        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION ONE

In the Matter of the Estate of                   )       No. 79171-1-I
BERTHOLD R. FORDERER                             )
                                                 )
                and                              )
                                                 )       UNPUBLISHED OPINION
EMILIE L. FORDERER,                              )
                                                 )
                                Deceased.        )

        BOWMAN, J. — Susanne Forderer brought a motion to remove Alexander

(Alex) Forderer as personal representative (PR) of the estate of Berthold and

Emilie Forderer under RCW 11.28.250. Following a lengthy trial, the court

granted the motion based on multiple grounds, including waste and

mismanagement of the estate. Because the unchallenged findings of fact

support Alex’s1 removal as PR, we affirm.

                                            FACTS

        Berthold and Emilie married and had two children, Susanne and Berthold

(Bert) Forderer. Alex is Emilie’s son from a former marriage and half-brother to

Susanne and Bert.




        1
          We refer to the members of the Forderer family by their first names throughout the
opinion for purposes of clarity and mean no disrespect by doing so.


      Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79171-1-I/2


       Berthold died in February 2009, leaving all assets to Emilie. An

accounting at the time of Berthold’s death showed $1,432,073.43 in assets,

including a Charles Schwab account worth $318,436.30, a Boeing 401K account

worth $906,565.45, and multiple KeyBank accounts worth more than

$198,000.00.

       Shortly before Berthold’s death, Emilie designated Alex as her attorney-in-

fact. Emilie executed a durable power of attorney (POA) granting Alex all

decision-making powers over her estate except for the ability to make gifts of her

property. The POA remained in effect until Emilie’s death in 2015.

       In 2009, Alex obtained a geriatric assessment of Emilie. The assessment

concluded Emilie could “ ‘perform most of her activities of daily living, except for

managing money or preparing meals.’ ”

       In January 2010, Susanne filed a “Petition for Vulnerable Adult Order for

Protection.” In the petition, Susanne expressed concern about Emilie’s capacity

to care for herself and Alex’s undue influence. Susanne argued Emilie had

Alzheimer’s disease/dementia that prevented her “from withstanding the efforts”

of Alex to isolate Emilie from other family members. At a hearing on the petition,

Emilie testified that she still had her “marbles” and was able to take care of

herself. The court found that Emilie could clearly voice her opinions and

dismissed the petition without prejudice.

       Emilie moved into an assisted living facility in December 2009. Alex

visited her almost daily. Emilie deferred the management of her financial affairs




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No. 79171-1-I/3


to Alex. He had a debit card for her bank accounts and kept her purse with her

debit card in his home safe.

       Emilie died in March 2015. Her death certificate listed the cause of death

as Alzheimer’s disease and indicated six years between onset of the disease and

death. Emilie left her estate to Alex, Susanne, and Bert. She designated Alex as

the PR.

       In October 2015, Alex filed an estate inventory listing the probate and

nonprobate assets. There were significant discrepancies between Alex’s estate

inventory list and the assets listed in the accounting of the estate after Berthold’s

death. For example, the Boeing 401K account held approximately $330,000 less

than at the time of Berthold’s death and none of the KeyBank accounts appeared

on the asset inventory. The inventory also stated that Emilie possessed no

personal property at the time of her death.

       In April 2017, Susanne filed a motion under RCW 11.28.250 to remove

Alex as PR. She alleged that Alex had a conflict of interest based on his

suspicious management of funds during Emilie’s lifetime. Alex opposed the

motion, claiming he spent the missing funds on Emilie’s care and support during

her final six years of life. Alex argued there was no evidence that he failed to

perform his duties or had a conflict of interest. The trial court denied the motion

to remove Alex as PR without prejudice but ordered him to provide a verified

accounting of the estate with supporting documentation to address the issues

raised in the motion for removal. Alex filed a new accounting in August 2017.




