 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of:
THOMAS ROBINSON,                                     No. 80110-4-I

                      Deceased.                      DIVISION ONE

RUDY ROBINSON,                                       UNPUBLISHED OPINION

                     Respondent,

                v.

CHRISTINE O. MCCALLA,

                      Appellant.


       LEACH,   J. — In this probate matter, Christine McCalla appeals a superior

court order removing her as the personal representative of her late father’s estate

and ordering her to pay damages to the estate. The record contains insufficient

evidence to support the amount of damages awarded for uncollected rent and for

decreased value or destruction of estate property. So, we reverse the judgment

for damages. In all other respects, we affirm.

                                            FACTS

       Thomas Robinson died testate in September 2018 survived by two

children, Christine McCalla and Rudy Robinson.1 Thomas’s will named Christine


       1
       Because some of the family members involved in this appeal share the
same last name, we use first names for clarity.
  Citations and pincites are based on the Westlaw online version of the cited material.
No. 80110-4-I/2


as the personal representative of the estate, and if she were unable or unwilling

to serve, it designated Rudy as the successor personal representative.2

Thomas’s will granted “unrestricted nonintervention powers” to the personal

representative. Apart from specifically designated items of tangible property, the

will gave the Thomas estate in equal shares to the children.

      At the time of Thomas’s death, he lived in the Seattle home purchased in

1970 with his late spouse.       Christine lived across the street.      Christine’s

daughter, Salina McCalla, had been living with Thomas for several years. After

Thomas’s spouse passed away, Salina cared for Thomas in the evenings and

weekends when his employed caregiver was off duty.               Salina sometimes

accompanied Thomas to medical appointments or to the hospital. By mutual

agreement, Salina did not pay rent to Thomas.

      The primary asset of Thomas’s estate was his home. After Thomas died,

Christine allowed Salina to continue to live in the home without paying rent to the

estate. After several months, in January 2019, Christine responded to Rudy’s

concerns about this arrangement. She claimed it was Thomas’s wish that Salina

remain in the home until it was sold.       Christine also reported that after their

father’s death, Rudy had agreed that Salina should continue to live in the home

to protect it and its contents. Christine described some steps she had taken to

prepare the home for sale. Christine hired individuals to help pack her father’s


      2
         Thomas’s will uses the terms “executrix” and “executor.” In the context
of this case, these terms are interchangeable with the term “personal
representative”. These terms apply to the individual appointed to administer an
estate. RCW 11.02.005(4).


                                        2
No. 80110-4-I/3


personal belongings and clean the home, identified a real estate agent to list the

home, and arranged for an appraisal of the home. She maintained that Salina

was looking for new housing.

       In February 2019, Rudy submitted a creditor’s claim against Thomas’s

estate under chapter 11.40 RCW. As the factual basis for the claim, Rudy cited

Salina’s continued occupation of the home without paying rent. He also alleged

Salina’s two pit bulls had caused “significant damage to the stairs in the house.”

Rudy demanded that Salina move out, and he asserted that the estate had a

claim against her for rent from the date of Thomas’s death and for damage to the

property. Rudy estimated that the value of the claim was “$1,800/month for rent

and $25,000 in property damage.”

       Christine, as personal representative, rejected the creditor’s claim. Rudy

then filed a “Petition on Rejected Claim and Complaint to Quiet Title” in superior

court. Rudy made claims of unjust enrichment and ejectment.3 Rudy relied on

the “facts and circumstances” alleged in his creditor’s claim to support his claims.

Rudy scheduled a hearing on his petition in the Probate Department of the King

County Superior Court.

       In response, Christine asserted that the only damage caused by the dogs

had been repaired at her personal expense. She also stated her view that the

house needed to be occupied while she prepared it for sale.




       Rudy also asserted a claim of quiet title related to the deed to Christine’s
       3

home that her parents transferred to her in 2016.


