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2013 OCT -I AM 9=
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STATE Or WASHiNGTM
BY
UT`
s
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RACHEL MARGUERITE ANDERSON No. 43280 3 II
- -
formerly RACHEL M.RODGERS),
Appellant,
ME
WILLIAM L. .DUSSAULT and JANE DOE
E PUBLISHED OPINION
DUSSAULT, husband and wife, and the
marital community composed thereof,
BARBARA J. BYRAM and JOHN DOE
BYRAM, wife and husband, and the marital
community composed thereof; YEVGENY
JACK BERNER and JANE DOE BERNER,
husband and wife, and the marital community
composed thereof, WILLIAM L. .E
DUSSAULT, PS, a Washington professional
service corporation; the DUSSAULT LAW
GROUP, a Washington corporation;
RICHARD MICHAEL McMENAMIN and
SHARI L.McMENAMIN, husband and wife,
and the marital community composed thereof;
McMENAMIN & McMENAMIN PS, a
Washington professional service corporation;
and WELLS FARGO BANK,N. ., foreign
Aa
corporation,
Respondents,
No. 43280 3 II
- -
ANDREA DAVEY (ka ANDREA
f
RODGERS) and JOHN DOE DAVEY,
husband and wife, and the marital community
composed thereof,
Defendants.
BRINTNALL, J.
QUINN- -- Shortly before her 21 st birthday, Rachel Anderson brought suit
against a host of defendants she believed mismanaged the "special needs" trust established for
her when she was injured as a minor.' In her complaint, Anderson alleged that the two members
of the " trust advisory committee" — mother Andrea Davey, and attorney Richard
her
McMenamin and the trustee, Wells Fargo Bank, N. .,
— A breached their fiduciary duties by
approving trust disbursements contrary to the spirit of the trust. Anderson also alleged that
William Dussault, the attorney hired by Wells Fargo to submit annual reports for court approval,
committed legal malpractice.
McMenamin, Dussault, and Wells Fargo all moved for summary judgment, arguing, inter
alia, that Anderson's claims were barred by the Trustees' Accounting Act, ch. 11. 06 RCW, res
1
judicata, or judicial estoppel. Alternatively, each defendant argued that the trust's express
language allowed for the disbursements in question and Anderson's claims failed, as a matter of
42 U. .
C.
S 4)(allows for the creation of "
1396p(
§ d)( A) special needs" trusts for disabled
individuals under the age of 65. Payments made from such a trust are not considered income and
the trust corpus is not considered a resource available to the trust beneficiary (for purposes of
taxation or social services eligibility) so long as "the State will receive all amounts remaining in
the trust upon the death of such individual up to an amount equal to the total medical assistance
paid on behalf of the individual under a State plan."42 C.
U. .
S 4)(Here, because
1396p(
§ d)(
A).
both parties refer to the trust as a "special needs" trust, we do not analyze whether this trust in
fact satisfies the stringent requirements of 42 U. . 1396p(
C. 4)(
S § d)(
A).
2
As
explained more fully below, Davey (formerly "Andrea Rodgers ") is not a parry to this
appeal.
0)
J
No. 43280 3 II
- -
law, to establish breach of fiduciary or legal duties. Without explaining its rationale, the trial
court granted summary judgment to McMenamin, Dussault, and Wells Fargo. Anderson now
appeals, arguing that (1) Trustees' Accounting Act does not apply to her trust and does not
the
bar her claims, 2)
( neither res judicata nor judicial estoppel bar her claims, 3) terms of the
( the
trust do not bar her claims, and (4) presented enough evidence concerning the disbursements
she
in question to warrant surviving summary judgment in light of disputed material facts. Because
the Trustees' Accounting Act bars Anderson's claims, we affirm.
FACTS
BACKGROUND
In November 1996, shortly after her sixth birthday, Anderson (formerly "Rachel M.
Rodgers ") was kicked in the face by a horse. Anderson "sustained major skull and facial
damage"from the injury, required extensive surgery, and suffered substantial "psychological and
emotional impact." 3 Clerk's Papers ( CP) at 477. Anderson's family hired attorney
McMenamin to settle her case and to that end, McMenamin retained attorney Dussault to prepare
a trust in which to place the settlement proceeds. The trust was designed to "supplement all
other financial and service benefits to which [Anderson] might be eligible as a result of her
disability."3 CP at 478.