                                          3
No. 79171-1-I/4


       In December 2017, Susanne renewed her motion for removal of Alex,

alleging waste and mismanagement of the estate’s assets during Emilie’s

lifetime. A commissioner denied the motion to remove Alex as PR but certified

the issue of the adequacy of the accounting for trial. In March 2018, Alex made

an offer of judgment under CR 68 to pay a judgment of $58,000 and step down

as PR subject to several conditions. Those conditions included indemnity and

release of Alex from further liability related to the probate of the estate and

payment of his attorney fees by the estate. Susanne declined the offer.

       At a pretrial hearing, Alex sought an order to limit the trial to matters

relating to the PR’s accounting and to bar discovery of Emilie’s medical

information. The trial court granted the motion “to limit testimony and evidence

presented at trial to accounting only.” The court also ordered that “the parties

shall not request discovery, offer evidence[,] or [e]licit testimony from witnesses

with regard to Emilie Forderer’s Personal Health Information at any time during

her life.” The court denied Susanne’s motion for reconsideration. Susanne filed

a motion for discretionary review. A commissioner of this court denied

Susanne’s motion.

       During trial, Susanne’s forensic accountant expert Lorraine Barrick

provided evidence that more than $250,000 in disbursements from Emilie’s

accounts were not for her benefit. The disbursements included men’s clothing,

tools, vehicles, household goods, and fresh groceries purchased during the time

Emilie lived in an assisted facility that provided three meals each day. Emilie’s

account also showed over $78,000 in payments to Alex’s son and over $28,000




                                          4
No. 79171-1-I/5


in unaccounted for cash and cashier’s checks. Barrick testified that at least

$133,175 from Emilie’s KeyBank accounts should have been included in the

estate. Instead, Alex assumed ownership of the funds as joint account holder

with right of survivorship. Based on Barrick’s calculations, a minimum of

$408,840 was missing from the estate.

       The trial court concluded Alex had wasted assets and mismanaged the

estate. The court removed Alex and appointed a new PR. The trial court

granted Susanne’s motion for attorney fees and costs under RCW 11.96A.150.

The court denied Alex’s request for attorney fees and costs under CR 68. Alex

appeals.

                                    ANALYSIS

Removal of the PR

       Alex claims the court erred in removing him as PR of Emilie’s estate. We

conclude that the unchallenged findings of fact support the trial court’s decision

to remove Alex for waste of assets and mismanagement of Emilie’s estate.

       RCW 11.28.250 authorizes the court to remove a PR

       [w]henever the court has reason to believe that any personal
       representative has wasted, embezzled, or mismanaged, or is about
       to waste, or embezzle the property of the estate committed to his or
       her charge, or has committed, or is about to commit a fraud upon
       the estate, or is incompetent to act, or is permanently removed from
       the state, or has wrongfully neglected the estate, or has neglected
       to perform any acts as such personal representative, or for any
       other cause or reason which to the court appears necessary.

       The court has wide discretion to remove a PR and an appellate court

should generally not interfere. In re Estate of Beard, 60 Wn.2d 127, 132, 372

P.2d 530 (1962). The superior court must have valid grounds for removal



                                         5
No. 79171-1-I/6


supported by the record. In re Estate of Jones, 152 Wn.2d 1, 10, 93 P.3d 147

(2004). “[I]f even one ground for removal is valid, the decision should be upheld

on appeal.” Jones, 152 Wn.2d at 10. However, if the findings do not support

removal, the removal is arbitrary and improper. Jones, 152 Wn.2d at 8.

       Unchallenged findings of fact are verities on appeal. Jones, 152 Wn.2d at

8. Challenged findings of fact must be supported by substantial evidence

sufficient to persuade a rational, fair-minded person of the truth of the finding.

Jones, 152 Wn.2d at 8. An appellate court reviews conclusions of law de novo.

Jones, 152 Wn.2d at 8-9.

