IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Estate of ) No. 79171-1-I BERTHOLD R. FORDERER ) ) and ) ) UNPUBLISHED OPINION EMILIE L. FORDERER, ) ) Deceased. )
BOWMAN, J. — Susanne Forderer brought a motion to remove Alexander
(Alex) Forderer as personal representative (PR) of the estate of Berthold and
Emilie Forderer under RCW 11.28.250. Following a lengthy trial, the court
granted the motion based on multiple grounds, including waste and
mismanagement of the estate. Because the unchallenged findings of fact
support Alex’s1 removal as PR, we affirm.
FACTS
Berthold and Emilie married and had two children, Susanne and Berthold
(Bert) Forderer. Alex is Emilie’s son from a former marriage and half-brother to
Susanne and Bert.
1 We refer to the members of the Forderer family by their first names throughout the opinion for purposes of clarity and mean no disrespect by doing so.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79171-1-I/2
Berthold died in February 2009, leaving all assets to Emilie. An
accounting at the time of Berthold’s death showed $1,432,073.43 in assets,
including a Charles Schwab account worth $318,436.30, a Boeing 401K account
worth $906,565.45, and multiple KeyBank accounts worth more than
$198,000.00.
Shortly before Berthold’s death, Emilie designated Alex as her attorney-in-
fact. Emilie executed a durable power of attorney (POA) granting Alex all
decision-making powers over her estate except for the ability to make gifts of her
property. The POA remained in effect until Emilie’s death in 2015.
In 2009, Alex obtained a geriatric assessment of Emilie. The assessment
concluded Emilie could “ ‘perform most of her activities of daily living, except for
managing money or preparing meals.’ ”
In January 2010, Susanne filed a “Petition for Vulnerable Adult Order for
Protection.” In the petition, Susanne expressed concern about Emilie’s capacity
to care for herself and Alex’s undue influence. Susanne argued Emilie had
Alzheimer’s disease/dementia that prevented her “from withstanding the efforts”
of Alex to isolate Emilie from other family members. At a hearing on the petition,
Emilie testified that she still had her “marbles” and was able to take care of
herself. The court found that Emilie could clearly voice her opinions and
dismissed the petition without prejudice.
Emilie moved into an assisted living facility in December 2009. Alex
visited her almost daily. Emilie deferred the management of her financial affairs
2 No. 79171-1-I/3
to Alex. He had a debit card for her bank accounts and kept her purse with her
debit card in his home safe.
Emilie died in March 2015. Her death certificate listed the cause of death
as Alzheimer’s disease and indicated six years between onset of the disease and
death. Emilie left her estate to Alex, Susanne, and Bert. She designated Alex as
the PR.
In October 2015, Alex filed an estate inventory listing the probate and
nonprobate assets. There were significant discrepancies between Alex’s estate
inventory list and the assets listed in the accounting of the estate after Berthold’s
death. For example, the Boeing 401K account held approximately $330,000 less
than at the time of Berthold’s death and none of the KeyBank accounts appeared
on the asset inventory. The inventory also stated that Emilie possessed no
personal property at the time of her death.
In April 2017, Susanne filed a motion under RCW 11.28.250 to remove
Alex as PR. She alleged that Alex had a conflict of interest based on his
suspicious management of funds during Emilie’s lifetime. Alex opposed the
motion, claiming he spent the missing funds on Emilie’s care and support during
her final six years of life. Alex argued there was no evidence that he failed to
perform his duties or had a conflict of interest. The trial court denied the motion
to remove Alex as PR without prejudice but ordered him to provide a verified
accounting of the estate with supporting documentation to address the issues
raised in the motion for removal. Alex filed a new accounting in August 2017.
3 No. 79171-1-I/4
In December 2017, Susanne renewed her motion for removal of Alex,
alleging waste and mismanagement of the estate’s assets during Emilie’s
lifetime. A commissioner denied the motion to remove Alex as PR but certified
the issue of the adequacy of the accounting for trial. In March 2018, Alex made
an offer of judgment under CR 68 to pay a judgment of $58,000 and step down
as PR subject to several conditions. Those conditions included indemnity and
release of Alex from further liability related to the probate of the estate and
payment of his attorney fees by the estate. Susanne declined the offer.
