In Re Hallauer

723 P.2d 1161, 44 Wash. App. 795
CourtCourt of Appeals of Washington
DecidedAugust 6, 1986
Docket13755-7-I
StatusPublished
Cited by14 cases

This text of 723 P.2d 1161 (In Re Hallauer) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Hallauer, 723 P.2d 1161, 44 Wash. App. 795 (Wash. Ct. App. 1986).

Opinion

44 Wn. App. 795 (1986)
723 P.2d 1161

In the Matter of the Guardianship of ROSE M. HALLAUER.
MARTHA MERLE DUNN, ET AL, Appellants,
v.
RAINIER NATIONAL BANK, Respondent.

No. 13755-7-I.

The Court of Appeals of Washington, Division One.

August 6, 1986.

*796 Geoffrey Groshong, Erickson & Groshong, David O. Hamlin, and Hamlin & Nelson, for appellants.

Mary A. Vance and Vance & Salazar, for respondent.

GROSSE, J.

The principal issue in this appeal is the propriety of the trial court's award of $19,107.95 in attorney's fees in a guardianship accounting. No aspect of the accounting itself is challenged.

Martha Merle Dunn and Western Surety Company appeal a judgment of $32,481, over half of which was for attorney's fees. Dunn was appointed guardian of the estate of Rose M. Hallauer in 1973. On the petition of Hallauer's daughter, Mary Hallauer, she was removed October 31, 1980, by an order which also appointed Rainier National Bank successor guardian of the estate. The change in guardians was initiated because the daughter heard complaints from creditors that Dunn was not paying her mother's bills. The accounting focused on the failure to file federal income tax returns, the failure to raise rent on a parking lot owned by the estate, and the failure to pay bills on time. Rainier also initially included a claim of $10,000 for mental distress to the incompetent caused by the failure to pay the bills in a timely fashion. This was dismissed early in the proceedings. Dunn denied all the charges except for admitting that she did not pay bills on time.

After a 4-day trial the court found that Dunn's failures resulted in a net loss to the guardianship of $12,897.28. The court awarded attorney's fees substantially in the amount requested. It disallowed only $547. The court included in the award the sum of $1,000 for work done by Rainier's trust department personnel as a "bill that was necessary to bring the action ..." The court also awarded $765 for premiums paid by Rainier to maintain Dunn's surety bonds.

Dunn's principal complaint is that the court fixed the *797 award of attorney's fees simply on the basis of time spent multiplied by an hourly rate. She contends the court erred in refusing to consider such factors as the benefit to the estate achieved by the litigation, the fact that Dunn prevailed on a majority of the claims asserted by Rainier, and the other factors listed in the Code of Professional Responsibility, Disciplinary Rule 2-106(A) and (B).[1] Dunn contends that under the governing statute, RCW 11.76.070 and cases construing it, e.g., In re Estate of Hamilton, 73 Wn.2d 865, 441 P.2d 768 (1968), Rainier is only entitled to fees for those activities which have benefited the estate, and further contends that the fees must be reasonable, i.e., directly related to obtaining the benefit, proportionate to the result achieved, and not duplicative.

Although governed by statute, guardianships are equitable creations of the courts and it is the court that retains ultimate responsibility for protecting the ward's person and estate. An action for an accounting is the means by which the conduct of the current or prior guardian is examined for any improprieties or errors, and has the ultimate goal of making the estate whole in the event there has been any loss. See RCW 11.92.056 which provides for taking judgment against the guardian and its surety upon a finding of loss to the estate. RCW 11.76.070 permits the court to make a discretionary grant of attorney's fees to the person *798 bringing the accounting action where the personal representative being charged was found liable. The statute leaves complete discretion in the hands of the judge before whom the action is tried.[2]

The trial court was aware that the purpose underlying an award of fees pursuant to RCW 11.76.070 is to make the guardianship whole. On reconsideration the court stated:

[S]econdly, and probably more importantly, I think the estate is entitled to be awarded attorney's fees in this amount because these attorney's fees are going to have to be paid and they would come from the estate.
I don't think the estate should be responsible for them, the estate not having predicated the problem that existed.

Thus, the trial court's reasoning on fees seems to have been that fees were proper since they were for "work actually performed," and should be paid by the appellant in order to insure that the estate would be made whole by the proceeding.

[1] We agree with the trial court's second premise: The nature of the guardianship and the accounting process requires that the estate be made whole, including an award of attorney's fees. However, we do not agree with the first premise that the estate would necessarily have to pay the amount requested if not awarded by the court. See In re Ivarsson, 60 Wn.2d 733, 744, 375 P.2d 509 (1962) (the time required is only one factor in determining the reasonable value of attorney's services chargeable to and to be paid by the estate). Regardless of whether the source of funds to pay the fees is the estate or an errant fiduciary, a substantive analysis must be undertaken which culminates in an explicit finding that the requested fees are reasonable in *799 the circumstances before the court. There was no such finding here, explicit or implicit.

In addition, cases which construe RCW 11.76.070 limit the trial court's discretion. A court may award attorney's fees only for litigation which results in a material benefit to the estate. Hamilton, at 869 (affirming trial court's grant of a portion of fees requested); In re Estate of Larson, 103 Wn.2d 517, 533-34, 694 P.2d 1051 (1985) (directing the trial court on remand to award fees to objectors who brought the accounting action and to tie the award of fees under RCW 11.76.070 to the benefit received by the estate). Hamilton and Larson involved an accounting by the administrator of a will but interpreted the statute at issue here. The Hamilton court stated:

The respondents' counsel is entitled only to compensation for those services which benefited the estate to the extent that the final account was disapproved.

Hamilton, at 869.

Thus, the first step in calculating attorney's fees in an accounting is to determine what actions materially benefited the estate. The fact that the recovery may be less than that pleaded does not necessarily indicate lack of success, particularly where alternative claims are set forth.

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723 P.2d 1161, 44 Wash. App. 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hallauer-washctapp-1986.