                                                                                                   LED
                                                                                     COURT OE APPEALS
                                                                                         DWIS10 I!

                                                                                    2013 JUL 30 AM 10 30
    IN THE COURT OF APPEALS OF THE STATE OF
                                                                        WASHI J.tN H1lJ
                                                                                Wd
                                        DIVISION II                                  By
                                                                                                  Mlli

In re the Estate of.                                              No. 42789 3 II
                                                                            - -


CORRINE WEGNER, deceased; and
KENNETH WEGNER, personal
representative,

                               Respondent,

                                                           UNPUBLISHED OPINION


MAXINE ELAINE TESCHE, a single person,



        PENOYAR J. —       Maxine Tesche appeals an $8, attorney fee award to Corrine
                                                     50
                                                      617.

Wegner's   estate.     Tesche and Wegner owned real property as joint tenants with right of

survivorship before Wegner died intestate. The trial court awarded attorney fees to the estate
under chapter 11. 6A RCWThe Washington Trust and Estate Dispute Resolution Act
                9       —
TEDRA) — a court commissioner's order after the estate unsuccessfully brought a petition
     and
to appoint a receiver or referee to sell the real property. Tesche argues the trial court erred by
awarding attorney fees to the estate because (1)3,10 of the fees were connected with the
                                                $0

estate's improper first petition for a receiver, 2)Tesche prevailed on the grounds she raised
                                                 (
below, and (3)the trial court, by denying the petition for a receiver or referee, found it
unnecessary to bring the petition. We affirm the award of attorney fees because the court had
broad discretion under TEDRA to award them. Moreover, 1)Tesche fails to show the lower
                                                      (

court erred by awarding attorney fees for the estate's first petition, 2)
                                                                       ( prevailing on the petition

was never necessary to recover attorney fees, and (3)Tesche misreads the.word "necessary"in
the commissioner's order.    Accordingly, we affirm and award the estate   attorney fees   on   appeal.
42789 3 II
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                                                   FACTS


I.     THE COURT CLOSED WEGNER'S ESTATE PENDING PAYMENT OF A JUDGMENT LIEN

       Wegner and Tesche owned real property as joint tenants with right of survivorship.

Wegner died intestate       in 2006.   Her estate's personal representative filed suit, asserting that

Tesche had    only   an   equitable mortgage   on   the property, not    survivorship rights. Though it

dropped this claim, the estate preserved its right to charge a fair share of administrative expenses

and creditor claims to Wegner's interest in the real property. On December 22, 2008, a court

commissioner signed an order closing the estate and creating a judgment lien against the real

property. This lien totaled $
                            58
                            16, 12. and consisted of some of the estate's administrative fees
                              2
and creditor claims. Tesche took title to the real property subject to the judgment lien. In his

order, the commissioner stated that if Tesche did not pay the lien in 180 days

           then the estate has the right to bring a motion to the court for appointment of a
       referee who shall have authority to sell the real property on terms and conditions
       the court will order. Should it be necessary for the estate to file a petition for
        appointment of the referee, then the estate shall be entitled to all reasonable
        attorney fees incurred after the date of entry of the decree herein until
        receipt_of the judgment lien payment in full because of problems ass_    ociated
       with the underlying mortgages in the event of aToreclosure.

Clerk's Papers (CP)at 8 (emphasis added). Tesche moved for revision of the commissioner's
order and    Superior     Court   Judge McCarthy    affirmed the order   on   February 27, 2009. Tesche

appealed and we affirmed on October 8,2010.

II.     THE TRIAL COURT DENIED THE ESTATE'S PETITION TO APPOINT RECEIVER OR REFEREE

        On April 26, 2011, the estate filed a petition to appoint a custodial receiver, to which
Tesche failed to     timely respond. On.May 13, 2011, the estate filed an amended petition to

appoint a receiver or referee. Tesche argued a receiver or referee was unnecessary because the
estate had other legal remedies it could pursue.
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42789 3 II
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         The trial court found that the judgment lien was an adequate remedy and declined to

appoint a receiver or a referee, stating the court will not " ashion an equitable remedy to enforce
                                                            f
the                           Report of
                 in this case."           Proceedings (RP) May 27, 2011) at
                                                           (                       40. The trial court
       remedy

declined to rule on attorney fees but recognized and reserved the estate's right to request

reasonable attorney fees.

