Filed Washington State Court of Appeals Division Two
May 29, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Estate of: No. 57421-7-II
SHARON MARIE O’HARA, UNPUBLISHED OPINION
Deceased.
KRISTINA C. UDALL, as Administrator of the ESTATE OF SHARON MARIE O’HARA,
Respondent,
v.
FELECIA J. O’HARA, as Administrator of the ESTATE OF CHARLES W. O’HARA,
Appellant.
CHE, J. ⎯ The Estate of Charles O’Hara appeals the trial court orders determining that
Charles breached his fiduciary duties, determining that the Estate of Sharon O’Hara had a
community property interest in Charles’s retirement funds after Sharon’s death, crediting that
interest to the Estate of Sharon, and awarding the Estate of Sharon damages calculated using a
prejudgment interest rate of 12 percent. No. 57421-7-II
Sharon and Charles O’Hara were married for almost 40 years. Sharon executed a new
will in 2017 revoking all prior wills and changing the residuary beneficiary from Charles to the
University of Washington, among other changes. Eventually, Charles probated Sharon’s earlier
1983 will, not the 2017 will, and he remarried. Charles failed to notify the court or other
interested parties about the 2017 will, and he did not maintain an inventory. Charles used the
Estate of Sharon’s assets for his own benefit for 16 months before he died. The Estate of Sharon
filed a creditor’s claim against the Estate of Charles for a breach of fiduciary duties. The Estate
of Sharon sought its community property interest in some of Charles’s retirement accounts, and
eventually, the Estate of Sharon filed a Trust and Estate Dispute Resolution Act (TEDRA),
chapter 11.96A RCW, petition.
We hold that (1) Sharon’s community property interest in the contested retirement funds
did not automatically revert to Charles after her death, (2) the trial court had subject matter
jurisdiction over the retirement funds, (3) the trial court did not err by crediting Sharon’s interest
in the retirement funds to her estate even though her will did not specifically reference that
interest, (4) Charles breached his fiduciary duties to the Estate of Sharon, and (5) the trial court
abused its discretion by awarding damages calculated using a prejudgment interest rate of 12
percent as there was no evidence about the rate of return the improperly withheld funds would
have yielded. We deny both parties attorney fees on appeal and affirm the grant of attorney fees
below.
We vacate the damages award and remand for the trial court to determine if damages
calculated using a prejudgment interest rate of 12 percent per annum is warranted based on the
evidence. We otherwise affirm.
2 No. 57421-7-II
FACTS
Sharon and Charles O’Hara married in 1978. Sharon executed a will in 1983 devising
her residuary estate to Charles. In 2016, Sharon executed a new will in 2017. The 2017 will
revoked all prior wills. The 2017 will devised Sharon’s entire estate, less two specific bequests
to charitable organizations, via a residuary clause “to the University of Washington for medical
research in COPD and scholarships for women in the medical field.” Clerk’s Papers (CP) at 266.
The estate planning attorney retained the 2017 will after Sharon executed it.
Sharon died on June 7, 2017. Charles was appointed as the personal representative under
the 2017 will. Charles married Felecia O’Hara just days after being appointed as the personal
representative for the Estate of Sharon.
The estate planning attorney gave Charles the original 2017 will with instructions about
the time period for probating the will. But Charles did not probate the 2017 will as directed, and
the original 2017 will has never been found. And Charles did not notify the court or Sharon’s
beneficiaries about the 2017 will.
About a year after Sharon’s death, Charles probated Sharon’s 1983 will, not the 2017
will, in Jefferson County. Charles did not maintain an inventory or keep accounting records for
the Estate of Sharon. Instead of properly administering the estate under Sharon’s 2017 will,
Charles used the assets of the Estate of Sharon for his own benefit for 16 months.
