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           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BEVERLY YOUNG, BLAKE BOATMAN                       No. 72643-9-1
BRADLEY BOATMAN, BRENT
BOATMAN, and WILLIAM BOATMAN,                      DIVISION ONE

                         Appellants,


                                                   UNPUBLISHED OPINION
BRIAN BOATMAN, individually and as
Attorney-in Fact for Bojilina H. Boatman;
and THE ESTATE OF BOJIILINA H.
BOATMAN,

                         Respondents.              FILED: February 8, 2016

       Schindler, J. —The beneficiaries of the Estate of Bojilina H. Boatman (Estate)

appeal summary judgment dismissal of their Trust and Estate Dispute Resolution Act

(TEDRA), chapter 11.96A RCW, petition. Because only the personal representative can

bring a claim on behalf of the Estate for the actions of the attorney-in-fact for Bojilina,

we affirm the determination that the beneficiaries do not have standing to bring a

TEDRA action against the attorney-in-fact on behalf of the Estate for breach of fiduciary

duty and conversion. However, because the undisputed facts establish a conflict of

interest, we reverse dismissal of the TEDRA petition to remove the personal

representative. On remand, the court shall appoint an interim personal representative

to determine whether to pursue a claim on behalf of the Estate against the attorney-in-
No. 72643-9-1/2


fact for breach of fiduciary duty and conversion. Accordingly, we reverse in part, affirm

in part, and remand.

                                                FACTS

       On October 3, 2005, Bojilina H. Boatman executed a will and a durable power of

attorney. The power of attorney designates her son Brian Boatman as the attorney-in-

fact. The power of attorney gives Brian1 "the power to do all things with respect to the

assets and liabilities ... as the principal could do if present and competent, including

but not limited to the following:

               a. To make, amend, alter or revoke any of the principal's wills or
       codicils; and
              b. To make, amend, alter or revoke any of the principal's life
       insurance beneficiary designations; and
              c. To make, amend, alter or revoke any of the principal's employee
       benefit plan beneficiary designations; and
              d. To make, amend, alter or revoke any of the principal's trust
       agreements; and
              e. To make, amend, alter or revoke any of the principal's
       community property agreements', and
               f. To make gifts of any property owned by the principal; and
               g. To make transfers of any of the principal's property to any trust,
       whether or not the principal is a beneficiary thereof.
             h. To sell, transfer, convey, encumber, mortgage, lease, and
       purchase, any property, real or personal.
              Further, the attorney-in-fact shall have the full power to provide for
       the support, maintenance and health of the incompetent principal,
       including provide informed consent for health care decisions on the
       principal's behalf.

       The power of attorney states that it shall take effect upon receipt of a written
statement by a doctor that Bojilina cannot "manage her property and affairs for reasons
such as mental illness, mental deficiency, physical illness or disability, advanced age, or

disappearance."



         We use first names for purposes of clarity.
No. 72643-9-1/3


       In her will, Bojilina leaves the majority of the Estate in equal shares to each of her

six adult children: Bradley Boatman, Beverly Young, Brian Boatman, Brent Boatman,

Blake Boatman, and William Boatman. Bojilina designates her son Brian as the

personal representative of the Estate.

       Bojilina started living with Brian in early 2007. Brian assumed primary

responsibility for her care. On July 12, 2007, Dr. Carletta Vanderbilt diagnosed Bojilina

with dementia and Alzheimer's disease. Dr. Vanderbilt signed a written statement that

Bojilina is "incompetent to make decisions affecting health or financial issues." Under

the terms of the durable power of attorney, Brian assumed responsibility as the

attorney-in-fact for his mother. Brian acted as the attorney-in-fact for Bojilina from July

12, 2007 until she died on May 18, 2013.

       On June 7, 2013, the court admitted the will into probate and appointed Brian as

the personal representative of the Estate with nonintervention powers and without bond.

       On September 5, 2013, Brian filed an inventory of the Estate. The inventory

identifies $44,636.23 in probate assets and $298,497.65 in nonprobate assets.

