        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of: THE BERNICE K.                )            No. 79328-4-I (Consolidated
 PRICE-CAMERON TRUST,                            )            with No. 79329-2-I
                                                 )
 MARCUS E. PRICE, Co-Trustee of                  )           DIVISION ONE
 the Bernice K. Price-Cameron Trust,             )
                                                 )           UNPUBLISHED OPINION
                         Appellant,              )
                                                 )
                 v.                              )
                                                 )
 ANTOINETTE S. PRICE, Co-Trustee                 )
 of the Bernice K. Price-Cameron                 )
 Trust and in her representative                 )
 capacity as Attorney-in-Fact for                )
 Bernice K. Price-Cameron,                       )
                                                 )
                         Respondent.             )
                                                 )

       HAZELRIGG, J. — Marcus Price seeks reversal of a vulnerable adult

protection order (VAPO) protecting his mother, Bernice Price-Cameron, and

reversal of an order removing him as co-trustee of her revocable living trust,

requiring him to provide an accounting of trust income and assets, and imposing

damages under the Trust and Estate Dispute Resolution Act (TEDRA).1 He argues

that the court exceeded the permissible scope of relief at the initial hearing on the

TEDRA petition and that the findings and conclusions on both the VAPO and the

TEDRA orders were not supported by the record. Because the record contains



       1   Chap. 11.96A RCW.


  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 79328-4-I/2


substantial evidence of financial exploitation of the vulnerable adult and the court

did not exceed its broad authority under TEDRA by resolving all issues of fact and

law at the initial hearing, we affirm.


                                                FACTS

       In 1998, Bernice Price-Cameron created a revocable living trust and listed

herself as the sole beneficiary during her lifetime. She initially named herself

trustee, but the trust provided that her son Justin Price and her daughter Antoinette

Price would serve as co-trustees in the event that she became unable to perform

that role. The trust relieved the trustee of “duties which would otherwise be

required by state law relating to accountings by Trustees” but provided that

“Trustees shall furnish to present beneficiaries . . . a statement of accounting of

administration upon reasonable request to do so.” On the same day, Bernice2 also

executed a durable power of attorney appointing Antoinette as her attorney-in-fact.

Bernice transferred her home and a 12-unit apartment building in Seattle, Price

Catalina Apartments, to the trust in 1999.

       Bernice’s mental and physical condition deteriorated after she suffered two

strokes in 2005. She was no longer able to live independently, so her son Marcus

Price moved into her home. Marcus took over the management of Bernice’s day-

to-day finances and of Price Catalina Apartments. His rate of compensation as

property manager was 10% of the gross receivables from the apartment building

per month.




       2   For clarity, the parties will be referred to by their first names. No disrespect is intended.


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       In February 2007, Bernice executed an amendment to the trust in which she

modified the article naming successor trustees. After the amendment, the trust

provided that Antoinette and Marcus would serve as co-trustees in the event of

Bernice’s death, incapacity, or resignation. In June 2007, Bernice was determined

to have severe cognitive impairment.

       In 2016, damage from a fire in Bernice’s home forced Bernice and Marcus

to move out of the residence. Marcus moved into a house that he had purchased

in September 2015. Bernice first moved in with Antoinette in California and then

into an assisted living community nearby. In 2017, Bernice’s doctors believed that

she had dementia, that she lacked mental capacity, and that she was unable to

care for herself or make decisions unassisted.

       Antoinette requested accountings and information about the trust properties

from Marcus over a period of several years leading up to the summer of 2018, but

he did not provide the information. On June 1, 2018, Antoinette’s attorney sent a

letter to Marcus’ attorney demanding copies of the keys, lease agreements, tenant

deposits, mortgage statements, insurance policy, and laundry account information

for Price Catalina Apartments. Later that month, under her authority as Bernice’s

attorney-in-fact, Antoinette closed all of the bank accounts that Bernice held jointly

with Marcus and in the name of the Price Catalina Apartments. The total amount

in those accounts when they were closed was less than $30,000.

       Marcus’ attorney responded that Antoinette was improperly interfering in the

administration of the trust, of which Marcus was co-trustee, and threatened legal

action if she continued. Antoinette had not been provided a copy of the 2007




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amendment and did not know that Marcus had been substituted as co-trustee. She

responded through counsel that she was still entitled to an accounting as co-

trustee and requested information about rental income from the Price Catalina

Apartments. Marcus did not respond.

       On August 5, 2018, Antoinette filed a petition for a VAPO under King County

Superior Court case number 18-2-19648-5 SEA seeking to restrain Marcus from

physically or financially abusing Bernice, contacting her, or visiting her home. The

petition also sought an accounting of Bernice’s income or other resources. The

court granted a temporary restraining order imposing the temporary relief

requested and requiring Marcus to provide Antoinette with an accounting of the

rental income from Price Catalina Apartments from January 1, 2018 to July 31,

2018 by the date of the hearing on the petition. Marcus did not file any responsive

pleading before the hearing.