In December 2017, Charles claimed a Kitsap Credit Union account with a date of death
value of $30,161.33. The Kitsap Credit Union account was established in 1996 and was titled in
Sharon’s name. The Estate of Sharon had a community property interest of $15,080.66 in the
account. Charles submitted a small estate affidavit to claim this account by asserting that the net
3 No. 57421-7-II
probate estate did not exceed $100,000 and that he was entitled to full payment of the Kitsap
Credit Union account.1
Towards the beginning of 2018, Charles cashed out or converted a Fidelity IRA in his
name valued at $245,427.97 as of June 1, 2017, which the Estate of Sharon later claimed a
community property interest in. Charles also cashed out or converted a USAA Annuity titled in
his name valued at $360,087.32 as of January 1, 2018, which the Estate of Sharon later claimed a
community property interest in.2 Charles indirectly invested some of the proceeds from the IRA
conversions into several distressed rental properties in Florida.
Charles died in October 2018. Felecia was appointed as the personal representative of his
estate. After Charles’s death, Sharon’s grandson probated a copy of Sharon’s 2017 will in
1 Charles also claimed a Kitsap bank account with $220.04. The Estate of Sharon had a $110.02 community property interest in the account. Additionally, Felecia, Charles’s wife at that time, claimed Sharon and Charles’ entire joint federal tax refund from 2015. The Estate of Sharon has a $1,400 community property interest in that tax refund. 2 The trial court made the following findings relating to Charles’s IRAs:
C. On or about January 22, 2018, Charles cashed out or converted the Fidelity IRA . . . titled in his name, in which Sharon had a community property interest as a nonparticipating spouse. RCW 6.15.020(6). He moved these funds into a rollover IRA with Charles Schwab. The Fidelity IRA was valued at $245,427.97 as of June 1, 2017, and as such, Sharon’s community property interest in that asset as of her date of death was an estimated $122,713.99.
D. On or about February 5, 2018, Charles cashed out or converted the USAA Annuity . . . titled in his name, in which Sharon had a community property interest, into a rollover IRA with Charles Schwab. The USAA annuity was valued at $360,087.32 (as of January 1, 2018, which is the closest value to the date of Sharon’s death that USAA would provide short of subpoena). Sharon’s estimated community property interest in that asset was $180,043.66.
CP at 267.
4 No. 57421-7-II
Kitsap County. Unaware of the probate proceeding in Jefferson County, the trial court appointed
him as the personal representative. Later, the parties agreed to cancel the Kitsap probate
proceeding.
The University of Washington petitioned the Jefferson County trial court to admit the
2017 will and appoint Kristina Udall, an uninterested attorney, as the administrator of the Estate
of Sharon. The Jefferson County trial court appointed Udall as the administrator of the estate in
December 2018. The University of Washington expended $14,897.80 in attorney fees to
untangle legal issues surrounding Charles probating the incorrect will.
In May 2019, the Estate of Sharon filed a creditor’s claim against the Estate of Charles
for a breach of fiduciary duties in Kitsap County, seeking Sharon’s interest in the
aforementioned accounts. The Estate of Charles rejected that claim and, eventually, the Estate of
Sharon filed a TEDRA petition in Kitsap County. In that petition, the Estate of Sharon sought
damages for delaying the probate proceeding calculated using a prejudgment interest rate.
In August 2022, the Kitsap County trial court determined that Charles breached his
fiduciary duties to the Estate of Sharon by, among other things, not notifying the beneficiaries in
the 2017 will, not marshalling estate assets for the benefit of the beneficiaries, not giving notice
to Sharon’s statutory heirs, and not disclosing the existence of the 2017 will.
The trial court awarded the Estate of Sharon attorney fees and the estate’s net community
property interest. Additionally, the trial court found that the Estate of Sharon was damaged by
the 16-month delay caused by Charles and awarded damages calculated using a prejudgment
interest rate of 12 percent “based on the date of death value” of the Estate of Sharon. CP at 272.
5 No. 57421-7-II
The Estate of Charles appeals the Kitsap County trial court’s findings and conclusions
resolving the TEDRA action.