At a pretrial hearing, Alex sought an order to limit the trial to matters
relating to the PR’s accounting and to bar discovery of Emilie’s medical
information. The trial court granted the motion “to limit testimony and evidence
presented at trial to accounting only.” The court also ordered that “the parties
shall not request discovery, offer evidence[,] or [e]licit testimony from witnesses
with regard to Emilie Forderer’s Personal Health Information at any time during
her life.” The court denied Susanne’s motion for reconsideration. Susanne filed
a motion for discretionary review. A commissioner of this court denied
Susanne’s motion.
During trial, Susanne’s forensic accountant expert Lorraine Barrick
provided evidence that more than $250,000 in disbursements from Emilie’s
accounts were not for her benefit. The disbursements included men’s clothing,
tools, vehicles, household goods, and fresh groceries purchased during the time
Emilie lived in an assisted facility that provided three meals each day. Emilie’s
account also showed over $78,000 in payments to Alex’s son and over $28,000
4 No. 79171-1-I/5
in unaccounted for cash and cashier’s checks. Barrick testified that at least
$133,175 from Emilie’s KeyBank accounts should have been included in the
estate. Instead, Alex assumed ownership of the funds as joint account holder
with right of survivorship. Based on Barrick’s calculations, a minimum of
$408,840 was missing from the estate.
The trial court concluded Alex had wasted assets and mismanaged the
estate. The court removed Alex and appointed a new PR. The trial court
granted Susanne’s motion for attorney fees and costs under RCW 11.96A.150.
The court denied Alex’s request for attorney fees and costs under CR 68. Alex
appeals.
ANALYSIS
Removal of the PR
Alex claims the court erred in removing him as PR of Emilie’s estate. We
conclude that the unchallenged findings of fact support the trial court’s decision
to remove Alex for waste of assets and mismanagement of Emilie’s estate.
RCW 11.28.250 authorizes the court to remove a PR
[w]henever the court has reason to believe that any personal representative has wasted, embezzled, or mismanaged, or is about to waste, or embezzle the property of the estate committed to his or her charge, or has committed, or is about to commit a fraud upon the estate, or is incompetent to act, or is permanently removed from the state, or has wrongfully neglected the estate, or has neglected to perform any acts as such personal representative, or for any other cause or reason which to the court appears necessary.
The court has wide discretion to remove a PR and an appellate court
should generally not interfere. In re Estate of Beard, 60 Wn.2d 127, 132, 372
P.2d 530 (1962). The superior court must have valid grounds for removal
5 No. 79171-1-I/6
supported by the record. In re Estate of Jones, 152 Wn.2d 1, 10, 93 P.3d 147
(2004). “[I]f even one ground for removal is valid, the decision should be upheld
on appeal.” Jones, 152 Wn.2d at 10. However, if the findings do not support
removal, the removal is arbitrary and improper. Jones, 152 Wn.2d at 8.
Unchallenged findings of fact are verities on appeal. Jones, 152 Wn.2d at
8. Challenged findings of fact must be supported by substantial evidence
sufficient to persuade a rational, fair-minded person of the truth of the finding.
Jones, 152 Wn.2d at 8. An appellate court reviews conclusions of law de novo.
Jones, 152 Wn.2d at 8-9.