       At the first VAPO hearing, Marcus appeared pro se and indicated he had

not yet been able to retain legal counsel. The court placed Marcus under oath and

questioned him about the apartment building’s expenses. Marcus testified that the

gross receivables for the apartment building were about $15,000 to $18,000 per

month. He indicated that the net revenue was about $8,000 per month after paying

approximately $2,000 for utilities, $800 for insurance, $2,800 in property taxes, and

$600 toward the mortgage. The court pointed out that if the building was bringing

in $9,000 to $12,000 per month, then the building should have over $1,000,000 in

revenue from the previous ten years. Marcus responded that rents and property

taxes had not been consistent over the past ten years and that he had performed




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significant upgrades and repairs on the building.3                The court reissued the

temporary restraining order and required Marcus to provide tenant information,

leases, a list of expenses for the building, and Beatrice’s tax returns to Antoinette’s

attorney within ten days of the order.

        About three weeks later, the day before the next hearing, Antoinette’s

counsel filed a declaration stating that Marcus had provided the list of tenants and

leases but had not provided the list of expenses or the accounting required by the

previous order. Marcus had indicated to her through counsel that he was still in

the process of compiling the accounting. At the hearing, he argued that he was

struggling to put together an accounting because the Bank of America account that

had been closed contained his notes regarding the purpose of the transfers and

because many of his records were at Bernice’s house, which the temporary order

prevented him from entering. Antoinette requested that Marcus be temporarily

removed as co-trustee because the conflict between the parties was impacting

Beatrice.

        The court reissued the temporary VAPO and ordered Marcus to provide a

list of expenses for the apartment building and copies of Bernice’s tax returns to

Antoinette’s attorney. The temporary VAPO was modified to allow Marcus access

to Bernice’s residence for the purposes of retrieving this documentation. The

reissuance also allowed Marcus visitation with Bernice twice per week. The court

declined to remove Marcus as co-trustee but suspended his powers until further

order of the court, explaining that he would not “have the power to act anymore,


        3The transcript of the hearing provided to this court as part of the record on appeal is
incomplete and ends after this response.


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but . . . would have . . . the right to receive information.” The order set a new

deadline for the accounting three days before the next hearing.

       On October 10, 2018, Marcus filed a declaration with 200 pages of attached

exhibits including bank statements, receipts, invoices, bills, copies of checks, and

other documentation. He stated that he had been the caregiver for Bernice and

for his brother Keith since 2005. He also began taking care of his brother Justin in

2014. Marcus asserted that Bernice’s properties were heavily mortgaged on

unreasonable terms when he began helping her with her finances in the mid-

1990s. He stated that he had “always strongly believed [his] mom’s mortgages

needed to be paid down” and had “done so regularly on all properties, including

the Price Catalina Apartments.” His siblings disagreed with this idea because

“[t]hey all feel the income that has been used to pay down debt should actually be

distributed to the siblings.”

       Marcus stated that the $75,000 withdrawal in July 2017 was used for a

$55,000 payment to the general contractor rebuilding Bernice’s house after the

fire, and the remaining $20,000 was paid to Washington Federal Credit Union as

part of the refinance of a mortgage that would otherwise have ballooned that

summer. He asserted that Antoinette had decided to make unnecessary upgrades

to the house while the fire damage was being repaired that were not covered by

insurance and cost approximately $40,000. He also stated that Antoinette had put

Bernice in an unsatisfactory care facility in California when the family believed that

Bernice was staying at Antoinette’s home and that she paid for the facility using

about $15,000 of “funds that were meant for the rebuild.”




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       Marcus asserted that he had responded to Antoinette’s requests for an

accounting by telling her that “getting together all of the books would have to wait

until the house rebuild was finished because that was such a time consuming and

constantly changing issue” and he “was already overwhelmed and couldn’t handle

another task.” When Antoinette closed or removed his access to his mother’s

accounts, he had to front payments on his credit card and reimburse himself for

“necessary purchases for the rebuild and apartments.” He asserted that “[t]his also

made it extremely difficult to try to put together a coherent accounting of the past

year” because his notes on the transactions in the online accounts were lost when

the accounts were closed.

       Marcus also stated that he had reason to believe that Antoinette should not

serve as the sole trustee. He asserted that the trust had also contained a third

property at one point, but Antoinette had quit claimed the property to herself

without any compensation to the trust, collected rent from the property for a few

years, and then sold the property without returning the proceeds to the trust. He

attached a deed conveying a property from the trust to Antoinette Dickson for $10,

apparently signed by Bernice and notarized on November 25, 2002.

       Marcus stated in his declaration that,

              I categorically deny the allegations being made by my sister.
       She has nothing supporting her claims other than her self-serving
       suspicions. I was put in a very difficult position where I had to
       manage the apartment building, I had to deal with a complicated and
       very time consuming fire claim, and I had to deal with a balloon
       payment on my mom’s house mortgage, all while I was being the
       sole caretaker of my two disabled brothers who still live with me.




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        On October 12, 2018, Antoinette filed a separate petition against Marcus

under King County Superior Court case number 18-4-06062-9 SEA seeking relief

under TEDRA. She sought permanent removal of Marcus as co-trustee, an order

requiring Marcus to provide “a full and complete inventory, forensic accounting

completed by a certified forensic accountant, and report for all activities performed

as Co-Trustee of the Trust.” The petition also requested an order “permitting

limited discovery, and setting a schedule for completion of limited discovery and

that, following limited discovery, the Court issue an order for mediation.” The

petition indicated that, “[i]f mediation is unsuccessful,” Antoinette would ask that

the matter be set for trial and seek additional relief. This additional relief included

an order permitting full discovery, an order finding that Marcus had breached his

fiduciary duty to the trust and assessing damages as a result of the breach, and

an award of attorney fees and costs.

