                                                                           FILED 

                                                                         JAN 27, 2015 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Matter of the Estate of:            )
                                              )         No. 31915-6-111
                                              )
                                              )
ELMA L. HAYES,                                )
                                              )
                       Deceased,              )         PUBLISHED OPINION
                                              )
and                                           )
                                              )
JAMES L. HAYES,                               )
                                              )
                       Appellant.             )

       FEARING, J. -    Brothers James and Jerry Hayes dispute the meaning of their

mother Elma Hayes' will. James Hayes signed a favorable lease with his mother to farm

the family's land. When she died, Elma devised in her will discrete portions of the leased

farmland to each of her four children. The dispute requires a ruling as to whether Elma

intended to partition the lease into four separate agreements when she partitioned the

farmland in her will. James contends she did, such that the lease covering his quarter

share of property was extinguished when he became both the landlord and tenant, and, in

turn, he could sell his land free of the favorable lease. In tum, James claims the lease

continues to encumber his three siblings' leases such that they may not sell their parcels
No.31915-6-III
Estate ofHayes


free of the lease favorable to him.

       Jerry Hayes argues the lease remained one agreement covering the entire four

quarters in the aggregate even after the four siblings inherited their parcels under their

mother's will. If Jerry is correct, James' subsequent sale of his parcel violated the anti-

alienation clause in the lease, thereby terminating the lease. Jerry Hayes' interests align

with the brothers' other two siblings, John Hayes and Patricia Elder.

       The trial court, after discerning the intent of Elma Hayes and noting the favorable

terms of the farm lease to the tenant, agreed with Jerry Hayes. In addition to arguing the

merits of the dispute on appeal, James Hayes contends the trial court exceeded its

jurisdiction, incorrectly excluded testimony, erroneously took judicial notice of rental

rates for Lincoln County farmland, and suffered from bias caused by his upbringing on a

farm and former representation as a lawyer of grower clients. We affirm.

                                          FACTS

       Lloyd and Elma Hayes, husband and wife, farmed 1,225 acres near Hartline,

Washington. The couple raised four children, James, John, Patricia, and Jerry.

       In March 1991, Lloyd Hayes died. In that crop year, the farm suffered its third

crop failure in five years. In 1992, the farm suffered another bad year such that the farm

had accrued $123,000 of debt. The yoke of this financial burden led matriarch Elma

Hayes to convene a family meeting.

       In 1992, James, Patricia, and John met with their mother at the farm home to

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No. 31915-6-III
Estate ofHayes


discuss retirement of the significant debt. Jerry, who lived out of state, did not attend the

conference but told his family that he would concur in any decision. James proposed

selling the farm. Elma, however, preferred that one of the three boys work the farm and

assume the debt. John declined. Jerry later expressed no interest in undertaking farming

operations. James reluctantly accepted farm responsibilities and its debt.

       As an incentive to work the farm and pay the debt, Elma Hayes leased the 1,225

acres to James for five dollars an acre for 25 years. James accepted the lease because it

provided him a decent living until he retired at age 65 and afforded him 25 years to

service the debt.

       Jerry Hayes describes the farm lease as a "sweetheart deal." Clerk's Papers (CP)

at 317. A tenant usually pays rent for dryland wheat property in eastern Grant County

under a crop share arrangement. The landlord receives one-third of the crop, shares one-

third of certain expenses, and pays all property taxes. Jerry calculated the return that the

landlord would have received under a crop share basis and concluded that his brother

James paid one-fifth of the market rate as rent for the Hartline farmland. Through 2012,

James saved $480,000 in rent under the favorable lease, which is four times the debt he

assumed on the farm. Mother Elma Hayes also gifted James $50,000 to $100,000 worth

of farm equipment.

       Jerry Hayes also calculated that a landlord under the typical crop share lease

would roughly net $15,000 every two years on the Hayes' farmland, as compared to

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No. 31915-6-III
Estate ofHayes


$3,000 the landlord receives under the 1993 lease. James recognized this imbalance in a

July 26, 2012 e-mail message to Jerry in which he demanded that Jerry pay him to retire

the lease at a higher market rate for rent. James wrote:

              You are invited to buyout my interest in the lease of your land for
       the going market price established days ago when the Isaaks bought out my
       lease for 52,500/crop x 3 years or a total price of$157,500.

CP at 324.

       Before preparation of the 1993 farm lease, Elma Hayes expressed an intent to keep

the family farm as one unit with James as sole tenant and her other three children as co­

landlords with herself. In accordance with this intent, attorney Kenneth Carpenter drafted

a lease naming Elma, John, and Jerry Hayes and Patricia Elder as co-landlords. At trial,

Carpenter testified the co-landlordship arrangement matched Elma Hayes' 1990 will that

kept the farm in one unit rather than dividing the farmland into separate parcels for each

child. Carpenter, however, did not draft Elma's 1990 will.

       After Kenneth Carpenter's draft of the 1993 farm lease, Elma Hayes informed

Carpenter that she questioned designating her other children as co-landlords. Carpenter

advised Elma to be the only landlord signing the lease.

       On December 22, 1993, Elma and James Hayes signed the farm lease respectively

as sole landlord and tenant. John, Jerry, and Patricia did not sign the lease, although the

lease contained signature lines for them. The lease entitled James to all crop revenue and

any crop subsidies from the United States government. James agreed to pay Elma Hayes

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No. 31915-6-111
Estate ofHayes


$6,125 annually and to pay two loans. Four important paragraphs of the lease read:

              10. Indulgence not a waiver. Any indulgence in the breach of any
       term, condition, or covenant of this Lease by the Landlord shall not
       constitute a waiver nor consent to a continuation or subsequent breach
       thereof.
              11. Attorneys Fees, Law and Venue. In the event of a breach by
       any party of any of the terms and conditions of this Lease, the prevailing
       party shall be entitled to reasonable attorney's fees and court costs against
       the other party. This lease is made in accordance with, and shall be
       interpreted and governed by, the laws of the State of Washington. Ifany
       action or other proceedings shall be brought on or·in connection with this
       Lease, the venue of such action shall be in Grant County.

               13. No Other Agreements. It is understood that this Lease cancels
       all other agreements, written or oral, entered into or agreed upon by and
       between the Landlord and the Tenant.
               14. Binding Effect-Assignments-Personal to Tenant. This Lease
       shall be binding upon the heirs, personal representatives, and assigns of the
       Landlord herein. It is understood that this Lease is personal to the Named
       Tenant, and no assignment or subletting or transfer by operation of law by
       the Tenant will be recognized, without the written consent of the Landlord.
       In the event the Tenant cannot personally perform the terms, conditions,
       and covenants required herein upon the Tenant, then this Lease will
       terminate immediately.

CP at 21-22.

       After execution of the farm lease, Elma Hayes told her attorney Kenneth

Carpenter that retaining the farm as one unit after her death was not a good idea.

Carpenter, at Elma's request, prepared deeds to convey to each child a partial interest in

separate portions of the farmland. In 2003, Elma asked Carpenter to prepare a new will

to effectuate her plan to give each child complete ownership and control over a distinct

parcel of farmland. The farmland was already conveniently separated into four detached

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No. 31915-6-111
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parcels.

       Elma Hayes signed her last will and testament on January 28, 2003. The will

reads, in pertinent part:

                                     ARTICLE V 

                                   Specific Bequests 


               l. I hereby give, devise and bequeath to my son, JERRY D.
       HAYES, the following real property:

              All of Section 6, Township 25 North, Range 30 E.W.M.,
              South of right-of-way and East of Hartline, Grant County,
              Washington, Parcel No. 18-1791-000.

           2. I hereby give, devise and bequeath to my son, JAMES L.
       HAYES, the following real property:

              The South Half (S12) of Section 17, Township 25 North,
              Range 30 E.W.M., Grant County, Washington, Parcel No. 18­
              1827-000.

               3. I hereby give, devise and bequeath to my son, JOHN D. HAYES,
       the following real property:

              The East Half (EY2) of Section 18, Township 25 North, Range
              30 E.W.M., Grant County, Washington, Parcel No. 18-1828­
              000.

            4. I hereby give, devise and bequeath to my daughter, PATRICIA
       A. ELDER, the following real property:

              The West Half (WY2) of Section 20, Township 25 North,
              Range 30 E.W.M., Grant County, Washington, Parcel No. 18­
              1833-000.

                                     ARTICLE VI 

                                Distribution of Residue 


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No. 31915-6-III
Estate ofHayes



              I hereby give, devise and bequeath all of the rest, residue and
       remainder of my property of every kind, nature and description,
       wheresoever located or situated unto JAMES L HAYES, JOHN D.
       HAYES, JERRY D. HAYES, and PATRICIA A. ELDER, as their sole and
       separate property.

CP at 200-01.