Here, the trial court concluded the evidence clearly and convincingly
demonstrated Alex had wasted and mismanaged the estate. The court removed
Alex as PR based on several “non-exclusive” grounds:
(1) Alex breached his fiduciary duty to Emile with regard to the expenditures of at least $357,429[.00] of Emilie’s funds during her life that were either unaccounted for, not for, or only partially for Emilie’s benefit; (2) Alex procured “gifts” of at least $628,519.57 from Emilie related to the opening of the Key Bank and [Charles] Schwab accounts and the funds he received from those accounts upon her death, all of which were the product of undue influence and/or fraud; (3) Alex mismanaged at least $100,000[.00] in Estate assets by failing to report any of Emilie’s personal property on the Estate Inventory, including the tractor, trailer, dump truck, jewelry, tools, or any replacement items Alex may have purchased with the insurance proceeds; (4) Alex mismanaged at least $133,175.14 in Estate funds by taking the Key Bank accounts for himself upon Emilie’s death, funds that should have gone to the Estate under RCW 30A.22.100; (5) Alex acted improperly in connection with his actions regarding the insurance claims he filed on Emilie’s behalf and the $26,331.08 in proceeds he received but did not report on the Estate Inventory or in the 2017 Accounting; and (6) Alex committed waste with respect to his neglect of the Family Property, an asset of the Estate.
6 No. 79171-1-I/7
The unchallenged findings of fact support at least one of the statutory
grounds for removal of Alex as the PR. For example, Alex does not challenge
the trial court’s findings that he failed to maintain the family property. This
includes findings that he claimed $131,294.82 in expenses related to the upkeep
of the home, but the home is uninhabitable due to serious neglect. The court
found, “The current uninhabitable condition of the house does not support Alex’s
contention that any of Emilie’s funds were actually spent on the Family Property’s
maintenance during the relevant time period.”
Likewise, the trial court found that Alex did not report Emilie’s personal
property as assets on the estate inventory, including a $58,000 Kubota tractor
that he purchased with her funds and kept at his property. Alex did not assign
error to this finding of fact. Alex also purchased a $6,200 dump truck and several
thousand dollars’ worth of jewelry that he failed to include as personal property
on the 2015 list of estate assets. The unchallenged findings establish that Alex
“mismanaged at least $100,000 in Estate assets” by not reporting them.
The unchallenged findings of fact also establish Alex’s improper use of
insurance proceeds from a burglary at Emilie’s property. The findings state that
Alex received $26,331.08 in insurance proceeds for items he claimed were stolen
from the house, including reimbursement for several hand-carved statues that
were not stolen. Alex received the reimbursement funds on a debit card. The
findings support the trial court’s conclusion that “Alex acted improperly in
connection with his actions regarding the insurance claims he filed on Emilie’s
7 No. 79171-1-I/8
behalf and the $26,331.08 in proceeds he received but did not report on the
Estate Inventory or in the 2017 Accounting.”
We conclude that the unchallenged findings of fact support the trial court’s
decision to remove Alex as PR under RCW 11.28.250.
Evidentiary Rulings
Alex challenges a number of evidentiary rulings. Because the findings of
fact and conclusions of law may have a preclusive effect on any future
proceedings, we address the rulings.
“A trial court’s decision to admit or exclude evidence lies within its sound
discretion.” Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App.
736, 744, 87 P.3d 774 (2004). We will not overturn evidentiary rulings unless the
trial court manifestly abuses its discretion or bases its decision on untenable
grounds or reasons. Int’l Ultimate, 122 Wn. App. at 744; Mayer v. Sto Indus.,
Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). A trial court’s decision is
manifestly unreasonable if it adopts a view no reasonable person would take.
Mayer, 156 Wn.2d at 684. A decision is based on untenable grounds or reasons
if the trial court applies the wrong legal standard or relies on unsupported facts.
Mayer, 156 Wn.2d at 684; Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230
P.3d 583 (2010).
Personal Health Information
Before trial, the court granted Alex’s motion to limit the scope of the trial to
accounting issues only and to preclude discovery of Emilie’s personal health
information. However, during the trial, Alex elicited testimony that “opened the
8 No. 79171-1-I/9
door” to personal health information and the court allowed Susanne to question
those witnesses about Emilie’s dementia diagnosis. Those witnesses included a
Charles Schwab financial consultant who testified about Emilie’s “comfort” during
participation in her financial affairs, a caregiver who testified about Emilie’s
independence, and Alex’s testimony about using a computer to review financial
documents with Emilie.