       On December 20, 2013, Bradley Boatman, Beverly Young, Brent Boatman, Blake

Boatman, and William Boatman (collectively the beneficiaries) filed a TEDRA petition

against Brian "individually and as the Attorney-in Fact for Bojilina H. Boatman" and

against "the Estate of Bojilina H. Boatman." The beneficiaries also served a request for

production of financial documents.

       The petition alleged Brian owed a fiduciary duty as attorney-in-fact to Bojilina

"while she was alive." The petition alleged that "[wjhile Brian served as Decedent's

attorney-in-fact, Decedent's resources dramatically dissipated, resulting in a loss of:
No. 72643-9-1/4


approximately $555,000-$575,000 in ultimate probate assets." The beneficiaries

alleged that "without permission, justification, or authorization, Brian transferred

substantial assets of Decedent to himself," and as a result, "Brian is liable to the Estate

for all of Decedent's assets converted by him."

          The beneficiaries alleged that as the personal representative of the Estate, "Brian

owes a fiduciary duty to the Estate," and requested the court remove Brian as the

personal representative, revoke "the Letters Testamentary," and appoint the "alternative

representative as specified in the Will." The petition alleged, in pertinent part:

          Petitioners are asserting claims personally against Brian for conversion,
          breach of fiduciary duties and for an accounting relating to and arising out
          of Brian's conduct as attorney-in-fact for Decedent, as well as seeking
          revocation of letter testamentary issued to Brian with respect to the Estate
          in the Probate.


          The Estate and Brian filed an answer to the TEDRA petition. The answer asserts

Brian "managed his mother's assets under a valid power of attorney which specifically

allowed paying for her support, maintenance, and health as well as gifting." The answer

also asserts Brian "did not improperly divert any of Bojilina's assets;" "all payments . . .

made from Bojilina's assets were authorized and reasonable;" and "Brian did not make

himself a loan, so it was proper that no loan appeared on the inventory of the estate."

          The answer asserts the Estate "only includes assets that existed as of the date of

[Bojilina's] death, not for the seven years prior to her death." Brian asserts the duties he

owed to Bojilina "as attorney-in-fact are different from the duties he owes the estate and

his siblings as beneficiaries and do not directly continue and transfer from one to the

other/'
No. 72643-9-1/5


       Brian denied he had a duty to provide an accounting or produce documents but

states he had produced approximately 4,200 pages of financial records including bank

statements, check registers, and receipts. The answer states, in pertinent part:

       During Bojilina's life, Petitioners did not make a demand for an accounting
       or file a petition under RCW 11.94.090 alleging that court intervention was
       necessary. Petitioners did inquire about the general status of Bojilina's
       money on occasion when they requested that Brian give them gifts from
       her accounts. Although Brian denies any duty to do so, he has provided
       Petitioners with copies of check registers, bank statements and other
       important financial and care information regarding Bojilina.

       Brian and the Estate asserted a number of affirmative defenses including failure

to state a claim upon which relief can be granted, the beneficiaries "have suffered no

damages in that they have or will have received all assets to which they have a right as

beneficiaries of the Estate of Bojilina Boatman," and the beneficiaries "lack standing to

assert the claims set forth in its Petition." The Estate and Brian asserted a counterclaim

for attorney fees and costs.

      After retaining separate counsel, Brian filed an amended answer "in his individual

capacity." The answer incorporates by reference the previously filed answer.

       Brian filed a CR 12(b)(6) motion to dismiss the TEDRA petition for failure to state

a claim upon which relief can be granted. Brian argued that as the attorney-in-fact, he

only owed a duty to Bojilina. Brian argued the beneficiaries did not have standing to

bring claims on behalf of the Estate for breach of fiduciary duty or conversion against

him as the attorney-in-fact and any alleged conversion of funds while acting as the

attorney-in-fact was barred by the statute of limitations.