       Here, the trial court concluded the evidence clearly and convincingly

demonstrated Alex had wasted and mismanaged the estate. The court removed

Alex as PR based on several “non-exclusive” grounds:

       (1) Alex breached his fiduciary duty to Emile with regard to the
       expenditures of at least $357,429[.00] of Emilie’s funds during her
       life that were either unaccounted for, not for, or only partially for
       Emilie’s benefit; (2) Alex procured “gifts” of at least $628,519.57
       from Emilie related to the opening of the Key Bank and [Charles]
       Schwab accounts and the funds he received from those accounts
       upon her death, all of which were the product of undue influence
       and/or fraud; (3) Alex mismanaged at least $100,000[.00] in Estate
       assets by failing to report any of Emilie’s personal property on the
       Estate Inventory, including the tractor, trailer, dump truck, jewelry,
       tools, or any replacement items Alex may have purchased with the
       insurance proceeds; (4) Alex mismanaged at least $133,175.14 in
       Estate funds by taking the Key Bank accounts for himself upon
       Emilie’s death, funds that should have gone to the Estate under
       RCW 30A.22.100; (5) Alex acted improperly in connection with his
       actions regarding the insurance claims he filed on Emilie’s behalf
       and the $26,331.08 in proceeds he received but did not report on
       the Estate Inventory or in the 2017 Accounting; and (6) Alex
       committed waste with respect to his neglect of the Family Property,
       an asset of the Estate.




                                          6
No. 79171-1-I/7


       The unchallenged findings of fact support at least one of the statutory

grounds for removal of Alex as the PR. For example, Alex does not challenge

the trial court’s findings that he failed to maintain the family property. This

includes findings that he claimed $131,294.82 in expenses related to the upkeep

of the home, but the home is uninhabitable due to serious neglect. The court

found, “The current uninhabitable condition of the house does not support Alex’s

contention that any of Emilie’s funds were actually spent on the Family Property’s

maintenance during the relevant time period.”

       Likewise, the trial court found that Alex did not report Emilie’s personal

property as assets on the estate inventory, including a $58,000 Kubota tractor

that he purchased with her funds and kept at his property. Alex did not assign

error to this finding of fact. Alex also purchased a $6,200 dump truck and several

thousand dollars’ worth of jewelry that he failed to include as personal property

on the 2015 list of estate assets. The unchallenged findings establish that Alex

“mismanaged at least $100,000 in Estate assets” by not reporting them.

       The unchallenged findings of fact also establish Alex’s improper use of

insurance proceeds from a burglary at Emilie’s property. The findings state that

Alex received $26,331.08 in insurance proceeds for items he claimed were stolen

from the house, including reimbursement for several hand-carved statues that

were not stolen. Alex received the reimbursement funds on a debit card. The

findings support the trial court’s conclusion that “Alex acted improperly in

connection with his actions regarding the insurance claims he filed on Emilie’s




                                          7
No. 79171-1-I/8


behalf and the $26,331.08 in proceeds he received but did not report on the

Estate Inventory or in the 2017 Accounting.”

       We conclude that the unchallenged findings of fact support the trial court’s

decision to remove Alex as PR under RCW 11.28.250.

Evidentiary Rulings

       Alex challenges a number of evidentiary rulings. Because the findings of

fact and conclusions of law may have a preclusive effect on any future

proceedings, we address the rulings.

       “A trial court’s decision to admit or exclude evidence lies within its sound

discretion.” Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App.

736, 744, 87 P.3d 774 (2004). We will not overturn evidentiary rulings unless the

trial court manifestly abuses its discretion or bases its decision on untenable

grounds or reasons. Int’l Ultimate, 122 Wn. App. at 744; Mayer v. Sto Indus.,

Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). A trial court’s decision is

manifestly unreasonable if it adopts a view no reasonable person would take.

Mayer, 156 Wn.2d at 684. A decision is based on untenable grounds or reasons

if the trial court applies the wrong legal standard or relies on unsupported facts.

Mayer, 156 Wn.2d at 684; Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230

P.3d 583 (2010).

       Personal Health Information

       Before trial, the court granted Alex’s motion to limit the scope of the trial to

accounting issues only and to preclude discovery of Emilie’s personal health

information. However, during the trial, Alex elicited testimony that “opened the




                                          8
No. 79171-1-I/9


door” to personal health information and the court allowed Susanne to question

those witnesses about Emilie’s dementia diagnosis. Those witnesses included a

Charles Schwab financial consultant who testified about Emilie’s “comfort” during

participation in her financial affairs, a caregiver who testified about Emilie’s

independence, and Alex’s testimony about using a computer to review financial

documents with Emilie.