Alex contends the testimony did not “open the door” and that the trial court
erred in its admission of personal health information. Specifically, Alex claims
the court improperly relied on the 2009 geriatric assessment of Emilie as well as
her death certificate “to conclude that she was the subject of [his] undue
influence.” Susanne argues the trial court properly concluded Alex opened the
door to the testimony when he attempted to elicit “back door” testimony as to
Emilie’s capacity. We agree with Susanne.
“ ‘[A] party who is the first to raise a particular subject at trial may open the
door to evidence offered to explain, clarify, or contradict the party’s evidence.’ ”
State v. Jones, 144 Wn. App. 284, 298, 183 P.3d 307 (2008) (quoting KARL B.
TEGLAND, 5 WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 103.14, at 66-67
(5th ed. 2007)); see Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 766, 389
P.3d 517 (2017); Ang v. Martin, 118 Wn. App. 553, 561-62, 76 P.3d 787 (2003).
At trial, in response to questions by Alex, a Charles Schwab financial planner
testified that Emilie appeared comfortable during financial conversations at her
office. The trial court found a reasonable inference that Alex elicited this
testimony to suggest that Emilie was in agreement with and/or understood the
9 No. 79171-1-I/10
nature of those discussions. The trial court warned Alex, “If you want to offer or
extract information about Emilie’s mental state, agreement, participation,
deference, and all the rest you may do so, but you do so at your own peril.” Alex
then asked Emilie’s caregiver about Emilie’s independence. The court ruled that
the question “implies a great deal of things, other than one’s ability to walk or
brush teeth or do something like that. It implies one’s ability to resist outside
influences.”
Despite repeated warnings from the trial court, Alex testified that he used
a computer to review Emilie’s financial documents with her. He claimed that they
“reviewed a lot of her financial documents” on the computer. On cross-
examination, Alex testified he used a computer to show Emilie her financial
information “[b]ecause she was curious about it.” When asked whether Alex
expected Emilie to understand the financial documents, he replied, “I explained
them to her. Whether or not she understood them, I have no idea.” At this point,
Susanne argued and the trial court agreed that Alex had “opened the door” to
admit personal health information related to Emilie’s mental capacity. The court
ruled, “This now is proper inquiry to examine the most recent testimony of why
this witness would have no idea.”
The trial court did not abuse its discretion in ruling that the testimony about
Emilie’s comfort, independence, and ability to understand her financial
documents “opened the door” to previously excluded evidence of her dementia
and Alzheimer’s disease.
10 No. 79171-1-I/11
Designation of Accounts
Alex claims the trial court erred in characterizing account beneficiary
designations and rights of survivorship as inter vivos gifts. Alex contends the
court therefore improperly shifted the burden to him to prove that he did not
unduly influence Emilie. The trial court concluded the KeyBank and Charles
Schwab accounts “are presumed gifts obtained by fraud or undue influence.”
In a will contest, the challenger must prove by clear and convincing
evidence the existence of undue influence. White v. White, 33 Wn. App. 364,
369, 655 P.2d 1173 (1982). The burden shifts to the recipient of a gift when he
has a confidential or fiduciary relationship with the donor. In re Trust & Estate of
Melter, 167 Wn. App. 285, 296, 273 P.3d 991 (2012). The recipient of a gift
between persons in a confidential relationship must prove the lack of undue
influence by clear, cogent, and convincing evidence. McCutcheon v. Brownfield,
2 Wn. App. 348, 357, 467 P.2d 868 (1970). Designation as a beneficiary on an
account “is not an inter vivos gift because the designation is ‘merely a means of
transmitting property at death’ and the beneficiary has no rights before” that
death. In re Estate of Langeland, 177 Wn. App. 315, 330, 312 P.3d 657 (2013)
(quoting Francis v. Francis, 89 Wn.2d 511, 514, 573 P.2d 369 (1978)).