              Petitioners are not the person or party whom any fiduciary duty was
       owed prior to Bojilina Boatman's death, and thus the establishment of her
       estate. Further, they are not representatives of the Estate. They are not
       the party in interest, they are not a representative of the party in interest,
No. 72643-9-1/6


        and have no standing to bring claims for breach of fiduciary duty or
        conversion prior to death.

        The beneficiaries filed a response and declarations in opposition to the CR

12(b)(6) motion. The beneficiaries argued the financial records Brian produced showed

he misappropriated $428,864.27. The beneficiaries also argued the court should

remove Brian as the personal representative of the Estate because he breached his

fiduciary duty to the Estate by failing to pursue a claim for conversion.

        At the beginning of the hearing on the CR 12(b)(6) motion to dismiss, the parties

agreed the court should treat the motion as a motion for summary judgment.2 The court

stated the threshold question was standing. The court requested supplemental briefing

on whether the beneficiaries had standing to pursue the claims against Brian as

attorney-in-fact for breach of fiduciary duty and conversion on behalf of the Estate.

        Just on that issue alone, I think we need to get through that and see. . ..
        Because if you're, if you get through the standing issue, then, yeah, you've
        got issues of fact everywhere, no question about that. I think [Brian's
        attorney] would agree with that.

        In supplemental briefing, the beneficiaries argued they had standing to assert

claims on behalf of the Estate against Brian while acting as the attorney-in-fact from

2007 until Bojilina died in 2013. The beneficiaries also requested removal of Brian as

the personal representative of the Estate for breach of fiduciary duty. Specifically, "for

failing to take actions necessary to recover Estate assets appropriated" by Brian while

acting as the attorney-in-fact.

        Brian argued that as a matter of law, any claim against him as the attorney-in-fact

belonged to Bojilina, and that after her death, only the personal representative had the

        2 Because the court considered material outside the pleadings, a CR 12(b)(6) motion to dismiss is
treated as motion for summary judgment under CR 56. Sea-Pac Co. v. United Food & Commercial
Workers Local Union 44. 103 Wn.2d 800, 802, 699 P.2d 217 (1985).
No. 72643-9-1/7


statutory right to bring an action on behalf of the Estate against Brain as the attorney-in-

fact.

        The court dismissed the TEDRA petition. The court ruled the beneficiaries did

not have standing to bring a TEDRA action on behalf of the Estate against Brian as the

attorney-in-fact. The court ruled, "Petitioners have no standing to bring any action for

damages on behalf of the Estate. Any such cause of action belongs, as a matter of law,

to the Court appointed Personal Representative."

        The court denied the request to remove Brian as the personal representative.

The court ruled, "Petitioners have not provided sufficient evidence to persuade this

Court that Brian Boatman should be removed as the Personal Representative in this

matter." The court dismissed the TEDRA petition for "Conversion, Breach of Fiduciary

Duties, for an Accounting and Damages, and to Revoke Letters Testamentary."

        The beneficiaries appeal. The Washington Academy of Elder Law Attorneys filed

an amicus brief arguing the beneficiaries have standing under TEDRA. Brian filed a

response brief. The Estate adopts the facts and arguments set forth in Brian's brief.

The Estate filed a brief in response to the amicus.3

                                               ANALYSIS

        The beneficiaries challenge summary judgment dismissal of the TEDRA petition.

The beneficiaries assert the court erred (1) in ruling they did not have standing to bring

claims on behalf of the Estate to recover assets from Brian as the attorney-in-fact and




        3In the reply brief, the beneficiaries move to strike the portions ofthe response brief thataddress
the merits of the claims for breach of fiduciary duty and conversion. The beneficiaries argue the court did
not reach the merits of the claims. Because the record establishes the court addressed only the
threshold issue of standing, we do not consider the arguments on the merits. RAP 2.4(a).
No. 72643-9-1/8


(2) in denying their TEDRA petition to remove Brian as the personal representative of

the Estate.