ANALYSIS
I. LEGAL PRINCIPLES
We review the trial court’s factual findings for substantial evidence.3 Bartlett v. Betlach,
136 Wn. App. 8, 18, 146 P.3d 1235 (2006). We then review whether the legal conclusions are
supported by the findings do novo. Id.
We will review findings of fact erroneously labeled as conclusions of law for substantial
evidence. Karanjah v. Dep’t of Soc. & Health Servs., 199 Wn. App. 903, 916, 401 P.3d 381
(2017). “Substantial evidence means evidence that ‘is sufficient to persuade a rational, fair-
minded person that the finding is true.’” Id. (quoting Cantu v. Dep’t of Labor & Indus., 168 Wn.
App. 14, 21, 277 P.3d 685 (2012)). “Unchallenged findings are verities on appeal.” Robel v.
Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
II. THE RETIREMENT FUNDS CONSTITUTED COMMUNITY PROPERTY ASSETS EVEN AFTER
SHARON’S DEATH
The Estate of Charles argues that the Estate of Sharon’s community property interest in
Charles’s retirement funds reverted to Charles upon Sharon’s death because the 2017 will did not
specifically reference Charles’s retirement accounts. We disagree.
3 Although the Estate of Charles assigns error to factual findings 14(C) and (D), the estate does not further develop that argument in its brief. We decline to review those findings for the sufficiency of the evidence as the estate has waived the argument by providing no argument to that end. Matter of L.S., 23 Wn. App. 2d 672, 686, 517 P.3d 490 (2022); RAP 10.3(g).
6 No. 57421-7-II
Generally, property acquired after marriage is community property. RCW 26.16.030.
When a spouse dies, the former community property becomes the separate property of the
decedent’s estate and the surviving spouse. In Re of Estate of Politoff, 36 Wn. App. 424, 426-27,
674 P.2d 687 (1984); Edmonds v. Ashe, 13 Wn. App. 690, 695, 537 P.2d 812 (1975).
The Estate of Charles does not contest that the two retirement funds constituted
community property during the marriage. Rather, the Estate of Charles contends that such
interest passed to it “by operation of law outside of the probate court—unless, under RCW
6.15.020(6), Charles and Sharon had explicitly agreed to handle the IRA differently.” Br. of
Appellant at 29.
The Estate of Charles does not cite authority for the proposition that the deceased
spouse’s community property interest in the surviving spouse’s retirement funds revert to the
surviving spouse absent a specific bequest or reference regarding the retirement funds. And
RCW 6.15.020(6) does not include any such language. As support for its position, the Estate of
Charles focuses on whether the court had jurisdiction or other authority to transfer the retirement
funds to Sharon under several statutes. But the default rule in Washington is that Sharon’s
community interest in Charles’s retirement funds became her estate’s separate interest at her
death. Politoff, 36 Wn. App. at 426-27.
As the Estate of Charles fails to provide authority to support his novel proposition that
such interest reverts to him at death absent a specific bequest or reference, we decline to seek out
authorities to support the Estate of Charles’s position when counsel has provided none. DeHeer
v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). As such, the Estate of
7 No. 57421-7-II
Sharon maintained a separate property interest in Charles’s retirement funds after Sharon’s
death.4
III. AUTHORITY TO CREDIT THE RETIREMENT FUNDS
The Estate of Charles argues that the trial court erred by transferring Charles’s retirement
funds through a residuary clause in Sharon’s will, improperly applying RCW 6.15.020(6). The
Estate of Charles also argues that the trial court lacked jurisdiction to enforce such a credit. We
disagree.