                                         3
No. 80110-4-I/4


      In reply, Rudy asked the court to remove Christine as personal

representative of the estate. He also asked the court to require Christine to

reimburse the estate for uncollected rent and for the property damage caused by

the dogs. Rudy denied agreeing to allow Salina to continue to live in the home

without paying rent and alleged the dogs had destroyed the hardwood flooring.

      Christine filed an additional declaration just before the April 8, 2019

hearing.   She claimed the only damage caused by Salina’s dogs had been

repaired and stated her intent to place the home on the market on or before

April 22, 2019. Christine also declared she used her own personal funds to pay

the nearly $2,000 mortgage payment for Thomas’s home twice in the months

before he died.

      At the brief hearing on Rudy’s petition, the parties focused on whether as

the personal representative, Christine had a fiduciary duty to the estate to rent

the home and whether there was evidence of property damage.                 At the

conclusion of the hearing, the court revoked Christine’s letters testamentary and

appointed Rudy as personal representative. The court found that Christine had

engaged in “mismanagement and/or fraud on the estate by allowing her daughter

to live in the house on a rent free basis for the last seven (7) months.” The court

also ordered Christine to pay damages of $37,600 to the estate. The court later

denied Christine’s motion for reconsideration. Christine appeals.




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No. 80110-4-I/5


                                        ANALYSIS

Removal of Personal Representative

       RCW 11.68.070 allows an heir, devisee, or legatee to petition the superior

court to remove a personal representative, even one with nonintervention

powers. This statute provides that a party qualified to seek removal must file a

petition with a supporting affidavit that establishes a prima facie cause for

removal.    After this occurs, the superior court must cite the personal

representative to appear before it to respond to the petition.

       Christine challenges her removal as personal representative of the estate.

She correctly points out that Rudy did not file a petition under RCW 11.68.070,

the applicable statute, and did not expressly ask the court to revoke her personal

representative status until he filed his reply brief.4     To the extent Christine

suggests these procedural deficiencies implicated the court’s “jurisdiction” to

decide the matter, we disagree.       In a recent analogous case involving the

removal of co-personal representatives/co-trustees, Matter of Estate of Reugh,

Division Three of this court rejected language in previous cases declaring that a

superior court can lose “jurisdiction” to decide matters involving nonintervention

estates.5   The court clarified that under the Washington Constitution and

       4
         Rudy improperly relied on creditor's claim statutes under chapter 11.40
RCW, which apply to persons who have claims against a decedent based on
debts incurred by or for the decedent during the decedent’s lifetime. Olsen v.
Roberts, 42 Wn.2d 862, 865, 259 P.2d 418 (1953). Furthermore, a party must
bring an ordinary civil action on a rejected creditor’s claim, which is not a part of
probate proceedings. Schluneger v. Seattle-First Nat’l Bank, 48 Wn.2d 188, 189-
90, 292 P.2d 203 (1956); City of Spokane v. Costello, 57 Wash. 183, 106 P. 764
(1910).
       5
         10 Wn. App. 2d 20, 44-46, 447 P.3d 544 (2019).


                                         5
No. 80110-4-I/6


numerous statutes, superior courts have jurisdiction over all probate matters.

“Subject matter jurisdiction simply means the claimant brought the suit in the right

court.”6   This jurisdiction does not depend on compliance with statutory

procedural requirements.7

       Nevertheless,   Christine   contends    that   without   a   petition   under

RCW 11.68.070 before it, the court’s authority was “never correctly triggered”

and the court did not “gain authority” to intervene in the management of the

nonintervention estate. But, Christine did not properly raise this claim of error in

the trial court. A party may not generally raise a new argument on appeal that

the party did not present to the trial court.8 A party must inform the court of the

rules of law it wishes the court to apply and give the trial court an opportunity to

correct any error.9 Proper preservation of error not only provides the trial court

with the opportunity to correctly rule on matters, but it also serves the goal of

