  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 In the Matter of the Estate of                 )
 ROBERT CARLTON GILKEY,                         )     No. 80646-7-I

                         Deceased,              )     DIVISION ONE

 VICTORIA MARIA GOMES,                          )     UNPUBLISHED OPINION
                                                )
                         Petitioner,

                 v.                )
                                   )
 CRISTINA GILKEY and JOSEPH        )
 ERROL GILKEY, as co-personal      )
 representatives of the Estate of  )
 Robert Carlton Gilkey,            )
                                   )
                      Respondents. )
___________________________ )                         FILED: January2l,2020
        HAZELRIGG-HERNANDEZ, J.          —   Victoria M. Gomes, a beneficiary of her

father’s estate, appeals the court’s order approving the final report and petition for

distribution, awarding fees, and closing the estate, and its order denying her motion

for reconsideration or amendment of the judgment. She contends that the court

ignored her claims of mismanagement and fraud committed by the co-personal

representatives, Cristina1 and Joseph E. Gilkey, erred in failing to hold a hearing

on her motion for a verified accounting, denying her request for mediation under



        1The brief of respondent misspells Ms. GHkey’s first name as Christina. The record
shows the correct spelling is Cristina.
No. 80646-7-1/2

the Trust and Estate Dispute Resolution Act (TEDRA)2, and awarding attorneys’

fees to the co-personal representatives. Because the record does not support the

court’s determination that the objections Gomes made were frivolous and not

made in good faith, we reverse the order awarding attorney fees to the co-personal

representatives. In all other respects, we affirm.


                                        FACTS

           Robert Gilkey died on January 9, 2015, leaving his seven children as

beneficiaries of his estate. Two of his children, Cristina Gilkey and Joseph Gilkey,

were named as co-personal representatives (PRs). At the time Gilkey died, his

estate was solvent and valued at less than $150,000. On January 30, 2015, the

PR5 filed a petition to admit the will to probate, appoint Cristina and Joseph as

PR5, adjudicate the solvency of the estate, and grant nonintervention powers, as

provided in the will. The petition was granted.

       On June 14,2016 the PRs filed an initial report of affairs. On March 6,2017,

the PR5 sought to complete administration of the estate by filing an updated report

of affairs, a declaration that probate was complete, and a notice that the

declaration of completion had been filed. The notice alerted heirs that there was

a 30-day period in which they could petition the court to request an examination of

“the reasonableness of said fees, or for an accounting, or both” and advised that if

a petition was filed within the time allowed, the PRs would ask the court to set a

time for the hearing and notify the petitioner.




       2   Chapter 11 .96A RCW.


                                          2
 No. 80646-7-113

         Victoria Gomes timely filed a “Petition for Order Re Declaration of

Completion of Probate         .   .   .   (RCW 11.68.110(2))”. She requested that the court

order the PRs to (1) file a verified accounting of the administration of the estate,

including itemized receipts, work orders, and any and all supporting documents for

each transaction; and (2) obtain the approval of the court for the amount of any

fees paid or proposed to be paid from the estate. On April 17, 2017, the PRs filed

a final report and petition for distribution pursuant to RCW 11 .76, which included a

summary of actions during the estate administration,3 a motion for an order closing

the estate, approving fees and costs, and authorizing distribution, and a notice that

a hearing on the motion to close the estate was set on May 19, 2017.

        On May 17, 2017 Gomes filed an objection to closing the probate

proceedings.        She challenged payments from the estate to the decedent’s

caregivers, gifts to non-beneficiaries, the appraisal of a vehicle, and early

distributions to beneficiaries for questionable expenses. The PRs responded and

on May 18, 2017 the court heard the motion and objection.

        At the hearing, the PRs argued that Gomes’s objection was “inappropriate”

and a waste of time, because the PR5 were granted “absolute unfettered

discretion” in the will. Gomes, appearing without an attorney, did not present any

argument about the specific objections she had filed just two days earlier. Instead,

she told the court she wanted to “take advantage of the notice of mediation under

the TEDRA procedures.”                    In the brief discussion that ensued, she cited an



        ~ The PRs characterize this as a “response to the petition” but neither the PRs motion to
close the estate nor the final report indicate they were filed in response to Gomes’s petition. The
PRs did not file a verified accounting or response to the petition.