We review the meaning of a statute de novo. Manary v. Anderson, 176 Wn.2d 342, 350,
292 P.3d 96 (2013). When engaging in statutory interpretation, we start by looking at the
statute’s plain meaning. Id. at 352. When the meaning is plain on the face of the statue, we give
effect to that meaning. Id. “Our plain meaning inquiry focuses on the words of the statute and
‘is discerned from all that the Legislature has said in the statute and related statutes which
disclose legislative intent about the provision in question.’” Id. (quoting Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). “Further, a court must not add
words where the legislature has chosen not to include them.” Rest. Dev., Inc. v. Cananwill, Inc.,
150 Wn.2d 674, 682, 80 P.3d 598 (2003).
A. The Trial Court Had Subject Matter Jurisdiction
The Estate of Charles argues that the trial court lacked subject matter jurisdiction over
Charles’s IRAs because RCW 11.02.005(13) eliminates the court’s jurisdiction over IRAs. We
4 The precise value of the Estate of Sharon’s community property interest does not appear to be challenged on appeal.
8 No. 57421-7-II
The Washington Constitution grants superior courts broad original jurisdiction over civil
controversies where jurisdiction is not exclusively vested in some other court. WASH. CONST.,
art. IV, § 6. Subject matter jurisdiction questions are reviewed de novo. In re Marriage of
McDermott, 175 Wn. App. 467, 479, 307 P.3d 717 (2013). “If the type of controversy is within
the subject matter jurisdiction, then all other defects or errors go to something other than subject
matter jurisdiction.” Cole v. Harveyland, LLC, 163 Wn. App. 199, 209, 258 P.3d 70 (2011).
Under TEDRA, superior courts have a broad authority to “Probate or refuse to probate wills,
appoint personal representatives, administer and settle the affairs and the estates of incapacitated,
missing, or deceased individuals including but not limited to decedents’ nonprobate assets;
administer and settle matters that relate to nonprobate assets and arise under chapter 11.18 or
11.42 RCW.” RCW 11.96A.040(3).
TEDRA’s broad grant of authority clearly covers the decedent’s interest in the surviving
spouse’s IRA. The alleged error here goes to something other than subject matter jurisdiction.
To the extent Charles is arguing that RCW 11.02.005(13) otherwise deprived the trial
court of authority to credit the retirement funds to the Estate of Sharon, we disagree.
RCW 11.02.005(13) generally defines a “nonprobate asset” as “rights and interests of a
person having beneficial ownership of an asset that pass on the person’s death under a written
instrument or arrangement other than the person’s will.” RCW 11.02.005(13). Under that
chapter, the term nonprobate asset includes IRAs. Historically, a person could not modify
nonprobate asset arrangements through a new will. Manary, 176 Wn.2d at 351.
But the Testamentary Disposition of Nonprobate Assets Act, chapter 11.11 RCW,
“allows the owner of a limited class of nonprobate assets to dispose of those assets by will.” Id.
9 No. 57421-7-II
RCW 11.02.005(13) goes on to provide, “[f]or the definition of ‘nonprobate asset’ relating to
testamentary disposition of nonprobate assets, see RCW 11.11.010(7).” And RCW
11.11.010(7)(a)(v) specifically excludes IRAs from the definition of nonprobate assets.
Here, the clause attempting to dispose of the IRAs is the residuary clause in Sharon’s
will, which makes this a testamentary disposition. And the IRA is typically a nonprobate asset
under RCW 11.02.005(13). But, RCW 11.02.005(13) refers us to RCW 11.11.010(7)(a)(v) to
determine whether IRAs are also nonprobate assets for purposes of applying chapter 11.11
RCW, the Testamentary Disposition of Nonprobate Assets Act. Specifically, for purposes of that
chapter, IRAs are excluded from the definition of nonprobate assets. The result is that under the
statute, IRAs, which are typically nonprobate assets, can be disposed of through a subsequent
will. Thus, the IRAs in question are probate assets in this context. And the Estate of Charles’s
argument fails.
B. The Trial Court Did Not Err in Crediting the Retirement Funds
The Estate of Charles argues that the trial court erred by crediting the retirement funds as
Sharon’s will did not specifically reference or bequeath those funds. First, the Estate of Charles
maintains that RCW 6.15.020(6), by using the word “may,” imposes a requirement that Sharon
must have specifically bequeathed or otherwise made a specific reference to the retirement funds
in her will to credit her interest in those funds after death. Br. of Appellant at 28. Second, the
Estate of Charles maintains that RCW 26.16.030(2) required Sharon to gather the implied or
express consent of Charles before devising community property. We disagree.