       Alex contends the testimony did not “open the door” and that the trial court

erred in its admission of personal health information. Specifically, Alex claims

the court improperly relied on the 2009 geriatric assessment of Emilie as well as

her death certificate “to conclude that she was the subject of [his] undue

influence.” Susanne argues the trial court properly concluded Alex opened the

door to the testimony when he attempted to elicit “back door” testimony as to

Emilie’s capacity. We agree with Susanne.

       “ ‘[A] party who is the first to raise a particular subject at trial may open the

door to evidence offered to explain, clarify, or contradict the party’s evidence.’ ”

State v. Jones, 144 Wn. App. 284, 298, 183 P.3d 307 (2008) (quoting KARL B.

TEGLAND, 5 WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 103.14, at 66-67

(5th ed. 2007)); see Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 766, 389

P.3d 517 (2017); Ang v. Martin, 118 Wn. App. 553, 561-62, 76 P.3d 787 (2003).

At trial, in response to questions by Alex, a Charles Schwab financial planner

testified that Emilie appeared comfortable during financial conversations at her

office. The trial court found a reasonable inference that Alex elicited this

testimony to suggest that Emilie was in agreement with and/or understood the




                                           9
No. 79171-1-I/10


nature of those discussions. The trial court warned Alex, “If you want to offer or

extract information about Emilie’s mental state, agreement, participation,

deference, and all the rest you may do so, but you do so at your own peril.” Alex

then asked Emilie’s caregiver about Emilie’s independence. The court ruled that

the question “implies a great deal of things, other than one’s ability to walk or

brush teeth or do something like that. It implies one’s ability to resist outside

influences.”

       Despite repeated warnings from the trial court, Alex testified that he used

a computer to review Emilie’s financial documents with her. He claimed that they

“reviewed a lot of her financial documents” on the computer. On cross-

examination, Alex testified he used a computer to show Emilie her financial

information “[b]ecause she was curious about it.” When asked whether Alex

expected Emilie to understand the financial documents, he replied, “I explained

them to her. Whether or not she understood them, I have no idea.” At this point,

Susanne argued and the trial court agreed that Alex had “opened the door” to

admit personal health information related to Emilie’s mental capacity. The court

ruled, “This now is proper inquiry to examine the most recent testimony of why

this witness would have no idea.”

       The trial court did not abuse its discretion in ruling that the testimony about

Emilie’s comfort, independence, and ability to understand her financial

documents “opened the door” to previously excluded evidence of her dementia

and Alzheimer’s disease.




                                         10
No. 79171-1-I/11


       Designation of Accounts

       Alex claims the trial court erred in characterizing account beneficiary

designations and rights of survivorship as inter vivos gifts. Alex contends the

court therefore improperly shifted the burden to him to prove that he did not

unduly influence Emilie. The trial court concluded the KeyBank and Charles

Schwab accounts “are presumed gifts obtained by fraud or undue influence.”

       In a will contest, the challenger must prove by clear and convincing

evidence the existence of undue influence. White v. White, 33 Wn. App. 364,

369, 655 P.2d 1173 (1982). The burden shifts to the recipient of a gift when he

has a confidential or fiduciary relationship with the donor. In re Trust & Estate of

Melter, 167 Wn. App. 285, 296, 273 P.3d 991 (2012). The recipient of a gift

between persons in a confidential relationship must prove the lack of undue

influence by clear, cogent, and convincing evidence. McCutcheon v. Brownfield,

2 Wn. App. 348, 357, 467 P.2d 868 (1970). Designation as a beneficiary on an

account “is not an inter vivos gift because the designation is ‘merely a means of

transmitting property at death’ and the beneficiary has no rights before” that

death. In re Estate of Langeland, 177 Wn. App. 315, 330, 312 P.3d 657 (2013)

(quoting Francis v. Francis, 89 Wn.2d 511, 514, 573 P.2d 369 (1978)).