                                                    3
No. 80646-7-114

unpublished decision suggesting it was error to ignore an heir’s notice of TEDRA

mediation and close probate.       The court rejected this argument because no

TEDRA petition had been filed, and then asked Gomes if there was “[a]nything

else?” Gomes replied “[t]hat’s all.”

       The court listed the submissions it had reviewed and concluded that based

on all of the materials filed, it would overrule any objection, grant the petition to

close the estate and authorize distribution. At that point, Gomes said, “I was going

to ask for a continuance if that was denied.” She said she had hired an attorney

after receiving the PRs’ response to her objection, but the attorney could not

appear in court on the hearing date due to the short notice. The court denied the

request for a continuance, explaining that Gomes should have asked for a

continuance “right when you came up here at first and not waited until I denied

your objection.”

       The court entered an order approving the final report and petition for

distribution, approving fees and closing the estate. The court also orally ordered

Gomes to pay the PRs’ attorney fees in the amount of $2,500 based on its finding

that her objections were frivolous and not made in good faith. On May 30, 2017

Gomes filed a motion for reconsideration or amendment of the judgment. Nearly

a year after she filed this motion, on May 14, 2018, the court issued a two-sentence

order of denial. Gomes appeals.


                                       ANALYSIS

      As a preliminary matter, PR5 argue that the factual representations in the

section titled “Introduction” of Gomes’s appellant brief, should be disregarded


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No. 80646-7-1/5

because she did not cite to the record or because they are incorrect, or both. RAP

10.3(a)(3) specifically permits a party to include an introduction that does not

contain citations to the record or authority. Following the “Introduction” in Gomes’s

brief is the “Statement of the Case” which includes citations to the record, as

required by RAP 1 0.3(a)(5). For the most part, the introduction in Gomes’s brief is

an unsupported historical account.              In evaluating the issues on appeal, we

disregard factual statements not supported by the record in the introduction, just

as we disregard them in other parts of a brief.4 ~ RAP 10.3(a)(5); Cowiche

Canyon Conservancyv. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

        We review decisions based on declarations, affidavits and documents de

novo. In re Estate of Bowers, 132 Wn. App. 334, 339,131 P.3d 916 (2006).~ We

review challenges to findings of fact for substantial evidence. Cowiche Canyon,

118 Wn.2d at 819. Substantial evidence is evidence sufficient to persuade a

rational, fair-minded person of the truth of the finding. Miller v. City of Tacoma, 138

Wn.2d 318, 323, 979 P.2d 429 (1999). Unchallenged findings of fact are verities

on appeal. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004).




         ~ The PRs’ brief also contains a number of factual allegations that are not supported by
citations to the record. These, too, we disregard.
         ~ Courts also state that de novo review on the entire record is the standard of review in
probate proceedings, because they are equitable in nature.  ~,     ~ In re Estate of Black, 116
Wn. App. 476, 483, 66 P.3d 670 (2003); In re Ney’s Estate, 183 Wash. 503, 505, 48 P.2d 924
(1935). Strictly speaking, this is no longer accurate. Law and equity merged in this state in 1951,
and since then there has no distinction between appellate courts’ methods of reviewing the record
in equity cases and law cases tried to the court. In re Mayer’s Estate, 43 Wn.2d 258, 264, 260
P.2d 888 (1953).


                                                5
No. 80646-7-1/6

        Order Closing Probate

        Gomes contends that the court erred in closing the estate despite the

evidence of mismanagement and fraud committed by the PRs. In her objection to

closing the probate proceedings, Gomes identified several specific financial

transactions she claimed were evidence of mismanagement and fraud. The PRs

responded to the specific objections by providing some additional documentation

to support the resolution of claims and the payments to creditors. They also argued

that there was no basis for Gomes to question their administration of the state

because (a) the will provided the PR5 absolute and uncontrolled discretion, unless

they exercised their discretion fraudulently, in bad faith, or in a grossly negligent

manner, and (b) Gomes and her husband were awaiting trial on criminal charges

filed in Thurston Country accusing them of financially exploiting the decedent.6

        To the extent the PRs assert the will granted them discretion so vast as to

render their decision-making unreviewable, they are mistaken.                   The right of

beneficiaries to have an estate distributed by law is a primary right. ki. 19. A

personal representative “stands in a fiduciary relationship to those beneficially

interested in the estate.    .   .   [and] is obligated to exercise the utmost good faith and

diligence in administering the estate in the best interests of the heirs.” In re Estate

of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985) (alterations in original).