First, chapter 6.15 RCW relates to personal property exemptions from judgments.
Generally, RCW 6.15.020(3) provides that certain benefits, like annuities and IRAs, are exempt
10 No. 57421-7-II
from execution, attachment, garnishment, or seizure—with certain exceptions to that exemption.
To that end, RCW 6.15.020(6) provides a relevant exception:
Unless prohibited by federal law, nothing contained in subsection (3), (4), or (5) of this section shall be construed as a termination or limitation of a spouse’s community property interest in an employee benefit plan held in the name of or on account of the other spouse, who is the participant or the account holder spouse. Unless prohibited by applicable federal law, at the death of the nonparticipant, nonaccount holder spouse, the nonparticipant, nonaccount holder spouse may transfer or distribute the community property interest of the nonparticipant, nonaccount holder spouse in the participant or account holder spouse’s employee benefit plan to the nonparticipant, nonaccount holder spouse’s estate, testamentary trust, inter vivos trust, or other successor or successors pursuant to the last will of the nonparticipant, nonaccount holder spouse or the law of intestate succession, and that distributee may, but shall not be required to, obtain an order of a court of competent jurisdiction, including a nonjudicial binding agreement or order entered under chapter 11.96A RCW, to confirm the distribution.
(emphasis added).
While it is true that RCW 6.15.020(1) provides that the State’s policy is to protect
retirement income, the language in RCW 6.15.020(6) that “nothing contained in subsection (3),
(4), or (5) . . . shall be construed as a termination or limitation of a spouse’s community property
interest in an employee benefit plan held in the name of or on account of the other spouse, who is
the participant or the account holder spouse[]” shows the Legislature’s intent not to limit or
terminate such community property interests. In light of that, we decline to interpret the word
“may” as imposing a requirement that the deceased nonaccount holder spouse must have made a
specific bequest of or otherwise reference the retirement funds in their will to transfer their
community property interest in such funds.
Moreover, that statute does not state that a residuary clause is insufficient to transfer such
an interest. And as stated above, we do “not add words where the legislature has chosen not to
include them.” Rest. Dev., Inc., 150 Wn.2d at 682. This argument fails.
11 No. 57421-7-II
Second, in relevant part, RCW 26.16.030 provides, “(1) Neither person shall devise or
bequeath by will more than one-half of the community property. (2) Neither person shall give
community property without the express or implied consent of the other.” The Estate of Charles
maintains that subsection two prevented Sharon from devising the retirement funds without his
consent.
Subsection one pertains to transfers of community property via the will, supported by the
use of terms, “devise or bequeath.” Subsection two does not state that neither person shall devise
or bequeath by will community property without the consent of the other. Instead, subsection
two merely uses the verb “give.” And courts have applied subsection two in the context of inter
vivos transfers. See, e.g., Nichols Hills Bank v. McCool, 104 Wn.2d 78, 82, 701 P.2d 1114
(1985); In re Marriage of Mueller, 140 Wn. App. 498, 509, 167 P.3d 568 (2007); Bosone v.
Bosone, 53 Wn. App. 614, 618, 768 P.2d 1022 (1989). Based on that subsection’s plain
language and how state courts have applied subsection two, we interpret subsection two as
inapplicable to testamentary transfers.
We hold that the trial court did not err by crediting the retirement funds.
IV. BREACH OF FIDUCIARY DUTY
The Estate of Charles argues that Charles did not breach a fiduciary duty to the Estate of
Sharon by using and making investment decisions in his own IRAs. We disagree.
We review conclusions of law de novo. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d
147 (2004).
The trial court ruled that Charles
breached his fiduciary duty of loyalty, due diligence and good faith when he, as PR, among other things, failed to notify the Sharon Estate’s true beneficiaries of the
12 No. 57421-7-II
existence of the true Last Will; when he failed to marshal assets into the Estate for the benefit of the true beneficiaries; when he used Estate assets for his benefit to the exclusion of the Estate’s true beneficiaries; when he failed to give statutory notices required to Sharon’s statutory heirs; and when he failed to disclose to the Court the existence of the true Last Will.
