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                                                                                   20 J LI MA        5   AM 8: 90
    IN THE COURT OF APPEALS OF THE STATE OF W                                             NG         N
                                                                                     9-    E

                                            DIVISION II                              Y
                                                                                                   0EPtAY
JOHN E. COOK, a married man,                                          No. 43683 -3 -II


                                  Respondent,


         m


A. DIANE BRATENG, a married woman
concerning her interest in Realty subject to
Partition Action, and A. DIANE BRATENG,
as Successor sole Trustee of the Elmer J. Cook                   PUBLISHED OPINION

Living Trust,




         WORSWICK, C. J. —      A. Diane Brateng appeals an attorney fees award entered after we

remanded this case to the trial court. In Cook v. Brateng, 158 Wn. App. 777, 262 P. 3d 1228
         1
2010),       we vacated the trial court' s award of attorney fees to John E. Cook and remanded to the

trial court for a determination of Brateng' s reasonable attorney fees at trial and on appeal. The

trial court then awarded to Brateng attorney fees in the amount of $53, 910. 29 against the subject

estate under RCW 11. 96A. 150, concluding that RCW 11. 96A.310( 10) did not apply. Because

the trial court erred by concluding that RCW 11. 96A.310( 10) did not apply to its attorney fees

determination, we remand to the trial court for a redetermination of Brateng' s reasonable

attorney fees under that statutory provision.




1 Several of the facts below are taken from our opinion in Cook v. Brateng, 158 Wn. App. 777,
262 P. 3d 1228 ( 2010), as well as from the trial court' s unchallenged supplemental findings of
fact. See In re Estate of Jones, 152 Wn.2d 1, 8, 93 P. 3d 147 ( 2004) ( unchallenged findings are
verities on appeal).
No. 43683 -3 - II



                                                          FACTS


          Cook and Brateng are siblings. In 1995, their father, Elmer Cook, executed a living trust

that named himself and Brateng as trustees. After Elmer2 was declared incompetent in 1997,

Brateng became the sole trustee of Elmer' s estate. Elmer passed away on January 1, 2000. In

October. 2001, Cook sued Brateng, and the two entered into mediation and arbitration under the

Trust and Estate Dispute Resolution Act, chapter 11. 96A RCW. Cook appealed the arbitrator' s


decision and requested a trial de novo before the superior court under RCW 11. 96A.310( 9)( a).


          Following the de novo bench trial, the trial court concluded that Brateng could not

compensate herself from Elmer' s trust for her caregiving expenses because she had breached her

fiduciary duty to   inform Cook     of   her decisions to ( 1) " claim and defer charges against Elmer' s


estate   for providing Elmer' s   care"   and ( 2)   "   not   to   encumber   Elmer'   s ...   house to pay for Elmer' s

care."   Cook, 158 Wn. App. at 784. The trial court awarded Cook all his requested attorney fees

and awarded Brateng half of her requested attorney fees.

          Brateng appealed, and we reversed the trial court' s conclusion that Brateng had breached

her fiduciary duties,-holding that Brateng had no`duty to inform Cook of her decisions to claim

and defer her caregiving charges against the estate and not to encumber Elmer' s house to pay for

his care. We also vacated the trial court' s award of attorney fees to Cook and remanded to the

trial court " to set reasonable attorney fees to award to [ Brateng] for both the trial and the appeal."

Cook, 158 Wn. App. at 797. Brateng moved for partial reconsideration of our decision, which

motion we denied on December 6, 2010.




2 Because John and Elmer Cook share a last name, we refer to Elmer by his first name for clarity
and intend no disrespect.