       Elma Hayes died in February 2012. James Hayes and Patricia Elder serve as co­

personal representatives of Elma's probate estate. With attorney Kenneth Carpenter's

assistance, James and Patricia created an inventory of Elma's assets. The inventory lists

the farm property, but not Elma's landlord interest under the 1993 farm lease. On June

18,2012, James and Patricia distributed the farm parcels in accordance with Elma's 2003

will. The personal representatives did not expressly distribute the landlord's interest in

the lease.

       In July 2012, the four Hayes children met. According to Jerry Hayes, he received

the least valuable land, while his brother, James Hayes, received the most valuable land.

Because of this imbalance, the family agreed, at the meeting, that they would collectively

bargain as a single unit with any prospective buyer of the land. The siblings wished to

use a buyer's desire for the best land as leverage to achieve a higher land price for

siblings that inherited less desirable land. The four rejected a pending offer from Isaak

Land, Inc., which owned neighboring property, to purchase all 1,225 acres of the family




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No. 31915-6-111
Estate ofHayes


farm. Patricia, John and Jerry wished James to continue farming the land, in part,

because James insisted on being paid to cancel the lease to free the land for sale.

       On August 3, 2012, two weeks after the family meeting, James Hayes sold his

parcel to Isaak Land for $575,000. In the contract, James warranted that he had "full

power and right to sell and convey the property ... free and clear of all liens,

encumbrances, and defects." CP at 341.

       Jerry Hayes contends James Hayes' sale of the latter's parcel cancels the entire

farm lease. Accordingly, Jerry sent his brother James an e-mail message informing

James that they should enter a new lease more representative of the market rate. James

disagreed that his sale terminated the lease on his siblings' three parcels and offered Jerry

the opportunity to purchase the tenant's interest in the lease for $157,500. James warned

Jerry that he intended to farm his siblings' three parcels for those years remaining in the

25-year lease. James wrote:

               Dear Landlord.
               You are invited to buyout my interest in the lease of your land for
       the going market price established days ago when the Isaaks bought out my
       lease for 52,500/crop x 3 years or a total price of$157,500. You may then
       extend your 30170 offer to any tenant you can find in the area. This offer
       last [sic] for 30 days.

CP at 315.

       Jerry Hayes calculated that ifhe and his other two siblings accepted James' offer

they each would receive less than $100,000 in inheritance. James, in tum, with the



                                             8

I

II   No. 31915-6-III
     Estate ofHayes
I

     buyout of the lease from his three siblings and the purchase price from Isaak Land, would

I
!
     inherit over $1,000,000. Because Jerry could no longer sell his less favorable land with
I
     James more favorable land, Jerry estimated that his land decreased in value by $50,000 to
l
     $150,000.

            On October 30,2012, Jerry sent James formal notice of termination ofthe lease on

     Jerry's parcel. James politely responded to his brother: "Jerry you are full of crap ... I

     categorically reject your termination. . .. See you in court." CP at 326 (Ellipsis in

     original.)

                                           PROCEDURE

            In February 2013, Jerry Hayes filed an unlawful detainer action against his brother

     James in Grant County Superior Court. The action seeks to evict James from Jerry's

     land. The record from that case is not before this court.

            James Hayes filed this separate Lincoln County action, a petition under the Trust

     and Estate Dispute Resolution Act (TEDRA), ch. 11.96A RCW for a declaration of

     rights. In his TEDRA petition, James sought a court declaration that his mother intended

     to partition the 1993 farm lease into four disconnected leases based on the four parcels.

     He asked the trial court to find four separate leases, under which he is the tenant and the

     sole landlord is the one sibling who owns that parcel. In support of his petition, James

     Hayes filed declarations from himself and attorney Kenneth Carpenter.




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No.31915-6-III
Estate ofHayes


       Jerry Hayes responded to the TEDRA petition by asserting a variety of

counterclaims not relevant to this appeal and moved the superior court to strike his

brother's and Kenneth Carpenter's declarations. Jerry contended Carpenter's

declarations violated the attorney-client privilege. Jerry argued James' declaration

violated Washington's deadman's statute.

       The court scheduled a hearing for June 20, 2013, to resolve the TEDRA petition.

In his prehearing memorandum oflaw, James Hayes identified two primary factual issues

the court should determine at the hearing:

              I. Whether it was the intention of the decedent, Elma L. Hayes, to
      partition the 1993 Farm Lease into four separate leases, each such
      partitioned lease applicable to a single parcel of real property, and each
      such partitioned lease with a single Beneficiary as landlord, consistent with
      Article V of decedent's Last Will and Testament dated January 28, 2003 (as
      opposed to an intention to grant undivided interests in the 1993 Farm
      Lease, as tenants-in-common); and
              2. Whether it was the intention of decedent, Elma L. Hayes, to
      preclude each Beneficiary from enforcing the covenants set forth in the
      1993 Farm Lease, to the extent that those covenants do not apply directly to
      the parcel of real property bequeathed to that Beneficiary (as opposed to an
      intention to grant each Beneficiary the right to enforce such covenants as
      they may apply to parcels of real property bequeathed to other
      Beneficiaries).

CP at 139-40.

      At the TEDRA hearing, the parties disputed the scope of the issues for the trial

court to resolve. The trial court knew of the unlawful detainer action pending before the

Grant County Superior Court. Thus, the court asked the parties how he could avoid


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No. 31915-6-II1
Estate ofHayes


issuing a ruling that interfered with the unlawful detainer action. The parties' respective

answers evolved during the hearing. James Hayes initially identified the issues before the

trial court as Elma Hayes' intention with respect to her devise of the real property and the

farm lease. The trial court restated James' answer in order to isolate the crux of the

disputed question: 'The question is when [James] sold this property to the Isaacs [sic],

did this ... unlawful transfer void the lease." Report of Proceedings (RP) at 34. Jerry

Hayes objected: "that's the issue before [the Grant County Superior Court]." RP at 34.

Jerry characterized the issue before the trial court as whether the lease remains in the

estate and whether there are four separate leases.

       The trial court understandably expressed concern that two judges were presiding

over the same dispute. James Hayes attempted to clarity his request as being one to

distribute the lease in accordance with his mother's intent of devising a separate lease for

each child. James stated: "The issue is, was there an intent for [James] to forfeit his right

to farm the leases of-sorry, farm the property of Patricia, John, and Jerry. Did Elma

intend him to forfeit his right to farm those properties just because he sold his property."

RP at 43. After trial court comments unfavorable to his position, James further refined

the scope of his request:

               [W]e didn't ask you, Your Honor, to decide whether or not Mr.
       Hayes violated the lease. Okay? That's not before you. The issue before
       you iS,one, for issuance of a declaration acknowledging and recognizing
       the intention of the decedent Elma L. Hayes, to partition the [1993] farm
       lease into four separate leases, each sub partitioned lease applicable to a

                                             11 

No. 319l5-6-III
Estate ofHayes


       single parcel of real property and each sub partitioned lease with a single
       beneficiary or landlord consistent with Article V, with decedent's last will
       and testament dated January 28th, 2003 .... And then for issuance of a
       further declaration acknowledging and recognizing the intention of the
       decedent, Elma L. Hayes, to preclude each beneficiary from enforcing the
       covenants set forth in the 1993 farm lease to the extent that those covenants
       do not apply directly to the parcel of the real property bequeathed to that
       beneficiary.

              Once we have those declarations, then [the Grant County Superior
       Court] can use the intent of the testatrix in order to decide what to do about
       the unlawful detainer action.

RP at 64-65. The trial court responded:

              Well, whatever I decide would be determinative of his [the Grant
       County Superior Court's] decision. Whatever I decide, will then answer
       the question, it seems to me. It's not like he has to interpret anything. If I
       make a decision today, then his decision is done tomorrow or he's over
       with. Is there any issue that he would resolve and I wouldn't address?

RP at 66. James Hayes replied: "I think he would defer to your decision because you are

the probate court, and you are interpreting a will, that's your primary jurisdiction." RP at

66.

       At the June 20 TEDRA hearing, Jerry Hayes objected to the court considering live

testimony from James Hayes and attorney Kenneth Carpenter. James, in tum,

commented that the hearing was on the merits pursuant to RCW 11.96A.l 00, which

allows the trial court to resolve all issues of fact and all issues of law. Jerry replied that

he requested that the hearing be an initial hearing and that he had asked for a later trial to

resolve any evidentiary issues because he had not yet conducted discovery or deposed



                                               12 

No. 31915-6-III
Estate ofHayes


witnesses. The record shows no such earlier request from Jerry nor what Jerry intended

to be the limited scope of the initial hearing. By the end of the June 20 hearing, Jerry

relented and agreed to a hearing on the merits on the condition that the court continue the

hearing if it allowed James to present oral testimony.

       At the TEDRA hearing, the trial court addressed the admissibility of Kenneth

Carpenter's and James Hayes' declarations. In addition to his attorney-client privilege

and deadman statute objections, Jerry Hayes argued, at the hearing, that the declarations

contained impermissible opinion testimony. Jerry asserted that, by his declaration,

Attorney Carpenter sought to offer an opinion when describing Elma Hayes' intentions.

