IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of ] NO. 68419-1-1
ARTHUR D. HAYS. j DIVISION ONE
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ARTHUR D. HAYS, j
UNPUBLISHED OPINION 25 a'~7',..
Appellant, ]
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REBECCA CASTILLEJA, CO "-;-'-'.
Respondent. i FILED: August 26, 2013
Leach, C.J. — In this contested guardianship proceeding, Arthur Hays
seeks review of three issues concerning the trial court's award of attorney fees
and costs to the successful petitioner, Rebecca Castilleja. He challenges the
reasonableness of the fee award, the court's decision to assess the entire award
against his estate, and the court's decision to enter its judgment immediately. He
also moves to supplement the record with the guardian's inventory report and
budget. Because the trial court did not abuse its discretion in approving
Castilleja's fee petition and in giving the guardian discretion to apportion the fee
award and Hays did not timely appeal the court's decision to enter its judgment
NO. 68419-1-1/2
immediately, we affirm. Because Hays's motion to supplement the record fails to
meet RAP 9.11(a)'s requirements, we deny his motion.
FACTS
Arthur D. Hays accumulated substantial wealth operating a wholesale
distributing business and acquiring real property to store his merchandise. He is
the trustee and beneficiary of the Hays Family Trust. When his wife died in 1980,
her estate was transferred into this trust. He has been the manager of Hays
Elliott Properties LLC (HEP) since he created it in 1999. HEP owns and
manages real property. In 2000, Hays created three irrevocable trusts. Each
trust owns shares of HEP. Castilleja, Hays's daughter, became the successor
trustee of each trust in 2008. Hays also maintains a collection of vintage vehicles
and owns the Hays Distributing Corporation, a wholesale distributing business.
Additionally, he owns property in Suquamish, Washington, that is part of the
Hays Millers Bay Limited Partnership; a residence in the Magnolia neighborhood
in Seattle; a condominium in the Alki area; and real estate on West Commodore
Way. The case involves assets valued at approximately $28 million.
In March 2011, Castilleja filed a petition seeking the appointment of a
guardian of Hays's estate. Hays's son Howard supported the guardianship, but
Hays and his son Robert opposed it. On November 18, 2011, after a six-day
bench trial, the trial court found Hays incapacitated as to his estate. The court
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appointed an independent professional guardian, finding, "There is family conflict
and all of Mr. Hays' children at any given time could stand to benefit from any
decision or error that Mr. Hays might make, thus making appointment of a
guardian independent of the family necessary."
In the November 18 order, the court also concluded that Castilleja should
recover her reasonable costs and attorney fees incurred bringing the
guardianship action. The court's order provides for the determination of the
reasonableness of these fees "under the lodestar measure by separate motion."
The court ordered the guardian to file an inventory of Hays's property within three
months.
On February 1, 2012, the trial court entered a judgment in favor of
Castilleja for $380,592.92, representing $352,755.36 in attorney fees and
$27,837.56 in costs. The judgment authorized the guardian to pay it and
provided for payment from "the guardianship estate and/or any other asset/entity
in which Mr. Arthur Hays has a beneficial interest."
On February 29, Hays filed a notice of appeal, seeking review of both the
February 1, 2012, order and designated portions of the November 18, 2011,
order. On May 7, 2012, Hays filed a motion to supplement the record.
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NO. 68419-1-1/4
STANDARD OF REVIEW
We apply a two-part standard to review a trial court judgment awarding
attorney fees: "(1) we review de novo whether there is a legal basis for awarding
attorney fees by statute, under contract, or in equity and (2) we review a
discretionary decision to award or deny attorney fees and the reasonableness of
any attorney fee award for an abuse of discretion."1 The parties do not dispute
the statutory basis2 for the court's authority to award attorney fees. Thus, we
apply the second part of this review standard.