3
On May 4, 2012, the trial court entered an order decreeing that Anderson's claims are
"
dismissed in their entirety with prejudice." Clerk's Papers (CP) at 512. Although Anderson
characterizes the dismissal of claims against the defendants other than McMenamin, Dussault,
and Wells Fargo— especially the dismissal of her claims against Daveyas an error potentially
— "
needing to be corrected nunc pro tunc," dismissal order itself appears clear on its face. Reply
the
Br. of Appellant at 32. The order distinguishes "[ t] defendants defending separately,
hose
Dussault, Wells Fargo and McMenamin" and awards them attorney fees; moreover, the order's
caption states that it is a "Judgment for All Defendants."CP at 512. Anderson has not appealed
the dismissal order. I
3
No. 43280 3 II
- -
On August 25, 1997, Clallam County Superior Court approved the settlement agreement
and the parties' creation of the "
Rachel Marguerite Rodgers Trust. " The trust agreement made
Wells Fargo the trustee and established a trust advisory TAC "), consisting
committee ( " of
McMenamin and Davey. The agreement gave the TAC "absolute and unfettered discretion to
determine when and if Anderson] needs regular and extra supportive services."3 CP at 482.
[
The explicit language of the trust agreement explained that the trust was designed to
provide extra and supplemental medical, health, and nursing care, dental care,
developmental services, support, maintenance, education, rehabilitation, therapies,
devices, recreation, social opportunities, assistive devices, advocacy, legal
services, respite care, personal attendant care, income and other tax liabilities, and
consultant services for [Anderson]. To this end, the [TAC] may provide such
resources and experiences as will contribute to and make the beneficiary's life as
pleasant, comfortable and happy as feasible. Nothing herein shall preclude the
TAC] from purchasing those services and items which promote the beneficiary's
happiness, welfare and development, including but not limited to vacation and
recreation trips away from places of residence, expenses for a traveling
companion if requested or necessary, entertainment expenses, and transportation
costs.
3 CP at 481 82. The agreement also provided that the "Trustee shall make an annual statement
-
of transactions and assets concerning all financial and investment activity undertaken on behalf
of the Trust"to be delivered to Anderson, any court-
appointed representative of Anderson, and
the members of the TAC. 3 CP at 493.
4
Special Proceedings Rule (SPR) 98. 6W normally governs approval of settlements involving
1
minors. Anderson does not argue that the parties failed to follow the procedures of SPR 98. 6W
1
and, accordingly, we do not further address this issue.
0
No. 43280 3 II
- -
The trust was initially funded with settlement proceeds amounting to $187, 60.
66.1
Wells Fargo hired Dussault to prepare its annual reports for court approval. Dussault filed his
first report to the court on January 25, 2000. The first report detailed all investment activities
and trust disbursements between the trust's establishment date (August 25, 1997)and August 31,
1999. Among other expenses, the report stated that trust funds were used for " ehicle expenses
v
in the total of $ 4, 59. including the "purchase of a 1997 Mercury Tracer." 2 CP at 351.
98"
1 1
The superior court approved the report in its entirety. Dussault submitted the second report on
February 12, 2001, which covered "all financial activity" from September 1, 1999 through
August 31, 2000. 2 CP at 356. This report stated that "[
d] isbursements from the Trust were in
the total amount of 41, 61.and included the "purchase of real estate." 2 CP at 356. The
86"
$ 4
superior court also approved this report in its entirety.
On August 27, 2001, attorney Carl Gay (who represents Anderson in the current matter)
sent a letter to Davey, Dussault, Wells Fargo, and McMenamin. The letter stated, in part,
This letter will advise that I represent Ken Chace III and Janet Gesualdi,
respectively the biological father and maternal grandmother Anderson]. At
of [
their request, I have recently had the opportunity to review the court file in the
referenced matter. Based upon a review of recent accountings filed with the
court, my clients are concerned that [Anderson]'
s trust funds have not been fully
and properly invested and it would appear numerous disbursements of trust funds
have been made in violation of the letter and spirit of the trust agreement.