The trial court found that the KeyBank and Charles Schwab accounts
were inter vivos gifts. We agree the KeyBank accounts are inter vivos gifts but
not the Charles Schwab accounts.
11 No. 79171-1-I/12
1) KeyBank Accounts
Alex claims that he is a designated beneficiary of Emilie’s KeyBank
accounts because he is a joint owner with right of survivorship. The court ruled
that the accounts did not carry the right of survivorship and characterized them
as inter vivos gifts.
When a party challenges a trial court’s findings of fact, we limit our review
to determining whether substantial evidence supports the findings. Panorama
Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10
P.3d 417 (2000). “Substantial evidence” is defined as “ ‘a quantum of evidence
sufficient to persuade a rational fair-minded person the premise is true.’ ” Korst
v. McMahon, 136 Wn. App. 202, 206, 148 P.3d 1081 (2006) (quoting Sunnyside
Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)).
Expert Testimony
Susanne’s expert testified that the majority of Emilie and Alex’s joint
KeyBank accounts did not carry the right of survivorship. Rather than pass
directly to Alex, the accounts should have gone into the estate as assets.
Alex called KeyBank employee Tricia Kauffman as an expert. She
testified that joint KeyBank accounts always have a right of survivorship. The
trial court discounted Kauffman’s testimony because she testified as to her
personal opinion and individual knowledge rather than on behalf of KeyBank and
because she lacked personal knowledge of the accounts at issue, “which were
opened long before she had ever been employed by Key Bank.”
12 No. 79171-1-I/13
Judgment as to the credibility of witnesses and the weight of the evidence
is the exclusive function of the finder of fact. Quinn v. Cherry Lane Auto Plaza,
Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). An appellate court may not
reweigh the evidence and substitute its own judgment. Quinn, 153 Wn. App. at
717. Substantial evidence supports the court’s finding that the KeyBank
accounts did not carry the right of survivorship.
KeyBank Document
Alex also offered to admit a document from KeyBank reflecting that all of
its joint accounts carry a right of survivorship. Kauffman testified she saw the
document for the first time during a deposition a few days earlier. Kauffman
received the document in an e-mail from a KeyBank custodian of records.
Susanne objected for lack of foundation. Susanne argued Kauffman had no
knowledge of the preparation of the document or its maintenance in the regular
course of business. The trial court denied admission of this evidence for lack of
personal knowledge. Alex assigns error to this ruling, arguing the court abused
its discretion.
Under the Uniform Business Records as Evidence Act, chapter 5.45
RCW, “[i]t is not necessary to examine the person who actually created the
record so long as it is produced by one who has the custody of the record as a
regular part of his work or has supervision of its creation.” Cantrill v. Am. Mail
Line, Ltd., 42 Wn.2d 590, 608, 257 P.2d 179 (1953); see RCW 5.45.020; see
also State v. Iverson, 126 Wn. App. 329, 337-38, 108 P.3d 799 (2005). Because
Kauffman did not see the document until she received it in an e-mail before the
13 No. 79171-1-I/14
deposition taken a few days before she testified and did not have custody of the
record as a regular part of her work, the trial court did not abuse its discretion in
ruling that the document was not admissible.
2) Charles Schwab Accounts
In contrast to the KeyBank accounts, the record shows that Emilie
designated Alex as her beneficiary on death for two Charles Schwab accounts.
Therefore, the Charles Schwab accounts were not inter vivos gifts and the
accounts properly transferred to Alex upon Emilie’s death as a nonprobate asset.
See Langeland, 177 Wn. App. at 330. The trial court erred in its characterization
of the Charles Schwab accounts as inter vivos gifts and Alex was not required to
prove “the validity of the beneficiary designation and the absence of undue
influence” by clear, cogent, and convincing evidence. Langeland, 177 Wn. App.
at 330.2
Deadman’s Statute
Alex contends that the trial court erred in excluding testimony under the
deadman’s statute, RCW 5.60.030. He claims that the statute does not apply
because he is not “a party in interest” under the statute. However, Alex has
waived review of this issue on appeal as he did not challenge his designation as
a “party in interest” below.