When reviewing a trial court's decision for abuse of discretion, we will
uphold the decision unless it is "'manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.'"3 A court makes a manifestly
unreasonable decision if it falls outside the range of acceptable choices, given
the facts and the applicable legal standard; a court bases its decision on
untenable grounds if the record does not support the court's factual findings; a
1 Gander v. Yeaqer, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012); see
RCW 11.96A.150 (trial court and appellate court have discretion to order costs,
including reasonable attorney fees, to be awarded to any party in guardianship
matters); see also In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796
(2004) ("[RCW 11.96A.150] leaves the award of attorney fees to the discretion of
the court, and we will not interfere with a trial court's fee determination unless
'there are facts and circumstances clearly showing an abuse of the trial court's
discretion.'" (quoting In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051
(1985))).
2RCW11.96A.150.
3 Black, 153 Wn.2d at 172 (internal quotation marks omitted) (quoting
State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004)).
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NO. 68419-1-1/5
court bases its decision on untenable reasons if it uses an incorrect standard or
the facts do not meet the correct standard's requirements.4
ANALYSIS
Hays claims that the trial court abused its discretion "(1) [b]y concluding
that all of the petitioner's fees were reasonable; (2) by failing to properly
articulate the basis for its decision; and (3) by failing to properly consider all
relevant factors, including[] whether the particular actions taken by the
petitioner's counsel benefitted Mr. Hays." We disagree.
Hays challenges the reasonableness of the attorney fee award on three
grounds: (1) the court failed to make findings showing that it considered the
factors in RPC 1.5(a), (2) the court failed to perform a lodestar analysis, and (3)
the court failed to respond adequately to Hays's objections. We reject these
arguments.
First, Hays claims that the trial court should have stated how the factors
enumerated in RPC 1.5(a) affected its fee decision. RPC 1.5(a) states, in
relevant part,
The factors to be considered in determining the reasonableness of
a fee include the following:
(1) the time and labor required, the novelty and difficulty of
the questions involved, and the skill requisite to perform the legal
service properly;
4 In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)
(citing State v. Rundguist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995)).
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(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with
the client;
(7) the experience, reputation, and ability of the lawyer or
lawyers performing the services;
(8) whether the fee is fixed or contingent; and
(9) the terms of the fee agreement between the lawyer and
the client, including whether the fee agreement or confirming writing
demonstrates that the client had received a reasonable and fair
disclosure of material elements of the fee agreement and of the
lawyer's billing practices.[5]
Specifically, Hays asserts that the court failed to apply the first, third,
fourth, and seventh factors and that "had the trial court properly considered the
relevant factors, it would have reached the inevitable conclusion that the total
fees were excessive for the establishment of a guardianship of the estate." He
bases this assertion upon the absence of any specific finding applying these
factors. He contends that the case presented no novel issues about the
establishment of a guardianship; that Castilleja's attorneys offered excessive and
irrelevant evidence; that the participation of two attorneys produced an excessive
combined hourly rate, although the individual rate for each attorney was
reasonable; that counsel expended considerable time presenting irrelevant
5 Hays cites the former rule, which contained only eight factors. The
current rule includes nine factors.
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evidence of assets Hays previously transferred to HEP, which had an operating
agreement addressing the incapacity of its manager; and that Castilleja's
attorneys should have been more efficient because of their experience in
guardianship law and "excellent reputations" in providing representation in
guardianship proceedings.
Hays cites In re Guardianship of Hallauer6 to support his contention, but
he cites the plaintiff's argument in the case rather than the court's holding. In
fact, in Hallauer, we cited our Supreme Court's unanimous decision in McNearv
v. American Cvanimid Co.,7 that to determine whether attorney fees are
reasonable, the factors in RPC 1.5(a) "should be used as 'guidelines.'"8 More
recently, in Mahler v. Szucs.9 our Supreme Court held, "[CJourts should be
guided in calculating fee awards by the lodestar method in determining an award
of attorney fees as costs." Additionally, "[tjhis methodology can be supplemented
by an analysis of the factors set forth in RPC 1.5(a) which guide members of the
Bar as to the reasonableness ofa fee."10 RCW 11.96A.150 governs attorney fee
awards in guardianship proceedings. It states, "In exercising its discretion under
this section, the court may consider any and all factors that it deems to be
644Wn.App. 795, 723 P.2d 1161 (1986).
