FILED COUlIT OF APPEALS Div I STATE OF VIASHINGTOH
2018 JUL -9 All 8:38
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE ESTATE OF LILLIAN CORA JOHNSON, No. 76652-0-1
Deceased
MARION JOSS, by and through her attorneys-in-fact, HAROLD and SANDRA JOSS, DIVISION ONE Appellants,
V.
MICHELLE CAMPBELL, UNPUBLISHED OPINION
Respondent. FILED: July 9, 2018
SPEARMAN, J. — Where the owner of a bank account has designated
another person as joint tenant with right of survivorship, there is a statutory
presumption that, upon the death of one co-owner, funds in the account pass to
the surviving co-owner. This presumption may only be overcome by clear and
convincing evidence of contrary intent at the time the account was created.
Lillian Johnson designated a relative, Michelle Campbell, as joint tenant
with right of survivorship in 2010 and again in 2012. In 2012, Johnson designated
another relative, Marion Joss, as payable on death beneficiary. Johnson died in
2014 and the accounts passed to Campbell. Joss brought this action asserting No. 76652-0-1/2
that she was the righfful beneficiary of the accounts under several theories. But
Joss failed to produce evidence establishing a prima facie claim. The trial court
did not err in granting summary judgment to Campbell. We affirm.
FACTS
Lillian Johnson was the eldest of five sisters and had a large extended
family. She stayed in touch with many relatives. Johnson's sister, Marion Joss,
often visited her. A second cousin, Michelle Campbell, also visited Johnson.
Johnson did not drive and she relied on her husband for transportation.
When Johnson's husband died in 2009, Campbell began providing much of her
transportation. Johnson sometimes performed errands on foot, but Campbell
regularly took her grocery shopping and to appointments. Joss gave Johnson
rides when Campbell was unavailable. At the time Johnson was widowed, she
was 88 years old, Joss was 87, and Campbell was 60.
In April 2010, Johnson suffered a stroke and spent ten days in a
rehabilitation facility. Johnson's medical record from this time state that she had a
"waxing and waning of confusion." Clerk's Papers(CP) at 33. The records also
describe Johnson as alert, competent to execute directives, and able to self-
manage medications. Staff in the rehabilitation facility encouraged Johnson to
execute a power of attorney. Johnson named Campbell attorney in fact and
made Joss the alternate. Following her discharge, Johnson continued to live
independently.
In May 2010, Johnson met with an attorney, Karl Flaccus, to discuss her
estate. Flaccus's notes from the meeting include an estate planning
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questionnaire and a separate page listing the names of Johnson's sisters and
Campbell's name and address. According to the questionnaire, Johnson
intended to name her four sisters as beneficiaries. Flaccus drafted a will in favor
of Johnson's sisters. Flaccus did not hear from Johnson again. There is no
evidence that Johnson signed the will. Nor did the will dispose of the accounts at
issue in this case.
In September 2010, Johnson added Campbell as a joint tenant with right
of survivorship(JTWROS)to her Bank of America accounts. The signature card
describes the accounts as "the property of each co-owner as joint tenants with
right of survivorship and payable to either co-owner or to the surviving co-
owner(s) if a co-owner dies." CP at 366. Johnson and Campbell both signed the
signature card. Campbell later stated that she did not recall being added to
Johnson's accounts in 2010 and did not understand the significance. The record
contains no other evidence concerning this transaction.
In April 2012, Johnson, Campbell, and Joss went to Bank of America
together. Johnson and Campbell executed new signature cards again naming
Campbell as JTVVROS. As in 2010, the forms describe the accounts as the
property of each co-owner and payable to the surviving co-owner if one co-owner
dies. Johnson, Campbell, and Joss executed a form making Joss the payable on
death (P.O.D.) beneficiary. Campbell and Joss both stated that they did not read
the forms, no one explained them, and they did not understand the significance
of the JTVVROS and P.O.D. designations.
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Johnson suffered another stroke in May 2014. Johnson was unable to
speak for herself and Campbell made various decisions about her care. Johnson
died in June 2014.
Campbell accessed the Bank of America accounts for the first time during
Johnson's final illness. At that time, the accounts totaled about $430,000.
Campbell wrote a check for $38 to pay Johnson's electricity bill. She later paid for
Johnson's funeral from the Bank of America accounts.
