Estate Of Charles Arthur Boswell, Jr., Patricia Bostwick, App/x-resp V. Diana Brazier, Resp/x-app

• Court: Court of Appeals of Washington
• Decided: October 18, 2021
• Docket: 81774-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Estate of No. 81774-4-I Charles Arthur Boswell, Jr., DIVISION ONE Deceased. UNPUBLISHED OPINION PATRICIA ANN BOSTWICK,

Appellant/ Cross-Respondent,

v.

DIANA BRAZIER, Personal Representative for the Estate of Charles Arthur Boswell, Jr.,

Respondent/ Cross-Appellant.

SMITH, J. — Charles Arthur Boswell, Jr., filed a will leaving his estate to

Diana Brazier and disinheriting his daughter, Patricia Bostwick. Bostwick filed a

petition contesting the validity of the will and made one failed attempt to serve

Brazier. After 90 days had passed without service of the petition, Brazier moved

to dismiss the will contest petition. The commissioner granted the motion and

awarded attorney fees and the superior court denied a motion to revise the order.

Bostwick appeals the dismissal and Brazier cross-appeals the commissioner’s

determination of reasonable attorney fees. Because Bostwick failed to comply

with the plain language of the statute, we affirm the dismissal of her petition.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81774-4-I/2

However, we remand for entry of findings of fact and conclusions of law

supporting the award of attorney fees.

FACTS

In August 2019, Charles Arthur Boswell, Jr., executed his last will and

testament, which disinherited his daughter Patricia Bostwick and left his estate to

Diana Brazier. The will also appointed Brazier as the personal representative of

his will and included a no contest provision, which directed that any contesting

party should “[b]ear all reasonable allowances for fees” incurred by the estate if

the estate prevailed. Boswell had previously executed a will leaving his estate to

Bostwick in March 2017 and had executed a will disinheriting Bostwick in

January 2018.

Boswell died on October 1, 2019. His will was admitted to probate and

Brazier was confirmed as the personal representative the next day. On

October 3, Brazier mailed a notice of appointment of personal representative,

which included Brazier’s home address, to Bostwick. Bostwick later

acknowledged that she had received this notice.

On November 4, 2019, Bostwick’s attorney sent a letter to Brazier’s

attorney notifying her that Bostwick would be filing a petition contesting the will’s

validity, with the petition attached. On January 4, 2020, Bostwick and Brazier

met in person and Brazier told Bostwick that her attorney had given her a copy of

the petition and had advised her to settle the will contest.

Bostwick did not actually file the petition contesting the will in the court

until January 24, 2020. This meant Bostwick was required to personally serve

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Brazier by April 23, 90 days after filing the petition. 1 On March 2, Brazier’s

attorney replied to a request from Bostwick’s attorney, stating that he did not

have authority to accept service of the will contest petition on Brazier’s behalf.

Brazier’s attorney also scheduled a deposition of Bostwick for March 16.

Bostwick, assuming that Brazier would attend, hired a process server to serve

Brazier at Bostwick’s deposition. Brazier did not attend the deposition and

therefore was not served.

The next day, on March 17, Bostwick’s attorney was apparently diagnosed

with COVID-19 and directed to quarantine until April 7. On March 23, 2020,

Governor Jay Inslee ordered all Washington residents to stay home except for

“essential activities.” 2 Bostwick made no further attempts to serve Brazier with

the petition.

On May 22, Brazier filed her response in opposition to the will contest

petition and moved to dismiss the petition because Bostwick had not served

Brazier within 90 days of filing the petition, as required by RCW 11.24.010. The

commissioner granted the motion and dismissed the petition on the basis that

personal service is “a necessary requirement in order to challenge the validity of

a will.” Bostwick moved to revise the order, arguing that the emergent fact of the

COVID-19 pandemic required equitable tolling of the time limit for service. The

superior court denied the motion for revision.

1RCW 11.24.010. 2Proclamation of Governor Jay Inslee, No. 20-25, at 3 (Wash. Mar. 23, 2020), https://www.governor.wa.gov/sites/default/files/proclamations/20- 25%20Coronovirus%20Stay%20Safe- Stay%20Healthy%20%28tmp%29%20%28002%29.pdf.