       We review summary judgment dismissal de novo. Korslund v. DvnCorp Tri-

CitiesServs.. Inc.. 156Wn.2d 168, 177, 125 P.3d 119(2005). Under CR 56(c),

summary judgment is appropriate only if there is no genuine issue as to any material

fact and the moving party is entitled to a judgment as a matter of law. Standing is a

threshold issue that we also review de novo. In re Estate of Becker. 177 Wn.2d 242,

246, 298 P.3d 720 (2013). Where a party lacks standing, we refrain from reaching the

merits of that claim. Org, to Preserve Aqr. Lands v. Adams County. 128 Wn.2d 869,

896, 913 P.2d 793 (1996).

       Whether the beneficiaries have standing under TEDRA to bring claims on behalf

of the Estate against the attorney-in-fact is a question of statutory interpretation. We

review questions of statutory interpretation de novo. In re Estate of Haviland. 177

Wn.2d 68, 75, 301 P.3d 31 (2013); In re Estate of Stover, 178 Wn. App. 550, 556, 315

P.3d 579 (2013).

       When interpreting a statutory provision, our primary objective is to ascertain the

intent of the legislature. Haviland. 177 Wn.2d at 75-76; Stover. 178 Wn. App. at 556.

Where a statute is unambiguous, we give effect to the plain language of the statute as

an expression of legislative intent. Haviland, 177 Wn.2d at 75-76; In re Estate of Jones.

152 Wn.2d 1, 11, 93 P.3d 147 (2004). We discern the plain meaning of a statutory

provision based on the meaning of the language, the context of the statute, related

provisions, and the statutory scheme as a whole. Stover. 178 Wn. App. at 556. An

interpretation that reads language in isolation is too limited and fails to apply this rule.




                                               8
No. 72643-9-1/9


Jongewardv. BNSF Rv.. 174 Wn.2d 586, 595, 278 P.3d 157 (2012). We must

"harmonize statutes pertaining to the subject matter and maintain the integrity of the

statues within the overall statutory scheme." Philippides v. Bernard. 151 Wn.2d 376,

385, 88 P.3d 939 (2004); see also In re Estate of Evans. 181 Wn. App. 436, 442-48,

326 P.3d 755 (2014) (we must harmonize TEDRA with related statutes).

        The beneficiaries rely on RCW 11.96A.080 to argue they have standing to bring

claims on behalf of the Estate against Brian as the attorney-in-fact for breach of

fiduciary duty and conversion.4

        RCW 11.96A.080(1) states, in pertinent part, "[A]ny party may have a judicial

proceeding for the declaration of rights or legal relations with respect to any matter, as

defined by RCW 11.96A.030."

        RCW 11.96A.030 states, "The definitions in this section apply throughout this

chapter unless the context clearly requires otherwise." The definition of a "party"

includes a beneficiary. RCW 11.96A.030(5) defines a "party" as "each of the following

persons who has an interest in the subject of the particular proceeding . . . : (e) A

beneficiary."

        Although the definition of "matter" does not include the right of the beneficiaries

to bring an action on behalf of the Estate, RCW 11.96A.030(2) broadly defines "matter."

Former RCW 11.96A.030(2) states, in pertinent part:

        "Matter" includes any issue, question, or dispute involving:
               (a) The determination of any class of creditors, devisees, legatees,
        heirs, next of kin, or other persons interested in an estate, . . . nonprobate


        4 In addition to arguing the beneficiaries have standing under TEDRA, the Washington Academy
of Elder Law Attorneys argue the beneficiaries have standing under the slayer statute, chapter 11.84
RCW. The definition of "matter" under TEDRA includes claims under the slayer statute. RCW
11 96A.030(2)(e). However, because this argument is raised for the first time on appeal, we granted the
motion to strike this argument.
No. 72643-9-1/10


        asset, or with respect to any other asset or property interest passing at
        death;
               (b) The direction of a personal representative or trustee to do or to
        abstain from doing any act in a fiduciary capacity; [and]
               (c) The determination of any question arising in the administration
        of an estate . . . , or with respect to any nonprobate asset, or with respect
        to any other asset or property interest passing at death, that may include,
        without limitation, questions relating to: ... (ii) a change of personal
        representative or trustee; (iii) a change of the situs of a trust; (iv) an
        accounting from a personal representative or trustee; or (v) the
        determination of fees for a personal representative or trustee.[5]