7 105 Wn.2d 136, 143, 712 P.2d 845 (1986).
8 Hallauer. 44 Wn. App. at 799-800.
9 135 Wn.2d 398, 433, 957 P.2d 632 (1998), overruled on other grounds
by Matsvuk v. State Farm Fire & Cas. Co.. 173 Wn.2d 643, 272 P.3d 802 (2012).
10 Mahler, 135 Wn.2d at 433 n.20.
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relevant and appropriate."11 Because no authority requires the trial court to make
findings demonstrating that it considered the factors in RPC 1.5(a), we find no
error in its failure to do so.
The judgment also recites that the court considered "the attorneys'
experience and the nature of the work performed" to conclude that the rates
charged were reasonable. As part of its analysis of the reasonableness of the
number of hours that counsel expended, the court considered "the results
obtained, the work performed, and the contested nature of the proceedings."
The trial court affirmatively found that the time expended did "not reflect any
significant redundancy, waste or unnecessary services."
In Hays's second challenge to the fee award, he contends that the trial
court failed to apply the lodestar method when determining if the requested
attorney fees and costs were reasonable. He claims that the court "failed to
properly articulate how it determined that the number of hours expended was
reasonable." He further alleges, "It appears the trial court simply accepted the
numbers stated by Mrs. Castilleja's counsel and signed the order, without any
independent review of the reasonableness of amounts billed."
11 RCW 11.96A. 150(1).
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Generally, Washington courts apply the lodestar method to calculate
attorney fees.12 The court awarding attorney fees makes its independent
determination about the reasonableness of the fees requested.13
To apply the lodestar method, the court considers first the number of
hours reasonably expended on the matter.14 "'[T]he attorneys must provide
reasonable documentation of the work performed.'"15 This documentation must
include at least (1) the number of hours worked, (2) the type of work performed,
and (3) the category of attorney who performed the work.16 The court does not
need to conduct an hour-by-hour analysis of each lawyer's time sheets, so long
as the court provides a consideration of the relevant factors and reasons
sufficient to review the amount of the fee award.17 "The awarding court should
take into account the hours spent on unsuccessful claims, duplicated effort, or
otherwise unproductive time."18
12 Mahler, 135 Wn.2d at 433.
13 McGreevv v. Or. Mut. Ins. Co., 90 Wn. App. 283, 291, 951 P.2d 798
(1998) (quoting Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. App. 841,
847, 917 P.2d 1086 (1995)), overruled on other grounds by Panorama Vill.
Condo. Owners Ass'n Bd. of Dirs. v. Allstate Ins. Co., 144 Wn.2d 130, 26 P.3d
910(2001).
14 McGreevv, 90 Wn. App. at 291.
15 McGreevv, 90 Wn. App. at 292 (quoting Bowers v. Transamerica Title
Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)).
16 McGreevv, 90 Wn. App. at 292 (citing Bowers, 100 Wn.2d at 597).
17 McGreevv, 90 Wn. App. at 292 (quoting Absher Constr. Co., 79 Wn.
App. at 848).
18 McGreevv, 90 Wn. App. at 292 (citing Bowers, 100 Wn.2d at 597).
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As the second step in the lodestar method, the court determines if the
hourly fee charged was reasonable.19 The court computes the reasonable hourly
rate for each attorney.20 The attorney's usual fee is not conclusively reasonable
but may require an adjustment.21 The court may also consider "the level of skill
required by the litigation, time limitations imposed on the litigation, the amount of
the potential recovery, the attorney's reputation, and the undesirability of the
case."22 As a third step, the court multiplies those two numbers to produce the
lodestar fee.23
Finally, the court may adjust the lodestar amount up or down to reflect
factors not already considered.24 The party proposing a deviation from the
lodestar amount bears the burden ofjustifying it.25
Here, Hays vigorously challenged Castilleja at each stage of the
proceedings. The trial court's November 18 order includes 68 findings of fact
and 11 conclusions of law, which provides some indication of the complexity of
the contested issues. In the February 1 order, the court stated, "To assess the
reasonableness of the attorneys' fees requested by the Petitioner, the Court
19 McGreevv, 90 Wn. App. at 291.
20 McGreevv, 90 Wn. App. at 293 (citing Bowers, 100 Wn.2d at 597).
21 Bowers, 100 Wn.2d at 597.
22 Bowers, 100 Wn.2d at 597.
23 McGreevv, 90 Wn. App. at 291.
24 Bowers. 100 Wn.2d at 598-99.
25 Bowers, 100 Wn.2d at 598 (quoting Copeland v. Marshall, 641 F.2d
880, 892 (D.C. Cir. 1980)).