Improper distributions include use of trust funds to purchase real estate which
purportedly is not held in the name of the trust, purchase of a vehicle (and
payment of related expenses), and use of trust monies to discharge certain
parental financial obligations which are the responsibility of Anderson]'
[ s mother.
5
The negotiated settlement was for $ 00, 00. The funded amount constituted the remainder of
3 0
the settlement after court- approved "costs, liens, subrogations, parents' claims, and attorney's
fees."3 CP at 476. According to the chart of Anderson's own expert, as of August 2007, before
the trust started paying for Anderson's post secondary education," trust had a market value
" the
of 197, 45. 1 CP at 26.
28.
$ 0
5
No. 43280 3 II
- -
2 CP at 360. The letter further stated that "[ n the event these issues are not resolved to the
i]
satisfaction of my clients, they are prepared to file a petition to intervene in this matter and seek
a more focused judicial scrutiny of the trustees' actions."2 CP at 361.
Dussault responded to Gay's letter on September 6. He told Gay that the trust was
currently resolving" the issue of the "purchase of an interest in a residence" and that he would
provide you and your clients with additional information concerning the trust's interest in the
real property in the near future. " 2 CP at 362. Dussault also pointed out that "[ ]
other
expense[s] incurred for travel expenses specifically for [Anderson]'
were s doctors' appointments
and for purchase of a computer and software for her." CP at 362. Gay did not respond to this
2
letter.
On' February 7, 2002, Dussault again wrote Gay explaining that he was "ready to present
for approval the September 1, 2000 through August 31, 2001 Annual Report" to the superior
court. 2 CP at 364. Dussault included a copy of the proposed report for Gay to examine. Gay
responded five days later expressing concerns over (1)the purchase of real property; (2)
reimbursement of "funds for expenses which would otherwise be considered the financial
support obligation of the custodial parent,"
including computer costs, vehicle costs, and funds
related to 3)certain attorney fees;
birthday presents; ( and (4)trustees' fees. 2 CP at 366.
Dussault delayed presenting the report for court approval while he "attempted to address Mr.
Gay's concerns." 2 CP at 347. In July of 2002, McMenamin resigned from his voluntary
6
The trust later established its 31 percent interest in the real estate in question by statutory
warranty deed. The home was sold in 2005 and, at that time, the Trust received $ 135, a net
49,
profit after closing costs of 26 percent.
No.43280 3 II
- -
position as a member of the TAC "when it became apparent that there were ongoing problems
with the disgruntled non -custodian parent ([
Anderson's]
father)." CP at 288.
2
On December 6, 2002, Dussault submitted a two year report for approval by the superior
-
court. The report covered all financial activity undertaken by the trust between September 2000
and August 2002. The report noted that the "members of the TAC wish to dissolve the TAC and
have the trustee assume all the functions designated to [the] TAC pursuant to the terms of the
Trust."2 CP at 372. The parties, including Gay, were notified that the trial court would hold a
hearing related to the trustee report on July 11, 2003. Neither Gay nor his clients, Anderson's
father and grandmother, appeared at the hearing. At the hearing, after "having heard the
presentation of counsel, and] having considered the files and records"related to the report, the
[
superior court approved Dussault's report. 2 CP at 375. Additionally, the superior court
dissolved the TAC and assigned Wells Fargo as the trustee "to carry out all of the duties of the
TAC under the terms of the Trust Agreement." 2 CP at 375. The trial court's approval of the
report was not appealed.
From December 23, 2003 to December 4, 2009, the trial court approved four additional
reports, none of which were objected to by any interested party. The last such report was
approved by the superior court on December 4, 2009, when Anderson was 19 years old. The
superior court requested that the next report be filed toward the end of 2011.