After Johnson's death, Campbell, Joss, and other relatives learned that
Johnson's bank accounts passed to Campbell as JTVVROS. One of Johnson's
nieces, Linda Claughton, believed this was a mistake. Based on the close
relationship between Johnson and her sisters, Claughton believed Johnson
intended the bank account to pass to Joss. One of Johnson's nephews, Bruce
Fletcher, stated that he believed it "would make sense" for the accounts to go to
Joss. CP at 137.
Family members discussed the accounts with a Bank of America
employee, Dena Bainbridge. Bainbridge froze the accounts. She stated that
Johnson once "mentioned that she wanted to make sure her sister Marion [Joss]
was taken care of" and it was obvious to her that Johnson intended the accounts
to go to Joss. CP at 140. Bainbridge's Bank of America manager later required
her to unfreeze the accounts.
In September 2014, Bank of America informed Campbell that the accounts
belonged to her and she began to draw on them. A short time later, the court
appointed Claughton and Fletcher to administer Johnson's estate. Claughton and
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Fletcher began investigating Campbell's expenditures. Campbell transferred the
funds from Bank of America to her personal accounts at Chase Bank. Claughton
and Fletcher filed a complaint asserting that, by transferring the funds out of
Bank of America, Campbell had committed theft. The sheriffs office placed a
freeze on Campbell's Chase accounts.
Joss provided a statement to a detective in the sheriffs office. The
detective questioned Joss about Johnson's mental capacity in the years
preceding her death. In response to a question as to whether Johnson needed
help with bills and finances after she was widowed, Joss stated "No, Lillian
[Johnson] was an intelligent person. She, finally in the last few years of her life
she had a couple of strokes. She recovered fairly well from the first one [in 20101,
the second one [in 2014] kind of did her in. . ." CP at 742. The detective stated
"Ok, so, you think.. . she would be able to take care of her own finances[?]" Id.
Joss replied "Oh, yeah." Id. Specifically as to events in 2010, Joss stated "I didn't
know and I didn't worry about it. Lillian was a very independent person and she
like[d] to give the orders and so forth, so I kept my nose out of it." Id. Joss further
stated that "Lillian was a very bossy person and I didn't worry about her. Like I
said she was independent. If she wanted something, she would sure let you
know." Id. The prosecutor's office declined to bring charges and the freeze was
removed from Campbell's Chase accounts.
In September 2016, Joss, through her attorneys in fact, filed the present
action. Id. at 1-20. She asserted that Johnson intended her to inherit and
Campbell exercised undue influence over Johnson. Joss provided a declaration
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and an affidavit. In the declaration, Joss expressed doubt as to the frequency
with which Campbell visited Johnson. Joss stated that she visited Johnson
weekly but Campbell sometimes did not see Johnson for several weeks.
According to Joss, Johnson did not particularly like Campbell.
As to the 2012 bank transaction, Joss stated that she went to the bank
with Campbell and Johnson because Johnson wanted to get cash. Joss recalled
signing papers but did not remember what they were for. Joss stated that
Campbell "took over" and assisted her and Johnson with the paperwork. CP at
144.
Joss gave the same account of the bank visit in her affidavit, adding that
no bank employee explained the forms. Joss also stated that Johnson used to
rely on her husband to take care of finances, transportation, and major decisions.
According to Joss, Campbell helped with those tasks and decisions after
Johnson's husband died. Joss stated that she never asked Johnson about her
estate plans but it "would have made sense" for Johnson to pass the accounts to
her, Joss. CP at 264.
Campbell submitted to a deposition. Joss's attorney asked Campbell if she
believed anyone had been taking advantage of Johnson. Campbell described
one of Johnson's neighbor's, Roger, who used to ask Johnson for money.
According to Campbell, she, Johnson's doctor, and employees at Bank of
America were all concerned about Roger and told Johnson not to give him any
more money. Campbell discussed Roger with both Johnson and Joss.
6 No. 76652-0-1/7
Campbell could not remember when she discussed Roger with Johnson
and guessed it was in 2013. She also could not recall when she went to the bank
with Johnson and Joss. Campbell later stated that she, Johnson, and Joss went
to the bank after they discussed Roger. She indicated that they were "trying to
get it so Roger couldn't get any checks." CP at 292. When they got to the bank,
Johnson and the banker talked privately. The banker then brought documents
and everyone signed them.