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employed the lodestar methodology, multiplying the attorney's and support staff's
hourly rates by the reasonable number of hours of work performed." The court
concluded that the number of hours, 1025.25, "was reasonable considering the
results obtained, the work performed, and the contested nature of the
proceedings, as set forth in the contemporaneous billing records and declaration
filed in support." Additionally, the court found the attorneys' hourly rates, $350
and $300, reasonable, "considering the attorneys' experience and the nature of
the work performed." As previously noted, the court determined, "The billing
records do not reflect any significant redundancy, waste or unnecessary
services."
At oral argument, counsel for Hays agreed that the billing records do not
reflect any unnecessary work or excessive time spent on necessary work. He
also characterized Castilleja's attorneys as "very ethical and very honest" and
stated that he "had a very high opinion of the services they provide."
To perform its supervisory function, the trial court must make findings of
fact and conclusions of law.26 Because the court made the findings required
under the lodestar method and because the court's findings support its
conclusions of law and decision, we conclude that the trial court applied the
lodestar method correctly.
26 Mahler, 135 Wn.2d at 435.
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In Hays's third challenge, he contends that the court did not adequately
consider his objections to the petition: "Rather than engaging in a substantive
analysis, the trial court simply concluded that all fees were reasonable. The trial
court should have entered findings indicating its consideration of and conclusions
regarding the following specific objections raised by Mr. Hays." Hays objected on
five grounds: (1) fees incurred in presenting evidence on "irrelevant issues" and
pursuing unsuccessful claims; (2) fees incurred from the presence of two
attorneys at trial; (3) fees incurred seeking discovery from Hays's former and
current attorneys; (4) "vague or block billings that make it difficult or
impossible ... to determine whether the fees relate to the successful claims";
and (5) "unnecessary costs," including costs for "computerized legal research."
In the February 1 order, the trial court made a number of findings of fact
and conclusions of law. The court found that "[t]he billing statements were
sufficient and not vague"; "[t]he attorneys' fees and costs itemized in the billing
statements were reasonable and necessary, and should be approved"; "[t]he
billing records do not reflect any significant redundancy, waste or unnecessary
services"; and "[t]he court specifically rejects the arguments made by Mr. Hays
regarding] the reasonableness of the fees or the manner in which the case was
presented."
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Hays claims that In re Guardianship of Ivarsson27 requires the trial court to
undertake a "substantive analysis . . . which culminates in an explicit finding that
the requested fees are reasonable in the circumstances of the particular case."
Hays also relies upon Absher Construction Co. v. Kent School District No. 415,28
which states, "The court may discount hours spent on unsuccessful claims,
duplicated effort, or otherwise unproductive time." Additionally, Hays argues that
the fee petition "failed to segregate those fees incurred to establish a
guardianship of the estate from those incurred on all other issues, including Mr.
Hays' prior estate planning, his management of HEP, and distributive issues
discussed prior to the guardianship." Finally, Hays cites In re Estate of Larson29
to argue that the attorney fee award may not include "fees incurred in seeking
payment of or defending objections to approval of fees."
The trial court did not abuse its discretion when it rejected Hays's
objections to Castilleja's fee petition. Hays cites no authority that requires the
court to make a written finding stating its rationale for approving each specific
item in the fee petition. Hays's reliance on Ivarsson is misplaced. In Ivarsson,
the court denied a coguardian's request for attorney fees because the record
contained only the attorney's time records. The court required additional
27 60 Wn.2d 733, 375 P.2d 509 (1962).