       The trial court rejected application of the attorney-client privilege, but struck

portions of attorney Carpenter's declarations because the testimony constituted

impermissible opinion testimony. The disputed portions of Carpenter's testimony are

reproduced below with a strike through the portions the court concluded were

inadmissible. From Ken Carpenter's first declaration:

              3.     For many years prior to her death in February of 20 12, I
      performed legal services for Elma 1. Hayes (hereinafter, "Elma"), and
      among the documents in my legal file, I have a Last Will and Testament of
      Elma 1. Hayes which was executed on November 8, 1990, a copy of which
      is attached hereto as Exhibit 1. In general, this document, which was
      prepared by one of my law partners, appears to have been designed to
      distribute the balance of Elma's estate to her four children after the death of
      her spouse, Lloyd J. Bayes, " ... equally, share and share alike, as their sole
      and separate property," without any devise of a specifically identifiable
      parcel of real property to any child.


                                             13 

No. 31915-6-111
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              9.      Based upon my personal knowledge concerning Elma's estate
      plan in January of2003, I believe that it would be inconsistent with her
      intent to distribute to any of Elma's children a landlord's interest in any
      parcel of real property that she specifically de:'/ised to one of her other
      children.

CP at 158-60,548.

      From Kenneth Carpenter's supplemental declaration:

              5.     Some time after the 1993 Farm Lease was executed, Elma
      told me that her children had different opinions about how things should be
      done, and that it no longer seemed like a good idea to keep the family farm
      together after her death. In order to avoid future disagreements, instead of
      having her children share the farm property, Elma decided to give to each
      child a separate parcel of property, with the understanding that James
      would be permitted to farm each parcel of property for the 25 years of his
      bease. As it so happened, the family farm at that time consisted of four
      distinct parcels, and beginning in late 1994, Elma had me prepare deeds
      that would convey to each child a property interest in a particular parcel,
      with no two children receiving an interest in anyone parcel.

              7.      Just as Elma had decided before executing the 1993 farm
      lease that it was not a good idea to hCPt'e her children as co landlords during
      her lifetime, she had no intention of making them co landlords after her
      death. The suggestion that Jerry (or, John or Patricia, for that matter) might
      have a legal right to receive profits from property o'Nned by James himself
      or another sibling like the suggestion that Jerry (or, John or Patricia) might
      ha¥e a legal right to control what James did on property that Vias mvned by
      James himself or another sibling is not only contrary to common sense, but
      also, totally foreign to what Elma Hayes was trying to accomplish through
      the specific bequests set forth in her 2003 Last 'Arm and testament.

CP at 209-10.

      At the June 20 TEDRA hearing, James Hayes sought to present additional oral

testimony from Kenneth Carpenter. Jerry Hayes objected to any live testimony without



                                            14 

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I

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!
      No.3l915-6-III
      Estate ofHayes

I
I     an opportunity to depose the witness. To resolve the procedural dispute, the trial court

      took a 15 minute recess so that Jerry could depose attorney Carpenter. When court

I     resumed, Jerry reported to the court:

 II                  Your Honor, we've had an opportunity to speak with Mr. Ken
             Carpenter, the attorney for the estate, and Mr. Carpenter has represented
I            that he had no discussions regarding sale of the property or the lease or any
             term of the lease. He's unable to opine on that issue. For that reason, we
             are asking the court to move forward with either a dismissal or a ruling that
II           the lease-that there's one unified lease and it has already been distributed.
             Should the court decide that it needs to undertake more exploration on
I
I
             petitioner's argument regarding tearing up the lease and rewriting four
             separate leases without any restrictive covenants, at that time, then we
             could hear additional testimony which would need to be set further down
I            the road. Thank you, Your Honor.

      RP at 70-71. James disagreed with Jerry's comments and offered proof of Carpenter's

      expected testimony.

                     Your Honor, I would make an offer of proof as to-as to a couple of
             items of testimony. Mr. Carpenter would testity that each child would
             inherit his property subject to Jim's lease until Jim retired, with the end of
             the lease, which was coincided with the end of the lease. That each child­
             Where Jim would pay rent to each child based upon each child;s acreage,
             not a one-quarter division, that he did not specifically discuss the effect of
             merger with Elma, and that he did not specifically discuss whether or not
             Jim could sell his property or whether there would be any effect, which
             wasn't discussed.

      RP at 71 (emphasis added).

             The trial court ruled Ken Carpenter's testimony irrelevant since Carpenter never

      discussed partitioning the lease with Elma Hayes. Accordingly, the court entertained no

      live testimony.

                                                  15 

No. 31915-6-111
Estate ofHayes


       At the conclusion of the TEDRA hearing, the trial court ruled that Elma Hayes'

will showed no intent to partition the lease along with the land. In reaching that

conclusion, the court uttered remarks that James Hayes contends on appeal amounted to

judicial bias and unacceptable judicial notice. The trial court commented:

              The purpose I'm trying to get over my head is-or through my head
      here is, this something unique here on succession planning of a fann, then
      general experiences throughout my years and what I see in court, when you
      deal with farming, the parents generally want to keep the fann land in the
      family. I grew up on a fann. I had two brothers and sisters similar to this,
      very interesting by the way. So my brother did fann after I left. I don't
      like tractor driving, so I was not about to stay there.
              But it's irrelevant, but anyway, so they do like to keep the fann in
      the family, and in this case, mom's declaration about one of the boys, as I
      indicated earlier-accorded earlier, is one of the boys would want to fann
      or not and that's when James stepped in at that time ....
              So he stepped in and he took over when the property was upside
      down, it appears, or at low profit at the time, low expectations-high hopes
      and high expectations that work was ahead of him. The low rent was
      favorable to tenant, and frankly, that happens very often with landlords,
      with their children, they want to give them an opportunity to acquire the
      equipment, machinery, and send them to fann, keep them around so they
      can-the family and children, grandchildren, things like that, so I didn't see
      anything different than that today.
              But what concerns me more than anything is having a son who
      would sell out his interest in the farm, which is contrary to most parents'
      purposes here, is to have the son fann, not to sell out. And so by his
      argument is, well, I didn't sell out, I'm still fanning their property. But the
      problem I'm having with that is that's at the expense of their siblings,
      because the reason and purpose to sell it is keeping this property is five
      dollars an acre for-if it's 54 or 55 bushel ground or whatever is very­
      extremely-not just favorable, extremely favorable, without knowing the
      background, but right now, with the background's over and we're talking
      20 years is over now, we're talking about the last five years of the lease. So
      what we're doing here is we are basically taking from three kids and giving
      to one.

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     No.3l9l5-6-III

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     Estate ofHayes



I
1
f
                    That's the bottom line here, and what I see here, is the mother
           wanted to try to make this division to be fair, relatively fair, in the sense
           that each received their parcel, approximately 320, and I understand
!          farmable acres are different, but they had about a quarter-a half a section
           each and different sections in Grant County. And so there wasn't one
I
!          where you're going to get a house, you're getting cash. No. Everybody
           gets some land here, but I want my son to farm it for as long as he needs to
           or wants to. To me, that was a package deal. It was not something where
I          you can bifurcate or chip off the properties.
                   So by intent, if it was otherwise, if Mr. Carpenter .had indicated

I          anything where they discussed it, because usually parents don't anticipate
           they're going to sell their part and continue the rest at that acreage because
           that defeats the purpose of why the five dollars was there in the first place
I          is to keep him on the farm, not to keep him on the farm at the expense of
           the children off the farm.
                   So I just have a hard time to--I understand the merger doctrine does
           exist, and technically, there's some issues. Ifthere was one lease with one
i·         person, but we have a lease on all four properties, it may be somewhat
           inconsistent, but I don't believe it's contrary to the mother's intent, where
           he could sell the property where he wants. I just can't go that route. I just
           find it too egregious of a-too much onerous on one side and a benefit to
           the other to honestly think that the parents-or the mother would want that.
           So that's my ruling. So I don't­
                   [Attorney for James Hayes]: Your Honor, what is your ruling­
                   JUDGE STROHMAIER: My ruling is I don't believe they intended
           that, so I'm saying that the lease continues on, that the lease paragraph
           when he sold his lease to the Isaacs [sic], that that in effect terminated the
           requirement, you know, it's personal to him only.

                   [Attorney for James Hayes]: Does the court find, as requested in the
           petition, that there are four separate leases between Jim and each of his
           siblings?
                   JUDGE STROHMAIER: No. There's one lease. There's one lease
           with the mother, with him, and so I think I would have to make a-I would
           have to find some intent for the mom to want that and to result-that's what
           we're talking about today, and I don't find that to be the case.

     RP at 73-76.