       The trial court found that the KeyBank and Charles Schwab accounts

were inter vivos gifts. We agree the KeyBank accounts are inter vivos gifts but

not the Charles Schwab accounts.




                                         11
No. 79171-1-I/12


       1) KeyBank Accounts

       Alex claims that he is a designated beneficiary of Emilie’s KeyBank

accounts because he is a joint owner with right of survivorship. The court ruled

that the accounts did not carry the right of survivorship and characterized them

as inter vivos gifts.

       When a party challenges a trial court’s findings of fact, we limit our review

to determining whether substantial evidence supports the findings. Panorama

Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10

P.3d 417 (2000). “Substantial evidence” is defined as “ ‘a quantum of evidence

sufficient to persuade a rational fair-minded person the premise is true.’ ” Korst

v. McMahon, 136 Wn. App. 202, 206, 148 P.3d 1081 (2006) (quoting Sunnyside

Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)).

               Expert Testimony

       Susanne’s expert testified that the majority of Emilie and Alex’s joint

KeyBank accounts did not carry the right of survivorship. Rather than pass

directly to Alex, the accounts should have gone into the estate as assets.

       Alex called KeyBank employee Tricia Kauffman as an expert. She

testified that joint KeyBank accounts always have a right of survivorship. The

trial court discounted Kauffman’s testimony because she testified as to her

personal opinion and individual knowledge rather than on behalf of KeyBank and

because she lacked personal knowledge of the accounts at issue, “which were

opened long before she had ever been employed by Key Bank.”




                                         12
No. 79171-1-I/13


       Judgment as to the credibility of witnesses and the weight of the evidence

is the exclusive function of the finder of fact. Quinn v. Cherry Lane Auto Plaza,

Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). An appellate court may not

reweigh the evidence and substitute its own judgment. Quinn, 153 Wn. App. at

717. Substantial evidence supports the court’s finding that the KeyBank

accounts did not carry the right of survivorship.

                  KeyBank Document

       Alex also offered to admit a document from KeyBank reflecting that all of

its joint accounts carry a right of survivorship. Kauffman testified she saw the

document for the first time during a deposition a few days earlier. Kauffman

received the document in an e-mail from a KeyBank custodian of records.

Susanne objected for lack of foundation. Susanne argued Kauffman had no

knowledge of the preparation of the document or its maintenance in the regular

course of business. The trial court denied admission of this evidence for lack of

personal knowledge. Alex assigns error to this ruling, arguing the court abused

its discretion.

       Under the Uniform Business Records as Evidence Act, chapter 5.45

RCW, “[i]t is not necessary to examine the person who actually created the

record so long as it is produced by one who has the custody of the record as a

regular part of his work or has supervision of its creation.” Cantrill v. Am. Mail

Line, Ltd., 42 Wn.2d 590, 608, 257 P.2d 179 (1953); see RCW 5.45.020; see

also State v. Iverson, 126 Wn. App. 329, 337-38, 108 P.3d 799 (2005). Because

Kauffman did not see the document until she received it in an e-mail before the




                                         13
No. 79171-1-I/14


deposition taken a few days before she testified and did not have custody of the

record as a regular part of her work, the trial court did not abuse its discretion in

ruling that the document was not admissible.

        2) Charles Schwab Accounts

        In contrast to the KeyBank accounts, the record shows that Emilie

designated Alex as her beneficiary on death for two Charles Schwab accounts.

Therefore, the Charles Schwab accounts were not inter vivos gifts and the

accounts properly transferred to Alex upon Emilie’s death as a nonprobate asset.

See Langeland, 177 Wn. App. at 330. The trial court erred in its characterization

of the Charles Schwab accounts as inter vivos gifts and Alex was not required to

prove “the validity of the beneficiary designation and the absence of undue

influence” by clear, cogent, and convincing evidence. Langeland, 177 Wn. App.

at 330.2

        Deadman’s Statute

        Alex contends that the trial court erred in excluding testimony under the

deadman’s statute, RCW 5.60.030. He claims that the statute does not apply

because he is not “a party in interest” under the statute. However, Alex has

waived review of this issue on appeal as he did not challenge his designation as

a “party in interest” below.

        “The deadman’s statute, RCW 5.60.030, bars testimony by a ‘party in

interest’ regarding ‘transactions’ with the decedent or statements made to him by




        2
           Because unchallenged findings support the court’s removal of Alex as PR, the court’s
error is harmless.


                                               14
No. 79171-1-I/15


the decedent.” In re Estate of Lennon, 108 Wn. App. 167, 174, 29 P.3d 1258

(2001). RCW 5.60.030 states:

       [A] party in interest or to the record . . . shall not be admitted to
       testify in his or her own behalf as to any transaction had by him or
       her with, or any statement made to him or her, or in his or her
       presence, by any such deceased . . . person.

       Alex planned to introduce testimony that Emilie was aware and approved

of many of the transactions in controversy. Susanne moved in limine under this

statute to prevent Alex from testifying as to his conversations with Emilie

regarding the expenses and transactions listed in the accounting. In her motion

in limine, Susanne argued that RCW 5.60.030 precludes a “party in interest” from

testifying “about transactions with or statements made by a decedent” and

argued:

               Alex Forderer is a party in interest both as personal
       representative of the Estate and as one of its heirs. There can be
       no dispute that he stands to gain or lose from a judgment in this
       action, as Susanne is seeking his removal and directly challenging
       his actions while acting as attorney-in-fact and as PR of the Estate.

       In response, Alex argued that Susanne sought to “inject improper

evidence and unsupported innuendo” through a “sham” motion under RCW

5.60.030. Alex also argued Susanne waived application of the statute because

“[b]y submitting Alex Forderer’s testimony as to what his mother wanted, and

following her wishes, the petitioner has waived the right to complain about it

here.” The trial court granted the motion in limine and barred Alex and his wife

“from testifying as to any transactions with or statements made by Emilie

Forderer regarding the 2017 Court-ordered accounting, pursuant to RCW

5.60.030.”



                                         15
No. 79171-1-I/16


       Although Alex made a general objection to Susanne’s motion in limine, he

did not object to her assertion that he was a “party in interest.” ”Even if an

objection is made at trial, a party may only assign error in the appellate court on

the specific ground of the evidentiary objection made at trial.” DeHaven v. Gant,

42 Wn. App. 666, 669, 713 P.2d 149 (1986); see also State v. Hamilton, 179 Wn.

App. 870, 878, 320 P.3d 142 (2014); State v. Kirkman, 159 Wn.2d 918, 926, 155

P.3d 125 (2007).

       Alex did not dispute that he was a “party in interest.” Indeed, citing

Lennon, he claimed that he was free to testify about his own feelings and

impressions because “the deadman’s statute does not prevent an interested

party” from doing so. Because the trial court did not have a meaningful

opportunity to consider the argument that Alex was not a “party in interest” under

the deadman’s statute, he has waived review of this issue on appeal.

Trial Court Award of Attorney Fees and Costs

       Susanne and Alex submitted post-trial motions for attorney fees and costs.

The court granted Susanne’s motion under RCW 11.96A.150 of the Trust and

Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW. The trial court

denied Alex’s motion under CR 68. Alex appeals these rulings.

       RCW 11.96A.150

       Alex contends the trial court abused its discretion by awarding Susanne

an inequitable fee award based on a conclusory analysis. The record does not

support his argument.




                                         16
No. 79171-1-I/17


       The court has discretion to award attorney fees and costs in a TEDRA

action. RCW 11.96A.150. In exercising this discretion, 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(1). An appellate court should not interfere with a

trial court’s fee determination unless facts and circumstances clearly show an

abuse of the trial court’s discretion. In re Estate of Black, 153 Wn.2d 152, 173,

102 P.3d 796 (2004).

       Here, the trial court awarded attorney fees to Susanne in the amount of

$465,238.84 and costs of $92,352.02 for conferring a substantial benefit to the

estate. The court awarded fees because Susanne established Alex’s conflict of

interest and misconduct warranting his removal as PR. The record shows that

the trial court utilized a lodestar calculation and discounted Susanne’s requested

award due to unsuccessful litigation, duplicative charges, and excessive hours.