28 79 Wn. App. 841, 847, 917 P.2d 1086 (1995) (citing Bowers, 100Wn.2d
at 597).
29 103 Wn.2d 517, 694 P.2d 1051 (1985).
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NO. 68419-1-1/14
evidence of the services provided because "[t]he time required is only one factor
in determining the reasonable value of services."30 Here, the record contains
contemporaneous billing statements describing the work that the attorneys
performed. Additionally, Absher Construction Co. does not require the court to
discount certain hours. Again, RCW 11.96A.150(1) gives the court discretion to
decide what factors to consider, and counsel for Hays agreed at oral argument
that Castilleja's attorneys performed no unnecessary work or spent excessive
time on necessary work.
Further, it is well settled that if a statute is inconsistent with the common
law, the statute abrogates the common law.31 Larson held that "an attorney in
probate is not entitled to additional fees for attorneys and experts in proving the
reasonableness of his fee in the final report."32 But RCW 11.96A.150 gives the
trial court broad discretion to include such fees in the award in an equitable
manner. To the extent that Larson conflicts with the court's discretion under
RCW 11.96A.150, the statute has abrogated that holding.33 Moreover, in Absher
Construction Co., we approved computer research expenses, concluding, "The
use of computer-aided legal research is a norm in contemporary legal practice.
30 Ivarsson, 60 Wn.2d at 744.
31 State v. Butler, 126 Wn. App. 741, 750, 109 P.3d 493 (2005).
32 Larson, 103 Wn.2d at 533.
33 See In re Estate of Bockwoldt, 814 N.W.2d 215, 225 (Iowa 2012)
(recognizing abrogation).
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NO. 68419-1-1/15
Properly utilized, it saves the client attorney fees which would otherwise be
incurred for more time consuming methods of legal research."34
The trial court provided an adequate record for us to review its reasoning
for approving the fee petition. Because the court's assessment was not
manifestly unreasonable or based on untenable grounds or reasons, we hold that
the February 1 order adequately addressed Hays's objections.
In addition to challenging the reasonableness of the attorney fees, Hays
claims that the trial court abused its discretion by failing "to properly apportion
what fees are to be paid by Mrs. Castilleja, by Mr. Hays and by the other entities
benefitted," including Hays's limited liability company and the trusts. He asserts
that "[t]he only fees and costs properly assessed against Mr. Hays are those that
were incurred in seeking the appointment of a guardian of the estate."
Specifically, Hays contends that he should not be responsible for fees incurred
before the guardianship proceeding commenced, fees that the attorneys incurred
in recovering their fees and costs, and fees incurred after the guardianship was
established because he claims that those actions did not benefit him.
In In re Estate of Black,35 the court stated,
The touchstone of an award of attorney fees from the estate
is whether the litigation resulted in a substantial benefit to the
estate. This does not mean that attorney fees may never be
34 Absher Const. Co.. 79 Wn. App. at 849.
35116 Wn. App. 476, 490, 66 P.3d 670 (2003) (internal citations omitted).
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NO. 68419-1-1/16
appropriately awarded against an estate if the estate is not
substantially benefited. There is no firm rule. .. . The trial court
must evaluate the particular action to determine if its benefit to the
estate was substantial.
But RCW 11.96A. 150(1) states,
Either the superior court or any court on an appeal may, in its
discretion, order costs, including reasonable attorneys' fees, to be
awarded to any party: (a) From any party to the proceedings; (b)
from the assets of the estate or trust involved in the
proceedings. . . . The court may order the costs, including
reasonable attorneys' fees, to be paid in such amount and in such
manner as the court determines to be equitable. In exercising its
discretion under this section, 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.
In the November 18 order, the trial court stated, "The Petitioner's request
for fees is governed by RCW 11.96A.150." It concluded, "The court finds that it is
equitable to award Petitioner her reasonable costs and attorneys' fees to be paid
from the guardianship estate and/or any other asset/entity in which Mr. Arthur
Hays has a beneficial interest." The court noted, "[T]he petition for guardianship
was filed in good faith, was necessary to protect Mr. Hays' assets and property
interests, and benefitted Mr. Hays' estate by resulting in the appointment of a
guardian of the estate of Mr. Hays." On the court's February 1 order approving
the fee petition, the judge wrote, "The fees and costs may be allocated to Hays
Elliott Properties LLC, Hays Distributing Corp., and Arthur D. Hays individually as
determined by the guardian."