Campbell stated that it was Johnson's idea to go to the bank. The attorney
asked Campbell if she had "an impression of why [Johnson] wanted to change
the titles on the bank accounts?" CP at 291. Campbell replied "No. The bank told
Lillian she had to get Roland off the account." Id. The attorney again asked if
Campbell knew why Johnson added her to the accounts. Campbell replied "No,
not really. To just help her, if she needed help." Id. The attorney asked if there
was any discussion of whether Campbell would be a co-signer or joint tenant.
Campbell replied "Just so I could sign stuff, if I needed to. I left Lillian with the
banker to talk, and Marion [Joss] and I were sitting over on the sofa, so I don't
know what they discussed." Id. Campbell did not remember any discussion of the
difference between a co-signer and a joint tenant.
In responses to interrogatories, Campbell repeated that Johnson never
told her why she added her to the bank accounts. Campbell thought it was to
help Johnson with bills but Johnson never said that. Campbell did not help
Johnson pay any bills until Johnson's final illness. According to Campbell,
Johnson was "sharp,""knew what was going on","managed her own finances,"
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and "made up her own mind" until her final stroke. Id. at 779, 781. Campbell
stated that "[p]eople did not tell [Johnson] what to do, she told other people what
they should do." Id. at 781.
Relying on this record, the parties filed cross motions for summary
judgment. After a hearing, the trial court granted summary judgment to Campbell.
The court awarded Campbell a portion of her fees and costs.
DISCUSSION
Joss contends the trial court erred because Johnson intended Joss, and
not Campbell, to receive the bank accounts. We review a decision on summary
judgment de novo, engaging in the same inquiry as the trial court. Lvbbert v.
Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124(2000).
Under the Financial Institution Individual Account Deposit Act, chapter
30A.22 RCW, a joint tenancy with right of survivorship is "an account in the name
of two or more depositors and which provides that the funds of a deceased
depositor become the property of one or more of the surviving depositors." RCW
30A.22.040(10). The co-owners of a JT1NROS account may designate a P.O.D.
beneficiary. RCW 30A.22.050; RCW 30A.22.100(4). When an owner of a
JTVVROS account dies, the funds pass to any surviving co-owners or, if these
have all died, to the P.O.D. beneficiary. RCW 30A.22.100(3), .100(4).
The statute thus creates a presumption that funds in a JTWROS account
pass to the surviving owner. Taufen v. Estate of Kirpes, 155 Wn. App. 598, 602,
230 P.3d 199 (2010). The presumption may only be rebutted by clear and
convincing evidence of contrary intent at the time the account was created. Id.
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The clear and convincing standard heightens the burden on summary judgment.
In re Estate of Jones, 170 Wn. App. 594, 603, 287 P.3d 610(2012). To survive
summary judgment, the challenging party must produce evidence that makes it
highly probable she will prevail at trial. Id.
Joss contends there is clear and convincing evidence in the record that
Johnson intended her, Joss, to receive the bank accounts.1 Joss relies on the
P.O.D. designation and argues that Johnson would not have made her P.O.D.
unless Johnson intended her to inherit the accounts. And because Joss is
unlikely to survive Campbell, Joss argues that while Johnson may have intended
to make Campbell a co-signer on the account, she did not intend to name
Campbell JTWROS.
We reject the argument for several reasons. By statute, an account may
be both a JTWROS account and a P.O.D. account. RCW 30A.22.100(4). The
designations are not inherently inconsistent. Here, Johnson made Campbell
JTWROS in 2010 and again in 2012. And, at the same time Johnson executed
the JTWROS form in 2012, she also executed the P.O.D. form. The argument
that Johnson designated Campbell JT1NROS by mistake is nothing more than
speculation. It is not clear and convincing evidence that Johnson had a contrary
intent at the time the account was created.
1 Campbell argues that Joss lacks standing to bring this claim and Joss's related undue influence claim. She asserts that, if the 2012 JTWROS designation was invalid, the P.O.D. form executed at the same time was also invalid. In that case, she argues, the 2010 JTWROS form would control and the accounts would still pass to Campbell. We reject this argument because Joss contends that only the JTWROS form, and not the P.O.D. form, was invalid. Under this theory, Joss has an interest in an estate-related decision and thus has standing to bring a (Trust and Estate Dispute Resolution Action)(TEDRA)action. RCW 11.96A.080(1); RCW 11.96A.030(5)(i).