         6 The PRs missed no opportunity to inform the court of this fact, although it had no

bearing on whether the PRs breached their fiduciary duties in administering the estate or
otherwise committed waste or mismanagement. Gomes noted in her brief that the criminal
charges were dismissed in November, 2017. The court takes judicial notice, pursuant to RAP
9.11(a), that the Thurston County Superior Court dismissed the charges against Victoria Gomes
in Case No. 15-1-01852-34 on November 20, 2017.


                                                  6
No. 80646-7-1/7

       A superior court’s authority when dealing with a nonintervention will is

limited by statute. In re Estate of Bobbitt, 60 Wn. App. 630, 632, 806 P.2d 254

(1991). Once the court declares a nonintervention estate solvent, the court is not

involved in administration of the estate except under specific statutory exceptions.

Id. at 632 (citing In re Peabody’s Estate, 169 Wash. 65, 70, 13 P.2d 431 (1932)).

A petition for an accounting and for court approval of fees under RCW 11 .68.110,

such as Gomes had filed earlier in the case, “plays a limited role in the estate

administrative process,” because it invokes the authority of the court at or near the

time administration is completed. In re Estate of Rathbone, 190 Wn.2d 332, 340,

412 P.3d 1283 (2018).

       Two of Gomes’s specific objections raise arguable claims that the PRs

mismanaged the administration of the estate. First, the PRs paid five of the estate

beneficiaries over $13,000 to cover their expenses to travel to and from the funeral.

These payments were identified in the estate reports as “funeral expenses.”

Second, the PR5 sold a backhoe belonging to the estate for about $2,900 and

divided the proceeds evenly among six of the seven sibling beneficiaries, excluding

Gomes from a share.

      We cannot conclude on this record, however, that the court erred in closing

probate, because when Gomes had the opportunity to present her argument to the

trial court, she did not do it. When the PRs argued at the hearing they had the

discretion to make the challenged distributions, Gomes did not offer any argument

or theory to the contrary. She did not discuss her objection to closing the estate

at all. Rather, she argued that she wanted to “take advantage of the notice of



                                         7
No. 80646-7-I/S

mediation under the TEDRA procedures.” This altered the course of the hearing,

and when the court gave Gomes a final opportunity to make any further argument

concerning the petition to close probate, she indicated she had no further

argument.

       We may decline to consider an issue that was inadequately argued below.

In re Estate of Reugh,      Wn. App.        ,   563, 47 P.3d 544, 563 (2019) (citing InVl

Assn. of Fire Fighters, Local 46 v. City of Everett, 146 Wn.2d 29, 36-37, 42 P.3d

1265 (2002); Mid Mountain Contractors, Inc. v. Dept. of Labor & Indus., 136 Wn.

App. 1, 8, 146 P.3d 1212 (2006)). We conclude that Gomes waived this issue in

the trial court when she requested a different remedy.


II.    Petition for a Verified Accounting

       Gomes contends that the court never addressed her petition for a verified

accounting, which was error. The PRs filed a declaration of completion conforming

to RCW 11.68.110(1) on March 6, 2017. Gomes then filed a petition under RCW

11 .68.110(2), requesting the court to direct the PR5 to file a verified accounting of

their administration of Gilkey’s estate, “including but not limited to: itemized

receipts, invoices, appraisals, work orders, any and all supporting documents for

each and every transaction,” and to obtain the court’s approval of “the amount of

any fees paid or proposed to be paid from the Decedent’s estate.”

      The PRs did not respond directly to this petition; instead, they filed a final

report and petition for distribution pursuant to RCW 11 .76.030 and a motion for an

order closing the estate, approving fees and costs and authorizing distribution.

Gomes did not direct the court’s attention to the petition or present any argument


                                            8
No. 80646-7-119

to explain why the PRs response to her petition was inadequate. The summary of

the estate administration submitted by PRs did not include a verified accounting.

However, when the court asked Gomes directly if she had “anything else” to

present, she said “[t]hat’s all.” For the reasons set forth above, we conclude

Gomes waived the issue of a verified accounting.