                                                                2
No. 43683 -3 -II



             On remand, Brateng requested the trial court to award her $54, 077 against Elmer' s trust

for her caregiving expenses, trustee expenses, and out - pocket costs, and she requested the trial
                                                       of-

court   to   award   her $ 134, 000   in reasonable attorney fees against Cook personally, under RCW

11. 96A.310( 10) and RCW 11. 96A. 150. The trial court found that the reasonable value of


Brateng' s caregiving expenses totaled $38, 250 and awarded those expenses against Elmer' s

estate.   3 The trial court found Brateng' s reasonable attorney fees were $24,716. 34 for the trial,
    24, 193. 95 for the appeal, and $ 5, 000 for the remand proceedings. The trial court concluded that


RCW 11. 96A.310 did not apply and instead awarded the attorney fees against Elmer' s estate

under RCW 11. 96A. 150. In determining that Brateng' s attorney fees should be paid from

Elmer' s estate rather than from Cook personally, the trial court found that Cook was " not

personally liable for any of [Brateng' s] attorney fees as that would penalize [ Cook] for

exercising his non -frivolous right to challenge the trustee' s conduct in managing the estate."

Clerk' s Papers ( CP) at 85. Brateng timely appeals the trial court' s attorney fees ruling.

                                                     ANALYSIS


                       1. RES JUDICATA DOES NOT BAR BRATENG' S CLAIM ON APPEAL


             As an initial matter, Cook asserts that the doctrine of res judicata bars Brateng' s claim

that the trial court erred by failing to apply RCW 11. 96A.310( 10) to its attorney fees

determination. Cook first argues that because our opinion in Cook directed the trial court to


award Brateng her attorney fees under RCW 11. 96A. 150, res judicata bars Brateng' s claim that

the trial     court erred   by failing   to apply RCW 11. 96A. 310( 10).   We disagree.




3
    Brateng does not appeal this finding.



                                                           3
No. 43683 -3 - II



          Res judicata, or claim preclusion, prohibits the same parties from litigating a second

lawsuit on the same claim or any other claim that could have been, but was not, raised in the first

suit.   Roberson    v.   Perez, 156 Wn.2d 33, 41           n.   7, 123 P. 3d 844 ( 2005). That doctrine does not


apply here because this case does not involve a second suit between the parties, but instead

involves a subsequent stage of the same litigation. Cook thus appears to confuse the doctrine of


res   judicata   with   the law   of   the case doctrine. See Roberson, 156 Wn.2d at 41. "            In its most


common form, the law of the case doctrine stands for the proposition that once there is an


appellate holding enunciating a principle of law, that holding will be followed in subsequent

stages of   the   same    litigation." Roberson, 156 Wn.2d at 41.


          Even assuming, however, that Cook had argued that Brateng' s claim on appeal was

barred under the law of the case doctrine, his argument would nonetheless fail. In the parties'


original appeal, we held the following with regard to the issue of attorney fees:

                   Both [ Brateng]         and [   Cook]   requested    attorney fees below. The trial court
          awarded [      Cook]    all of   his   requested      attorney fees, amounting to $ 24, 425. 00 and
          awarded [       Brateng]      one -half     of   her    requested   attorney    fees,   amounting to
            12, 358. 17.     RCW 11. 96A. 150( 1)           grants both trial courts and appellate courts
          broad discretion to          order     attorney fees. "
                                                      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. 96A. 150( l).
                                                                           Generally, attorney
          fees may be           awarded     against    only where the litigation results in a
                                                       a   trust "

          substantial benefit to the trust." Bartlett v. Betlach, 136 Wn. App. 8, 22, 146 P.3d
          1235 ( 2006) ( citing In re Estate ofNiehenke, 117 Wn.2d 631, 648, 818 P. 2d 1324
           1991)), review denied, 162 Wn.2d 1004 ( 2007). [ Brateng] correctly argues that
          the trial court improperly awarded attorney fees to [ Cook] because the litigation
          did not result in a substantial benefit to the trust.


                Because the trial court erred in finding that [ Brateng] breached her duty to
                       the trial court improperly awarded [ Cook] all of his attorney fees.
          inform [ Cook],
          Because we hold that [ Brateng] did not breach her fiduciary duties as trustee,
           Cook] is       not   entitled   to attorney fees for this          appeal.    RCW 11. 96A. 150( 1).
          Instead, [     Brateng] is entitled to an attorney fee award, both at the trial court and


                                                                   M
No. 43683 -3 - II



        on appeal.     Accordingly, we vacate the award of attorney fees to [ Cook] below
        and remand to the trial court to award [ Brateng] attorney fees, for her expenses
        incurred below and on this appeal, after the estate is revalued and distributed.