CP at 271.
The Estate of Charles did not address many of the aforementioned grounds on appeal, nor
did it provide citation to authorities. Its only argument is that IRA funds are nonprobate assets,
and so, Charles owed no fiduciary duty to manage those funds.
Notwithstanding the fact that the Estate of Charles failed to cite authority to support that
proposition,5 the Estate’s argument fails because, for purposes of testamentary disposition of
nonprobate assets, an IRA is excluded from the definition of a nonprobate asset. RCW
11.11.010(7)(a)(v).
V. PREJUDGMENT INTEREST
The Estate of Charles argues that the trial court abused its discretion by awarding pre-
judgment interest on an unliquidated claim, for awarding prejudgment interest on an amount that
was not awarded as damages, and for awarding prejudgment interest without any supporting
factual findings showing damages. The Estate of Sharon frames the prejudgment interest award
as an award of permissible equitable damages. We hold that the trial court abused its discretion
by awarding damages calculated using a prejudgment interest rate of 12 percent.
We review prejudgment interest awards for an abuse of discretion, which occurs where
the discretion was exercised in a manifestly unreasonable manner or on untenable grounds.
5 We are not required to search out authorities to support a proposition when counsel has provided none. DeHeer, 60 Wn.2d at 126.
13 No. 57421-7-II
Arzola v. Name Intelligence, Inc., 188 Wn. App. 588, 592, 595, 355 P.3d 286 (2015).
Prejudgment interest awards are appropriate when a party wrongly retains funds that another
party is entitled to as it deprives the rightful owner of the use value of their money. Arzola, 188
Wn. App. at 595.
More generally, courts have discretion to employ an equitable remedy to place the
beneficiary in the position they would have been in if the administrator properly administered the
estate. See Gillespie v. Seattle-First Nat’l Bank, 70 Wn. App. 150, 173, 855 P.2d 680 (1993);
see also Baker Boyer Nat’l Bank v. Garver, 43 Wn. App. 673, 686, 719 P.2d 583 (1986). Trial
courts have broad discretion in shaping equitable remedies. Bloor v. Fritz, 143 Wn. App. 718,
739, 180 P.3d 805 (2008).
Here, we determine that the trial court calculated damages for breach of fiduciary duties
and a 16-month delay by using prejudgment interest as a basis; it did not simply award
prejudgment interest.6 Our determination is consistent with the fact that the Estate of Sharon
sought damages for delay in the form of prejudgment interest, and the final order’s language:
“[d]amages shall be calculated at the prejudgment rate of 12%.” CP at 272. We next analyze
whether there were findings to support that award.
A. Supporting Findings of Fact
The trial court here found, “Charles [] breached his fiduciary duty of loyalty, due
diligence and good faith.” CP at 271. Charles’s “delay set . . . [Sharon’s] Estate back 16 months
from its final distribution to the Estate’s true beneficiaries, and meanwhile Charles used the
6 Because we determine that the trial court did not simply award prejudgment interest, we need not address the Estate of Charles’s argument that the trial court abused its discretion by awarding prejudgment interest on an unliquidated claim.
14 No. 57421-7-II
assets for his exclusive benefit, while the assets (home, cars, funds, money) were wasted,
deteriorated, and converted unlawfully.” CP at 271 (emphasis added). The trial court labeled
that finding as a conclusion of law. We determine that it is a finding of fact and review it for
substantial evidence.