“The deadman’s statute, RCW 5.60.030, bars testimony by a ‘party in
interest’ regarding ‘transactions’ with the decedent or statements made to him by
2 Because unchallenged findings support the court’s removal of Alex as PR, the court’s error is harmless.
14 No. 79171-1-I/15
the decedent.” In re Estate of Lennon, 108 Wn. App. 167, 174, 29 P.3d 1258
(2001). RCW 5.60.030 states:
[A] party in interest or to the record . . . shall not be admitted to testify in his or her own behalf as to any transaction had by him or her with, or any statement made to him or her, or in his or her presence, by any such deceased . . . person.
Alex planned to introduce testimony that Emilie was aware and approved
of many of the transactions in controversy. Susanne moved in limine under this
statute to prevent Alex from testifying as to his conversations with Emilie
regarding the expenses and transactions listed in the accounting. In her motion
in limine, Susanne argued that RCW 5.60.030 precludes a “party in interest” from
testifying “about transactions with or statements made by a decedent” and
argued:
Alex Forderer is a party in interest both as personal representative of the Estate and as one of its heirs. There can be no dispute that he stands to gain or lose from a judgment in this action, as Susanne is seeking his removal and directly challenging his actions while acting as attorney-in-fact and as PR of the Estate.
In response, Alex argued that Susanne sought to “inject improper
evidence and unsupported innuendo” through a “sham” motion under RCW
5.60.030. Alex also argued Susanne waived application of the statute because
“[b]y submitting Alex Forderer’s testimony as to what his mother wanted, and
following her wishes, the petitioner has waived the right to complain about it
here.” The trial court granted the motion in limine and barred Alex and his wife
“from testifying as to any transactions with or statements made by Emilie
Forderer regarding the 2017 Court-ordered accounting, pursuant to RCW
5.60.030.”
15 No. 79171-1-I/16
Although Alex made a general objection to Susanne’s motion in limine, he
did not object to her assertion that he was a “party in interest.” ”Even if an
objection is made at trial, a party may only assign error in the appellate court on
the specific ground of the evidentiary objection made at trial.” DeHaven v. Gant,
42 Wn. App. 666, 669, 713 P.2d 149 (1986); see also State v. Hamilton, 179 Wn.
App. 870, 878, 320 P.3d 142 (2014); State v. Kirkman, 159 Wn.2d 918, 926, 155
P.3d 125 (2007).
Alex did not dispute that he was a “party in interest.” Indeed, citing
Lennon, he claimed that he was free to testify about his own feelings and
impressions because “the deadman’s statute does not prevent an interested
party” from doing so. Because the trial court did not have a meaningful
opportunity to consider the argument that Alex was not a “party in interest” under
the deadman’s statute, he has waived review of this issue on appeal.
Trial Court Award of Attorney Fees and Costs
Susanne and Alex submitted post-trial motions for attorney fees and costs.
The court granted Susanne’s motion under RCW 11.96A.150 of the Trust and
Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW. The trial court
denied Alex’s motion under CR 68. Alex appeals these rulings.
RCW 11.96A.150
Alex contends the trial court abused its discretion by awarding Susanne
an inequitable fee award based on a conclusory analysis. The record does not
support his argument.
16 No. 79171-1-I/17
The court has discretion to award attorney fees and costs in a TEDRA
action. RCW 11.96A.150. In exercising this discretion, the court “may consider
any and all factors that it deems to be relevant and appropriate, which factors
may but need not include whether the litigation benefits the estate or trust
involved.” RCW 11.96A.150(1). An appellate court should not interfere with a
trial court’s fee determination unless facts and circumstances clearly show an
abuse of the trial court’s discretion. In re Estate of Black, 153 Wn.2d 152, 173,
102 P.3d 796 (2004).
Here, the trial court awarded attorney fees to Susanne in the amount of
$465,238.84 and costs of $92,352.02 for conferring a substantial benefit to the
estate. The court awarded fees because Susanne established Alex’s conflict of
interest and misconduct warranting his removal as PR. The record shows that
the trial court utilized a lodestar calculation and discounted Susanne’s requested
award due to unsuccessful litigation, duplicative charges, and excessive hours.
