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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 In re the:                                            No. 76007-6-1

VERAH LANDON TESTAMENTARY                             DIVISION ONE
TRUST.

                                                       UNPUBLISHED

                                                      FILED: April 2,2018




       Cox, J. — The parties in this case appear again before us in a dispute over

standing. In the prior appeal of the declaratory judgment action, we held that Jay

Friet has standing to assert the claims he makes in that case.1 Similarly, we

conclude in this second TEDRA proceeding that he has standing to assert the

claims here. Accordingly, we reverse the superior court order on revision and

remand for further proceedings.2




     1 Friet v. Gaiser, 194 Wn. App. 1048 (2016), review denied, 187 Wn.2d
1005(2017).

       2 We grant the  Estate of Carol Gaiser's Motion for Substitution of Party,
and substitute that estate, represented by its co-personal representatives
Katherine and Steven Gaiser, in place of Carol.
No. 76007-6-1/2

       In December 1963, Verah Landon ("Verah") made her last will and

testament. The will created a testamentary trust for the benefit of her son,

Herbert Landon ("Herbert") and her two living granddaughters, Marilyn Friet

("Marilyn") and Carol Gaiser ("Carol").3 It also provided for division of the trust

into shares upon "the death of[Herbert] and [Verah], or [their] simultaneous

deaths."

       The trust was an original party to the operating agreement of Landon

Enterprises LLC, which held substantial real property assets long owned and

managed by the Landon family.5 Marilyn and Carol were also original parties to

that operating agreement.

       Verah died in 1971. Herbert, her son, died some time afterwards. Marilyn

died in 2007, before this proceeding commenced. Carol died in January 2018,

while this appeal has been under our consideration. Carol's children, Katherine

and Steven Gaiser (together, the "Gaisers") have been substituted as parties.

       Upon the deaths of Verah and Herbert, the trust divided into equal shares..

Specifically, there was one share for "each then grandchild" of Verah's and one

share for "each then grandchild of[Verah's] having then living descendants."6




       3 Clerk's   Papers at 12-13. We adopt the naming conventions of the
parties.

       4   Id. at 13-14.

       5   Friet, 194 Wn. App. 1048.

       6   Clerk's Papers at 13.

                                             2
No. 76007-6-1/3

         The trust language further provides for benefits to "Living Descendants of

a Deceased Granddaughter." The respective share allocated for "a deceased

granddaughter having then living descendants shall be distributed," per stirpes,

to that granddaughter's living descendants at the time the trust divided into equal.

shares.

         The trust also states an optional distribution if a granddaughter dies after

division of the trust into shares. Specifically, "[i]f a granddaughter should die

subsequent to division of the Trust Estate into shares, her share remaining at her

death shall be distributed, by right of representation, to her then living

descendants."7 If there are then no living descendants, then the "remainder [of

her share] shall be added to, and shall be held, paid and distributed integrally

with the other herein allocated share, whether distributed or undistributed."8

         Marilyn and Carol both outlived Verah and Herbert. Marilyn had one child,

Friet. Carol had two, Steven and Katherine. Thus, the trust was divided into four

shares, one share to each of her two granddaughters and two shares for her

three "then living descendants."

         Marilyn died in 2007, her share terminated, and the remainder was

distributed to Friet. As a result, Friet now owns 50 percent of the LLC's financial

units.

         In 2014, Carol commenced a TEDRA proceeding ("the 2014 Action")

against Friet and trustee Jeff Wilson to remove the trustee. She claimed that the


         7 Id. at   14.

         8 Id.


                                               3
No. 76007-6-1/4

trustee would not take certain actions related to the LLC's affairs. Wilson agreed

to resign. Carol then successfully moved ex parte to dismiss Friet from the suit. '

      On learning of this, Friet moved to set aside his dismissal or in the

alternative to intervene. He argued that he was a proper party to the action

because he "own[ed] half of the property in which the Trust (the subject of this

case) has a 22.5 percent ownership interest, and he is a business 'partner' with

Carol Gaiser, the Trust's beneficiary."9

      The matter went before a commissioner who denied Friet's motion. She

determined that Friet had no legally cognizable interest in the trust. She then

chose a successor trustee, Guardianship Services of Seattle ("GSS"), instead of

the nominees put forth by the Gaisers.