        The purpose of TEDRA is "to set forth generally applicable statutory provisions

for the resolution of disputes and other matters involving trusts and estates in a single

chapter under Title 11 RCW." RCW 11.96A.010. TEDRA makes clear that it does not

supersede other provisions in Title 11 RCW. RCW 11.96A.080(2) expressly states that

the provisions of TEDRA "shall not supersede, but shall supplement, any otherwise

applicable provisions and procedures contained in this title, including without limitation

those contained in chapter 11.20, 11.24, 11.28, 11.40, 11.42, or 11.56 RCW." See also

In re Estate of Kordon. 157 Wn.2d 206, 212, 137 P.3d 16 (2006) (TEDRA does not

supersede but instead shall supplement the other provisions of Title 11 RCW).

        Under RCW 11.48.010, only the personal representative has the authority to

"maintain and prosecute" actions on behalf of the estate. RCW 11.48.010 states, in

pertinent part:

        The personal representative shall be authorized in his or her own name to
        maintain and prosecute such actions as pertain to the management and
        settlement of the estate, and may institute suit to collect any debts due the
        estate or to recover any property, real or personal, or for trespass of any
        kind or character.




         5 The legislature amended RCW 11.96A.030(2)(c) in 2015 to add subsection (vi) to include the
determination of any question relating to "the powers and duties of a statutory trust advisor or directed
trustee of a directed trust under chapter 11.98A RCW." Laws of 2015, ch. 115, § 1.


                                                     10
No. 72643-9-1/11


        RCW 11.48.060 also expressly gives the personal representative the right to

bring an action against an attorney-in-fact for conversion. RCW 11.48.060 states:

        Ifany person, before the granting of letters testamentary or of
        administration, shall embezzle or alienate any of the moneys, goods,
        chattels, or effects of any deceased person, he or she shall stand
        chargeable, and be liable to the personal representative of the estate, in
        the value of the property so embezzled or alienated, together with any
        damage occasioned thereby, to be recovered for the benefit of the
        estate.[6)

        The cases the beneficiaries cite, Drain v. Wilson. 117 Wash. 34, 200 P. 581

(1921), and In re the Estate of Wheeler. 71 Wn.2d 789, 431 P.2d 608 (1967), are

inapposite. Neither Drain nor Wheeler address whether beneficiaries have standing to

bring an action on behalf of an estate against an attorney-in-fact. In Drain and Wheeler,

the court held that when an action augments a fund for the benefit of the beneficiaries

under a will, attorney fees are warranted. Drain, 117 Wash, at 37-39; Wheeler. 71

Wn.2d at 796-98; see also Seattle Sch. Dist. No. 1 v. State. 90 Wn.2d 476, 541-42, 585

P.2d71 (1978).

       The out-of-state cases relied on by the beneficiaries, Siegel v. Novak, 920 So.2d

89 (Fla. Dist. Ct. App. 2006), and Priestly v. Priestly. 949 S.W.2d 594 (Ky. 1997),

interpret different statutory language and are inapposite. In Siegel. the Florida District

Court of Appeals allowed beneficiaries of a revocable trust to pursue a claim against the

trustee for improper distributions from the trust that occurred during the settlor's lifetime.

Siegel, 920 So.2d at 96. In Priestly, the Kentucky Supreme Court interpreted a

Kentucky statute to allow claims against the administrator of an estate for actions the

administrator took before the decedent's death. Priestly. 949 S.W.2d at 597-98.



        6 RCW 4.20.046(1) also provides that "[a]ll causes of action by a person . . . shall survive to the
personal representative."