        The same day, the parties appeared in court for another hearing on the

VAPO petition. The court reissued the temporary VAPO with the condition that

Marcus hire a forensic accountant. Antoinette also informed the court that she had

filed the TEDRA petition and asked the court to retain jurisdiction on that matter.

The court agreed to do so. A hearing on both matters was set for November 9,

2018.

        A week before the scheduled hearing, Marcus filed a motion to stay the

proceedings under both case numbers. He argued that the court should grant a

stay to protect his Fifth Amendment privilege against self-incrimination because

the Seattle Police Department was investigating his management of the trust.




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No. 79328-4-I/9


Antoinette opposed the stay. Her attorney filed a declaration asserting that she

had spoken with a detective who indicated that there were no pending criminal

charges against Marcus. The detective stated that a prosecutor had advised her

to wait for the completion of the accounting before conducting any further

investigation in the criminal matter. Antoinette requested that the court (1) deny

the stay, (2) find that Marcus had breached his fiduciary duties by failing to account

for trust assets valued at $313,307.79, (3) find that Marcus had committed financial

exploitation of a vulnerable adult, (4) enter judgment removing Marcus as co-

trustee, (5) impose damages in the amount of $313,307.79, (6) order Marcus to

pay Antoinette’s reasonable attorney fees, and (7) order Marcus to account for and

deliver any trust assets in his possession or control to Antoinette. Marcus did not

file any other answer or responsive pleading to the TEDRA petition or VAPO

petition.

       The court heard both matters on November 9, 2018. It considered the

VAPO petition first. Through counsel, Marcus indicated that he had retained a

bookkeeper to prepare documents to be provided to a forensic accountant, but the

forensic accountant had not been hired and the process was “still ongoing.” The

court heard argument on the motion for a stay of proceedings, considered the King

v. Olympic Pipeline Co.4 factors on the record, and made the following ruling:

       I’ve read through all the materials on the VPO. I think that the
       petitioner has readily met her burden in this matter and I don’t think,
       as I’ve just gone through the Olympic [Pipeline] factors, that a stay is
       warranted in the VPO. So I’m going to enter the order for protection
       in the VPO matter.



       4    104 Wn. App. 338, 16 P.3d 45 (2000).


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       The court found “[b]y clear, cogent, and convincing evidence” that Marcus

had “committed acts of abandonment, abuse, personal exploitation, neglect, and

financial exploitation of the vulnerable adult.” The VAPO restrained Marcus from

acts or threats of harm or abuse against Bernice, excluded him from her residence,

and required him to provide a forensic accounting. The VAPO also limited Marcus’

contact with Bernice to three-hour visits twice per week.

       The court conducted the hearing on the TEDRA petition that afternoon. It

first considered whether it was able to grant relief under TEDRA at the initial

hearing. The court noted that, if a party had asked for mediation, it would “kick the

whole thing out and say ‘go mediate.’” It stated its impression that Antoinette’s

reference to mediation in her petition was “forward thinking” because she was

“saying she’s going to [ask for mediation] after limited discovery is done.” The

court asked Antoinette to clarify whether she was “actually making the request now

for mediation” and she responded that she was not. Marcus indicated that he

would ask for mediation if the court denied his request for a stay, and the court

responded,

                And he’d have that right, but he has that right—I mean, he
       can—he can file his notice for mediation immediately. . . . [W]e are
       still going to talk about whether or not . . . she’s entitled to the relief
       that she’s seeking at this initial hearing . . . because, as both sides
       have acknowledged, that was not otherwise requested. So the
       default is I decide everything.

       After considering the Olympic Pipeline factors as they applied to the TEDRA

case, the court denied Marcus’ request for a stay and indicated that it would

“protect Mr. Price’s Fifth Amendment rights by ensuring that there is no discovery

personally as to him.” Marcus then made an oral request for mediation. The court



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responded that the applicable statute required a party to request mediation three

days before a hearing, “but if you haven’t raised that issue until the hearing itself,

then we don’t just suddenly stop the hearing . . . and do that, but tomorrow he can

file a notice and off you go to mediate.”

       The court then turned to the merits of the TEDRA petition. It acknowledged

that there had not been a “written opposition” to the petition but that it would “hear

from counsel and he can tell me what he opposes orally.” Marcus argued that the

court should not provide the requested relief because he was still attempting to

compile the requested documentation. The court noted that Marcus had been

ordered to turn over his documentation to a forensic accountant but instead chose

to hire a bookkeeper. Marcus next argued that Antoinette had not provided full

documentation of all of the funds she claimed were missing.             After hearing

argument on the appropriate amount of damages, the court ruled:

              I’m resolving the issues of two things: [o]ne[,] this $45,450.91
       unaccounted for in regards to the Farmers Insurance proceeds; two,
       the documentary evidence right now shows that there is $129,276.38
       in rental income that I don’t think has been accounted for. I’m
       changing the $313,307.79 to $174,727.29.
              Now, I want to make clear to both parties because this cuts
       both ways. This is not resolving all the funds that the co-trustee thinks
       he took. This is also not accounting for all the funds that he thinks he
       can explain where he spent.

       The court entered an order removing Marcus as co-trustee, awarding

$174,727.29 in damages to Antoinette in her representative capacity as trustee,

requiring Marcus to turn over all trust documents and property, making Marcus

responsible for the costs of obtaining an accounting in an amount to be approved




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by the court, and awarding Antoinette reasonable attorney fees and costs. The

order was corrected and refiled on November 13, 2018.

      On November 26, 2018, Marcus filed a pro se motion for reconsideration

or, in the alternative, to alter or amend the order under CR 52, 59, and 60 in the

TEDRA case. His memorandum in support of the motion argued that the findings

were not supported by substantial evidence, his removal as co-trustee was not

justified because he did not breach his fiduciary duty, the monetary award was

excessive, attorney fees were unwarranted, and the court erred in entering the

VAPO. He also filed the same declaration and exhibits that he had filed in the

VAPO action. On December 27, 2018, he filed a second memorandum in support

of his motion for reconsideration after again retaining counsel. The memorandum

included an explanation that most of the insurance proceeds had been disbursed

directly to vendors rather than to Marcus and a summary of the documents in his

previously-filed declaration showing the disposition of the rental income. He also

filed a supplemental declaration explaining the charges in the summary.

      The court found that Marcus had not shown that any of the documents filed

in support of his motion “constituted newly discovered evidence which with

reasonable diligence he could not have discovered and produced at or prior to the

November 9, 2018 hearing.” The court concluded that Marcus had not established

grounds for reconsideration of the order and denied the motion. Marcus appealed.




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                                     ANALYSIS

I.     Vulnerable Adult Protection Order

       Marcus argues that the court erred in finding that he had committed acts of

abandonment, abuse, personal exploitation, neglect, and financial exploitation of

Bernice and in entering the VAPO.

       Appellate courts review a superior court’s decision to grant or deny a

petition for a vulnerable adult protection order for abuse of discretion. In re Knight,

178 Wn. App. 929, 936, 317 P.3d 1068 (2014). A court abuses its discretion when

its exercise of discretion is “manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971). Factual findings are reviewed for substantial evidence.

Knight, 178 Wn. App. at 936. Substantial evidence is that which is “sufficient to

persuade a rational fair-minded person the premise is true.” Sunnyside Valley Irrig.

Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003). “We defer to the trier of

fact on the persuasiveness of the evidence, witness credibility, and conflicting

testimony.” Knight, 178 Wn. App. at 937.

       In enacting the “Abuse of Vulnerable Adults Act” (AVA), the legislature

found that “[s]ome adults are vulnerable and may be subjected to abuse, neglect,

financial exploitation, or abandonment by a family member, care provider, or other

person who has a relationship with the vulnerable adult.” RCW 74.34.005. A

vulnerable adult or an interested person on their behalf may seek relief from such

“abandonment, abuse, financial exploitation, or neglect, or the threat thereof,” by

petitioning for a protection order. RCW 74.34.110(1). The petition must allege that




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“the petitioner, or person on whose behalf the petition is brought, is a vulnerable

adult” and that the allegedly vulnerable adult “has been abandoned, abused,

financially exploited, or neglected, or is threatened with abandonment, abuse,

financial exploitation, or neglect by respondent.” RCW 74.34.110(2). The court is

empowered to order relief “as it deems necessary for the protection of the

vulnerable adult.” RCW 74.34.130. The definition of “vulnerable adult” includes a

person who is 60 years of age or older and has the functional, mental, or physical

inability to care for themselves. RCW 74.34.020(22)(a).

       The AVA does not state the standard of proof required to enter a VAPO.

Knight, 178 Wn. App. at 938. When the vulnerable adult opposes the petition, the

court must find both that the adult is vulnerable and that the VAPO is needed by

clear, cogent, and convincing evidence. Id. at 937, 940. However, in most other

instances, “[t]he proper standard of proof involving abuse of a vulnerable adult

under chapter 74.34 RCW is a preponderance of the evidence.” Kraft v. Dep’t of

Soc. & Health Servs., 145 Wn. App. 708, 716, 187 P.3d 798 (2008).

       The VAPO contains the finding that Marcus had “committed acts of

abandonment, abuse, personal exploitation, neglect, and financial exploitation of

the vulnerable adult.”

       The statutory definition of “financial exploitation” is as follows:

           (7) “Financial exploitation” means the illegal or improper use,
       control over, or withholding of the property, income, resources, or
       trust funds of the vulnerable adult by any person or entity for any
       person’s or entity’s profit or advantage other than for the vulnerable
       adult’s profit or advantage. “Financial exploitation” includes, but is
       not limited to:
           (a) The use of deception, intimidation, or undue influence by a
       person or entity in a position of trust and confidence with a vulnerable



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       adult to obtain or use the property, income, resources, or trust funds
       of the vulnerable adult for the benefit of a person or entity other than
       the vulnerable adult;
           (b) The breach of a fiduciary duty, including, but not limited to, the
       misuse of a power of attorney, trust, or a guardianship appointment,
       that results in the unauthorized appropriation, sale, or transfer of the
       property, income, resources, or trust funds of the vulnerable adult for
       the benefit of a person or entity other than the vulnerable adult; or
           (c) Obtaining or using a vulnerable adult’s property, income,
       resources, or trust funds without lawful authority, by a person or
       entity who knows or clearly should know that the vulnerable adult
       lacks the capacity to consent to the release or use of his or her
       property, income, resources, or trust funds.

RCW 74.34.020. There is substantial evidence in the record to support this finding.

Marcus was co-trustee and the manager of Bernice’s apartment building, and he

managed her day-to-day finances. The record showed a lack of funds in Bernice’s

accounts despite consistent income from the apartment building and a sizeable

insurance payout. The record supports a conclusion that Marcus did not provide

an adequate explanation of how those funds had been disposed. Antoinette

asserted that Marcus had purchased vehicles, travel, and real estate in the past

several years when his only job was managing the apartment building.                The

evidence in the record is sufficient to show that Marcus mismanaged trust funds

and assets for his own benefit, which supports a finding of financial exploitation.

       The AVA authorizes imposition of a VAPO if the court finds that the

vulnerable adult requires protection from “abandonment, abuse, financial

exploitation, or neglect, or the threat thereof.” RCW 74.34.110(1). The statutory

scheme allows the court to impose the VAPO if any one of these circumstances is

present and does not require evidence of every form of mistreatment listed.

Because there was substantial evidence supporting the finding of financial




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No. 79328-4-I/16


exploitation and this finding supports the conclusion of law that the relief ordered

was necessary for Bernice’s protection, we affirm the imposition of the VAPO.

       Marcus also argues that, even if we find that there was substantial evidence

of financial exploitation, the finding does not support imposition of restraints limiting

his contact with Bernice. He contends that these restraints were not necessary for

Bernice’s physical protection and therefore the court abused its discretion.

       If a court finds that abuse, neglect, or exploitation has occurred, the court

may order relief “as it deems necessary for the protection of the vulnerable adult.”

RCW 74.34.130. That relief is designed to protect against “abandonment, abuse,

financial exploitation, or neglect, or the threat thereof.” RCW 74.34.110(1). Marcus

contends that the restraints were not necessary because “there are no allegations

or evidence that Ms. Price-Cameron is in any danger or peril from having contact

with Marcus.” However, a reasonable reading of the relevant statutes suggests

that the superior court may order relief as it deems necessary to protect the

vulnerable adult not only from physical danger, but from any abandonment, abuse,

financial exploitation, or neglect, or the threat thereof.

       As noted above, there is substantial evidence for the court’s finding that

Marcus committed financial exploitation of Bernice. The court did not abuse its

discretion in deeming limited contact with Marcus necessary for Bernice’s

protection from further financial exploitation, especially in light of Marcus’ failure to

oppose the scope of the VAPO below.




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II.    TEDRA Proceeding

       A.      Scope of Relief

       Marcus contends that the court exceeded the permissible scope of relief in

entering the order in the TEDRA action. Marcus argues that the court lacked

statutory authority to enter the money judgment at the initial TEDRA hearing

because Antoinette had not requested the award in her petition.

       We review questions of law and statutory construction de novo. In re Estate

of Jones, 152 Wn.2d 1, 8–9, 93 P.3d 147 (2004). When determining the meaning

of a statute, the appellate court’s objective is to ascertain and carry out the

legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9–

10, 43 P.3d 4 (2002). “When possible, the court derives legislative intent from the

plain language enacted by the legislature, considering the text of the provision in

question, the context of the statute in which the provision is found, related

provisions, amendments to the provision, and the statutory scheme as a whole.”

Columbia Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 432, 395 P.3d

1031 (2017).

       The legislature’s stated intent in enacting TEDRA was to provide the courts

with “full and ample power and authority” to administer and settle all trust matters.

RCW 11.96A.020.        If TEDRA is “inapplicable, insufficient, or doubtful with

reference to the administration and settlement” of trust matters, “the court

nevertheless has full power and authority to proceed with such administration and

settlement in any manner and way that to the court seems right and proper, all to

the end that the matters be expeditiously administered and settled by the court.”




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RCW 11.96A.020(2). The initial hearing on a TEDRA petition “must be a hearing

on the merits to resolve all issues of fact and all issues of law” unless a party

“requested otherwise” in a petition or answer. RCW 11.96A.100(8).

       Marcus contends that the court should have ordered the parties to

participate in mediation rather than resolving the issues on the merits because

Antoinette requested mediation in her petition. A party to a TEDRA proceeding

may “cause the matter to be subject to mediation by service of a written notice of

mediation on all parties.” RCW 11.96A.300. When a hearing has already been

set, the statute detailing mediation procedures under TEDRA requires that the

notice of mediation be served at least three days before the hearing in substantially

the following form:

                NOTICE OF MEDIATION UNDER RCW 11.96A.300
       To: (Parties)
       Notice is hereby given that the following matter shall be resolved by
       mediation under RCW 11.96A.300:
       (State nature of matter)
       This matter must be resolved using the mediation procedures of
       RCW 11.96A.300 unless the court determines at the hearing set for
       . . . o’clock on . . . . . , (identify place of already set hearing), that
       mediation shall not apply pursuant to RCW 11.96A.300(3). If the
       court determines that mediation shall not apply, the court may decide
       the matter at the hearing, require arbitration, or direct other judicial
       proceedings.
       (Optional: Our list of acceptable mediators is as follows:)
                DATED: . . . . . .
                ....
                (Party or party’s legal representative)

RCW 11.96A.300(1)(b). Division Two of this court found no substantial compliance

with this form where a notice of mediation did not include language advising the

opposing party that the matter must be resolved using mediation procedures of

RCW 11.96A.300(1)(a) unless the party objected, that the party could object, how



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No. 79328-4-I/19


to object, or how to nominate proposed mediators if he did not object. In re Estate

of Harder, 185 Wn. App. 378, 383–84, 341 P.3d 342 (2015).

       Here, neither party served a notice of mediation at least three days before

the hearing that substantially complied with the form mandated by TEDRA.

Despite the reference to potential mediation in Antoinette’s amended petition, it did

not contain a present notice of mediation when stating that, “[u]pon the completion

of limited discovery, Petitioner will request that the court order mediation pursuant

to a notice for mediation that will be filed under RCW 11.96A.300.” Although it

contemplated a future notice of mediation, this document did not purport to be a

notice of mediation nor did it contain essential portions of such a notice.

       The court did not err in determining that neither party had properly

requested mediation at the time of the hearing. Antoinette did not include in her

petition a request for mediation that substantially complied with the form mandated

by TEDRA.      She also reiterated at the hearing that she had not requested

mediation. However, her petition did include all the relief she sought. The court

did not err in exercising its broad discretion under TEDRA to settle all issues of

fact and law expeditiously, especially in light of Marcus’ failure to raise a specific

objection to such resolution in a responsive pleading or at the hearing.


       B.     Findings of Fact

       Marcus challenges multiple parts of the court’s order on the TEDRA petition.

To analyze whether the court erred in entering the provisions of the order, we first

consider whether substantial evidence supports the challenged findings of fact that

form the basis of the court’s conclusions and orders. Bartlett v. Betlach, 136 Wn.



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App. 8, 17–18, 146 P.3d 1235 (2006). Then, we determine whether the findings

support the trial court’s conclusions of law. Id. at 18.


              1.      Waiver

       Antoinette argues that Marcus may not challenge averments that he failed

to deny in a responsive pleading. Generally, after the filing of a pleading which

sets forth a claim for relief, the party against whom the suit is filed “shall state in

short and plain terms the defenses to each claim asserted and shall admit or deny

the averments upon which the adverse party relies.” CR 8(b). A defendant shall

serve an answer within the period fixed by an applicable statute. CR 12(a)(4).

“Averments in a pleading to which a responsive pleading is required, other than

those as to the amount of damage, are admitted when not denied in the responsive

pleading.” CR 8(d).

       The statute detailing the procedural rules for TEDRA suits states that a

summons must be served containing substantially similar language to the

following:

               In order to defend against or to object to the petition, you must
       answer the petition by stating your defense or objections in writing,
       and by serving your answer upon the person signing this summons
       not later than five days before the date of the hearing on the petition.
       Your failure to answer within this time limit might result in a default
       judgment being entered against you without further notice. A default
       judgment grants the petitioner all that the petitioner seeks under the
       petition because you have not filed an answer.

RCW 11.96A.100(3). A party may seek a default when “a party against whom a

judgment for affirmative relief is sought has failed to appear, plead, or otherwise

defend as provided by these rules.” CR 55(a)(1).




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       To comply with the civil rules, Marcus should have filed an answer within

the applicable time frame in the statute.        Marcus’ only filing in response to

Antoinette’s TEDRA petition was a motion for a stay that did not admit or deny any

of the averments in the petition. However, the remedy for an opposing party’s

failure to file a responsive pleading is default. Antoinette did not seek a default for

failure to plead.

       Additionally, Antoinette does not appear to have argued before the trial

court that the unanswered averments in her petition were admitted, only that the

evidence was unrebutted. The trial court considered the TEDRA petition on the

merits at the hearing. Marcus cites a similar case in which a party did not argue

that unanswered averments were admitted and the trial court proceeded to

consider the case on the merits. Card v. W. Farmers Ass’n, 72 Wn.2d 45, 48, 431

P.2d 206 (1967). In that instance, the Washington Supreme Court concluded that

“all such admissions were deemed waived and the trial court properly treated the

case as if a general denial were in the record.” Id.

       Here, as in Card, any admissions were waived when Antoinette failed to

argue that they were admitted. The trial court properly treated the case as if a

general denial were in the record.


              2.     Findings of Fact in the TEDRA Order

       Marcus assigns error to nine of the findings of fact in the TEDRA order.

First, he challenges the finding that he commingled Bernice’s assets with his own

by depositing her funds into one or more accounts over which he claims ownership.

The bank statements showed multiple transfers from accounts owned by Bernice



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or co-owned by Bernice and Marcus into an account solely in Marcus’ name. There

was substantial evidence supporting this finding.

       The next two challenged findings are similar and may be addressed

together. The first is that Marcus had not provided an accounting to the co-trustee

or trust beneficiary. The court also found that “[t]here is significant Trust income

that was under the control of Marcus E. Price and there has been no accounting

for the disposition of hundreds of thousands of dollars of Trust income since

Marcus E. Price was appointed Co-Trustee of the Bernice K. Price-Cameron Trust

on February 16, 2007.” There was evidence that the apartment building had a

potential annual net profit of over $100,000.00. Antoinette asserted that when she

filed the petition, she had not received any accounting of this income from Marcus

despite repeated requests over a period of years. Marcus did not file a complete

accounting during the pendency of the case. There was substantial evidence to

support these findings.

       Marcus also contends the court erred in finding that documentary evidence

established that he received settlement proceeds from Farmers Insurance in the

amount of $184,031.41 for Bernice’s benefit in 2017 and 2018, that he had

possession and control of these funds, and that he had not accounted for

$45,450.91 of these proceeds.       Antoinette provided a claim summary from

Farmers Insurance showing $184,031.41 in payments made during 2017 and

2018. The claim summary does not show the recipient of these payments. Marcus

argued that his declaration filed in the VAPO action showed that he had paid

$138,580.50 to the general contractor for the repairs to Bernice’s house. He did




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not provide an accounting of the remaining $45,450.91. Substantial evidence

supports this finding.

       Marcus challenges the court’s finding that documentary evidence

established that he had received $129,276.38 in rental income from Price Catalina

Apartments from January through July 2018 on Bernice’s behalf, that he had

possession and control over this income, and that he had not adequately

accounted for the income. Marcus submitted documentation with his declaration

in the VAPO action showing $129,276.38 in rental and laundry income from

January to July 2018. Although he submitted various other receipts, bills, and

payment confirmations, he did not provide a full accounting of how this money was

spent. Substantial evidence supports this finding.

       Marcus assigns error to the finding that, as of the entry of the order,

“documentary evidence establishes that $174,727.29 is missing and unaccounted

for from the trust income and assets that were under the control of the Respondent.

Respondent has refused to account for the missing trust assets and has refused

to return any of the missing trust assets to the Trust.” The finding contains the sum

of the unaccounted funds from the insurance proceeds and the rental income.

Both the home covered by the insurance claim and the apartment building were

trust assets. It is undisputed that Marcus managed the trust income and assets

during the relevant time period. Substantial evidence supports this finding.

       Next, Marcus contends that the court erred in finding that clear, cogent and

convincing evidence established that he had willfully used and controlled Bernice’s

assets for his own benefit and not for Bernice’s benefit while she was incapacitated




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and/or unable to care for herself. It is undisputed that Bernice was unable to care

for herself, and Antoinette asserted this fact and provided opinions from Bernice’s

doctors to the same effect. She also presented evidence that Bernice was not able

to afford the care she needed. The bank statements showed that trust funds were

repeatedly transferred to Marcus’ personal account.            Substantial evidence

supports this finding.

       Marcus challenges the finding that clear, cogent, and convincing evidence

established that Bernice would suffer additional financial harm if he was not

removed as co-trustee and prohibited from having any access to or control over

her funds. Antoinette presented evidence of past financial harm to Bernice while

Marcus acted as co-trustee and managed her finances. The bank statements

showed that the transfers to Marcus’ account continued until Bernice’s accounts

were closed in June 2018. Substantial evidence supported this finding.

       Finally, Marcus assigns error to the following finding of fact:

              Delaying these proceedings for an indefinite period of time
       would result in prejudice to the Vulnerable Adult by increasing her
       costs and attorneys’ fees, delaying judgment, delaying Respondent’s
       removal, and subjecting the Vulnerable Adult to ongoing uncertainty.
       The passage of time increases the risk that evidence will become
       stale or unavailable. The Vulnerable Adult requires costly care that
       she cannot currently afford due to the depletion of her assets by the
       Respondent.

As noted above, the record contained evidence that Bernice could not afford the

care she needed. The other listed consequences would logically flow from a delay

in proceedings. Substantial evidence supported this finding.




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       C.     Removal as Co-Trustee

       Marcus also contends that the court erred in removing him as co-trustee.

Trustees, as fiduciaries, owe the highest degree of good faith, care, loyalty, and

integrity to the beneficiaries of the trust. Esmieu v. Shrag, 88 Wn.2d 490, 498, 563

P.2d 203 (1977). Trustees are not permitted to manage the affairs of the trust or

deal with the trust property so as to gain any direct or indirect advantage for

themselves. Tucker v. Brown, 20 Wn.2d 740, 768, 150 P.2d 604 (1944).

       A trustee may petition the superior court for the change of a co-trustee for

reasonable cause. RCW 11.98.039(4). Breach of fiduciary duty, a conflict of

interest between the trustee and the beneficiary, or bad will generated by litigation

are examples of reasonable cause to remove a trustee. In re Estate of Ehlers, 80

Wn. App. 751, 761, 911 P.2d 1017 (1996). “A court has a ‘wide latitude of

discretion’ to remove the trustee, ‘when there is sufficient reason to do so to protect

the best interests of the trust and its beneficiaries.’” In re Estate of Cooper, 81 Wn.

App. 79, 94–95, 913 P.2d 393 (1996) (quoting Schildberg v. Schildberg, 461

N.W.2d 186 (Iowa 1990)). The Washington Supreme Court has cautioned that the

power of removal of a trustee should be exercised sparingly and only when there

is misconduct showing a lack of capacity or fidelity that jeopardizes the trust.

Cornett v. West, 102 Wash. 254, 264, 173 P. 44 (1918). A trial court’s decision to

remove a trustee is reviewed for an abuse of discretion. In re Marriage of Petrie,

105 Wn. App. 268, 275, 19 P.3d 443 (2001).

       Here, the court concluded that Marcus had breached his fiduciary duty to

Bernice and that good cause had been established for removing Marcus as co-




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trustee. The findings that Marcus had used trust funds for his own benefit rather

than Bernice’s and that he had failed to account for trust funds support the

conclusion that he breached his fiduciary duty to Bernice.       This breach also

supports the conclusion that good cause existed to remove Marcus as co-trustee.

The court did not abuse its discretion in removing Marcus as co-trustee.


      D.      Cost of Accounting and Attorney Fees

      Marcus also argues that the court erred in awarding Antoinette attorney fees

and costs and in requiring him to pay the costs of obtaining an accounting

personally.

      In a TEDRA action, the superior court “may, in its discretion, order costs,

including reasonable attorneys’ fees, to be awarded to any party.” RCW

11.96A.150(1). “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.” Id. We review an award of attorney fees and costs under TEDRA for

an abuse of discretion. In re Estate of Wimberley, 186 Wn. App. 475, 512, 349

P.3d 11 (2015).

      The court concluded that it was equitable for Marcus to pay “the costs of

obtaining the accounting ordered herein as well as the attorneys’ fees incurred by

Petitioner in maintaining these actions.”      In her amended petition, Antoinette

requested that Marcus be ordered to provide an accounting and personally bear

the cost of doing so. She also requested an award of attorney fees.

      Marcus contends that the trust should be responsible for the cost of any

accounting that he provides. He relies on In re Estate of Cooper in support of his



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argument that the cost of a trustee’s accounting is typically charged to the trust. 81

Wn. App. 79. In Cooper, the court relied on CR 26(b)(5) and 37(a)(4) to award

accountant fees to a trustee for an accounting prepared in response to a petition

when the court found in the trustee’s favor on the question of whether the

accounting adequately traced the estate’s assets. Id. at 93–94. Cooper does not

clearly compel the court to charge the accounting fees to the trust, especially under

this very different set of facts. Marcus has not shown that the court abused its

discretion in concluding that it was equitable under these circumstances for him to

bear the cost of the accounting.

       Marcus also argues that the award of attorney fees was not supported by

the findings of fact. However, the findings that Marcus used trust funds for his own

benefit and failed to account for missing funds support the court’s conclusion that

it was equitable for Marcus to pay the fees incurred in bringing this action. Marcus

has not shown that the court abused its discretion in awarding attorney fees.


III.   Motion for Reconsideration

       Marcus also contends that the court erred in denying his motion for

reconsideration. A court’s ruling on a motion for reconsideration under CR 59 is

reviewed for an abuse of discretion. Pac. Indus., Inc. v. Singh, 120 Wn. App. 1, 11,

86 P.3d 778 (2003).

       On the motion of an aggrieved party, the trial court may reconsider an order

on one of nine bases materially affecting the substantial rights of the party. CR

59(a). These reasons include:




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              (4) Newly discovered evidence, material for the party making
      the application, which the party could not with reasonable diligence
      have discovered and produced at the trial;
      ...
              (6) Error in the assessment of the amount of recovery whether
      too large or too small, when the action is upon a contract, or for the
      injury or detention of property;
              (7) That there is no evidence or reasonable inference from the
      evidence to justify the verdict or the decision, or that it is contrary to
      law;
              (8) Error in law occurring at the trial and objected to at the time
      by the party making the application; or
              (9) That substantial justice has not been done.

Id.

      Marcus assigns error to the court’s finding that:

             To the extent that Marcus Price filed new documents in
      support of his Motion for Reconsideration, he failed to show that they
      constituted newly discovered evidence which with reasonable
      diligence he could not have discovered and produced at or prior to
      the November 9, 2018 hearing. This Court did not consider any such
      documents.

Both parties appear to read this finding to say that the court entirely declined to

consider the evidence submitted with the motion for reconsideration because it

was untimely. The court did not find the motion untimely and decided the motion

on the merits. It stated that it considered both memoranda and declarations filed

in support of the motion. The order stated only that the court did not consider any

evidence that was not newly discovered and therefore could have with reasonable

diligence been discovered and produced at or before the hearing. Marcus admits

that almost all of the documents in the materials filed on reconsideration “merely

summarized and clarified evidence that was already in the record.” Although the

court appears to have decided the motion for reconsideration under CR 59(a)(4)




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rather than the bases put forth in Marcus’ memoranda, Marcus does not argue that

this was error.

       Marcus does not raise any other argument challenging the denial of

reconsideration. He has not shown that the trial court abused its discretion in

denying his motion for reconsideration.


IV.    Attorney Fees on Appeal

       Both parties request an award of attorney fees and costs on appeal under

RCW 11.96A.150. A party may request an award of attorney fees and costs if

applicable law provides the right to recover fees and costs on appeal. RAP 18.1(a).

Under TEDRA, the appellate court may award reasonable attorney fees and costs

as it deems equitable to any party “(a) [f]rom any party to the proceedings; (b) from

the assets of the estate or trust involved in the proceedings; or (c) from any

nonprobate asset that is the subject of the proceedings.” RCW 11.96A.150(1).

       Both parties argue that they should be awarded fees as the prevailing party

on appeal. Because Antoinette is the prevailing party on appeal, it is equitable that

she be awarded attorney fees from Marcus.

       Affirmed.




WE CONCUR:




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