       Soon after, Friet commenced a declaratory judgment action concerning

the LLC's management.19 He named as defendants the Gaisers, the LLC, and

GSS. He challenged Katherine's efforts to "dissolve the LLC, remove its

manager, and terminate Friet as an LLC employee."11 He sought declaratory and

injunctive relief that would bar Katherine from interfering with LLC affairs.12 And

he claimed that GSS had failed to abide by the LLC's operating agreement.13




      9 Clerk's    Papers at 510.

      19 No. 73448-2-1, slip op. at 2(Wash. Ct. App. Jul. 5, 2016)(unpublished),
http://www.courts.wa.gov/opinions/pdf/734482.pdf.

       11 Id.
       12   id.

       13   Id. at 3.

                                             4
No. 76007-6-1/5

The trial court dismissed that action on summary judgment, holding that Friet's

claims as a non-member owner were derivative.14 Friet appealed.15

      We reversed and held that Friet had standing to bring a declaratory

judgment action based on his financial ownership in the LLC.16 We remanded for

further proceedings.17

       Prior to the filing of our decision in the declaratory judgment action, GSS

commenced this proceeding ("the 2016 Action"). It is unclear to this court why it

commenced a second proceeding rather than proceeding under the same cause

number as the 2014 Action. In any event, GSS petitioned for an order of

discharge and an order appointing a successor trustee. GSS named Carol as

permissible distributee of the trust, Katherine as her attorney in fact, and the

Gaisers as residual qualified beneficiaries. GSS neither named Friet as a party

nor gave him notice of this action.

       The petition also stated that GSS, Carol, the Gaisers, and the LLC had

entered into an indemnity agreement. By its terms, Carol, the Gaisers, and the

LLC "agree[d] to indemnify, defend, and hold Guardianship Services of Seattle

harmless from all losses, damages, costs, expenses (including, without limitation,




       14   Id.

       15   Id.

       16   Id. at 11.

       17   Id.

                                             5
No. 76007-6-1/6

attorney fees and litigation costs and litigation expenses)" in connection with

GSS's conduct as trustee or as LLC member.18

       A court commissioner granted GSS's petition and entered an order ("the

Discharge Order") that discharged GSS from its trusteeship, ordered it to file a

final report, and appointed the Gaisers as successor trustees.19 The Discharge

Order also directed the successor trustees to pay GSS's attorney fees, which

included work opposing Friet in the declaratory judgment action. It further

provided that these fees "shall not be subject to disgorgement under any

circumstances."2°

       Thereafter, GSS petitioned for approval of its final report. GSS stated that

attorney fees had not been paid from trust assets but rather from the LLC,

purportedly based on the LLC's operating agreement.

       Friet, after learning of these developments without notice from GSS or the

Gaisers, moved in opposition to GSS's petition and sought instructions to the

parties on how to proceed. In both motions, he argued that the Discharge Order

and petition were void because he had never received notice and that the 2016

Action was improper for various other reasons. He sought to intervene in order

to challenge approval of GSS's conduct as trustee, including the payment of fees

from the LLC of which he is a 50 percent owner. The commissioner denied these

motions.


       18   Clerk's Papers at 3.

       19   Id. at 66-71.

       2° Id. at 70.

                                             6
No. 76007-6-1/7

      The commissioner entered an order approving GSS's final report and

discharge. He also approved GSS's conduct as trustee, including the payment of

attorney fees from the LLC, not the trust.

       Friet moved to revise the commissioner's ruling, which the revision judge

denied. In colloquy on that motion, the parties stipulated to strike language from

the Discharge Order insulating the approved attorney fees to GSS from

disgorgement. This was to allow Friet to challenge the payment of fees from the

LLC in the remanded declaratory judgment action. The trial court, nevertheless,

held that Friet did not have an interest in the proceedings and could obtain other

unspecified remedies to the extent that the outcome affected his ownership

interests in the LLC.

       Friet appealed. Thereafter, he moved to admit extensive further evidence

on appeal. We deny that motion to admit additional evidence and proceed to the

merits of the case, as originally briefed.

                                    STANDING

       Friet argues that the revision judge improperly decided that he has no

standing in this TEDRA proceedings as an "'other person who has an interest in

the subject of [this] particular proceeding" under RCW 11.96A.030(5)(i).21 We

agree. Because we do so, we do not reach his alternative argument that he has

standing under RCW 11.96A.030(5)(e).




       21 (Emphasis omitted.)