PROCEDURE
On July 22, 2011, a few days before her 21st birthday, Gay (now acting on Anderson's
behalf)filed a complaint against Davey, McMenamin, Dussault, Wells Fargo, and others alleging
t] defendants, and each of them, failed to discharge their fiduciary and other legal duties to
he
Anderson] as the beneficiary of the trust."3 CP at 474. Gay attached a letter from R. Duane
7
No.43280 3 II
- -
Wolfe, a certified public accountant, to the complaint. Wolfe's letter stated that in his opinion,
Anderson's trust should be reimbursed for (1)the cost of a vehicle purchased by the trust and
used by Davey to drive Anderson to doctor's appointments, 2)
( costs associated with computer
related expenses, ( )lost rental income from a house the trust purchased a partial interest in
3
where Anderson and Davey resided at one point), ( 1, in reimbursements paid to Davey,
4) $00
5
and (5)certain trustee and legal fees. With interest, Wolfe estimated that $ 873 should be
56,
restored to the trust.
McMenamin, Dussault, and Wells Fargo all brought motions for summary judgment.
McMenamin argued that Anderson's claims were barred by the Trustees' Accounting Act,res
judicata,judicial estoppel, and the doctrine of judicial immunity. McMenamin also argued that
if Anderson's claims were not barred, he acted in accord with the trust's express terms and,
accordingly, Anderson could not establish breach of legal or fiduciary duties. Dussault argued
that as the attorney hired by Wells Fargo solely to prepare annual reports for court approval, he
had no legal or fiduciary duties to Anderson. Alternatively, Dussault argued that the Trustees'
Accounting Act, res judicata, and judicial estoppel barred Anderson's claims. Wells Fargo
argued that Anderson could not establish breach of fiduciary duties because it acted in accord
with the trust's express terms. Wells Fargo also argued that the Trustees' Accounting Act and
res judicata barred Anderson's claims.
7 The Trustees' Accounting Act, discussed more fully below, requires that after a court has either
approved or disapproved of a submitted trust accounting, that decree is subject only to a right of
appeal and when the time to appeal expires, the accounting becomes "` inal, conclusive, and
f
binding' on all interested parties, even `incompetent, unborn, and unascertained beneficiaries."'
Barovic v. Pemberton, 128 Wn. App. 196, 201, 114 P. d 1230 ( 2005) quoting RCW
3 (
080)).
11. 06.
1
N.
No. 43280 3 II
- -
In response to the summary judgment motions, Gay submitted declarations from
Anderson, her father, and her maternal grandmother, all alleging that Davey periodically
committed fraud in obtaining reimbursements from the trust. Gay also submitted a declaration
from an attorney opining on the standard of care owed by an " ttorney representing a trustee for
a
a minor beneficiary."1 CP at 141. In addition, Gay argued in his reply brief that
t] case presents factual disputes whether disbursements from [Anderson]'
his s
trust fund benefitted [her], [Davey] or others, in accordance with the trust
not
agreement. There are factual disputes whether [Davey] and Mr. McMenamin
fulfilled their fiduciary roles, as members of the [TAC], ensuring [Anderson]'
in s
trust funds were disbursed in accordance with the trust agreement or whether they
were negligent in allowing those expenditures. There are factual disputes whether
Wells Fargo Bank and its legal counsel fulfilled their fiduciary and legal duties, as
trustee and lawyers, in ensuring [ Anderson]'
s trust funds were disbursed in
accordance with the trust agreement. There are factual disputes whether
Anderson] has suffered a financial loss as a consequence of those duties being
breached.
1 CP at 88. Gay also argued that the Trustees' Accounting Act did not apply to the trust, and that
res judicata and judicial estoppel did not bar the claims.
On March 1, 2012, after considering the parties' briefing, declarations, other evidence,
and oral argument, the trial court granted summary judgment to Wells Fargo, McMenamin, and
Dussault. Anderson appeals the order granting summary judgment.
DISCUSSION
STANDARD OF REVIEW
We review a trial court's summary judgments de novo. Torgerson v. One Lincoln Tower,
LLC, 166 Wn. d 510, 517, 210 P. d 318 (2009).Summary judgment is appropriate only if the
2 3
pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine
8
Anderson never amended her complaint to allege fraud as required by CR 9( ).
b
0
No. 43280 3 II
- -
issues of material fact, and the moving party is entitled to judgment as a matter of law. CR
56( ). material fact is one on which the outcome of the litigation depends in whole or in part.
c A
Atherton Condo. Apartment-Owners Assn Bd. ofDirs. v. Blume Dev. Co.,115 Wn. d 506, 516,
2
799 P. d 250 (
2 1990).