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No. 31915-6-I1I
Estate ofHayes


       After the June 20, 2013 TEDRA hearing, James Hayes moved the trial court to

reconsider its decision to strike portions of Kenneth Carpenter's declarations and its

decision that James terminated the one unified lease encumbering the farm when he sold

his parcel to the neighbors. James argued the order went beyond the scope of matters

submitted to the court for determination and that the judge's own experience was

irrelevant to determining Elma Hayes' intent.

       In support of the motion for reconsideration, James Hayes filed another

declaration from attorney Kenneth Carpenter. In the supplemental declaration, Carpenter

attested that: (1) Elma told him the lease reflected her intent to reward James for

assuming the farm debt; (2) Elma did not request the language prohibiting James from

assigning his interest in the lease; (3) Elma told him that her children would not be able

to work together; (4) Elma told him she wanted to divide the farm into four separate

parcels and give each child a separate parcel; and (5) Elma asked him to complete the

division ofthe family farm in her 2003 Last Will and Testament.

       The trial court denied both posttrial motions. In denying the motion to reconsider,

the trial court explained his reference to his prior farming experience. On appeal, James

Hayes contends the additional statements, reproduced below, confirm bias and improper

judicial notice.

              [R]eference to his prior farm experience was intended to show that
       he [w]as very familiar with and had substantial experience in dry land
       farming as a farm attorney in the area for over 27 years (former law offices

                                             18 

No. 31915-6-II1
Estate ofHayes


      in Odessa, Ritzville, and Lind) and as one who had grown up on a fann in
      the area (15 miles southwest of Lind). This experience easily allowed this
      court to assert that the tenns of this lease were obviously a "sweetheart"
      deal.

             Based on the court's prior experience, the court did take judicial
      notice ofthe very favorable lease terms to this tenant son for the purpose of
      determining the extent that the parents went to to [sic] encourage their son
      to continue with their family fanning operations.

              The parents could have elected to lease out their fann to a
      neighboring tenant under rental rates estimated by Jerry Hayes to be at least
      $20-25/acre, but they did not. Obviously, they wanted one of their sons to
      continue with the family farm and assist them in paying off their accrued
      fann debt. These estimated rental rates appear very reasonable and are less
      than what the court would have expected for fann land in the Wilbur­
      Creston area. Coincidentally, fanners often enrolled their most marginal
      fann ground into the Conservation Reserve Program (CRP) for a ten-year
      period; and payments were regularly submitted and accepted for $50/acre in
      1993 as well as in prior and subsequent years. The landlord would often
      contract to receive 50% of that annual payment.
              This court's prior fann experience also allowed him to conclude that
      the extremely favorable tenns of allowing the tenant son to take over the
      fanning operations for a fixed $5/acre rental for an exceptionally long tenn
      of 25 years would only be given to close family members and not to third
      parties. The "boilerplate" language that Mr. Carpenter referred to was
      inserted because it is the custom and usage in the area and certainly would
      be expected in the present case. A tenant's interest in a farm lease is
      personal to that landlord; and tenants are certainly not interchangeable.
      Therefore, testimony would not be necessary to address the need for thi's
      "boilerplate" paragraph.
              It would be highly unlikely that a parent who intends for all his or
      her children to inherit somewhat equally (in this case each child received a
      half section) could even conceive that the tenant son would elect to sell his
      respective interest in the fann but insist that he continue with the same
      extremely favorable tenns against his siblings on the remaining portions
      after the parent's death. Either the tenant is fanning the entire fann or he is
      not fanning at all as there was but one fann lease. The parents' purpose to
      encourage a son to continue with the family fann and possibly for

                                            19
No.31915-6-II1
Estate ofHayes


       successive generations would be defeated once the tenant son elected to sell
       his interest in the farm.
               There was no evidence presented in this case showing that the
       mother, Elma Hayes, had intended or even considered that her son James
       Hayes could sell his inherited farm property but continue with the $5/acre
       rental against his siblings for the next five years to the end of the 25 year
       period. Therefore, this court held that James Hayes' sale of his half section
       constituted a transfer, assign or sublease of a part of the farming operation.


CP at 61 7-19.

                                 LAW AND ANALYSIS

       James Hayes asks this court to reverse the trial court and remand the case with

directions to enter judgment in his favor because the decision to terminate his lease is

contrary to the evidence and the law. Before this court reaches this dispositive question,

we address other assignments of error forwarded by James: the trial court (1) erred, for

numerous reasons, when it struck portions of Kenneth Carpenter's testimony;

(2) impermissibly took judicial notice of facts reasonably in dispute; (3) demonstrated

bias; and (4) exceeded the scope of the TEDRA petition in violation of due process by

interpreting and enforcing the lease, an issue reserved for the unlawful detainer action in

Grant County. The many issues and subissues prolong this opinion.

       ISSUE 1: Maya trial court, without a motion from a party, strike portions of a

declaration?

      ANSWER 1: Yes.




                                            20
No. 31915-6-III
Estate ofHayes


       James Hayes first complains that the trial court sua sponte, Latin for "of one's own

accord," struck portions of Kenneth Carpenter's declarations. James contends a trial

court lacks authority to stdke evidence on its own motion. We disagree.

       Jerry Hayes objected to Kenneth Carpenter's testimony as improper opinion

evidence, but he did so after the trial court raised the issue. In other words, the court

raised the issue without prompting or suggestion. Thus, we proceed as if the court

initiated the objection.

       No Washington decision addresses this question. The prevailing, ifnot universal,

rule is that a trial judge has the authority to exclude improper evidence even in the

absence of an objection. B.A. v. Webb, 253 Or. App. 1,289 P.3d 300,306 (2012); Stacks

v. Stacks, 2009 Ark. App. 862,377 S.W.3d 265,268 (2009); Mo. Bd. ofNursing Home

Adm'rs v. Stephens, 106 S.W.3d 524, 529 (Mo. App. 2003); Barrette v. Lopez, 132 Ohio

App. 3d 406, 725 N.E.2d 314, 321 (1999); Morris v. Thomson, 130 Idaho 138,937 P.2d

1212, 1218 (1997). A court even has discretion in a jury trial to exclude evidence sua

sponte if it believes it will mislead a jury or is unduly prejudicial. Carson v. CSX

Transp., Inc., 400 S.C. 221, 734 S.E.2d 148, 157 (2012).

       As an alternative argument, James Hayes hugs a passage in an Alaska decision in

contending that, while a judge may without a motion exclude evidence in some

circumstances, the trial court committed error in our circumstances. In Vachon v.

Pugliese, 931 P.2d 371, 381 (Alaska 1996), the Alaska Supreme Court wrote:

                                             21 

No. 31915-6-III
Estate ofHayes


               It is not an abuse of discretion for a judge to make sua sponte
       evidentiary rulings under certain circumstances. 1 JOHN W. STRONG,
       MCCORMICK ON EVIDENCE § 55, at 224 (4th ed. 1992) ("[T]he failure by
       the party does not of itself preclude the trial judge from excluding the
       evidence on his own motion if the witness is disqualified for want of
       capacity or the evidence is incompetent, and he considers that the interests
       ofjustice require the exclusion of the testimony."). However, "[i]t is only
       when the evidence is irrelevant, unreliable, misleading, or prejudicial, as
       well as inadmissible, that the judge should exercise his discretionary power
       to intervene."

(Emphasis added.) In light of this passage, James contends the trial court erred because

Carpenter's testimony was not "irrelevant, unreliable, misleading or prejudicial." The

record shows otherwise.

       The trial court ruled Kenneth Carpenter's testimony to be irrelevant. The court

rejected an offer of proof because Carpenter had no conversations with Elma Hayes about

whether she intended to partition the lease if James sold the parcel she devised to him.

       The issue of whether a trial court may, in a bench hearing, strike evidence on its

own initiative is more theoretical than practical, thus rendering a rule allowing the

striking sensible. Even if the court could not strike evidence on its own initiative, the

trial court could still ignore the evidence when rendering a decision on the merits. The

trial court does the parties a favor by expediting a hearing when it sua sponte excludes

irrelevant testimony.

       ISSUE 2: Did the stricken portions of Kenneth Carpenter's declaration constitute

opinion evidence?



                                             22 

No.3l9l5-6-III
Estate o/Hayes


       ANSWER 2: Yes.

       James Hayes next argues that the stricken portions of attorney Carpenter's

declaration were statements of fact, not opinions. James also argues that recitals of Elma

Hayes' out-of-court statements are admissible under ER 803(a)(3), an exception to the

hearsay rule admitting the declarant's then existing state of mind. The record

demonstrates conversely. Carpenter did not testifY to any particular statement of Elma

Hayes relevant to the pending dispute.

       Karl Tegland explains: "the appellate decisions offer little guidance on how to

distinguish fact from opinion." 5B KARL TEGLAND, WASH. PRACTICE: EVIDENCE LA W

AND PRACTICE § 701.2, at 6 (5th ed. 2007). Our high court's definition of "opinion

testimony," however, in a criminal case provides some guidance. "Opinion testimony" is

'" [t]estimony based on one's belief or idea rather than on direct knowledge of facts at

issue.'" State v. Demery, 144 Wn.2d 753, 760, 30 P.3d 1278 (2001) (quoting BLACK'S

LA W DICTIONARY, 1486 (7th ed. 1999».