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We do not accept Hays's arguments. While Hays concedes that the
limited liability company and the trusts were not parties to the guardianship
proceedings, he argues that the fact they benefitted from the guardianship
warrants apportioning some of the fees and costs to those entities. Hays cites jn
re Guardianship of McKean36 for the notion that "it is appropriate to allocate fees
'amongst those who created the need for the guardianship.'" But, in McKean, the
Court of Appeals concluded that the trial court ordered a party to pay the
guardianship's attorney fees simply "because the guardianship could not."37 In
that case, the trial court acted improperly because "the simple ability to pay does
not provide an equitable basis for the award. Rather, equity requires some
finding of fault that in fairness requires a party to pay."38 As an example, the
court cited Gillespie v. Seattle-First National Bank,39 where the court concluded
that even absent bad faith or self-dealing, it was equitable to assess attorney
fees against the trustee where, but for its breach of fiduciary duty, the
beneficiaries would not have needed to incur the fees. Here, no evidence
suggests any fault as to the other entities. Accordingly, the court did not err by
giving the guardian discretion to allocate the fees and costs.
36 136 Wn. App. 906, 920, 151 P.3d 223 (2007).
37 McKean, 136 Wn. App. at 920.
38 McKean, 136 Wn. App. at 920.
39 70 Wn. App. 150, 177-78, 855 P.2d 680 (1993); see also McKean, 136
Wn. App. at 920.
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Hays claims that fees incurred "when matters other than guardianship
were being explored" provided no benefit to his estate. This argument conflicts
with RCW 11.88.090(5)(f)(iv), which requires the guardian ad litem to investigate
alternatives to guardianship.
Hays also cites Larson, In re Estate of Riemcke,40 and In re Guardianship
of Adamec41 to support his claim that attorneys may not recover fees incurred in
seeking fees. These cases do not apply here. As discussed above, RCW
11.96A.150 abrogated Larson. Riemcke held that a personal representative
cannot collect attorney fees to the extent that the representative incurred the fees
to protect his or her own interests as a beneficiary of the estate and not in
furtherance of its administration.42 Hay identifies no evidence showing that
Castilleja benefitted in such an individual capacity. Adamec concerned a
guardian seeking fees under RCW 11.92.180,43 which does not apply here. The
"fees incurred after the guardianship" concerned the attorneys' discussions with
their client. Despite Hays's assertion, no evidence indicates that the matters they
discussed were unrelated to establishing the guardianship or that the actions did
not benefit the estate. The trial court properly exercised its discretion to
40 80 Wn.2d 722, 497 P.2d 1319 (1972).
41 100 Wn.2d 166, 667 P.2d 1085 (1983).
42 Riemcke, 80 Wn.2d at 735-36.
43 Adamec, 100 Wn.2d at 178-79.
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NO. 68419-1-1/19
determine the amount of and manner of paying the judgment. Therefore, we
reject this claim.
In addition to these specific objections to the fee petition, Hays asserts for
the first time on appeal that this court should deduct the specific fees he cites
and then reduce the remainder by one half. He did not raise this argument in the
trial court and he cites no authority to support it, so we decline to consider it.44
Hays also alleges that "it was inequitable for the court to direct entry of a
judgment, with interest accruing at 12%, immediately, thereby unnecessarily
depleting Mr. Hays' estate." He argues that the court's actions were improper
because (1) "Mr. Hays does not have sufficient cash assets with which to pay the
fees and he no longer has control of his assets" and (2) the court "should have
exercised its discretion as to 'the manner of payment' of the approved fees under
RCW 11.96A.150 to delay entry of the judgment at least until the guardian's
inventory and petition for order authorizing disbursements was presented and
approved."