III.     THE TRIAL COURT GRANTED THE ESTATE'S MOTION FOR AWARD OF ATTORNEY FEES

          On October 4, 2011, the estate filed a motion for award of attorney fees under the

commissioner's order.       The estate listed $50 in attorney fees from October 11, 2010,
                                               8,
                                                617.

through October 14, 2011, consisting of nearly 33 hours billed at $ 50 per hour. Tesche opposed
                                                                  2

the motion, arguing that, because the court denied the estate's petition to appoint receiver or

referee, she had prevailed and the estate was not entitled to attorney fees. The trial court granted
the estate's motion. The court said it    was "upholding ... the order of the pro tem commissioner.

      affirmed   by Judge McCarthy   of the   Superior   Court and not   appealed from.   It remains the


                                                           RP (Oct. 14,
order in this case, and I will, indeed, enforce that order."                     2011) at   19. Tesche


appeals.

                                               ANALYSIS


          We will not interfere with an award of attorney fees in probate matters unless there are

facts and circumstances clearly showing the award is manifestly unreasonable or based on

untenable grounds or reasons. In re Estate ofBlack, 153 Wn. d 152, 173, 102 P. d 796 (2004);
                                                          2                  3
Moreman v. Butcher, 126 Wn. d 36, 40, 891 P. d 725 (1995).Because the trial court had broad
                          2                2

discretion to award fees under TEDRA, we affirm the award.




                                                     3
42789 3 II
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I.     THE TRIAL COURT HAD BROAD DISCRETION TO AWARD ATTORNEY FEES

       The controlling statute in this case is RCW 11. 6A. The trial court had broad
                                                   150.
                                                     9

discretion to award fees under this TEDRA statute:


       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.


RCW 11. 6A. Here, the trial court knew that Tesche had not paid the full amount owed
    150(
       1).
       9
under the judgment and that a previous order had warned her that if a petition for appointment of
a receiver became necessary she would be responsible for the attorney fees involved. These

circumstances served as a tenable basis for the award.

        Tesche's arguments to the contrary         are      unpersuasive. First, she argues $3, of the
                                                                                              010

attorney fees should be disallowed because they were incurred exclusively in connection with the

estate's first petition for a receiver, in which the estate allegedly failed to comply with the

receivership     statute.    She asserts that the estate failed to provide notice and post a bond as

required and that no court order permitted the estate to seek relief under the receivership statute.
However, the mere fact that opposing counsel allegedly made mistakes in attempting to collect

the sums owed by Tesche fails to show that the trial court acted unreasonably by including the

fees for the first petition.

        Next, Tesche argues that, because she prevailed below, the estate is not entitled to any

attorney fees. Tesche is correct that the trial court agreed with her arguments to deny the estate's
                                               TEDRA        the commissioner's order   required   the estate to
petition   for   a   referee, but nothing in           or
42789 3 II
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prevail to receive attorney fees. The only reason that the estate was in court was that Tesche had

not paid her debt.

       Finally, Tesche argues that it was unnecessary to file the petition for appointment of a

receiver or referee because the estate already had a "Judgment" as well as a "Judgment Lien"

against Tesche's property, which furnished it with adequate remedies at law. Appellant's Br. at

41. This argument turns on the definition of necessary" as used in the commissioner's order.
                                             "

Tesche argues that "[ ] the petition was necessary and the fee request reasonable or the
                    either

petition was not necessary thus rendering unreasonable any fee request." Appellant's Br. at 42

emphasis in original).Tesche fails to note there is a difference between the necessity of filing a

petition and the merits upon which that petition will be decided. Tesche created the necessity of
petitioning for a receiver or referee by failing to pay the judgment lien. That'the estate had other
remedies or that this remedy was denied does not mean that it was not a good faith effort to

collect a lawful debt.


       The trial court had valid reasons supporting its award of attorney fees, including the

broad authority given under TEDRA and the commissioner's order.. We affirm.
II.     ATTORNEY FEES ON APPEAL


        We award the estate its properly requested attorney fees on appeal. Under TEDRA, we

have broad authority     to award fees.   RCW 11. 6A. Consistent
                                              150.
                                                9                        with the language in the

commissioner's order in this case, the estate is entitled to recover those fees it would not have

incurred but for Tesche's refusal to pay the valid judgment lien. These now include attorney fees

on appeal.




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42789 3 II
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       We find no reversible errors, affirm, and award the estate attorney fees on appeal.

       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

040,
2.6.it is so ordered.
  0




We concur:




        9'
       Hunt, J.
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                           a




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