       The trial court struck testimony from Kenneth Carpenter's declaration that "must

as Elma had decided before executing the 1993 Farm lease that it was not a good idea to

have her children as co-landlords during her lifetime, she had no intention of making

them co-landlords after her death. [T]he suggestion that Jerry ... might have a legal

right to control what James did on property that was owned by James himself or another

sibling-is not only contrary to common sense, but also, totally foreign to what Elma

                                            23 

No. 31915-6-111
Estate ofHayes


Hayes was trying to accomplish through the specific bequests set forth in her 2003 Last

Will and testament." CP at 210. This testimony did not arise from Kenneth Carpenter's

conversations with Elma Hayes. Instead, the trial court discovered, after repeated

questions to counsel, that Carpenter never discussed these subjects with Elma Hayes.

       Even the subsequent declaration Carpenter submitted in support of James' motion

for reconsideration failed to establish direct knowledge of Elma's intent regarding

separate leases. In that declaration, Carpenter attests that (I) Elma told him the lease

reflected her intent to reward James for taking on the loans; (2) Elma did not request the

language prohibiting James from assigning his interest in the lease; (3) Elma told him

before signing the Farm Lease that her children would not be able to work together; (4)

Elma told him she wanted to divide the farm into four separate parcels and give each

child a separate parcel; and (5) Elma asked him to complete the division of the family

farm in her 2003 Last Will and Testament.

       Ken Carpenter did not testify that he discussed with Elma Hayes whether she

intended to permit James to continue farming his siblings' parcels ifhe sold his land or

whether she intended the lease to merge. Carpenter's declaration provided circumstantial

evidence of Elma's intent, but it did not show he had direct knowledge of the statements

the court struck. Carpenter never heard Elma express an intent to permit James to

continue farming all of the parcels after her death or her intent to partition the lease with




                                              24 

NO.3l9l5·6·III
Estate ofHayes


her bequests. Carpenter's testimony based on circumstantial evidence remains opinion

testimony.

       ISSUE 3: Did the trial court abuse its discretion when excluding the opinion

testimony of Kenneth Carpenter?

       ANSWER 3: No.

       James Hayes subsequently contends that, even assuming the testimony of attorney

Carpenter to be opinion evidence, the testimony is admissible. Jerry Hayes disagrees and

argues the trial court permissibly excluded the evidence because of its confusing,

misleading, or unfairly prejudicial nature. We agree with Jerry and hold that the trial

court did not abuse its discretion when excluding the portions of the declarations.

       This court reviews a trial court's decision to admit or exclude evidence for abuse

of discretion. State v. Bourgeois, 133 Wn.2d 389,399,945 P.2d 1120 (1997). A trial

court abuses its discretion when its decision is manifestly unreasonable or it exercises its

discretion on untenable grounds or for untenable reasons. State v. McDonald, 138 Wn.2d

680,696, 981 P.2d 443 (1999).

       ER 701 permits a lay witness to offer opinions based on his or her rational

perceptions when those perceptions are helpful to the determination of the fact at issue.

The parties contest whether this rule permits a witness to testify to the state of mind of

another. James cites two criminal cases wherein courts permitted witnesses to testify to

the state of mind of another based on the witness' physical observations. State v. Warner,

                                             25 

No. 31915-6-III
Estate ofHayes


134 Wn. App. 44, 58-59, 138 P.3d 1081 (2006); State v. Perez, 137 Wn. App. 97, 102,

151 P.3d 249 (2007). Jerry Hayes argues these cases are inapposite because they are

criminal cases that allowed a witness to testifY about their observations of another's

physical demeanor.

       Jerry and James overlook our Supreme Court's decision in In re Estate ofBlack,

153 Wn.2d 152, 167, 102 P.3d 796 (2004), which clarified the rule.

              A witness who personally observes an event can state an opinion,
       conclusion, or impression as to the event and may testifY about the state of
       mind of another, so long as the witness personally witnessed events or
       heard statements that are relevant to prove the other person's state of mind.

(Internal quotation marks omitted.) The trial judge struck portions of Kenneth

Carpenter's testimony and decided his live testimony was unnecessary because his

opinion was not based on his personal knowledge. Carpenter lacked firsthand knowledge

of Elma Hayes' intent or state of mind based on his physical observations of Elm a during

an event. James Hayes admitted that his mother never told Carpenter of her intent or lack

thereof to permit James to continue farming all of the parcels after her death or intended

to partition the lease with her bequests.

       ISSUE 4: Must a trial court permit live testimony at a TEDRA petition hearing?

       ANSWER 4: No.




                                            26 

No.31915-6-III
Estate ofHayes


       James Hayes also argues the trial court erred by prohibiting Kenneth Carpenter

from testifying at the June 20,2013, TEDRA hearing. This argument ignores the nature

of a TEDRA hearing and language of TEDRA statutory provisions.

       The 1999 Trust and Estate Dispute Resolution Act (TEDRA) gathers statutory

provisions for the resolution of disputes involving trusts and estates into a single chapter,

RCW 11.96A. RCW 11.96A.0 I O. The Act grants superior courts "full and ample power

and authority ... to administer and settle ... [a]U matters concerning the estates and

assets of ... deceased persons." RCW 11.96A.020. In enacting the 1999 bill, the

legislature found, in part: "it is in the interest of the citizens of the state of Washington to

encourage the prompt and early resolution of disputes in trust, estate, and nonprobate

matters." RCW 11.96A.260.

       TEDRA authorizes the court to resolve disputes by affidavits or declarations at an

expedited hearing. RCW 11.96A.I00 asserts, in part:

               (7) Testimony of witnesses may be by affidavit;
               (8) Unless requested otherwise by a party in a petition or answer,
       the initial hearing must be a hearing on the merits to resolve all issues of
       fact and all issues of law.

Nothing requires a court to resolve disputed fact issues on live testimony in a TEDRA

action. The trial court may enter findings of fact based on the affidavits. In re the Estate

ofFoster v. Gilliam, 165 Wn. App. 33, 55, 268 P.3d 945 (2011).

       ISSUE 5: Did the trial court impermissibly take judicial notice of facts?


                                              27 

No. 31915-6-II1
Estate ofHayes


          ANSWER 5: No.

          The trial court referenced some of his life experiences in his written ruling, rather

than taking judicial notice of adjudicative facts. Whereas, a trial court should limit any

reliance on personal experience, any error here was harmless since the evidence, if not

undisputed evidence, verified the judge's experience and supported the trial court's

ruling.

          James Hayes contends the trial court impermissibly took judicial notice of

disputed facts when denying his requested relief. Jerry Hayes disagrees, arguing the

court permissibly relied on his common sense and everyday life experiences. But, Jerry

argues, if the court took judicial notice, it did so of facts generally known within the

territorial jurisdiction of the court.

          The trial court stated, in his written ruling denying reconsideration, that he took

judicial notice. He based his judicial notice on substantial experience as a farm attorney

in Grant and Adams Counties and as a child on his family's Lind farm. We disagree with

the trial court's use of the term "judicial notice" in this context. The trial court relied on

personal experience rather than taking judicial notice of facts.

          ER 201 permits a court to take judicial notice of "adjudicative facts ... not subj ect

to reasonable dispute" inthe sense that they are either "(1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned." A judge's own

                                                28 

 No. 31915-6-111
 Estate ofHayes


 knowledge should not be confused with judicial notice. State v. K.N., 124 Wn. App. 875,

. 882, 103 P.3d 844 (2004). Personal knowledge is not judicial knowledge and the judge

 may personally know a fact of which he cannot take judicial notice. Guyton v. Manteau,

 332 S.W.3d 687, 692-93 (Tex. App. 2011). A trial judge is prohibited from relying on

 his personal experience to support the taking ofjudicial notice. United States v. Berber-

 Tinoco, 510 F.3d 1083, 1091 (9th Cir. 2007).

        If there is any error in the trial court's use of his farming experience, the error is in

 inserting himself as a witness in the suit, not taking judicial notice. Although James

 Hayes assigns error to the trial court taking judicial notice, James also suggests that the

judge inserted himself as a witness. Thus, we rephrase the issue as to whether the trial

 court impermissibly became a witness.

        Competing interests surface when addressing whether a judge may rely on

 personal experience when finding facts. On the one hand, the judicial system hopes for a

judge possessing experience and knowledge of the workings of the world and the cogs of

 his community rather than a judge with a vacuumed mind. Agricultural settings, such as

 Lincoln and Grant Counties, would probably prefer trial judges to enjoy a background in

 farming and agricultural law. In tum, the two counties might expect the judge to rely on

 this background. After all, judges do not leave their common experience and common

 sense outside the courtroom door. State v. Rainwater, 75 Wn. App. 256, 262 n.7, 876

 P .2d 979 (1994). Judges are human: like all humans, their outlooks are shaped by their

                                               29 

No. 31915-6-III
Estate ofHayes


lives' experiences. Del Vecchio v. Illinois Dep't ofCorr., 31 F.3d 1363, 1373 (7th Cir.

1994).

         On the other hand, parties deserve a decision based on evidence presented at trial

and subjected to cross-examination rather than hidden or undisclosed preconceptions of

the trial judge. A party may not cross-examine the knowledge and experience of a judge.

Ajudge inserts himself into the presentation of evidence by basing decisions on his life

background.

         ER 605 reads:

                The judge presiding at the trial may not testify in that trial as a
         witness. No objection need be made in order to preserve the point.

This evidentiary rule can apply even when the trial judge does not formally testify, but

inserts his or her own personal experience into the decision-making process. Vandercook

v. Reece, 120 Wn. App. 647,651-52,86 P.3d 206 (2004); United States v. Berber-

Tinoco, 510 F.3d 1083, 1091 (9th Cir. 2007).

         Washington decisions tangentially address the question of whether ajudge may

rely on personal experience in issuing rulings. In Fernando v. Nieswandt, 87 Wn. App.

103,940 P.2d 1380 (1997), this reviewing court found permissible a trial judge's

referencing his personal experience in placing a child in a car seat when the judge

awarded visitation to one parent. This court wrote:

                 Rather, he was acting as a trier of fact and applying common sense
         to the facts of this dispute to make a decision. When the judge is a trier of

                                                30 

No.31915-6-III
Estate ofHayes


       fact, illustrative comments phrased in the first person are not improper
       unless they evidence bias, prejudice, or other impropriety.

Fernando, 87 Wn. App. at 109.

       In State v. Grayson, 154 Wn.2d 333, 111 P.3d 1183 (2005), the state high court

reversed a trial court's refusal to grant a Drug Offender Sentencing Alternative (DOSA)

sentence when the trial judge relied on his extrajudicial understanding that the DOSA

program was underfunded. Still the court observed:

              Our judiciary benefits from and relies upon judges who have studied
       and become learned in the law and whose personal experiences have taught
       them a practical understanding of the world we live in and how people live,
       work, and interact with the world around them.
              We do not believe the legislature intended that judges leave their
       knowledge and understanding of the world behind and enter the courtroom
       with blank minds. Judges are not expected to leave their common sense
       behind. Nor do we believe the legislature expected judges to hold hearings
       on whether fire is hot or water is wet. We prize judges for their knowledge,
       most of which is obtained outside of the courtroom. Within the statutory
       and constitutional guidelines, judges may exercise their discretion to give a
       fair and just sentence.

Grayson, 154 Wn.2d at 339

       We decline to explore the parameters of the prohibition of a judge relying

on personal experience when rendering a decision, because such a juridical

journey is unneeded in these circumstances. Any error by the trial court in relying

on personal experience was harmless because the evidence overwhelmingly

supported the trial judge's perceptions.




                                            31 

No. 319I5-6-III
Estate ofHayes


         The trial court uttered or wrote the following comments that could be considered

remarks based on his personal experience:

         1. Parents want to keep the fann land in the family.

         2. The low rent to James Hayes was favorable to him and was a "sweetheart

deal."

         3. Parents offer low rent to a child tenant, so the child will continue with family

farming operations.

         4. A son selling his interest in the farm is contrary to the desire of most parents.

         5. Jerry Hayes' testimony of estimated market rental rates is reasonable

and those rates are less than what the trial court would have expected for fann land

in the Wilbur-Creston area.

         6. Farmers often enroll their most marginal fann ground into the

Conservation Reserve Program (CRP) for a IO-year period and, in 1993 and

thereafter, received payments of $50 per acre. The landlord of CRP land would

often contract to receive 50 percent of the annual payment.

         7. The extremely favorable terms given to James Hayes ofa fixed $5 per

acre rental for a long tenn of 25 years would only be given to close family

members.

         8. The "boilerplate" language in James Hayes lease providing for

termination upon transfer of the property is a customary clause in farm leases and

                                               32 

No. 31915-6-III
Estate ofHayes


would be expected in Hayes' lease.

       9. A tenant's interest in a farm lease is personal and tenants are not

interchangeable.

       James Hayes' own testimony supported many of the propositions announced by

the trial court. For example, James testified by declaration that his "mother agreed to a

relatively favorable annual cash rent, and she also agreed to extend the lease term to 25

years." CP at 215. In an e-mail message, James demanded that Jerry pay a higher market

rate for rent if Jerry sought to cancel James' lease on Jerry's land. James declared that

his mother did not wish to sell the land, but desired one of her sons to farm the family

property.

       The will of Elma Hayes expressed an intent to treat the four children equally.

James' attorney and witness, Kenneth Carpenter, testified that the language terminating

the lease upon a transfer in interest constituted boilerplate language.

       Jerry Hayes' testimony also supported the propositions heralded by the trial judge.

Jerry described the 1993 farm lease as a "sweetheart deal" for James. CP at 317.

According to Jerry, James, through 2012, saved $480,000 in rent under the favorable

lease, which is four times the debt he assumed on the farm. James also received, without

any payment, $50,000 to $100,000 worth of farm equipment. In short, independent

evidence from Kenneth Carpenter, Jerry Hayes, and James Hayes supported the trial

court's personal observations, rendering any reliance on experience harmless. The

                                             33 

No. 31915-6-III
Estate ofHayes


independent evidence supported the trial court's ruling.

       Vandercookv. Reece, 120 Wn. App. 647,86 P.3d 206 (2004) controls this appeal.

In Vandercook, the trial court impermissibly relied on testimony from an earlier trial in a

divorce case when rendering a decision, at the conclusion of a trial in a probate contest,

that parties revoked a community property agreement. This court employed

Washington's version of the harmless error rule. Evidential error is harmless if, without

it, the trial court would necessarily have arrived at the same conclusion. This court ruled

the trial court's error harmless because of independent evidence in the probate contest

establishing revocation of the community property agreement. .

       United States v. Berber-Tinoco, 510 F.3d 1083, 1092-93 (9th Cir. 2007) addressed

the same issue we entertain on appeal. The federal court of appeals ruled that three of the

trial judge's remarks, during a motion hearing, violated FRE 605, the federal analog to

Washington's ER 605. The trial judge commented during testimony to his knowledge of

the location of stop signs on the subject road, the lack of any speed limit sign on the road,

and the narrowness of a road. The appellate court then determined whether such

violations were subject to harmless error review and, if so, whether the errors were

harmless. The court noted that, in evaluating other violations of the federal rules of

evidence, courts hold that a reversal of a district court's decision is not necessary so long

as the reviewing court has a fair assurance that the verdict was not substantially swayed

by error. The court found no reason not to apply this harmless error rule to violations of

                                             34 

No. 31915-6-111
Estate ofHayes


rule 605. The appellant claimed that the district court's interjections in violation of rule

605 destroyed the court's image of impartiality and thus violated a constitutional right to

an unbiased trial judge. In response, the Ninth Circuit observed that the Supreme Court

requires recusal due to an appearance of bias only when a judge: (1) has a direct,

personal, substantial pecuniary interest in the outcome; (2) becomes embroiled in a

running, bitter controversy with a party; or (3) participates as part of the accusatory

process. Rule 605 violations do not rise to this leveL The trial court's comments based

on his personal knowledge came in response to the criminal defendant's motion to

suppress evidence. Based on an independent review of the record, the court of appeals

ruled that the trial judge's unsupported remarks did not affect the decision to deny the

defendant's motion to suppress.

       ISSUE 6: Whether the trial court violated James Hayes' due process rights when

it decided that James Hayes violated the farm lease when James sold his land to the

Isaaks?

       ANSWER 6: No.

       James Hayes contends the court violated due process when it expanded the scope

of the TEDRA proceeding from interpreting Elma Hayes' will to deciding whether he

violated the farm lease. Jerry Hayes retorts that James asked the court to address issues

inextricably linked to enforcing the farm lease and that TEDRA gave the trial court

authority to settle this issue. Neither party addresses, however, the application of the due

                                             35 

No.31915-6-II1
Estate ofHayes


process clause. Due process protects a person from state action depriving that person of

life, liberty or property. Because court enforcement of a private contract does not

constitute state action, due process protections do not apply.

       The federal and Washington State Constitution contain identical clauses

prohibiting the state from depriving any person of life, liberty, or property, without due

process of law. U.S. CONST. amend. XIV; CONST. art. I, § 3; Carlstrom v. Hanline, 98

Wn. App. 780, 789-90, 990 P.2d 986 (2000). These clauses provide coextensive

protections. State v. Jordan, 180 Wn.2d 456,462,325 P.3d 181 (2014).

       To establish a violation of the due process clause, a person must identify state

action that deprived him of a constitutionally protected interest in liberty or property.