                                             7
No. 76007-6-1/8

                               RCW11.96A.030(5)(0

       RCW 11.96A.110 requires that a party commencing a TEDRA action

serve notice on all parties at least 20 days before a TEDRA petition is heard. A

"party" for purposes of RCW 11.96A.030(5) is one "who has an interest in the

subject of the particular proceeding" and is further identified in this section.22

       This court reviews de novo issues of standing.23

       One of the RCW 11.96A.030(5) categories includes "[a]ny other person

who has an interest in the subject of the particular proceeding."24 A party has a

sufficient interest when he "has a direct, immediate, and legally ascertained

pecuniary interest in the devolution of the testator's estate, such as would be

impaired or defeated by the probate of the will."25 This court has explained that

this standard should be construed broadly to advance the legislative intent under

TEDRA to promptly and nonjudicially resolve probate disputes.26

       Friet argues that he qualifies under this category. He is correct.




       22   In re Estate of Bernard, 182 Wn. App. 692, 724, 332 P.3d 480(2014).

       23   In re Estate of Becker, 177 Wn.2d 242, 246, 298 P.3d 720 (2013).

       24   RCW 11.96A.030(5)(i).

       25   Becker, 177 Wn.2d at 247.

       26Estate of Toland v. Toland, 170 Wn. App. 828, 836, 286 P.3d 60(2012),
rey'd on other grounds by In re Estate of Toland, 180 Wn.2d 836, 329 P.3d 878
(2014).

                                              8
No. 76007-6-1/9

       Estate of Toland v. Toland27 illustrates the broad scope of this provision.

In that case, Paul Toland petitioned to intervene in the TEDRA proceeding

involving the estate of his former wife, Etsuko Toland.25 She had divorced Paul

and remained with their daughter, Erika, in Japan while Paul returned to the

United States.29 Some years later, Etsuko died and left Erika her sole heir.3°

       Paul petitioned to intervene in the probate and asked to be appointed

custodian of Erika's inheritance.31 He argued that his interest in the disposition of

the estate was "his fundamental liberty interest as a parent."32

       Division Two agreed with his argument, concluding that "[c]ertainly, he has

an interest in ensuring that the Estate is efficiently administered and that the

funds it collects go to Erika."33 It did so despite explicitly recognizing that Paul

did not have custody of Erika and actually owed debts to the estate.34 Because

the purpose of TEDRA was to resolve disputes, Paul's disputes, and even his

conflict of interest, only further warranted his inclusion.35


       27170 Wn. App. 828, 286 P.3d 60(2012), rey'd on other grounds by In re
Estate of Toland, 180 Wn.2d 836, 329 P.3d 878 (2014).

       28   Id. at 832.

       28   Id. at 831.

       30 Id. at 832.
       31   Id.

       32   Id. at 835.

       33   Id. at 836.

       34   Id.

       35   Id.

                                               9
No. 76007-6-1/10

       The supreme court, in construing RCW 11.96A.030, has held that the

interest must be in the relevant proceedings, not the estate itself. In re Estate of

Becker36 illustrates this.

       In that case, Tory Becker died and left everything to his youngest

daughter.37 His other daughters contested the will and Tory's surviving wife,

Nancy Becker, who was excluded from the will, sought to participate in the

proceedings that followed.38 The supreme court was required to decide whether

Nancy had a sufficient present interest to secure her standing as a party under

TEDRA.38

       The court reasoned that "[w]hile Tory's will expressly left nothing to Nancy,

that will is being contested in this case by the adult daughters. If the will is

declared invalid" Nancy would take part of the estate.° On this basis, the court

concluded that "Nancy has a very substantial interest in the estate if the will

contest were to be successful. Because Nancy would have a significant interest

in the estate if the will were declared invalid, she has a direct interest in any

settlement of the will contest."41




       36   177 Wn.2d 242, 247, 298 P.3d 720(2013).

       37   Id. at 244.

       38   Id. at 245.

       39   Id. at 247.
       40   id.

       41   Id.

                                              10
No. 76007-6-1/11

       While the supreme court employed the word "interest" in that case to refer

both to interests in the proceedings and interests in the estate, the holding in

Becker makes clear that the dispositive interest must be in the relevant TEDRA

proceedings, in that case "in any settlement of the will contest."42

       As this court has discussed, the interest must be "specific" to the subject

of the particular proceeding, meaning the relevant action.43 For example, when

certain parties challenged modification of a revocable trust and will, the subject

was not the trust or will itself but "modification of the trust and will."44

       Here, Friet contends that he is an interested party within the meaning of

RCW 11.96A.030(5)(i) because he owns 50 percent of the LLC's financial

shares. Based on that ownership, he argues that he has a sufficient interest in

the proceedings to approve GSS's conduct to seek appointment of successor

trustees.