The Estate of Charles specifically challenges the waste, deterioration, and conversion
language of the finding. There is ample evidence to persuade a rational, fair-minded person that
the challenged portion of the finding is true, including (1) Charles used the assets of Sharon’s
Estate for his exclusive benefit, (2) he did not marshal the assets he converted back into Sharon’s
Estate, (3) he failed to pay certain property taxes, (4) he failed to perform adequate maintenance,
and (5) he failed to keep proper accounting records. And the Estate of Charles failed to assign
error to any of the following factual findings, and so, they are verities: (1) Charles did not timely
file the 2017 will despite instructions to do so, (2) did not probate any will for 12 months, (3)
Charles converted community property assets for his own exclusive use, and (4) “[h]e failed to
take any steps toward properly administering Sharon’s Estate under the proper will. CP at 266-
68. Robel, 148 Wn.2d at 42.
Additionally, there is evidence in the record that after Charles converted the IRAs, he
invested them into a solo 401(k) with Charles Schwab and then indirectly invested proceeds into
several distressed rental properties in Florida. And the Estate of Charles seems to concede that
there was a “diminution in value of those funds.” Br. of Appellant at 32.
Thus, this finding is supported by substantial evidence. But the Estate of Charles is
correct that this finding does not show the precise diminution in value or the magnitude of such
damages. We next analyze the implications of that.
15 No. 57421-7-II
B. The Measurement of Damages Must Be Supported by the Evidence.
In Gillespie, beneficiaries of a testamentary and de facto trust sought damages for a
breach of fiduciary duty against the trustee bank. 70 Wn. App. at 156. Division One reasoned
that the trial court may grant whatever relief is warranted to place the trust in the same position
as if the breach of fiduciary duties had not occurred. Id. at 173. The trial court awarded
damages and compounded the damages award by four percent per annum. Id. at 175-76.
Division One affirmed the award, reasoning that the plaintiff showed lost appreciation with
reasonable certainty by producing the testimony of two experts that four percent was an
appropriate rate of appreciation. Id.
In Baker Boyer, the trial court determined the trustee bank breached its fiduciary duties
and awarded damages. 43 Wn. App. at 677-78. Division Three reversed because the trial court
should have considered the trust’s lost appreciation in equity securities which would have been
realized but for the breach of fiduciary duties. Id. at 686. There, the trial court found that stock
market equity, as measured by broad stock market indexes, rose around 20-22 percent during the
trust administration. Id. at 686.
The aforementioned cases involved awards based on a measurement of damages
supported by evidence. In contrast, the Estate of Sharon did not present evidence showing that if
the Estate of Charles had timely distributed the contested funds, that those funds would have
yielded a 12 percent per year rate of return during the relevant time period. And there are no
findings to that end. Rather, the Estate of Sharon simply submitted a request for damages
calculated at a typical prejudgment interest rate of 12 percent for the delay in distribution.
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Given the lack of evidence regarding the lost benefit of the improperly withheld funds,
we hold that the trial court abused its discretion by awarding damages calculated using a
prejudgment interest at a rate of 12 percent per annum.
VI. TRIAL COURT ATTORNEY FEES
The Estate of Charles appears to argue that if we determine that Sharon’s interest in the
retirement funds reverted to him after her death, then the trial court erred in awarding attorney
fees for the TEDRA action. Because we conclude that Sharon’s interest did not revert, we
decline to address this contention and we affirm the trial court’s award of fees below.
VII. APPELLATE ATTORNEY FEES
The Estate of Charles requests attorney fees on appeal under RCW 11.96A.150. The
Estate of Sharon requests attorney fees on appeal under the same statute.
RAP 18.1 allows a party to recover reasonable attorney fees on appeal if the party
properly requests it and if applicable law grants the party the right to recover such fees. RCW
11.96A.150(1) provides that we have discretion to order costs, including reasonable attorney
fees, on appeal. Because both parties prevail on substantial issues on appeal, we decline to
award attorney fees to either party.
CONCLUSION
We vacate the trial court’s damages award and remand for the trial court to determine if
damages calculated at a prejudgment interest rate of 12 percent per annum is warranted based on
the evidence or whether some other amount is warranted. We otherwise affirm. We decline to
award attorney fees to either party on appeal.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Che, J. We concur:
Glasgow, J.
Cruser, C.J.