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Brazier moved for an award of attorney fees, requesting a little over

$25,000. The commissioner determined that the “hours expended by [Brazier’s]

counsel was not reasonable except for time reasonably necessary” to prepare

the motion to dismiss, which the court determined to be five hours. The

commissioner declined to award fees for the motion for revision on the basis that

the request was not properly before it, and found that Brazier’s deposition of

Bostwick was “unnecessary and unreasonably anticipatory.” The commissioner

awarded Brazier $1,750.00 in attorney fees. Bostwick appeals and Brazier

cross-appeals.

ANALYSIS

Bostwick contends that the commissioner erred by dismissing her petition

and awarding attorney fees to Brazier. Brazier contends that the court abused its

discretion in its valuation of reasonable attorney fees. We affirm the dismissal of

Bostwick’s petition because the plain language of the statute requires personal

service within 90 days to commence a will contest action. However, because the

order awarding attorney fees fails to explain the denial of the majority of the fees

in the attorney fee invoice, we remand for the commissioner to enter additional

findings.

Dismissal of Will Contest Petition

Bostwick contends that dismissing her petition was error on the grounds

that she “substantially complied” with the service requirements, that Brazier

waived the defense, and that the commissioner was required to equitably toll the

service period due to the pandemic. Because the plain language of the statute

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and controlling precedent directly contradict Bostwick, and because she fails to

show that the pandemic actually prevented service, we disagree.

We review questions of statutory interpretation de novo. In re Estate of

Jepsen, 184 Wn.2d 376, 379, 358 P.3d 403 (2015). If a statute’s meaning is

plain on its face, we must give effect to that plain meaning. Dep’t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

“Will contests are special statutory proceedings governed by ch. 11.24

RCW.” Jepsen, 184 Wn.2d at 380. RCW 11.24.010 provides that a will contest

petition must be filed within four months of the probate of the will. It further

provides:

The petitioner shall personally serve the personal representative within ninety days after the date of filing the petition. If, following filing, service is not so made, the action is deemed to not have been commenced for purposes of tolling the statute of limitations. If no person files and serves a petition within the time under this section, the probate or rejection of such will shall be binding and final.

RCW 11.24.010 (emphasis added).

In Jepsen, our Supreme Court applied this section and held that its

“unambiguous language requires no construction.” 184 Wn.2d at 380. In that

case, the testator’s son filed a will contest petition and e-mailed it to the personal

representative’s attorney. Jepsen, 184 Wn.2d at 378. The son never served the

personal representative and the personal representative never agreed to accept

e-mail service on her attorney. Jepsen, 184 Wn.2d at 378. Seven months later,

the personal representative moved to dismiss the petition for lack of service.

5 No. 81774-4-I/6

Jepsen, 184 Wn.2d at 378. The trial court denied the motion, holding that the

service requirement under RCW 11.24.010 went to personal jurisdiction and that

the personal representative had waived her objection on these grounds. Jepsen,

184 Wn.2d at 378. The personal representative appealed to this court and we

affirmed. Jepsen, 184 Wn.2d and 379. The Supreme Court then reversed us,

holding that under the plain language of RCW 11.24.010, personal service is a

statutory requirement to commence a will contest action and, therefore, to

prevent a will from becoming final. Jepsen, 184 Wn.2d at 380-81.

Here, as in Jepsen, Bostwick sent the petition to Brazier’s attorney but

does not dispute that she never personally served Brazier with the petition.

Therefore, under the plain language of the statute and binding Supreme Court

precedent, the probate of Boswell’s will is now binding and final.

Bostwick disagrees and contends that she substantially complied with the

service requirement. However, in Jepsen, the court explicitly rejected the

argument that simply notifying an attorney could achieve substantial compliance

under RCW 11.24.010, “where, as here, there is no express waiver of personal

service, no agreement for electronic service, . . . and no acceptance of service by

the [personal representative] anywhere in the record.” 184 Wn.2d at 380 n.4;

see also In re Estate of Sanai, No. 78121-9-I, slip op. at 7 (Wash. Ct. App. Apr.

29, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/781219.pdf

(“The doctrine of substantial compliance is fundamentally inconsistent” with our

courts’ strict enforcement of the statutory requirements to contest a will). This is

the case here, and so we reject Bostwick’s contention.