       Friet has a present interest in the appointment of the Gaisers to

trusteeship as this would further the Gaisers' ability to participate in LLC affairs.

As this court stated in the prior opinion involving these parties: "Katherine's

continuous participation in the LLC's affairs may negatively affect [Friet]'s

financial interests in the LLC."45 We have no reason to believe that has changed

in any material respect.


       42   Id.

       43   Bernard, 182 Wn. App. at 724.

       44   Id. at 725.

       45   Friet, No. 73448-2-1, slip op. at 7.

                                                   11
No. 76007-6-1/12

       This issue is analogous to Toland as Friet's concern over the

appointment's effect upon the LLC mirrors Paul Toland's concern for his

daughter's inheritance. Whether either appellant had a legal interest in the

estate at issue, the disposition of that estate would affect their interests. In

Toland's case, it would affect his daughter's financial wellbeing. In Friet's case, it

would affect the LLC's financial affairs.

       For these reasons, Friet falls within the category of "party" under RCW

11.96A.030(5)(i). He has standing to pursue his interests in this proceeding.

       GSS argues that Friet would have to own the entire LLC, or else Carol's or

the trust's interest therein, to show an interest here. But Friet's argument here

concerns his interest in the effect these proceedings could have on the LLC in

which he has an interest, not his financial shares themselves. The LLC will be

affected, and thus Friet's financial stake therein, by these proceedings.

       GSS contends that to hold that Friet has standing as a 50 percent owner

of the LLC "would allow anyone with any ownership interest in a corporate entity

to intervene in trustee discharge and appointment proceedings if a trust also

owns part of the entity." This argument mischaracterizes the circumstances of

this case.

       As Friet correctly notes, the trustee of this trust is the sole member of a

member managed LLC. Thus, either the discharge or the appointment of the

trustee has a far more substantial effect upon the LCC's operation than would the

discharge and appointment of a trustee over a trust with only a financial share in

a widely held entity.


                                              12
No. 76007-6-1/13

       Having concluded that Friet has standing under this statute, we briefly

consider the Gaisers' and GSS's arguments that Friet should not be able to

argue such standing. These arguments are not persuasive.

                                 Collateral Estoppel

      The Gaisers contend that Friet is collaterally estopped from arguing that

he has standing. The Gaisers are wrong given the nature of Friet's argument.

       Collateral estoppel "bars relitigation of an issue in a subsequent

proceeding involving the same parties."46 The party asserting that the doctrine

applies must satisfy all four elements, including:

      (1) the issue decided in the earlier proceeding was identical to the
      issue presented in the later proceeding;(2) the earlier proceeding
      ended in a judgment on the merits;(3) the party against whom
      issue preclusion is asserted was a party to, or in privity with a party
      to, the earlier proceeding; and (4) application of issue preclusion
      does not work an injustice on the party against whom it is
      applied.P71

       Here, the Gaisers contend that Friet already litigated the issue of his

standing as an owner of the LLC in the 2014 TEDRA proceeding, bringing a

motion to intervene that was denied. This argument ignores the necessity that

the second and fourth elements of this doctrine must also exist. They do not in

this case.

       The 2014 Action has not ended in a judgment on the merits, as the

Gaisers acknowledge. Moreover, as Division Three of this court has held,

"prudential considerations of justiciability prevent a judgment of dismissal based


       46 UllerV   v. Fulleton, 162 Wn. App. 596, 602, 256 P.3d 406(2011).

       47   Id. at 602-03.

                                             13
No. 76007-6-1/14

on lack of standing from constituting a judgment on the merits."45 Thus, as a

matter of law, the second element is not met. Accordingly, on this basis alone,

collateral estoppel does not apply here.

       Further, the Gaisers give no reason why denying Friet's participation in

this case would not work an injustice upon him. If he were not involved as a

party in these proceedings, his ability to challenge approval of GSS's conduct as

trustee or the appointment of successor trustees would be impaired. This is an

independent basis to conclude that collateral estoppel does not apply.

       Because all four elements of collateral estoppel must be met, and two are

lacking, this argument is unpersuasive.

                                    Invited Error

       GSS relatedly argues that this court should not review Friet's argument

because Friet invited and failed to preserve any relevant error. This argument

has no greater merit than that concerning collateral estoppel.

       "The invited error doctrine prohibits a party from setting up an error below

and then complaining of it on appear" On this basis, this court has declined to

hear a party's argument when that party deliberately failed to raise it below for

strategic reasons, and instead asked the trial court to uphold a ruling only to

challenge it later.5°




       48   Id. at 605.

       49   In re Marriage of Morris, 176 Wn. App. 893, 900, 309 P.3d 767(2013).
       50   id.

                                            14
No. 76007-6-1/15

       Here, Friet argued below that he was entitled to notice because of his

financial ownership in the LLC in his opposition to the petition to approve the final.

trust report, in his motion for instruction, and orally before the commissioner on

July 26, 2016. He did not explicitly argue that his LLC ownership interests

entitled him to notice in his motion for revision. But GSS acknowledged Friet's

argument in this regard in its response brief. And Friet elaborated upon it further .

in his reply brief. Accordingly, the record indicates that Friet neither invited error

nor failed to preserve the alleged error for review.

       Friet makes additional arguments in support of standing. Because of our

disposition of the question on the basis just discussed, we need not reach these

additional arguments.

                                    ATTORNEY FEES

       All parties seek attorney fees on appeal. Additionally, Friet requests his

fees incurred below. We deny all fee requests.

       Under Washington law, a court may award attorney fees when authorized

by contract, statute, or recognized ground in equity.51

       RCW 11.96A.150(1) permits this court, in TEDRA proceedings, to order

attorney fees to be awarded to any party from another party, from the trust, or

from a nonprobate asset at issue. An award may be ordered for those fees

incurred in trial or on appea1.52




       51   Berryman v. Metcalf, 177 Wn. App. 644, 656, 312 P.3d 745 (2013).

       52   RCW 11.96A.150(1).

                                              15
No. 76007-6-1/16

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

and all [equitable]factors that it deems to be relevant and appropriate."53 While

the touchstone of an award "'is whether the litigation resulted in a substantial

benefit to the estate," an award may be ordered even without such a benefit.54

Notably, this statute does not require a party to have substantially prevailed.55

       GSS's argument consists of a single citation to a case wherein Division

Two of this court held that "in general, where a prevailing party is entitled to

attorney fees below, they are entitled to attorney fees if they prevail on appeal."56'

This is inapplicable here because RCW 11.96A.150(1) does not rest on whether

a party prevailed. Instead it rests on this court's broad and equitable discretion.

Because GSS provides no argument why equity favors an award of fees to it, we

need not discuss this request any further.

       The Gaisers argue that they are entitled to fees because Friet "had no

basis for his actions in this matter" and has merely cost the trust unnecessary

expenses. Because this argument is plainly wrong, we need not discuss it

further.




       53   Id.

       54 In re Estate of Mower, 193 Wn. App. 706, 728, 374 P.3d 180 (quoting In
re Estate of Black, 116 Wn. App. 476,490,66 P.3d 670 (2003)), review denied,
186 Wn.2d 1031 (2016); RCW 11.96A.150(1).
       55   Mower, 193 Wn. App. at 728.

       Id. (citing Sharbono v. Universal Underwriters Ins. Co., 139 Wn. App.
       56
383,423, 161 P.3d 406 (2007)).

                                             16
No. 76007-6-1/17

       Friet requests his award against GSS and the Gaisers, jointly and

severally. He provides extensive argument why the equities favor his position.

He argues that "this litigation was necessitated by GSS's, Katherine's, and

Steven's deliberate evasion of TEDRA's notice requirements and attempts to

strip [him] of his financial interests in the LLC."

       He further contends that counsel for GSS and the Gaisers failed to comply

with RPC 3.3(f), which requires attorneys in an ex parte proceeding to "inform the

tribunal of all material facts known to the lawyer that will enable the tribunal to

make an informed decision, whether or not the facts are adverse." Specifically,

he alleges that GSS and the Gaisers improperly failed to inform the 2016

commissioner of certain information, including the 2014 refusal to appoint the

Gaisers' nominees as successor trustee, earlier denial of attorney fees to GSS,

or this court's earlier opinion in the declaratory judgment action.

       Friet's challenge below and on appeal has not benefited the trust.

Although this court may, on rare occasion, award fees without benefit to the trust,

we see no reason to do so in this case.

       We reverse the order on revision as invalid and remand for further

proceedings. We deny all requests for attorney fees.




WE CONCUR:




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