Ill.   Motion for TEDRA Mediation

       Gomes contends the court erred in denying her request for mediation

under TEDRA. The PR5 argue that Gomes’s request for mediation did not

comply with the statutory requirements to commence an action pursuant to RCW

11 .96A. We agree. A judicial proceeding under TEDRA is a special proceeding

under the civil rules, and the provisions of RCW 11 .96A governing TEDRA

actions take precedence over any inconsistent provision of the civil rules. RCW

11.96A.090(1). A proceeding under TEDRA must be commenced as a new

action; after the proceeding has been commenced, it may be consolidated with

an existing proceeding. RCW 11.96A.090(2), (3).

       Once a TEDRA proceeding has been filed, a party may submit a probate

matter to mediation by serving notice of mediation on all the parties in

substantially the form described in RCW 11.96A.300(1)(a), which governs

required notice when no hearing on the issue has been set. Here, no petition to

commence a TEDRA proceeding had been filed and Gomes did not file and

serve notice conforming to the statute. Gomes cited an unpublished decision, In

re Estate of Dubois, for the proposition that the court of appeals would order

probate reopened if the PR5 “ignored” a notice of TEDRA mediation and closed


                                         9
No. 80646-7-1/10

the estate. 146 Wn. App. 1052, 2008 WL 4175027 (2008). GR 14.1(c) makes

clear that “Washington appellate courts should not, unless necessary for a

reasoned decision, cite or discuss unpublished opinions in their opinions.” As

such, we will limit our analysis to explain that Gomes’ position reflects a

misreading of the case as it does not support her claim. Not only because the

TEDRA statute has been amended,7 but also because here, Gomes had not filed

~j~y kind of TEDRA petition, whether as a new proceeding or one incidental to a

matter already pending; nor had she served ~y kind of notice of TEDRA

mediation. The court properly denied the motion for mediation using TEDRA

procedures.


IV.    Attorney Fee Award

       Gomes assigns error to the court’s order directing her to pay attorney fees

in the amount of $2,500. Under RCW 11.96A.150(1) a court may order costs,

including reasonable attorney fees, to be awarded to a party from any party to

the proceeding. In its exercise of discretion, the court “may consider any and all

factors that it deems to be relevant and appropriate.” Generally, we will not

interfere with an award of attorney fees in a probate matter unless the

circumstances clearly show the court abused its discretion. Estate of Larson, 103

Wn.2d at 521. Here, however, we have before us the same record that was

before the superior court evaluating the fee request and thus in the same position

is the superior court judge. j4~. (citing In re Estate of Thomjson, 133 Wash. 481,



       7See Laws of 2013, ch. 246, § 2, amending RCW 11.96A.090(2) to require a proceeding
under TEDRA to be commenced as a new action.


                                            10
No. 80646-7-I/il

485, 233 P. 941 (1925)); In re Estate of Fetterman, 183 Wash. 410,413-41448

P.2d 638 (1935)).

       In their response to Comes’s objection to closing the estate, the PRs

argued that she caused the estate to incur substantial attorney fees both with her

petition for an accounting and her objection to closing. They requested an award

of $2,500 for the “effort incurred as a result of her frivolous and baseless actions”

and her objection to closing the estate.

       At the hearing, after denying Comes’s untimely request for a continuance,

the court said:

       But in any event, I agree with [the PRs}. Enough is enough. Based
       on your objection and the responses, I don’t believe that your
       objections were made in good faith. They are frivolous, and I’m
       approving the final order distributing   .  I’ll entertain a motion for
                                                    .   .


       attorney’s fees. I know that was requested.

(alterations in original). The court orally granted the award of $2,500 in attorney

fees, noting that it seemed to be “a conservative estimate” of how much it had cost

the estate and the other beneficiaries. This order was never reduced to writing.

       Gomes asserts that her objections were made in good faith, were grounded

in fact, and were based on the law. We agree that her objections show no signs

of having been made in bad faith, although it seems apparent that Comes did not

appreciate the extent of discretion afforded the PR5.         The documents and

explanations provided by the PR5 in response to Gomes’s objection showed that

some of her suppositions were incorrect, such as her claim that PR5 payment to

Gilkey’s caregivers was unjustified because they were paid all they were owed

before Gilkey died and her claim that the Nissan Pathfinder was improperly



                                           11
No. 80646-7-1/12

appraised.      This is not to say her objection was frivolous or her allegations

baseless, however. Comes submitted specific objections to certain transactions

and supported them with appropriate documentation. Further, as noted above, her

objections related to the payments for “funeral expenses,” and the distribution of

proceeds from the sale of the backhoe were legitimate and valid.