6 No. 81774-4-I/7

Bostwick’s claim that Brazier waived service by acknowledging receipt of

the petition and engaging in discovery is similarly without merit. This was the

precise argument that we endorsed and the Supreme Court subsequently

rejected in Jepsen. 184 Wn.2d at 378-79. Furthermore, Brazier’s attorney

explicitly told Bostwick that he was not authorized to accept service on Brazier’s

behalf, and unlike Jepsen, Brazier asserted the defense in her answer to the

petition rather than months later. We therefore reject Bostwick’s waiver of

service argument.

Finally, Bostwick claims that Brazier’s awareness of and engagement in

the case, combined with the unprecedented context of the COVID-19 pandemic,

required the court to equitably toll the 90-day period to effectuate service. Even

assuming that this time period may be subject to equitable tolling, 3 we disagree

that tolling would be appropriate here. “Equitable tolling is permitted where there

is evidence of bad faith, deception, or false assurances by the defendant and the

exercise of diligence by the plaintiff.” Thompson v. Wilson, 142 Wn. App. 803,

814, 175 P.3d 1149 (2008). Neither element is met here.

First, Bostwick failed to establish that she exercised diligence: her attorney

told the commissioner that his three week quarantine in the middle of the 90-day

service period was not an excuse. He instead alluded simply to his absence

from the office and a workload backlog as his reason for failing to arrange

3 Where a statutory time limit is a jurisdictional requirement, equitable tolling is precluded. In re Pers. Restraint of Bonds, 165 Wn.2d 135, 140, 196 P.3d 672 (2008). In Jepsen, the Supreme Court declined to address whether the time limit in RCW 11.24.010 is jurisdictional. 184 Wn.2d 376, 381 n.5.

7 No. 81774-4-I/8

service. While Bostwick discussed the general emergency situation presented

by COVID at length, she did not allege any specific facts to show that, for

instance, she had difficulty hiring a process server or that she renewed her

request for Brazier’s attorney to accept service after the pandemic intensified.

She also does not explain why she did not hire a process server to go to

Brazier’s home in the two months between the time she filed the petition and the

time the Governor’s stay home order went into effect. She therefore does not

establish that she acted diligently. Furthermore, there is no evidence of bad faith

or deception on Brazier’s part. 4 The correspondence between Brazier’s and

Bostwick’s attorneys establishes that they were both aware that Bostwick was

required to serve Brazier, that Bostwick had not yet done so, and that notification

to Brazier’s attorney was insufficient. Given this mutual understanding, Brazier’s

participation in discovery was not misleading or in bad faith. Because neither

element for equitable tolling is met, we hold that the court correctly dismissed

Bostwick’s petition.

Award of Attorney Fees

Bostwick challenges the commissioner’s award of attorney fees on the

grounds that Brazier’s motion to dismiss should not have been granted. Brazier

challenges the reasonableness of the award and requests attorney fees on

4 Our Supreme Court recently adopted the federal standard for equitable tolling in the context of personal restraint petitions, requiring a showing that “an extraordinary circumstance prevented a timely filing,” rather than being limited to “bad faith, deception, or false assurances.” In re Pers. Restraint of Fowler, 197 Wn.2d 46, 54, 479 P.3d 1164 (2021). If this standard applies to will contest actions and encompasses the facts at issue here, equitable tolling is still not appropriate because of the lack of diligence on Bostwick’s part.

8 No. 81774-4-I/9

appeal. Because the commissioner correctly dismissed Bostwick’s petition, it did

not err by awarding Brazier attorney fees. However, we remand for the

commissioner to explain the basis for its attorney fee award. We also award

Brazier her reasonable attorney fees on appeal.

1. Determination of Reasonable Attorney Fees

Brazier contends that the commissioner abused its discretion by awarding

only a small portion of Brazier’s attorney fees.

RCW 11.24.050 permits an award of fees against the contestant in cases

where the will is sustained, “unless it appears that the contestant acted with

probable cause and in good faith.” RCW 11.96A.150 provides for an award of

fees “to any party,” “in such amount and in such manner as the court determines

to be equitable.” It also specifies that “[t]his section applies to all proceedings . . .

involving . . .decedent’s estates” and “shall not be construed as being limited

by . . . [RCW] 11.24.050.” RCW 11.96A.150(2). We review an award of attorney

fees under these sections for abuse of discretion. In re Estate of Mower, 193

Wn. App. 706, 727, 374 P.3d 180 (2016); In re Estate of Bussler, 160 Wn. App.