Mathews v. Eldridge, 424 U.S. 319,332,96 S. Ct. 893,47 L. Ed. 2d 18 (1976); Bang

Nguyen v. Dep't ofHealth Med. Quality Assurance Comm 'n, 144 Wn.2d 516, 522-23,29

P.3d 689 (2001). To have a property interest in a benefit, a person clearly must have

more than an abstract need or desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a legitimate claim of entitlement to it. Bd. of

Regents ofState Colleges v. Roth, 408 U.S. 564, 577,92 S. Ct. 2701, 33 L. Ed. 2d. 548

(1972). Such an interest is not created by the constitution, but by state law. Roth,408

U.S. at 577.

       James Hayes identifies his farm lease as a property right. Written contracts can

create protected property interests when they evidence a formal understanding supporting

                                             36 

No. 31915-6-III
Estate ofHayes


a claim of entitlement. Perry v. Sindermann, 408 U.S. 593,601-02, 92 S. Ct. 2694, 33 L.

Ed. 2 570 (1972); see also Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed.

2d 684 (1976); Vanelli v. Reynolds Sch. Dist. No.7, 667 F.2d 773, 777 (9th Cir. 1982).

Normally those contracts are between the person and the State. But a contract between

private persons can support a due process claim if the State exercised coercive power or

provided significant encouragement, either overt or covert, such that the choice to violate

or enforce a contract is deemed to be that of the State. Blum v. Yaretsky, 457 U.S. 991,

1004, 102 S. Ct. 2777, 73 L. Ed. 2d. 534 (1982). Under such circumstances, the

enforcement of the contract becomes state action. Lugar v. Edmondson Oil Co., 457 U.S.

922,937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

         When a court merely approves of or acquiesces in the initiatives of a private

contracting party, there is no state action. Blum v. Yaretsky, 457 U.S. at 1004 (1982).

State enforcement of a contract between two private parties is not state action. State v.

Noah, 103 Wn. App. 29, 50,9 P.3d 858 (2000). Judicial enforcement of a lease provision

also does not constitute state action. Golden Gateway Ctr. v. Golden Gateway Tenants

Ass 'n, 26 Cal. 4th 1Ol3, 1033-35,29 P.3d 797, III Cal. Rptr. 2d 336 (2001). If, for

constitutional purposes, every private right was transformed into governmental action by

the mere fact of court enforcement, the distinction between private and governmental

action would be obliterated. Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 999 (9th Cir.

20l3).

                                              37
No. 31915-6-III
Estate ofHayes


       James Hayes expressly assumed obligations under the 1993 farm lease. Under the

lease, he agreed not to sublet, assign, or transfer the lease. If he could not "personally

perform the terms, conditions, and covenants required," he agreed the "Lease will

terminate immediately." CP at 22. The judicial enforcement of this explicit agreement

between two private parties does not amount to state action and thus cannot violate

James' due process rights.

       ISSUE 7: Did the trial court exceed the scope of the TEDRA hearing?

       ANSWER 7: No.

       James Hayes contends the trial court expanded the scope ofthe TEDRA hearing

when it ruled he violated the lease by selling his section of land. He further argues he

received no notice that the court would improperly expand the scope of the hearing.

James emphasizes that, in his petition and prehearing memorandum, he requested the trial

court declare his mother intended to partition the lease as she had the farm, and he asked

the trial court to preclude his siblings "from enforcing the covenants set forth in the 1993

F arm Lease." CP at 63. He distinguishes between these requests for relief and the trial

court's declaration that he violated the lease.

       James Hayes' argument constitutes a funambulist's exercise. He in essence asks

the trial court to declare that a flipped coin displays "heads," while precluding the court

from declaring the other side of the coin to be "tails." A declaration by the trial court that

Elma Hayes did not intend to partition the lease is in essence a declaration that James

                                              38 

No. 31915-6-III
Estate ofHayes


Hayes violated the lease by selling his land. A request for relief to preclude his siblings

from enforcing the promises of the 1993 lease initiates a ruling to enforce those promises.

In his petition, James Hayes also requested the entry of further relief as the court may

deem just and equitable, further inviting the court to declare James in violation of the

lease covenant precluding a sale of land.

       TEDRA empowers the court with full and ample power and authority to

administer and settle all matters concerning the estates and assets of incapacitated,

missing, and deceased persons, including matters involving non probate assets. RCW

11.96A.020(1). TEDRA defines a "matter" as the "determination of any question arising

in the administration of an estate or trust, or with respect to any nonprobate asset, or with

respect to any other asset or property interest passing at death." RCW 11.96A.030(2)(c).

The legislature imbued the court with the "full power and authority to proceed with such

administration and settlement in any manner and way that to the court seems right and

proper." RCW 11.96A.020(2). The legislature's grant of power gave the trial court

ample authority to resolve the termination of the farm lease, particularly in light of

James' broad request for relief.

       ISSUE 8: Did the trial judge violate the code ofjudicial conduct?

       ANSWER 8: No.

       James Hayes contends the trial judge violated Rule 2.1 1(a)(l) of the code of

judicial conduct, which requires a judge to disqualify himself if his partiality could be

                                             39 

No. 31915-6-111
Estate ofHayes


questioned. He further argues that this violation of the code deprived him of due process

oflaw. We disagree.

       The United States Supreme Court has identified several bases when a judge's

appearance of partiality violated due process. Judges must recuse themselves to avoid

such violations when they have "a direct, personal, substantial pecuniary interest" in a

case. Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927). Recently,

the court identified three new grounds when due process requires recusal: financial

interests falling short of what would be considered personal or direct; when a person with

a personal stake in a particular case had a significant and disproportionate influence in

. placing the judge on the case; and criminal contempt cases or other cases where the judge

determined that a defendant should be charged. See Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813, 822, 106 S. Ct. 1580,89 L. Ed. 2d 823 (1986); Caperton v. A.T. Massey Coal

Co., 556 U.S. 868, 877, 129 S. ct. 2252, 173 L. Ed. 2d 1208 (2009); In re Murchison,

349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955). Otherwise, most matters relating

to judicial disqualification do not rise to a constitutional level. Caperton v. A. T. Massey

Coal Co., 556 U.S. at 876.

       James Hayes contends the trial court exhibited bias because the court became Jerry

Hayes' chief witness and the court's comments evidence prejudice toward family farms.

The test for determining whether a judge's impartiality might reasonably be questioned is

an objective one that assumes the reasonable person knows and understands all the

                                             40 

No. 31915-6-III
Estate ofHayes


relevant facts. Sherman v. State, 128 Wn.2d 164,206,905 P.2d 355 (1995). A judge is

presumed to perform his functions regularly and properly, without bias or prejudice.

State v. Leon, 133 Wn. App. 810, 813, 138 P.3d 159 (2006). A party asserting a violation

of the appearance of fairness doctrine must produce sufficient evidence demonstrating

bias and mere speculation is not enough. Tatham v. Rogers, 170 Wn. App. 76, 96, 283

P.3d 583 (2012).

       James Hayes fails to establish, let alone argue, that the trial judge held any direct,

personal, substantial pecuniary interest, financial interest falling short of what would be

considered personal and direct, or any personal stake at all. Under due process precedent,

James falls short of establishing a due process violation even assuming his contentions to

be accurate.

       ISSUE 9: Whether the trial court erred when ruling that Elma Hayes never

partitioned the farm lease?

       ANSWER 9: No.

       With the alleged procedural errors resolved, we focus on the substance of the

appeal. James Hayes argues that the trial court should have ruled that his mother

intended to partition the farm lease when she divided the farm into four sections, one for

each child, such that he was free to sell his parcel without terminating the lease on the

other three parcels.

       We note that Elma Hayes, before her death, signed deeds of partial interests in a

                                             41 

No, 31915-6-III
Estate ofHayes


tract to that child who inherited the particular entire tract upon Elma's death. James

Hayes presents no evidence that, at the time of the earlier deeds, he contended that Elma

had divided the lease into four separate leases. Nor is any evidence presented that Elma

believed she had partitioned the farm lease into four leases when she earlier deeded

interests to her four children. The personal representatives, one of whom is James Hayes,

never formally divided the 1993 farm lease into separate leases after Elma's death. These

facts alone might control the case and require affirmation of the trial court.

       James Hayes initially argues that the farm lease encumbering his property was

extinguished when he gained title to the parceL In support of his argument he cites two

Illinois cases: Hill v, Reno, 112 IlL 154,54 Am. Rep. 222 (1883); Thomas v, Farr, 380

Ill. 429,44 N.E.2d 434 (1942). We agree that both Illinois decisions support a finding

that James Hayes' tenant interest in his parcel merged when he received full title to the

land upon his mother's death. Both decisions are murky, although arguably one or both

suggests that a partitioned lease with mUltiple landlords creates a separate and distinct

lease as to each landlord. Nevertheless, neither case goes the extra step and addresses the

intent of a mother when devising farm land subject to a lease favoring one of the

devisees.