In a summary judgment motion, the moving party bears the initial burden of showing the
absence of an issue of material fact. See, e. .,
g LaPlante v. State, 85 Wn. d 154, 158, 531 P. d
2 2
299 (1975).If the moving party is a defendant and meets this initial showing, then the inquiry
"
shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff
fails to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial,'then the trial court
should grant the motion."Young v. Key Pharm.,Inc., Wn.2d 216, 225, 770 P. d 182 (1989)
112 2
footnote omitted) quoting Celotex Corp. v. Catrett, 477 U. . 317, 322, 106 S. Ct. 2548, 91 L.
( S
Ed. 2d 265 (1986)). nonmoving party may not rest upon mere allegations or denials during
The
this burden shifting process. Hiatt v. Walker Chevrolet Co.,120 Wn. d 57, 66, 837 P. d 618
2 2
1992).A]
"[ complete failure of proof concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial." Celotex, 477 U. . at 323. In addition, we
S
interpret statutes de novo. Port of Seattle v. Pollution Control Hearings Bd.,151 Wn. d 568,
2
587, 90 P. d 659 (2004).
3
TRUSTEES' ACCOUNTING ACT
Wells Fargo, Dussault, and McMenamin all argue that Washington's Trustees'
Accounting Act bars Anderson's claims and, accordingly, the trial court's summary judgment
should be affirmed. Because the Trustees' Accounting Act applies to Anderson's special
"
10
No. 43280 3 II
- -
needs" trust, we agree. Moreover, because this issue is dispositive, we do not address
Anderson's remaining arguments.
Under ch. 11. 06 RCW, Washington's Trustees' Accounting Act, a trustee like Wells
1
Fargo may
file in the superior court of the county in which the trustees or one of the trustees
resides an intermediate account under oath showing:
1) period covered by the account;
The
2)The total principal with which the trustee is chargeable according to
the last preceding account or the inventory if there is no preceding account;
3)An itemized statement of all principal funds received and disbursed
during such period;
4)An itemized statement of all income received and disbursed during
such period, unless waived;
5)The balance of such principal and income remaining at the close of
such period and how invested;
6) The names and addresses of all living beneficiaries, including
contingent beneficiaries, of the trust, and a statement as to any such beneficiary
known to be under legal disability;
7) description of any possible unborn or unascertained beneficiary and
A
his or her interest in the trust fund.
After the time for termination of the trust has arrived, the trustee or
trustees may also file a final account in similar manner.
RCW 11. 06.
030.
1
If a trustee has filed such an intermediate accounting, the Act requires the superior court
to determine the validity and accuracy of the accounting:
Upon the return date or at some later date fixed by the court if so requested by one
or more of the parties, the court without the intervention of a jury and after
hearing all the evidence submitted shall determine the correctness of the account
and the validity and propriety of all actions of the trustee or trustees set forth in
the account including the purchase, retention, and disposition of any of the
property and funds of the trust, and shall render its decree either approving or
disapproving the account or any part of it,and surcharging the trustee or trustees
for all losses, if any, caused by negligent or wilful breaches of trust.
RCW 11. 06.
070.
1
11
No.43280 3 II
- -
And if the superior court enters such a decree, it " hall be deemed final, conclusive, and
s
binding upon all the parties interested including all incompetent, unborn, and unascertained
beneficiaries of the trust. ".RCW 080 (
11. 06. emphasis added). As this court stated in Barovic
1
v. Pemberton, 128 Wn. App. 196, 201, 114 P. d 1230 (2005),the statutory language is
3 "
unambiguous." The trial court "must either approve or disapprove the accounting" and must
surcharge the trustee for losses caused by negligence or willful breach. Barovic, 128 Wn. App.
at 201. However, after the trial court's decree is final and the time to appeal expires, a
complaining party in interest relinquishes his or her right to recover losses, even losses from
willful or negligent breaches of trust. Barovic, 128 Wn. App. at 201 02.