9 No. 76652-0-1/10
Joss next argues that the bank failed to explain the significance of the
JTWROS form. She asserts that this failure renders the transaction ineffective
and raises at least a question of fact as to Johnson's intent. The argument is
without merit. The record is silent as to what information bank employees
communicated to Johnson in 2010 and 2012.
Joss also argues that we may divine Johnson's intent from her unsigned
will and from Campbell's statements. She is mistaken. The unsigned will is
evidence only that Johnson considered devising her probate assets to her sisters
but did not finalize that plan. The draft will makes no reference to Johnson's non-
probate accounts. And Campbell stated that Johnson never discussed her intent
for the accounts. Joss fails to point to any evidence that Johnson did not intend
to designate Campbell J1VVROS.2 The trial court did not err when it concluded
there were no issues of material fact about whether the statutory presumption
applied in this case.
Joss attempts to overcome the lack of evidence by asserting that
Campbell exercised undue influence over Johnson."Undue" influence is
influence that controls the testator's volition and prevents her from exercising her
own judgment. Mueller v. Wells, 185 Wn.2d 1, 10, 367 P.3d 580 (2016). A party
seeking to invalidate a will must prove by clear, cogent, and convincing evidence
that the will is the product of undue influence. Id. The same principles apply in an
2 Joss also relies on the statements of Claughton and Bainbridge, who both believed Johnson wanted the accounts to go to Joss. But neither Bainbridge nor Claughton allege first- hand knowledge of Johnson's intent. Their belief as to what Johnson wanted is not relevant or admissible under CR 56(e).
10 No. 76652-0-1/11
undue influence challenge to a JTWROS account. Doty v. Anderson, 17 Wn.
App. 464, 468, 563 P.2d 1307(1977). See also Kitsap Bank v. Denley, 177 Wn.
App. 559, 312 P.3d 711 (2013)(undue influence challenge to P.O.D.
designation).
The challenging party may raise a presumption of undue influence through
evidence of suspicious facts and circumstances. Mueller, 185 Wn.2d at 10. The
court considers several factors including (1) the existence of a fiduciary or
confidential relationship,(2) participation in creating the testamentary instrument,
and (3) an unnaturally large share of the estate. Id. at 10-11. The court must also
consider the age, health, and mental vigor of the decedent; the nature and
degree of relationship between the beneficiary and the decedent; the opportunity
for exerting undue influence, and the naturalness or unnaturalness of the will. Id.
at 10-11. While the first three factors are the most important, whether the facts
create a presumption of undue influence depends on'the totality of the
circumstances. Id. at 11.
In Mueller, for example, the reviewing court affirmed the trial court's
finding that a caretaker, Wells, exercised undue influence over an elderly woman,
Barnes. Id. at 17. In that case, Wells isolated Barnes and encouraged her to
mistrust her family; Barnes depended solely on Wells; Wells paid her own
mortgage from Barnes's account while Barnes was incapacitated; Barnes was
physically and mentally impaired; and Barnes was highly vulnerable to undue
influence. Id. at 7-8.
11 No. 76652-0-1/12
Similarly, this court affirmed the trial court's finding of undue influence in
Doty, 17 Wn. App. at 472. The Doty court held that a presumption of undue
influence had been raised where Doty, the decedent, and Anderson, the
beneficiary, had a close relationship; Anderson suggested a JTWROS account,
helped Doty transfer money into the account, signed the bank forms, and
withdrew substantial amounts during Doty's life; Anderson received an unusually
large share of Doty's estate; Doty was mentally and physically impaired and
consequently susceptible to undue influence; Doty entrusted her financial affairs
to Anderson; and, in the last several months of her life, Anderson was the only
person who aided Doty with her finances. Id. at 468-70.
In this case, Campbell and Joss both stated that Johnson was
independent and managed her own affairs until her stroke in 2014. Johnson was
not isolated and, according to Joss, Johnson saw Joss more frequently than she
saw Campbell. Johnson first made Campbell JTVVROS in 2010 when, according
to Joss, Johnson was very independent and capable. Joss does not dispute that
in 2012, she accompanied Johnson and Campbell to the bank or that it was
Johnson's idea to go. Nor does she dispute that while there Johnson spoke with
the banker privately. There is no evidence that Johnson sought Campbell's
advice on financial matters or relied on her for assistance.3 Campbell did not
access the accounts until Johnson's final illness, when she used the funds to pay
Johnson's bills. Campbell did not draw on the accounts for her own benefit until
3 Joss makes the bald assertion that after Johnson's husband died, Campbell began helping her with financial decisions that her husband used to make. She fails to cite anything in the record to support the claim.
12 No. 76652-0-1/13
months after Johnson's death, when the bank told her the accounts belonged to
her. The totality of the circumstances in this case do not raise a presumption of
undue influence.
Joss argues, however, that Johnson was susceptible to undue influence
due to her age, health, and vigor. She asserts that Johnson was already elderly
and frail when she gave Campbell power of attorney in 2010. At oral argument,
Joss asserted that Johnson was vulnerable or incompetent because she had
been "institutionalized" at a rehabilitation facility.
The argument is without merit. Johnson's medical records from 2010 state
that Johnson had a "waxing and waning of confusion." CP at 33. But the same
records describe Johnson as alert, competent to execute directives, and able to
self-manage medications. Following ten days in the rehabilitation facility,
Johnson continued to live independently. Joss and Campbell both described
Johnson as independent and able to take care of herself until her final illness in
2014. Unlike Mueller and Doty, the record in this case does not establish that the
decedent was susceptible to undue influence.
Joss also argues that Campbell and Johnson had a fiduciary and/or
confidential relationship based on the 2010 power of attorney and Campbell's
4 Campbell objects to the medical records as inadmissible under ER 403. She asserts that, in the absence of expert testimony, the medical records are confusing and unhelpful. We reject this argument. The medical records include some specialized vocabulary, but they largely consist of descriptions of the circumstances of each visit, Johnson's diagnosis, and notes about her care. The danger of confusion does not substantially outweigh the records' probative value.
13 No. 76652-0-1/14
role in providing Johnson transportation.5 For purposes of undue influence, a
fiduciary relationship exists where one party acts as an attorney for another in
relation to the disputed asset. Kitsap Bank, 177 Wn. App. at 574. A confidential
relationship is analogous but based on a personal, rather than professional, tie.
Id. at 572. See also In re Estate of Palmer, 145 Wn. App. 249, 263, 187 P.3d 758
(2008)(fiduciary duty arises when the attorney in fact exercises dominion and
control over the principal's property).
In this case, Joss points to no evidence that Campbell managed
Johnson's finances or assisted Johnson with financial decisions. Campbell did
not access Johnson's accounts or help Johnson pay bills until Johnson's final
illness. And Joss points to no evidence that Campbell acted as a fiduciary or
confidante in relation to the JTVVROS designation. The factor does not support
an inference of undue influence.
Joss also argues that the second factor, participation, raises a suspicion of
undue influence. Participation may indicate undue influence where the
beneficiary's participation causes or brings about the testamentary instrument.
Mueller, 185 Wn.2d at 584. In Doty, for example, the beneficiary suggested a
joint account, assisted the decedent in transferring her savings into the joint
account, and signed the signature card. Doty, 17 Wn. App. at 468. She also
withdrew substantial amounts during the decedent's life. Id. at 466.
5 Joss contends that, because of this relationship, we should presume undue influence. We do not address this issue because Joss fails to establish the existence of a fiduciary and/or confidential relationship.
14 No. 76652-0-1/15
In this case, Joss asserts that Campbell instigated the 2012 JTWROS
transaction in an effort to protect Johnson from Roger. Campbell also drove
Johnson and Joss to the bank and signed the bank form. These circumstances,
Joss argues, demonstrate that Campbell orchestrated the 2012 transaction.
We disagree. In her deposition, Campbell suggested that preventing
Roger from getting checks may have been a reason for the 2012 transaction.