judicial economy and facilitates appellate review by ensuring a complete record

on appeal.10

       The decision in Reugh is instructive. There, purported trust beneficiaries

filed a motion in probate proceedings to remove the co-trustees/co-personal

representatives.11 The testator’s children opposed the motion on the ground that

the beneficiaries filed a motion and not a petition, which starts a show cause


       6
         Reugh, 10 Wn. App. 2d at 49.
       7
         Reugh, 10 Wn. App. 2d at 49-50.
       8
         In re Detention of Ambers, 160 Wn.2d 543, 557, 158 P.3d 1144 (2007).
       9
         Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983).
       10
          State v. Strine, 176 Wn. 2d 742, 749-50, 293 P.3d 1177 (2013).
       11
          Reugh, 10 Wn. App. 2d at 36.


                                         6
No. 80110-4-I/7


process.12   But, they did not challenge the court’s authority based on the

nonintervention powers of the trustees or argue that the purported beneficiaries

were not qualified to seek removal under RCW 11.68.070.13 The children also

declined the court’s offer to remedy any procedural error by entering a show

cause order and scheduling a later hearing.14 Because the children failed to

raise the issue about the court’s authority in a nonintervention estate in the trial

court, the court declined to address their claim on appeal.15 The court also held

the children either waived any objection to the process or invited the error by

choosing to proceed to address the merits of the request for removal. 16

       Here, Rudy consistently alleged that Christine was mismanaging the

primary asset of the estate. Christine responded to his allegations claiming that

Salina’s continued occupancy of the home was a benefit to the estate and

asserting that both Thomas and Rudy had agreed to the arrangement. After

Rudy filed his reply brief, and expressly sought her removal as the personal

representative, Christine filed additional documents. In doing so, she directly

responded to Rudy’s reply but did not raise the issue of the court’s authority to

rule on the request for removal. At the hearing on Rudy’s petition, the court

specifically noted the request before it to revoke Christine’s status as the

personal representative. Again, Christine focused on the substantive allegations

and did not challenge the court’s authority based on the nonintervention estate or

       12
          Reugh, 10 Wn. App. 2d at 37.
       13
          Reugh, 10 Wn. App. 2d at 37.
       14
          Reugh, 10 Wn. App. 2d at 37.
       15
          Reugh, 10 Wn. App. 2d at 51.
       16
          Reugh, 10 Wn. App. 2d at 62.


                                         7
No. 80110-4-I/8


lack of compliance with RCW 11.68.070 to address the removal request. As in

Reugh, Christine waived any claim that the court lacked authority to decide

Rudy’s request.17

       Even if the court had authority to entertain Rudy’s request, Christine

claims the record contains no evidence of misconduct that warranted her removal

as personal representative.       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.”18     RCW 11.68.070 and RCW 11.28.250 protect

beneficiaries and other interested parties when a personal representative

breaches fiduciary duties.19 RCW 11.68.070 authorizes the superior court to

remove any personal representative who “fails to execute his or her trust faithfully

or is subject to removal for any reason specified in RCW 11.28.250.”

RCW 11.28.250 in turn declares:

       Whenever the court has reason to believe that any personal
       representative has wasted, embezzled, or mismanaged, or is about to
       waste, or embezzle the property of the estate committed to his or her

       17
          While Christine raised the issue of the court’s authority to intervene in a
nonintervention estate in her motion for reconsideration, this fact does not affect
our waiver analysis. A trial court may decline to consider any new theory
presented for the first time in a motion for reconsideration. Wilcox v. Lexington
Eye Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005); JDFJ Corp. v. Int’l
Raceway, Inc., 97 Wn. App. 1, 7, 970 P.2d 343 (1999). We review a trial court’s
denial of a motion for reconsideration for abuse of discretion. Wilcox, 130 Wn.
App. at 241. A trial court does not abuse its discretion when it refuses to consider
a new theory raised for the first time in a request for reconsideration. River
House Dev. Inc. v. Integrus Architecture, P.S., 167 Wn. App. 221, 231, 272 P.3d
289 (2012).
       18
          Matter of Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985).
       19
          In re Estate of Jones, 152 Wn.2d 1, 11, 93 P.3d 147 (2004).


                                          8
No. 80110-4-I/9


       charge, or has committed, or is about to commit a fraud upon the estate,
       or is incompetent to act, or is permanently removed from the state, or has
       wrongfully neglected the estate, or has neglected to perform any acts as
       such personal representative, or for any other cause or reason which to
       the court appears necessary, it shall have power and authority, after
       notice and hearing to revoke such letters.

The superior court must have valid grounds for removal under these provisions

and the record must support the grounds.20 At the same time, the superior court

has broad discretion to remove a personal representative and a reviewing court

will not ordinarily interfere.21 A single ground for removal will suffice.22

       Christine asks this court to review her removal de novo because the court

resolved the issue based on written declarations rather than live testimony. But,

we need not resolve the standard of review because under either a de novo or

deferential standard, we would affirm the court’s decision.

       Heirs may not treat estate real property as their own during the pendency

of probate.23 And, while a personal representative may possess and control

estate property during the administration of the estate, and has a right to the

property even against other heirs, the personal representative is accountable to

the estate for this use.24     This means that where a personal representative

chooses to use the decedent’s real property for personal benefit, she must pay

rent to the estate.25 This rule applies even when the personal representative




       20
         In re Beard’s Estate, 60 Wn.2d 127, 132, 327 P.3d 530 (1962); Matter of
Aaberg’s Estates, 25 Wn. App. 336, 339, 607 P.2d 1227 (1980).
      21
         Beard’s, 60 Wn.2d at 132; Reugh, 10 Wn. App. 2d at 63.
      22
         Jones, 152 Wn.2d at 10.
      23
         Jones, 152 Wn.2d at 14.
      24
         Jones, 152 Wn.2d at 14.
      25
         Jones, 152 Wn.2d at 14.


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No. 80110-4-I/10


claims that such use benefits the estate by protecting real property against

vandalism and decay.26

      Consistent with these principles, the trial court determined that Christine

used estate property for her own purposes by allowing her daughter to live there

rent free during the administration of the estate. The estate may have received

some benefit from her daughter’s presence in the house but did not negate the

personal representative’s accountability to the estate.    The trial court could

reasonably find her failure to collect rent on behalf of the estate amounted to

mismanagement and a breach of her fiduciary duty to the estate. This remains

true despite the fact that it was Christine’s daughter and not Christine who lived

in the home.     Although Christine points to examples of more egregious self-

dealing, there were still valid grounds to support the removal and sufficient

evidence in the record to support those grounds. 27

Damages

      Christine also claims the court should not have entered the judgment for

damages against her. Christine argues that neither Rudy’s creditor’s claim nor a

petition under RCW 11.68.070 provides a statutory basis to award damages.

Christine also claims the record does not contain sufficient evidence to support

the award. We need not address Christine’s first contention because we agree

the record lacks evidence to support the amount of damages awarded.




      26
           Jones, 152 Wn.2d at 14.
      27
           Jones, 152 Wn.2d at 21.


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No. 80110-4-I/11


       A claimant bears the burden of proof on the amount of damages and must

present sufficient evidence to support a damage award.28 The burden does not

require mathematical certainty or precision about the amount of damages, but

there must be “’competent evidence in the record’” to support the claimed

damages.29 “Evidence of damage is sufficient if it affords a reasonable basis for

estimating loss and does not subject the trier of fact to mere speculation or

conjecture.”30

       The court awarded damages of $37,600 comprised of $25,000 for

property damage and $12,600 for uncollected rent (7 months at $1,800 per

month). But, apart from Rudy’s conclusory allegations, no evidence in the record

supports these amounts. In his petition, Rudy claimed the failure to charge rent

resulted in an estimated loss to the estate of $1,800 per month. Elsewhere, he

asserted the “reasonable rental value” of the home was at least $1,900 per

month. He provided no competent evidence to support the use of either of these

figures.31 And, in ordering damages equal to seven months estimated rent, the

court necessarily concluded the house could and should have been rented

almost immediately after Thomas’s death. But, the only evidence in the record

       28
          O’Brien v. Larson, 11 Wn. App. 52, 54, 521 P.2d 228 (1974).
       29
          Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 443, 886 P.2d
172 (1994) (quoting Interlake Porsche & Audi, Inc. v. Bucholz, 45 Wn. App. 502,
510, 728 P.2d 597 (1986)); Bunch v. King County Dep't. of Youth Servs., 155
Wn.2d 165, 180, 116 P.3d 381 (2005).
       30
          Clayton v. Wilson, 168 Wn.2d 57, 72, 227 P.3d 278 (2010) (quoting
State v. Mark, 36 Wn. App. 428, 434, 675 P.2d 1250 (1984)).
       31
          To the extent that Rudy attaches documents to his response brief to
substantiate the estimated monthly rental amount, it does not appear that he
presented these documents and they are not included in the record on appeal.
So, we decline to consider the supplemental materials. RAP 10.3(a)(8).


                                       11
No. 80110-4-I/12


suggests this was not the case. Salina occupied the house at the time, the home

contained all of Thomas’s personal belongings, and the house required cleaning

and certain maintenance.

      With regard to property damage, Rudy alleged that Salina’s dogs

damaged stairs, hardwood floors, and the lawn. He provided no evidence to

substantiate any of these claims. He did not explain how he knew the dogs were

responsible. He did not claim, much less establish, the damage occurred during

the period when Christine was the personal representative. Most significantly, he

provided no evidence to show $25,000 was a reasonable estimate of the loss in

value or cost to repair any damage to the home.

      With respect to both property damage and uncollected rent, apart from

unsupported assertions, nothing in the record supports the amount of damages

awarded.

Reconsideration

      Christine next challenges the court’s decision denying her motion for

reconsideration because the superior court denied her motion before the time

expired to file a reply brief.32   Relying on Pacific Industries, Inc. v. Singh,

Christine argues the court “misapplie[d] a procedural timing rule,” and therefore

abused its discretion in denying her motion.33      In that case, although we

concluded the court miscalculated the time to file a motion for reconsideration

      32
          KCLR 59(b) provides that if the superior court requests a response to a
motion for reconsideration, then “a reply may be filed within two court days of
service of the response.” However, the court entered an order the day after
Rudy filed his response.
       33
          120 Wn. App. 1, 12, 86 P.3d 778 (2003).


                                       12
No. 80110-4-I/13


and therefore erred by refusing to consider a timely motion, the error was

harmless and did not require remand since the appellate court reviewed the

issues and rejected them on appeal.34 Christine contends the court would have

reached a different result had it considered her reply and additional materials.

But, as in Pacific Industries, even assuming error neither reversal nor remand

would be appropriate in view of our appellate review.

Attorney Fees

       Finally, Christine requests an award of attorney fees incurred on appeal,

under RCW 11.68.070 and RCW 11.96A.150, a provision of the Trust and Estate

Dispute Resolution Act (TEDRA).35          Both provisions provide for awards of

attorney fees at the court’s discretion.

       Christine argues she is entitled to fees because Rudy’s petition was

procedurally improper and “bordered on frivolous.” However, the petition raised

an underlying issue that was not frivolous and Christine prevails on appeal only

in part. Under these circumstances, we decline to award fees.

       We reverse the judgment for damages and otherwise affirm.




WE CONCUR:




       34
         Pacific Indus., 120 Wn. App. at 11-12.
       35
         Both parties requested fees. The court initially stated it would grant
Rudy’s request for attorney fees of $3,000 but ultimately reserved the issue.


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