          The court’s finding’s that Comes’s objection was not made in good faith and

that her objections were frivolous were conclusory; the court did not identify any

feature or characteristic of the objections that led to this conclusion. A motion or

an argument is not frivolous simply because it is ultimately rejected by the court.

Contentions that are grounded in fact and warranted in good faith are not baseless.

See Bryant v. Joseph Tree, 119 Wn.2d 210, 219-20, 829 P.2d 1099 (1992).

Moreover, had Comes argued her objections to the superior court, she might have

prevailed in some respects. On this record, it was an abuse of discretion to award

attorneys’ fees against Comes.


V.        Motion for Reconsideration

          Gomes assigned      error to the court’s denial of her motion for

reconsideration. We review a trial court’s denial of a motion for reconsideration for

abuse of discretion. Meridian Minerals Co. v. King County, 61 Wn. App. 195, 203-

04, 810 P.2d 31, review denied, 117 Wn.2d 1017, 818 P.2d 1099 (1991). A court’s

decision is an abuse of discretion when its decision is manifestly unreasonable or

rests on untenable grounds or untenable reasons.              In re Boris v. Korry

Testamentary Marital Deduction Trust, 56 Wn. App. 749, 755, 785 P.2d 484

(1990).


                                          12
No. 80646-7-1/13

       In her motion for reconsideration, Comes argued that the PRs had falsely

represented to the court they had unfettered discretion in administering the estate.

This argument was premised on the assertion that the PR5 had failed to file,

acknowledge, or follow the terms of the Robert C. Gilkey Trust (Gilkey Trust), which

was incorporated by reference in the will at Article Four. She attached a copy of

the Gilkey Trust document to her motion. She also claimed that she had not

received a hearing on her petition for a verified accounting, and that the court’s

finding that her objections were frivolous and its oral order imposing $2,500 in

attorney fees violated RCW 4.84.185, because her objections were made in good

faith and were grounded in fact.

       The PRs responded, arguing that Comes had received a full hearing, that

they had provided ample documentation in response to her petition for an

accounting and more documentation in response to her objection to closing the

estate. In response to her contention that the will incorporated the Cilkey Trust,

the PRs asserted that the trust no longer existed because Comes and her husband

had “initiated dissolution” of it during the time Gilkey was in their care. Joseph,

one of the PR5, submitted a declaration stating that Comes and her husband,

“during the time they were ‘caring’ for our father, were responsible for actually

dissolving the Trust. Therefore, the Trust did not exist when our father died.”

       Comes did not raise the issue of the Gilkey Trust until she sought

reconsideration of the court’s order that probate be closed, which was far past the

proper time to raise this issue in the context of an objection to the PRs

administration of the estate. If Comes had a concern that the PRs were failing in



                                         13
No. 80646-7-1/14

their duties as trustees and PRs, she should not have waited until after the court

issued an order approving the final report and closing the estate. Moreover, even

if we were to find that PR5, who were also the named trustees in the Gilkey Trust,

were required to adhere to the Trust’s instructions, the outcome would be the

same. The Trust vested in the trustees discretion to distribute to any beneficiary

as much or all of the principal and income from the trust, up to the beneficiary’s

one-seventh share of the estate, at any time, provided the beneficiary was over

the age of 21. The court properly denied Gomes’s motion for reconsideration.


VI.    Attorney Fees on Appeal

       The PRs request attorney fees on appeal pursuant to RAP 18.1 and RCW

11.96A.150, arguing that Gomes’s appeal is frivolous, presents no debatable

issues, is based on false and unsupported statements, and could not possibly have

resulted in a reversal. This court having reversed the trial court’s award of attorney

fees against Gomes for those claims, it follows that the Gomes’s appeal cannot be

deemed frivolous and baseless. We therefore deny the PRs request for afforney

fees on appeal. We reverse the court’s award of attorney fees and remand for

proceedings consistent with this opinion. We affirm in all other respects.

       Reversed in part and affirmed in part.




WE CONCUR:
                                                    dA.
                                                          9,
                                                          aiIL




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