Under the general terms of RCW 11.96A.150, this decision was well within the
trial court’s discretion.
CR 68
The trial court rejected Alex’s motion for attorney fees and costs under CR
68. Alex claims Susanne did not improve her position at trial because she
achieved the “sole” relief of his removal as PR. In contrast, he argues that
Susanne would have had the benefit of his removal as well as a $58,000
judgment had she accepted the CR 68 offer. As a result, Alex contends he
should have received his fees and costs for trial under CR 68. We disagree.
17 No. 79171-1-I/18
CR 68 requires the offeree to pay the costs incurred after a rejected offer
“[i]f the judgment finally obtained by the offeree is not more favorable than the
offer.” When comparing a final judgment with a CR 68 offer, a trial court should
“ ‘compare comparables.’ ” Magnussen v. Tawney, 109 Wn. App. 272, 275, 34
P.3d 899 (2001) (quoting Wilkerson v. United Inv., Inc., 62 Wn. App. 712, 717,
815 P.2d 293 (1991)). Determination of the prevailing party is a mixed question
of law and fact; however, we review the issue under the error of law standard.
Magnussen, 109 Wn. App. at 275.
The assessment of Susanne’s position after trial turns on whether Alex’s
unconditional removal as PR is a more favorable outcome than his conditional
agreement to removal and judgment of $58,000. Assessing the relative value of
equitable relief and damages poses the challenge of “comparing apples and
oranges.” Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 837 (6th
Cir.2005).3 Despite this challenge, a majority of federal courts have recognized
that “a favorable judgment and an injunction can be more valuable to a plaintiff
than damages.” Andretti, 426 F.3d at 837; see Reiter v. MTA N.Y.C. Transit
Auth., 457 F.3d 224, 231 (2d Cir. 2006); Liberty Mut. Ins. Co. v. Equal Emp’t
Opportunity Comm’n, 691 F.2d 438, 442 (9th Cir. 1982); Lish v. Harper’s
Magazine Found., 148 F.R.D. 516, 519-20 (S.D.N.Y. 1993).
In contrast to Alex’s conditional offer to step down as PR, Susanne
achieved unconditional removal of Alex. Had Susanne accepted the CR 68 offer,
Alex could claim immunity and indemnification in the event the successor PR
3 Because CR 68 is virtually identical to Federal Rule of Civil Procedure 68, the court may look to federal interpretation of an equivalent rule in the absence of controlling Washington authority. Johnson v. Dep’t of Transp., 177 Wn. App. 684, 692 n.5, 313 P.3d 1197 (2013).
18 No. 79171-1-I/19
pursued an action against him for his dissipation of Emilie’s assets and his
mismanagement of the estate. The court did not abuse its discretion in ruling
that Alex was not entitled to fees and costs under CR 68.
Attorney Fees on Appeal
Susanne requests attorney fees and costs on appeal under RAP 18.1 and
RCW 11.96A.150. The court on appeal has discretion to award attorney fees
and costs under TEDRA, RCW 11.96A.150. Because Susanne’s defense of this
appeal conferred a benefit on the estate, we exercise our discretion to award her
attorney fees and costs subject to RAP 18.1.4
We affirm the decision of the trial court to remove Alex as PR under RCW
11.28.250.
WE CONCUR:
4 Alex also requests attorney fees under RAP 18.1, RCW 11.96A.150, and CR 68. The foregoing discussion of CR 68 applies to the request on appeal and Alex is therefore not entitled to attorney fees under that rule. Furthermore, Alex’s waste of the estate and removal as PR make an award under RCW 11.96A.150 inappropriate.