App. 559, 580, 312 P.3d 711 (2013).

We begin our analysis with the statute’s plain meaning. Kitsap Bank, 177 Wn. App. at 580. First,

we discern the plain meaning of the statute from “‘the ordinary meaning of the language at issue,

the statute’s context, related provisions, and the statutory scheme as a whole.’” Kitsap Bank, 177

Wn. App. at 580 (quoting Sprint Spectrum, LP v. Dep’t of Revenue, 174 Wn. App. 645, 658, 302

P.3d 1280 (2013)). However, when a statute’s language is unambiguous, we determine the

legislature’s intent from the plain language of the statute alone. Kitsap Bank, 177 Wn. App. at

580.




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       B.      The Trial Court Did Not Abuse Its Discretion
       A trial court may award attorney fees based on RCW 11.96A.150(1):

       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.

Ch. 11.96A RCW applies to “[a]ll matters concerning the estates and assets of . . . deceased

persons, including matters involving nonprobate assets.” RCW 11.96A.020(1)(a). By definition,

this includes “[t]he determination of any question arising in the administration of an estate or trust

or with respect to any nonprobate asset.” RCW 11.96A.030(2)(c). We determine the legislature’s

intent from the plain language of the statute because it is unambiguous. 10 Kitsap Bank, 177 Wn.

App. at 580.

       Here, the trial court’s procedure and analysis in determining attorney fees to be awarded

was proper and not manifestly unreasonable.11 See In re Estate of Evans, 181 Wn. App. 436, 452,

326 P.3d 755 (2014). The trial court considered the proposed fees and entered findings of fact to




10
  The parties do not argue that the statute is ambiguous or that we should not give it its plain
meaning.
11
   Prom argues the trial court should have used the lodestar method in analyzing the request for
attorney fees. “While the lodestar method is generally accepted as the starting point for attorney
fee determinations, it is not required in all contexts. Where the primary considerations for the fee
award are equitable, courts are not required to apply the lodestar method to determine an award of
fees.” In re Guardianship of Decker, 188 Wn. App. 429, 447, 353 P.3d 669, review denied, 184
Wn.2d 1015, 360 P.3d 818 (2015).


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47536-7-II / 47403-4-II


support its conclusion that reasonable attorney fees should be awarded to Riverview and Carver.

These findings of fact remain unchallenged, and are therefore, verities on appeal. Robel v.

Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002). The trial court determined that because it

granted the parties summary judgment and denied Prom’s motion for reconsideration because the

petitioner’s claims were not legally supportable, it was equitable to award Riverview and Carver

reasonable attorney fees.    The trial court listed six factors to support its determination of

reasonableness of the award with regard to Riverview:

              (1) The time and labor required, the novelty and difficulty of the questions
       involved, the skill requisite to perform the legal service properly and the hourly fee
       agreement between the lawyer and client;
              (2) The fee customarily charged in the locality for similar legal services;
              (3) The amount involved in the matter and the results obtained;
              (4) The nature and length of the professional relationship between the
       Heurlin Potter firm and Riverview;
              (5) The experience, reputation, and ability of the lawyer or lawyers
       performing the services; and
              (6) That the fees charged were on specified hourly rates.

CP at 654-55. With regard to Carver and the Estate, the trial court considered the reasonableness

of the hourly rate, whether the work done was unnecessary, duplicative, or clerical in nature, and

the amount of time spent. The trial court received extensive documentation on the hours of work

completed by the parties’ attorneys and determined the amount of work completed was reasonable

for the litigation of the case. The case required travel, many depositions, and extensive discovery.

Finally, it determined the suggested hourly rate for fees was reasonable, but it even reduced the




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47536-7-II / 47403-4-II


amount in Carver’s request to $300 per hour, on a discretionary basis. The trial court’s findings

justify its conclusion that it was equitable to award attorney fees to Carver and Riverview in the

amount it ordered.

       It is clear the trial court properly exercised its discretion in making findings of fact that

support its conclusions of law to award attorney fees. The trial court did not abuse its discretion

in awarding attorney fees to the parties.

IV.    ATTORNEY FEES
       Prom, Carver, and Riverview all request attorney fees on appeal.

       Carver and Riverview request attorney fees on appeal pursuant to RCW 11.96A.150 and

RAP 18.1. RAP 18.1(a) states that “if applicable law grants to a party the right to recover

reasonable attorney fees or expenses on review before . . . the Court of Appeals . . . the party must

request the fees or expenses as provided in this rule.”

       Here, RCW 11.96A.150 allows an award of fees in estate dispute resolutions “as the

[appellate] court determines to be equitable.” Under RCW 11.96A.150(1), we may consider “any

and all factors” that we deem to be relevant and appropriate, “which factors may but need not

include whether the litigation benefits the estate.”

       Prom is not the prevailing party on appeal. Therefore, we deny her request for fees. Prom

caused Carver and Riverview to spend considerable resources on this appeal. It is appropriate to

require Prom to pay the costs. RCW 11.96A.150(1). Accordingly, we grant Carver’s and

Riverview’s request for costs, including reasonable attorney fees for responding to Prom’s appeal.




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       We affirm.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                         Melnick, J.

We concur:




       Johanson, P.J.




       Sutton, J.




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