With the exception of Hays's challenge to the interest on the judgment, as
to this claim his appeal is untimely. Under RAP 2.2(a)(1), a party has a right to
appeal a final judgment "regardless of whether the judgment reserves for future
44 See RAP 2.5(a) ("The appellate court may refuse to review any claim of
error which was not raised in the trial court.").
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NO. 68419-1-1/20
determination an award of attorney fees or costs."45 RAP 5.2(a) requires filing a
notice of appeal within 30 days after the trial court enters its decision. While RAP
2.4(b) allows a party to timely appeal a trial court's attorney fee decision, it
"makes clear that such an appeal does not allow a decision entered before the
award of attorney fees to be reviewed (i.e., it does not bring up for review the
judgment on the merits) unless timely notice of appeal was filed on that
decision."46
Here, Hays filed a notice of appeal more than 30 days after the court
entered a judgment granting Castilleja's fee request but within 30 days of its
decision approving her fee petition. Because Hays's notice of appeal challenging
the court's decision to assess attorney fees against him was untimely, we do not
address it.
Although Hays timely challenges the interest on the judgment, his claim
lacks merit. Under RCW 4.56.110(4), "judgments shall bear interest from the
date of entry." RCW 19.52.020(1 )(a) sets the interest amount at 12 percent per
annum. Therefore, the court properly ordered that the principal judgment bear
interest at 12 percent per annum.
45 Carrara, LLC v. Ron & E Enters., Inc., 137 Wn. App. 822, 825, 155 P.3d
161 (2007).
46 Carrara, 137 Wn. App. at 825.
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Based on his claim that the trial court should have delayed entering a
judgment against him, Hays filed a motion to supplement the record to include
the guardian of the estate's inventory report and budget. He argues that these
documents are necessary to determine (1) whether the court should have
ordered him to pay all of Castilleja's fees and costs, without allocating them to
other entities, and (2) whether the court should have entered a judgment against
him before he demonstrated an ability to pay the judgment.
RAP 9.11(a) permits this court to allow a party to supplement the record
where the party establishes each of six criteria, including, "the additional
evidence would probably change the decision being reviewed."47 First, Hays
offers no reason that the inventory report and budget would probably change the
decision to enter a judgment against Hays's estate and give the guardian
discretion to allocate the payment of the judgment; rather, he merely contends
47 The six criteria are
(1) additional proof of facts is needed to fairly resolve the issues
on review, (2) the additional evidence would probably change the
decision being reviewed, (3) it is equitable to excuse a party's
failure to present the evidence to the trial court, (4) the remedy
available to a party through postjudgment motions in the trial
court is inadequate or unnecessarily expensive, (5) the appellate
court remedy of granting a new trial is inadequate or
unnecessarily expensive, and (6) it would be inequitable to
decide the case solely on the evidence already taken in the trial
court.
RAP 9.11(a).
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NO. 68419-1-1/22
that the documents are "necessary to resolve the issues" that he asserts on
appeal. The remainder of his motion asks us to revisit the trial court's November
18 judgment that he does not timely challenge. Because Hays fails to establish
all of the requirements in RAP 9.11(a), we deny his motion to supplement the
record.
Both parties request costs and attorney fees incurred on appeal. Because
Castilleja is the prevailing party, she filed the petition for guardianship in good
faith, the guardianship benefitted Hays, and she did not file the petition out of
personal interest or for personal gain, we award her costs and reasonable
attorney fees under RAP 18.1 and RCW 11.96A.150.
CONCLUSION
Because the trial court did not abuse its discretion in awarding attorney
fees and costs and acted within its discretion to order Hays's estate to pay the
entire award and because Hays did not timely appeal the court's judgment
assessing fees against his estate, we affirm the trial court's February 1 order and
award costs and reasonable attorney fees incurred on appeal to Castilleja upon
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NO. 68419-1-1/23
her compliance with applicable court rules. Because Hays fails to meet RAP
9.11(a)'s requirements, we deny his motion to supplement the record.
jL*caLo&. c ••
WE CONCUR:
^ck>f vjL G CTy^L a
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