Campbell stated, however, that the change was Johnson's idea and she did not
know why Johnson added her to the account. It does not appear that Campbell
suggested executing a new JTWROS form in 2012. But even if she did, the
circumstances here are distinguishable from cases in which courts have found
participation. In this case, Campbell was already JTWROS. Her status did not
change in 2012. In addition, Campbell's statement indicates that she, Johnson,
and Joss all discussed Roger then went to the bank, where Johnson spoke with
a banker alone. There is no indication that Campbell instructed the banker as to
Johnson's wishes.
Next, Joss contends Campbell received a benefit that was unnaturally
large for a part-time caregiver and distant relation. Joss argues that leaving the
bank accounts to Campbell is inconsistent with Johnson's conduct during her life,
when she made only small gifts and reimbursements to Campbell.
We may measure the unusual or unnatural nature of a benefit in
comparison to previous testamentary instruments and bequests to other
beneficiaries. Mueller, 185 Wn.2d at 585. In this case, the bank accounts appear
15 No. 76652-0-1/16
to be a substantial portion of Johnson's estate.6 But, because Johnson did not
execute a will or discuss her estate plans, the record provides no indication of a
previous contrary intent. The record is silent as to the degree to which Johnson
valued Campbell, Joss, or any other relative. Considering the length of time
Johnson knew Campbell, the services Campbell rendered, and the lack of
reimbursement during Johnson's life, the benefit is not necessarily unnatural.
Viewing the record as a whole, we conclude that Joss failed to establish
facts and circumstances sufficient to raise a presumption of undue influence. The
trial court did not err in rejecting the claim.
Joss next contends the trial court erred because Campbell financially
exploited a vulnerable adult and may not benefit from this exploitation. The
Abuse of Vulnerable Adults Act, chapter 74.34 RCW,establishes protections for
adults over age sixty who have "the functional, mental, or physical inability to
care for himself or herself." RCW 74.34.020(22)(a). In part, the chapter protects
against financial exploitation, including the use of undue influence to obtain funds
from a vulnerable adult. RCW 74.34.020(7). Under the "slayer statute," a party
who has financially exploited a vulnerable adult may not benefit from the death of
that adult.7 RCW 11.84.010(5), .020.
6 Campbell asks that we not consider this argument because Joss failed to provide specific evidence of the estate's total value. We note, however, that the trial court observed that the accounts were from one-third to one half of the estate's total value. 7 Campbell asserts that Joss lacks standing to bring this claim. Only the estate may bring a claim for damages under the Abuse of Vulnerable Adults Act. RCW 74.34.210. Joss's claim, however, is based on the slayer statute. Joss has standing to bring this claim under TEDRA, which grants standing to any party with an interest in an estate-related decision. RCW 11.96A.080(1); RCW 11.96A.030(5)(i).
16 No. 76652-0-1/17
Joss asserts that Johnson was a vulnerable adult, Campbell exploited her
by becoming JTVVROS through undue influence, and Campbell may not inherit
under the slayer statute. But, as discussed above, Joss fails to show that
Johnson was vulnerable or that Campbell exercised undue influence. She fails to , establish a prima facie claim.
As a final theory, Joss argues that Campbell was unjustly enriched. She
fails to show that the theory is applicable in the circumstances here. A plaintiff
alleging unjust enrichment must establish that she conferred a benefit upon the
defendant, the defendant knew of the benefit, and the defendant retained the
benefit in circumstances that make the retention unjust. Young v. Young, 164
Wn.2d 477, 484, 191 P.3d 1258 (2008). Joss fails to establish that she conferred
a benefit upon Campbell.
Lastly, Joss appeals the trial court's award of fees and costs to Campbell.
The trial court found it equitable for Joss to pay a portion of Campbell's fees and
costs. The court found that Joss initiated the action long after Johnson's death
and, despite investigations by Bank of America and the sheriff's office, Joss
failed to produce evidence as to key issues. Joss contends this was error.
We disagree. Superior and appellate courts have discretion to award
reasonable attorney fees and costs to any party in a TEDRA action. RCW
11.96A.150(1). The trial court did not abuse its discretion in this case in awarding
Campbell a portion of her fees and costs.
Joss and Campbell both ask for fees and costs on appeal. Because Joss's
claims on appeal are meritless, we award fees to Campbell.
17 No. 76652-0-1/18
Affirmed.
Z.- Ve,c Iiv•v") N WE CONCUR:
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