Under the general terms of RCW 11.96A.150, this decision was well within the

trial court’s discretion.

       CR 68

       The trial court rejected Alex’s motion for attorney fees and costs under CR

68. Alex claims Susanne did not improve her position at trial because she

achieved the “sole” relief of his removal as PR. In contrast, he argues that

Susanne would have had the benefit of his removal as well as a $58,000

judgment had she accepted the CR 68 offer. As a result, Alex contends he

should have received his fees and costs for trial under CR 68. We disagree.




                                        17
No. 79171-1-I/18


        CR 68 requires the offeree to pay the costs incurred after a rejected offer

“[i]f the judgment finally obtained by the offeree is not more favorable than the

offer.” When comparing a final judgment with a CR 68 offer, a trial court should

“ ‘compare comparables.’ ” Magnussen v. Tawney, 109 Wn. App. 272, 275, 34

P.3d 899 (2001) (quoting Wilkerson v. United Inv., Inc., 62 Wn. App. 712, 717,

815 P.2d 293 (1991)). Determination of the prevailing party is a mixed question

of law and fact; however, we review the issue under the error of law standard.

Magnussen, 109 Wn. App. at 275.

        The assessment of Susanne’s position after trial turns on whether Alex’s

unconditional removal as PR is a more favorable outcome than his conditional

agreement to removal and judgment of $58,000. Assessing the relative value of

equitable relief and damages poses the challenge of “comparing apples and

oranges.” Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 837 (6th

Cir.2005).3 Despite this challenge, a majority of federal courts have recognized

that “a favorable judgment and an injunction can be more valuable to a plaintiff

than damages.” Andretti, 426 F.3d at 837; see Reiter v. MTA N.Y.C. Transit

Auth., 457 F.3d 224, 231 (2d Cir. 2006); Liberty Mut. Ins. Co. v. Equal Emp’t

Opportunity Comm’n, 691 F.2d 438, 442 (9th Cir. 1982); Lish v. Harper’s

Magazine Found., 148 F.R.D. 516, 519-20 (S.D.N.Y. 1993).

        In contrast to Alex’s conditional offer to step down as PR, Susanne

achieved unconditional removal of Alex. Had Susanne accepted the CR 68 offer,

Alex could claim immunity and indemnification in the event the successor PR

        3
          Because CR 68 is virtually identical to Federal Rule of Civil Procedure 68, the court may
look to federal interpretation of an equivalent rule in the absence of controlling Washington
authority. Johnson v. Dep’t of Transp., 177 Wn. App. 684, 692 n.5, 313 P.3d 1197 (2013).


                                                18
No. 79171-1-I/19


pursued an action against him for his dissipation of Emilie’s assets and his

mismanagement of the estate. The court did not abuse its discretion in ruling

that Alex was not entitled to fees and costs under CR 68.

Attorney Fees on Appeal

        Susanne requests attorney fees and costs on appeal under RAP 18.1 and

RCW 11.96A.150. The court on appeal has discretion to award attorney fees

and costs under TEDRA, RCW 11.96A.150. Because Susanne’s defense of this

appeal conferred a benefit on the estate, we exercise our discretion to award her

attorney fees and costs subject to RAP 18.1.4

        We affirm the decision of the trial court to remove Alex as PR under RCW

11.28.250.




WE CONCUR:




        4
          Alex also requests attorney fees under RAP 18.1, RCW 11.96A.150, and CR 68. The
foregoing discussion of CR 68 applies to the request on appeal and Alex is therefore not entitled
to attorney fees under that rule. Furthermore, Alex’s waste of the estate and removal as PR
make an award under RCW 11.96A.150 inappropriate.


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