       The parties dispute the extent to which we defer to the trial court's ruling. Two

lines of law clash under this setting. On the one hand, the trial court based its decision

solely on a review of declarations. The trial court did not entertain any live testimony.

                                             42 

No. 31915-6-II1
Estate ofHayes


Under such circumstances, the reviewing court need not be bound by the trial court's

factual findings. Cornu-Labat v. Hosp. Dist. No.2, 177 Wn.2d 221,229,298 P.3d 741

(2013).

       On the other hand, James Hayes asked the court to determine Elma Hayes' intent

found in her will. Determining the intent of a testatrix is a factual question. Niemann v.

Vaughn Cmty. Church, 154 Wn.2d 365,374-75, 113 P.3d 463 (2005); In re Riddell

Testamentary Trust, 138 Wn. App. 485,491, 157 PJd 888 (2007). This court reviews

findings of fact for substantial evidence, which requires evidence sufficient to persuade a

rational fair-minded person the premise is true. Wenatchee Sportsmen Ass 'n v. Chelan

County, 141 Wn.2d 169, 176,4 P.3d 123 (2000). If this standard is satisfied, we will not

substitute our judgment for that of the trial court even though we may resolve a factual

dispute differently. Riddell, 138 Wn. App. at 492.

       We need not decide whether to review the declarations fresh or to defer to the trial

court's findings. Under either standard we would affirm the lower court.

       When requested to construe a will, the paramount duty of the court is to give effect

to the testatrix's intent. In re Estate ofBergau, 103 Wn.2d 431,435,693 P.2d 703

(1985). The intent must, if possible, be derived from the four comers of the will, and the

will must be considered in its entirety, unaided by extrinsic evidence. In re Estate of

Griffen, 86 Wn.2d 223, 226,543 P.2d 245 (1975); In re Estate ofMell, 105 Wn.2d 518,

524, 716 P .2d 836 (1986). Before considering other evidence of a testator's intent, courts

                                            43 

No. 31915-6-III
Estate ofHayes


must, if possible, ascertain such intent from the language of the will itself. Estate of

Bergau, 103 Wn.2d at 435. When, after reading the will in its entirety, any uncertainty

arises about the testator's intent, extrinsic evidence, including testimony of the drafter,

may be admitted to explain and resolve the ambiguity. Estate ofMell, 105 Wn.2d at 524.

       Elma Hayes' will shows a desire to treat all children fairly. She gave each child

one of the four tracts comprising the family farm. Her residuary clause devised "all of

the rest, residue and remainder of [her] property of every kind, nature and description,

wheresoever located or situated unto [her children]." CP at 201. Under James Hayes'

theory, the devising ofthe farm land into four tracts shows intent to split the 1993 farm

lease into four discrete agreements. But the will does not divide the lease. Under James

Hayes' plan, he may sell his parcel to a neighbor at a going rate free of the farm lease,

while he can extort his siblings by demanding a lease buyout before each sibling may sell

his or her parcel. James Hayes' scheme does not treat each child fairly.

       Washington treats leasehold interests for a term less than life as personal property.

Andrews v. Cusin, 65 Wn.2d 205, 207, 396 P.2d 155 (1964). Elma Hayes' will did not

expressly devise the farm lease. As residue of her estate, the lease passed under the

residuary clause. Legal title to property passing under a will's residuary clause upon

completion of probate is held by the beneficiaries as tenants in common. In re Estate of

Telfer v. Bd. DfCounty Comm 'r's, 71 Wn. App. 833, 837, 862 P.2d 637 (1993). This

court presumes Elma knew the law when she executed the will. Estate ofMell, 105

                                             44 

No.31915-6-II1
Estate ofHayes


Wn.2d at 524. Under the residuary clause, Elma evidences her intent to devise the lease

to her children as tenants in common.

       Assuming we relied on extrinsic evidence, we would find the evidence also

disassembles James Hayes' argument and plan. James contends there is no evidence his

mother intended him to forfeit his lease ifhe sold the parcel she devised to him. We

agree his mother did not think about his forfeiting the lease, but the mother never

anticipated James to sell his parcel while holding his siblings to unfair lease terms. Elma

Hayes wanted the farm land to stay in the family. She granted her son the favorable

terms under the lease with the expectation he would farm for 25 years. James fails to

identify any evidence showing his mother wished to partition the farm lease or to allow

him to sell his land clear of the lease, while his siblings' parcels remain encumbered by

the lease.

       James Hayes emphasizes that his mother's omitting signatures of his siblings as

landlords under the 1993 farm lease meant she did not wish them to be landlords

together. Along these lines, Elma Hayes did not wish for one sibling to have a leasehold

interest in another sibling's parcel. Nevertheless, James' contention says nothing about

Elma Hayes' intent as to what would happen upon her death and the repercussions of

James' selling his interest in the land, but demanding that his siblings conform to the

favorable lease terms with respect to his siblings' property.

       A related question is whether James Hayes violated the farm lease, when selling

                                             45 

No. 31915-6-111
Estate a/Hayes


his parcel, resulting in the lease's termination. Under its TEDRA authority, the trial court

concluded the farm lease ended by its terms upon James' sale of his parcel to Isaak Land.

James argues he did not violate the covenant in Article 14 that prohibited him from

assigning, subletting, or transferring the lease. We disagree in that the covenant

expressed an intent that the tenant remain the sole farmer on the four parcels, so that the

family farm would remain as one. By selling his parcel, James transferred control of a

portion of the family farm to a third party.

       James Hayes ignores another covenant he made. He agreed that, in the event he

cannot personally perform the terms, conditions, and covenants required upon the tenant,

the lease terminates immediately. Thus, the lease automatically terminated ifhe could

not personally perform any of the 21 other covenants he made. Among other promises,

James agreed to devote the entire 1,225 acres he leased, including his parcel, to growing a

crop and farming in a good and sufficient farm-like manner. He cannot personally

perform any of these promises on the parcel of land he sold. As a result, the lease

terminated by its own terms.

       James Hayes argues equity disfavors requiring him to forfeit his rights under the

lease. As a matter of equity, the court enjoyed broad discretion to do substantial justice.

In re Foreclosure a/Liens, 123 Wn.2d 197,204,867 P.2d 605 (1994). This court

reviews a court's exercise of such discretion for abuse. In re Foreclosure a/Liens, 123

Wn.2d at 204. Under equity, Washington disfavors forfeitures unless the right thereto is

                                               46 

No.31915-6-III
Estate ofHayes


so clear as to permit no denial. John R. Hansen, Inc. v. Pac. Int'i Corp., 76 Wn.2d 220,

228,455 P.2d 946 (1969). James argues the right to forfeit the lease was not clear

because nothing in the lease prohibited the landlord from selling his interest.

Nevertheless, the farm lease shows an intent to keep the family farm as one. The lease

provides for termination if the tenant cannot personally perform his promises. We hold

that the trial court did not abuse its discretion.

       ISSUE 10: Should this appellate court grant James Hayes attorney fees and costs?

       ANSWER 10: No.

       In his reply brief, James Hayes asks this court to award him attorney fees and costs

pursuant to RAP 18.1 and TEDRA. RAP 18.1 requires a party requesting attorney fees to

devote a section of its opening brief to the request for fees or expenses. RAP 18.1(b).

"This requirement is mandatory. This requirement also demands more than a bald

request for attorney fees on appeal." Osborne v. Seymour, 164 Wn. App. 820, 866, 265

P.3d 917 (2011) (internal citations omitted). James did not request attorney fees or costs

until his response brief, and he provided nothing but a bald assertion in support of his

request. Because he failed to comply with the mandatory requirements in RAP 18.1, we

deny his request.

       ISSUE 11: Should this reviewing court grant Jerry Hayes reasonable attorney fees

and costs on appeal?

       ANSWER 11: Yes.

                                               47 

No. 31915-6-111
Estate o/Hayes


       Jerry Hayes also asks this court to award him reasonable attorney fees and costs

from James. He argues TEDRA and the 1993 farm lease entitle him to an award.

       We need only address the terms of the lease. The lease provides:

              11. Attorneys Fees, Law and Venue. In the event ofa breach by
       any party of any of the terms and conditions of this Lease, the prevailing
       party shall be entitled to reasonable attorney's fees and court costs against
       the other party.

CP at 21. As analyzed above, James Hayes breached the lease.

       James Hayes counters by arguing this court should not award fees under the 1993

farm lease because its interpretation and enforcement were not before the TEDRA court.

As ruled above, the lower court held authority to address these issues under TEDRA. As

the prevailing party, Jerry is entitled to reasonable attorney fees and.costs.

                                      CONCLUSIONS

       We affirm the trial court's ruling that the 1993 farm lease ended with respect to all

land thereunder when James Hayes sold his parcel of land. We grant Jerry Hayes an

award of reasonable attorney fees and costs on appeaL




                                             48 