-
Here, Anderson admits that the court-
approved report from December 23, 2003 a report
—
filed and approved more than seven years before Anderson brought this lawsuit —involves "the
final year of accounting for which [she] now presents a challenge."Reply Br. of Appellant at 12
n. . She fails to explain why the applicable statutes of limitations should have tolled during the
3
years of her incompetency. Instead, she argues that the Trustees' Accounting Act does not
9
The Act states that "any party in interest may appeal" the decree rendered under RCW
070 "
11. 06. as in civil actions to the supreme court or the court of appeals of the state of
1
Washington."RCW 11. 06.
090.
1
10
Indeed, under the plain language of the statute, the statute of limitations would not toll for an
incompetent trust beneficiary like Anderson. Waste Mgmt. of Seattle, Inc. v. Utils. & Transp.
Comm'n, Wn. d 621, 629, 869 P. d 1034 (1994) ( "[ here a statute is unambiguous, we
123 2 2 W]
will determine the Legislature's intent from the language of the statute alone. "). Anderson
argues that her "underlying claims against the respondents for breach of legal and fiduciary
duties were being quietly tolled under the applicable statutes of limitations"when discussing the
doctrine of res judicata. Reply Br. of Appellant at 18. But she provides no citation to authority
for this proposition and fails to explain which statutes of limitations are applicable to her claims.
The statutes of limitation for breach of fiduciary duty or legal malpractice claims are both
three years. See RCW 11. 6A.Huff v. Roach, 125 Wn. App. 724, 729, 106 P. d 268
a);
070(
1)(
9 3
citing RCW 4.6.review denied,
080(
3
1 )), 155 Wn. d 1023 ( 2005). Anderson
2 appears to be
arguing that a claim for breach of fiduciary duty or legal malpractice may be brought outside the
12
No. 43280 3 II
- -
apply to her trust or, alternatively, that " trial court's approval of a trustees' report is not binding
a
on a minor beneficiary for which a guardian ad litem (`
GAL') not appointed."Reply Br. of
was
Appellant at 14. Anderson misinterprets the Act in both instances.
At the time the superior court adjudicated Anderson's claim, the first section of the Act
stated, in part, This chapter does not apply to resulting trusts, constructive trusts [or] trusts
"
created by judgment or decree of a federal court or of the superior court when not sitting in
probate. " Former RCW 11. 06. 1985). As
010 (
1 the Washington Supreme Court explained
nearly 90 years ago,
W]ere a trust arises by an express contract or agreement between the parties, it
h
is an express trust, and under practically all authorities implied, constructive, and
resulting trusts are those which do not arise out of a contract between the parties
providing for the trust, but arise by operation of law.
In Re Weir's Estate, 134 Wash. 560, 566, 236 P. 285 (1925).
According to Anderson, the Act does not apply to her trust because her trust was created
by "judgment or decree" of a superior court when not sitting in probate and, accordingly, is a
resulting or constructive trust that has arisen by operation of law. We disagree. This assertion
framework of the Trustees' Accounting In her reply brief she argues that her "current
Act.
lawsuit is not an action seeking to undo the court's serial approvals of Wells Fargo's annual
statements prior to [ Anderson] becoming an adult." Reply Br. of Appellant at 18. But this
contention runs contrary to the purpose of the Act itself. establishing the finality of intermediate,
approved trust
court- accountings. Anderson has provided no authority for this unpersuasive
argument.
11
During the pendency of this appeal, the legislature removed the phrase "trusts created by
judgment or decree of a federal court or of the superior court when not sitting in probate"from
RCW 11. 06. LAWS
010.
1 of 2013, ch. 272, § 25. Pursuant to section 28( )of the same
2 *
legislation, the amended version of RCW 11. 06. applies only to "judicial proceedings
010
1
concerning trusts commenced on or after January 1, 2013."LAWS of 2013, ch. 272, § 28( ).
2 As
the superior court decided this case on March 1, 2012, the amended version of the statute is
inapplicable to this case and we address the merits of Anderson's claim based on the former
version of RCW 11. 06.
010.