                                                     11
No. 72643-9-1/12


        We hold that under the plain and unambiguous language of Title 11 RCW, only

the personal representative has the authority to bring claims for breach of fiduciary duty

and conversion on behalf of the Estate against Brian while acting as the attorney-in-fact.

Accordingly, we affirm the determination that the beneficiaries do not have standing to

bring claims against Brian for breach of fiduciary duty and conversion while acting as

the attorney-in-fact.7

        Next, the beneficiaries contend the court erred in denying their TEDRA petition to

remove Brian as the personal representative of the Estate. The beneficiaries argue the

conflict of interest between maximizing the Estate while trying to avoid personal liability

"mandates Brian's removal as personal representative." Because the undisputed record

establishes a conflict of interest, we hold the court erred in dismissing the request to

remove Brian as the personal representative for purposes of investigating and

determining whether to bring claims against Brian as the attorney-in-fact for breach of

fiduciary duty and conversion.

        The personal representative owes the beneficiary of an estate a fiduciary duty to

act in the best interest of the estate. In re Estate of Larson. 103 Wn.2d 517, 520-21,

694 P.2d 1051 (1985). "[A]n estate beneficiary can protect his or her interest in the

estate by having the personal representative removed if the personal representative

breaches a fiduciary duty to the estate" under RCW 11.68.070 and 11.28.250. Trask v.

Butler. 123 Wn.2d 835, 843-44, 872 P.2d 1080 (1994). RCW 11.68.070 provides, in




        7Accordingly, the court did not err in ruling the beneficiaries did not have standing to demand
discovery or an accounting. Nonetheless, as noted, Brian produced approximately 4,200 pages of
financial records and an accounting.


                                                    12
No. 72643-9-1/13


pertinent part:

       Ifany personal representative who has been granted nonintervention
       powers fails to execute his or her trust faithfully or is subject to removal for
       any reason specified in RCW 11.28.250 as now or hereafter amended,
       upon petition of. . . any heir, devisee, [or] legatee, . . . such petition being
       supported by affidavit which makes a prima facie showing of cause for
       removal or restriction of powers, . .. and if... it appears that said
       personal representative has not faithfully discharged said trust or is
       subject to removal for any reason specified in RCW 11.28.250 as now or
       hereafter amended, then, in the discretion of the court the powers of the
       personal representative may be restricted or the personal representative
       may be removed and a successor appointed.

RCW 11.28.250 provides:

       Whenever 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, it shall have power and authority, after
       notice and hearing to revoke such letters. The manner of the notice and
       of the service of the same and of the time of hearing shall be wholly in the
       discretion of the court, and if the court for any such reasons revokes such
       letters the powers of such personal representative shall at once cease,
       and it shall be the duty of the court to immediately appoint some other
       personal representative, as in this title provided.

       Consistent with the provisions in RCW 11.68.070 and 11.28.250, the plain and

unambiguous language of the TEDRA statute gives a beneficiary standing to file a

petition to remove the personal representative. Specifically, a "beneficiary" has

standing to "have a judicial proceeding" to determine "any question arising in the

administration of an estate," including questions relating to "a change of personal

representative." RCW 11.96A.030(5)(e), .080(1), .030(2)(c)(ii).

       Because the undisputed record establishes a conflict of interest, the court erred

in dismissing the TEDRA petition to remove Brian as the personal representative for


                                              13
No. 72643-9-1/14


purposes of investigating and determining whether to bring an action for breach of

fiduciary duty and conversion on behalf of the Estate. On remand, the court shall

appoint an interim personal representative to determine whether to pursue an action on

behalf of the Estate against Brian as the attorney-in-fact for Bojilina from 2007 until her

death in 2013. See Jones, 152 Wn.2d at 19.

       We affirm in part, reverse in part, and remand.8




WE CONCUR:




        8Both parties request attorney fees under RCW 11.96A.150(1) and RAP 18.1. We decline to
award attorney fees.


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