Cook, 158 Wn. App. at 795 -96.

        Although our previous opinion in Cook discussed RCW 11. 96A. 150, it did so only in

reference to the trial court' s error in awarding attorney fees to Cook. Our opinion did not direct

the trial court to award Brateng attorney fees under any particular statute. Accordingly, our prior

opinion in Cook does not bar Brateng' s claim in this appeal under either the doctrine of res

judicata or the law of the case doctrine.


        Cook next argues that our denial of Brateng' s motion for partial reconsideration, in which

she requested we modify the opinion to clarify that the trial court must award her fees under

RCW 11. 96A.310( 10), bars her claim on appeal under the doctrine of res judicata. Again, we


disagree. As addressed above, the doctrine of res judicata does not apply. The law of the case

doctrine similarly does not bar Brateng' s claim. The law of the case doctrine provides that an

appellate holding enunciating a principle of law must be followed in subsequent stages of the

     litigation.
same -               Roberson, 156 Wn.2d at 41.
                    --                            Here our order denying Brateng' s motion for

partial reconsideration did not state our reasons for denying her motion and, thus, did not

enunciate any principle of law that was required to be followed in later stages of litigation.

Accordingly, our summary denial of Cook' s motion for reconsideration does not bar Brateng' s

claim under either the doctrine of res judicata or the law of the case doctrine.




                                                    5
No. 43683 -3 - II


     II. RCW 11. 96A.310( 10) GOVERNS A TRIAL COURT' S ATTORNEY FEE DETERMINATION
                             FOLLOWING A TRIAL DE NOVO UNDER RCW 11. 96A.310( 9)


         Brateng asserts that the trial court erred by failing to apply RCW 11. 96A.310( 10) to its

attorney fees determination. We agree and remand back to the trial court to determine Brateng' s

reasonable attorney fees under RCW 11. 96A.310( 10).

         We apply        a   dual   standard of review        to   a   trial   court' s award of   attorney fees.   Gander v.


Yeager, 167 Wn.          App.    638, 647, 282 P. 3d 1100 ( 2012). We review a trial court' s initial


determination       of   the legal basis for       an award of         attorney fees de     novo.     Gander, 167 Wn. App. at

646 -47. And "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, based on

untenable grounds, or made for untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39,

46 -47, 940 P. 2d 1362 ( 1997). " An               error of   law      constitutes an untenable reason."         In re Marriage


ofFarmer, 172 Wn.2d 616, 625, 259 P. 3d 256 ( 2011).

             When   a question of        law   requires us    to interpret       a statute, "   our objective is to ascertain and


carry   out   the legislature'      s   intent."   Dep' t ofRevenue v. Sprint Spectrum, LP, 174 Wn. App. 645,

658, 302 P. 3d 1280,           review     denied, 178 Wn.2d 1024 ( 2013) (               citing Lake v. Woodcreek

Homeowners 4ss'           n,   169 Wn.2d 516, 526, 243 P. 3d 1283 ( 2010)).                      We begin by looking to the

statute' s plain    meaning. Sprint, 174 Wn.               App.        at   658. "   We discern the plain meaning from the

ordinary meaning of the language at issue, the statute' s context, related provisions, and the

statutory     scheme as a whole."              Sprint, 174 Wn. App. at 658. If the language of the statute is

unambiguous, we discern the legislature' s intent from the plain language alone. Sprint, 174 Wn.


App.    at   658 ( citing Waste Mgmt. of Seattle, Inc.                  v.   Util. &   Transp. Comm' n, 123 Wn.2d 621,


                                                                        G
No. 43683 -3 - II



629, 869 P. 2d 1034 ( 1994)).        Statutes concerning the same subject matter must be read together

to   give effect and   to harmonize     each with   the   other.    US W. Commc'   ns,   Inc.   v.   Utils. &   Transp.

Comm' n, 134 Wn.2d 74, 118, 949 P. 2d 1337 ( 1997).


          RCW 11. 96A.310 provides in relevant part:.


           9) Appeal. ( a) The final decision of the arbitrator may be appealed by filing a
          notice of appeal with the superior court requesting a trial de novo on all issues of
          law and fact.

                    10) Costs     on appeal of arbitration       decision.   The prevailing party in any
          such de novo superior court decision after an arbitration result must be awarded
          costs, including expert witness fees and attorneys' fees, in connection with the
         judicial    resolution    of   the   matter.     Such costs shall be charged against the
          nonprevailing parties in such amount and in such manner as the court determines
          to be    equitable.     The provisions of this subsection take precedence over the
          provisions of RCW 11. 96A. 150 or any other similar provision.

 Emphasis added.).


          And RCW 11. 96A. 150( 1) provides:


          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;          from any nonprobate asset that is the subject of the
                                 or ( c)

          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.

          The plain language of RCW 11. 96A.310( 10) requires a trial court to award fees against


the nonprevailing party of a trial de novo following an appeal of an arbitrator' s decision under

RCW 11. 96A.310( 9).        The plain language of RCW 11. 96A.310( 10) also provides that its


provisions "    take   precedence over     the   provisions of     RCW 11. 96A. 150."     Here, Cook appealed the


arbitrator' s decision and requested a trial de novo in the superior court under RCW




                                                             7
No. 43683 -3 - II



11. 96A.310( 9), thus   invoking the   fee   provisions of   RCW 11. 96A.310( 10).       Accordingly, the trial

court was required to consider RCW 11. 96. 310( 10)' s fee provisions in making its attorney fees

determination.


        The trial court' s finding that Cook was " not personally liable for any of [Brateng' s]

attorney fees as that would penalize [ Cook] for exercising his non -frivolous right to challenge the

trustee' s conduct in managing the estate" is an untenable reason for the trial court to conclude

that RCW 11. 96A.310(     10) did   not   apply to its attorney fee determination. CP         at   85. The


frivolity of an appeal of an arbitrator' s decision under RCW 11. 96A.310( 9) is not a relevant

factor in a trial court' s initial consideration of whether RCW 11. 96A.310( 10)' s fee provisions


apply. Rather, RCW 11. 96A.310( 10) directs the trial court to award costs to the " prevailing

party" of a trial de novo following an appeal of the arbitrator' s decision. Here, because Brateng

was the prevailing party in the trial de novo following her successful appeal in Cook, the trial

court erred by refusing to award attorney fees under RCW 11. 96A.310( 10).

        Although RCW 11. 96A.310( 10) states that its fee provisions " take precedence over the


provisions of RCW I1. 96A.150,            we do not interpret this language to require the trial court on


remand to apply RCW l l. 96A.310( 10) to the exclusion of RCW 11. 96A. 150. Rather, reading

these related statutes in harmony with each other and giving effect to both, we hold that the trial

court must first determine Brateng' s reasonable attorney fees to be awarded against Cook

personally " in   such amount and    in   such manner as     the   court   determines to be   equitable" under
No. 43683 -3 - II


                               4
RCW 11. 96A. 310( 10).             After making this initial determination, the trial court may, in its

discretion, award Brateng reasonable attorney fees under RCW 11. 96A. 150 in consideration of

    any   and all   factors that it deems to be   relevant and appropriate,"    which may include

consideration of the amount of attorney fees already awarded to Brateng under RCW

11. 96A. 310( 10).       Further, the trial court may direct that any attorney fees awarded under RCW

11. 96A. 150 " be paid in such amount and in such manner as the court determines to be


equitable,"
                including from "the assets of the estate or trust involved in the proceedings."

            Cook    requests   attorney fees   under   RAP. 18. 9 for   defending   a   frivolous appeals Because


Brateng succeeded in her appeal, we deny Cook' s request for attorney fees.

            We hold that the trial court erred by failing to apply the fee provisions of RCW

11. 96A.310( 10) and remand for the trial court to determine Brateng' s reasonable attorney fees

under that statutory provision.



                                                                                                         r

                                                                                    Worswick, C. J.
117P rnnriir-                                                                                         TI




4 To the extent that Brateng argues that the trial court lacked discretion under RCW
11. 96A.310( 10) to award her less than her requested attorney fees and costs following her
successful appeal from the trial de novo, the quoted language above defeats her argument.

s
    Brateng has not requested attorney fees related to this current appeal.



                                                             9