1
13
No. 43280 3 II
- -
mischaracterizes the record. The superior court here did not "create" Anderson's trust by
judgment or decree. Instead, it merely approved an express trust intentionally created by
12
agreement of the parties to Anderson's original lawsuit. And while no Washington court has
previously addressed whether an express "special needs" trust falls within the scope of the
Trustees' Accounting Act, Anderson provides no cogent argument for why the Act should not
apply to such a trust. We hold that the Act applies.
Alternatively, Anderson argues that because the superior court failed to appoint a
guardian ad litem to represent her interests, the court's final decrees approving each report are
not binding on her. We disagree; nothing in the Act requires appointment of a guardian ad litem.
RCW 11. 06. states that when a trustee seeks court approval of an intermediate
060
1
accounting, "[ he court shall appoint guardians ad litem as provided in RCW 11. 6A.
t] 160."
9
Anderson argues that this statute imparts to the trial court a mandatory duty to appoint a guardian
ad litem based on the word "shall" in the opening clause of the statute. " We construe the
meaning of a statute by reading it in its entirety."Fed. Way Sch. Dist. No. 210 v. Vinson, 172
Wn. d 756, 765, 261 P. d 145 ( 2011). A
2 3 reasonable interpretation of a statute "must, at a
minimum, account for all the words in [the] statute."Five Corners Family Farmers v. State, 173
Wn. d 296, 312, 268 P. d 892 ( 2011).
2 3 Accordingly, a reasonable interpretation of RCW
12
Anderson's opening brief characterizes the court's approval of the trust in these same terms:
Respondent Richard McMenamin ... was hired by [Anderson's] family to pursue a personal
injury claim against the owners of the horse and on August 25, 1997 ... the trial court approved
s settlement for [ Anderson] in the amount of $
a minor' 300, 00. CP 286. In conjunction
0
therewith, the court also approved the establishment of a special needs trust."Br. of Appellant at
4 ( emphasis added). Anderson only argues that the superior court "created" rather than
(
approved) her "special needs"trust in her reply brief in response to the defendants' claims that
the Trustees' Accounting Act bars her claims.
14
No. 43280 3 II
- -
060
11. 06.requires determining what RCW 11. 6A.provides. And contrary to Anderson's
1 160
9
assertions of a mandatory duty, RCW 11. 6A.states that
160(
1)
9
t] court, upon its own motion or upon request of one or more of the parties, at
he
any stage of a judicial proceeding or at any time in a nonjudicial resolution
procedure, may appoint a guardian ad litem to represent the interests of a minor,
incapacitated, unborn, or unascertained person, person whose identity or address
is unknown, or a designated class of persons who are not ascertained or are not in
being. If not precluded by a conflict of interest, a guardian ad litem may be
appointed to represent several persons or interests.
Emphasis added.) Under the plain language of the statute, the trial court has the discretion to
appoint a guardian ad litem—
nothing in the statute (or the Trustees' Accounting Act) makes
such an appointment mandatory.
Anderson fails to show how the trial court's final decrees approving each trust report
should not be binding on her. Nor has Anderson explained how the judicial oversight of each
intermediate accounting submitted to, and approved by, the superior court provided her
inadequate notice or protection when she was incompetent to assess the performance of her own
trust. We hold that the Trustees' Accounting Act bars Anderson's claims and the trial court
properly granted Dussault, Wells Fargo, and McMenamin summary judgment. Moreover,
because this issue is dispositive, we do not address the parties' other claims. We affirm the trial
court.
ATTORNEY FEES
Dussault and Wells Fargo both request reasonable costs and attorney fees pursuant to
1 and the
RAP 18. Washington Trust and Estate Dispute Resolution Act ( TEDRA "),ch. 11. 6A
" 9
RCW. TEDRA provides,
Either the superior court or any court on 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
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No. 43280 3 II
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proceedings .. .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.
RCW 11. 6A.
150(
1).
9
As Anderson's claims against Dussault and Wells Fargo lack merit, we grant their request
for costs and attorney fees in an amount to be determined by our commissioner. RAP 18. (
f).
1
QUINN-
BRINTNALL, J.
We concur:
Al
f f
J.
A. .
C
J014A
DALTON, J. .
T.
P
16