449, 470, 247 P.3d 821 (2011). “A trial court abuses its discretion if its decision

is manifestly unreasonable or based on untenable grounds or untenable

reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362

(1997).

A court considers equitable factors when awarding attorney fees under

RCW 11.96A.150. “Where the primary considerations for the fee award are

equitable, courts are not required to apply the lodestar method to determine an

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award of fees.” In re Guardianship of Decker, 188 Wn. App. 429, 447, 353 P.3d

669 (2015). However, the court must still enter findings of fact and conclusions

of law to support its fee award. In re Joanne K. Blankenship Survivor’s Tr., __

Wn. App. 2d __, 493 P.3d 751, 762 (2021); Mahler v. Szucs, 135 Wn. 2d 398,

435, 957 P.2d 632 (1998) (implied overruling on other grounds recognized in

Matsyuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 272 P.3d 802 (2012)).

“The findings must show how the court resolved disputed issues of fact and the

conclusions must explain the court’s analysis.” Berryman v. Metcalf, 177 Wn.

App. 644, 658, 312 P.3d 745 (2013). “Washington courts have repeatedly held

that the absence of an adequate record upon which to review a fee award will

result in a remand of the award to the trial court to develop such a record.”

Mahler, 135 Wn.2d at 435; see also Brand v. Dep’t of Labor & Indus., 139 Wn.2d

659, 665, 989 P.2d 1111 (1999) (“This court has overturned attorney fees awards

when it has disapproved of the basis or method used by the trial court, or when

the record fails to state a basis supporting the award.”)

Brazier claims the court abused its discretion by denying fees for the

majority of time spent on the case. She first challenges the commissioner’s

finding that her deposition of Bostwick was “unnecessary and unreasonably

anticipatory because it occurred at a time prior to the occurrence of personal

service of the will-contest petition.” We conclude that the commissioner did not

abuse its discretion in declining to award fees for the deposition on this basis.

The commissioner’s finding shows how it resolved this issue. Although

Bostwick’s deposition was arguably useful to Brazier because Bostwick admitted

10 No. 81774-4-I/11

she had received Brazier’s address, this admission was not necessary to dismiss

the petition for lack of service. The commissioner’s finding is therefore not

manifestly unreasonable.

Brazier next challenges the commissioner’s finding that the time

“expended by [Brazier’s] counsel was not reasonable except for time reasonably

necessary to prepare [Brazier’s] motion to dismiss, which the [commissioner]

finds is five hours.” 5 We agree that this finding is inadequate. Brazier points to

time expended by her counsel communicating with Brazier about the status of

the case, preparing to defend the petition, and preparing the motion for fees.

With the exception of time spent on the deposition, the commissioner’s order

does not make clear whether it found counsel unreasonably spent time engaging

in these activities, whether it was inequitable to award fees for this time, or

whether it failed to considered the time spent for these purposes. Indeed, the

commissioner did not mention time spent communicating with Brazier or time

spent on the motion for fees at all. In the absence of such a record, we remand

for the court to elaborate on its findings. Blankenship, 493 P.3d at 762 (“[W]ith

no indication of the factors the trial court weighed to reach its conclusion, we

cannot review the fees and costs awarded, and we remand for entry of findings

of fact and conclusions of law supporting the award.”).

5 This finding was based on the commissioner’s oral instructions to counsel that the “order will reflect that the motion for fees is denied except the Court finds that five hours would have been appropriate time to grant for a motion to dismiss for failure to serve.”

11 No. 81774-4-I/12

2. Attorney Fees on Appeal

Brazier requests attorney fees on appeal. Under RAP 18.1(a), a party is

entitled to attorney fees on appeal if a statute authorizes the award.

RCW 11.96A.150 gives an appellate court discretion to award attorney fees and

costs. Bostwick challenged Brazier’s fee request at the trial court on the basis

that Brazier’s motion to dismiss was a straightforward issue based on clear law

and binding precedent, but then proceeded to appeal that very issue. Brazier

prevails on appeal and we award her reasonable attorney fees.

We affirm in part but remand for the trial court to enter additional findings

and conclusions supporting its attorney fee award.

WE CONCUR: