In the Matter of the Estate of: Lawrence D. Goldberg

FILED
NOVEMBER 4, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

In the Matter of the Estate of )
) No. 37986-8-III
LAWRENCE D. GOLDBERG. )
)
) UNPUBLISHED OPINION
)

SIDDOWAY, J. — Following a one-day evidentiary hearing of a TEDRA1 petition

challenging the validity of a will allegedly executed by Lawrence D. Goldberg, the trial

court found it had not been executed in accordance with required formalities and was

invalid.

Jennifer Allen, the sole beneficiary and designated personal representative under

the will, appeals. She reprises an argument she made for the first time four months after

trial: that evidence of unsworn statements by the only surviving individual who allegedly

witnessed the will, on which the trial court relied, could be considered only for

impeachment. The result, she argues, is that the evidence is insufficient to support the

trial court’s findings. As ruled by the trial court when the argument was raised, an

objection that the evidence was hearsay and admissible only for impeachment purposes

was waived. For that reason, and because any error in other factual findings she

1
Trust and Estate Dispute Resolution Act, chapter 11.96A RCW.
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challenges are immaterial, the trial court’s order invalidating the December 2014 will is

affirmed.

FACTS AND PROCEDURAL BACKGROUND

Lawrence D. Goldberg died on September 22, 2018. Several weeks later, Rachael

Goldberg, Dr. Goldberg’s daughter, filed a petition for letters of administration and for an

order granting nonintervention powers. Her petition alleged on information and belief

that Dr. Goldberg died intestate. It alleged that he was survived by three children:

herself, and two surviving sons. Letters of administration were entered on October 12.

Less than two weeks later, Jennifer Allen moved the probate court to revoke the

letters of administration based on a will that she alleged Dr. Goldberg executed several

years earlier, on December 18, 2014. Her declaration in support of the motion stated she

had known Dr. Goldberg for approximately nine years, and the two were roommates for

three and a half years. The will, which she filed, expressly disinherited Dr. Goldberg’s

two sons, but made no mention of Rachael. Ms. Allen questioned whether Rachael was

Mr. Goldberg’s daughter, stating that Mr. Goldberg never told her he had a daughter.

The will filed by Ms. Allen was witnessed by Tracy Potter and Betty Jo Potter,

who lived near Ms. Allen. Betty Jo was Tracy Potter’s elderly mother. The Potters lived

together on acreage where they boarded horses. Ms. Allen boarded horses at the Potters’

property.

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The will was not self-proved by an affidavit signed at the time of its execution. To

address that deficiency, Ms. Allen obtained a two-page declaration from the Potters after

Dr. Goldberg’s death. The Potters signed this supplemental declaration the day before

Ms. Allen filed it with the court. The supplemental declaration states that on the

December 18, 2014 date of “the attached will of Lawrence David Goldberg” the Potters

were present when Dr. Goldberg signed the will and asked that they act as witnesses, and

they signed the will as witnesses at that time. Clerk’s Papers (CP) at 37. No will was

attached to the supplemental declaration.

One of Mr. Goldberg’s sons, Cole Goldberg, objected to Ms. Allen’s motion and

sought appointment as a co-personal representative with his sister. He also filed a

TEDRA action.

The trial court admitted the December 2014 will to probate shortly after Ms. Allen

filed it, but its order interlineated a notation that the will was being admitted as Mr.

Goldberg’s “presumptive” last will and testament. CP at 132. The court appointed a

professional fiduciary to serve as personal representative rather than Ms. Allen. It

entered a preliminary injunction freezing the assets of Mr. Goldberg’s estate.

The parties stipulated to consolidate the TEDRA action with the probate. In a first

amended TEDRA petition filed in March 2019, Rachael and Cole Goldberg contested the

validity of the will, alleging (1) it failed to comply with the requirements of RCW

11.12.020, (2) fraud, (3) lack of testamentary capacity, (4) the will was the product of

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Ms. Allen’s undue influence, and (4) Ms. Allen engaged in the unauthorized practice of

law.

Before the Goldbergs filed the amended TEDRA petition, their lawyers had hired

a private investigator, John Visser, to interview the Potters about their involvement in the

execution of the will and the supplemental declaration. On an afternoon in January 2019,

Mr. Visser traveled to the Potter residence, where Tracy Potter answered the front door.

According to Mr. Visser, he told Mr. Potter who he was, that he was working for the

Goldbergs, and that he wanted to ask Mr. Potter and his mother to verify documents

signed in 2014 and determine whether Dr. Goldberg was present when they were signed.

Mr. Potter agreed to speak with Mr. Visser but said his mother was medicated for a recent

hip injury and would not be able to answer his questions.

Because Ms. Potter was resting, the two men stepped outside to talk. Mr. Visser

used the trunk of his car as a makeshift desk, on which he placed his laptop in order to

show Mr. Potter copies of the will and the signed page of the declaration completed after

Mr. Goldberg’s death. He would later describe Mr. Potter as “very friendly and very nice

and cooperative . . . there was no objections to chatting with me in any way.” Report of

Proceedings (RP) (Trial) 2 at 59.

2
Several separately paginated reports of proceedings are included in the record on
appeal. The report of the evidentiary hearing is referred to as “RP (Trial).” The reports
of posttrial hearings are identified by the hearing date.

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With Mr. Potter’s permission, the interview was recorded using Mr. Visser’s

telephone, and a transcript of the interview was later admitted by stipulation at the

TEDRA hearing. It reflects the following questions and answers about Mr. Potter’s

signature witnessing the will:

[MR. VISSER]: I’m out here with Tracy Potter. Tracy Potter’s outside
with me looking at some signature that’s a testation clause that indicates
something about a last will and testament. And it’s a signature that has
Tracy’s signature and Betty’s signature.
MR. POTTER: Yeah.
....
MR. VISSER: Did you sign that?
MR. POTTER: Yes.
MR. VISSER: Who brought you this form to sign?
MR. POTTER: Jennifer.

Ex. 4 (interview transcript), at 2-3.

Moments into the interview, Ms. Allen and her husband arrived at the Potter

residence, saw Mr. Visser speaking with Mr. Potter, and parked behind Mr. Visser’s car.

Mr. Potter later explained to Mr. Visser that Ms. Allen came to the property daily to take

care of her horse. At the TEDRA hearing, Mr. Visser described Ms. Allen’s demeanor

when she disembarked from the car and approached the men as anxious and annoyed.

She questioned Mr. Visser about who he was and why he was speaking to Mr. Potter.

When Mr. Visser identified himself as an investigator and said, “[I]t’s . . . probably not

appropriate for you guys to stand here while I’m talking to him about something that has

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to do with this whole case,” Ms. Allen protested that Mr. Potter had already been to court

and had told the Goldbergs’ lawyers what he knew. Ex. 4, at 5. But she and her husband

acceded to Mr. Visser’s request for privacy and left for the horse barn down the hill.

Mr. Visser continued to ask Mr. Potter questions and Mr. Potter continued to

affirm that it was Ms. Allen who asked him and his mother to sign the will. During the

interview, Mr. Potter referred to Dr. Goldberg as “Larry.” Asked by Mr. Visser if he ever

had a conversation with Larry about his will, Mr. Potter answered, “No, not really,”

adding, “[H]e’d come around here once in a while and ride the horse.” Ex. 4, at 9-10.

Toward the end of the interview, Mr. Visser asked if Mr. Potter’s mother was likely to

remember “any of this stuff,” given her condition, and Mr. Potter answered, “Nope. I

can guarantee you, not really.” Ex. 4, at 18.

The interview ended after Mr. Potter was informed by Ms. Allen’s husband that

horses were loose. At that point, Mr. Visser had been questioning Mr. Potter about Dr.

Goldberg’s condition in the last years of his life, because Mr. Potter told him Ms. Allen

had served as Dr. Goldberg’s caregiver. Mr. Potter said that Dr. Goldberg seemed to be

coherent but “kept going downhill and downhill,” and had “quit coming down.” Ex. 4, at

12-13. Mr. Potter then left for the barn to deal with the errant horses.

Mr. Visser packed his things but before leaving he walked to where he could see

Mr. Potter at the barn and called to him, asking if he needed any help. Mr. Potter was

standing near Ms. Allen’s car, which was parked near the entry to the barn. Mr. Visser

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could hear that Mr. Potter was talking to someone who was inside the barn. When Mr.

Potter yelled back, “[W]e’re good, we’re fine,” Mr. Visser got in his car and drove away.

RP (Trial) at 65.

Within a few minutes of leaving, Mr. Visser’s phone rang, and it turned out to be

Mr. Potter. At the trial that took place several months later, Mr. Visser described their

conversation:

Mr. Potter . . . said hey, this is Tracy and had kind of informed me that he
remembered how things went now and he remembered that Mr. Goldberg
was in fact present when he had signed the document that I had showed him
and I asked him immediately if Jennifer Allen had talked to him at the
conclusion of my interview and he agreed that she had spoken to him and
reminded him that Mr. Goldberg was in fact present and I asked him if he
was speaking for himself or if he was speaking for someone else and he
was kind of firm about it and he said well, this—this is what I remember
and he said I’m fucked. I just fucked myself.

RP (Trial) at 66. Mr. Visser testified that he tried to calm Mr. Potter, who seemed “pretty

anxious.” Id. Mr. Visser testified that he asked Mr. Potter if he was feeling pressured or

manipulated, and Mr. Potter paused and “he just—he kept going back to well, I’m

gonna—I’m gonna come into court and I’m gonna testify to the fact that Mr. Goldberg

was there . . . .” RP (Trial) at 66-67.

Betty Jo Potter passed away the following month, without having been

interviewed or deposed about her involvement in witnessing the will and signing the

supplemental declaration.

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Mr. Potter was deposed by the Goldbergs’ lawyers a couple of days before the

TEDRA hearing. Ms. Allen and her husband drove Mr. Potter to the deposition.

During the deposition, Mr. Potter was presented with the will, which was marked

as exhibit 1, and the supplemental declaration, which was marked as exhibit 2. He was

asked to look at exhibit 2, and was asked where he was when he signed it; he answered

that he was at his house. Asked who was present when he signed exhibit 2, Mr. Potter

answered, “Me and my mother and Larry.” Ex. 3 (deposition transcript), at 19. The

questioning continued:

Q. Can you, please, look at Exhibit 2.
A. Yeah.
Q. Take your time.
A. Yeah, I looked at it.
Q. Okay. So you’re testifying that Larry was there when you signed the
document, that’s been marked as Exhibit 2?
A. Yeah.
Q. Okay. Who brought you the document that’s been marked as Exhibit 2?
A. Larry did.

Ex. 3, at 19-20.

The Goldbergs’ lawyer then turned his questioning to whether Mr. Potter talked to

Ms. Allen about Dr. Goldberg’s estate in 2018 or 2019. He had only asked one question

before Ms. Allen interjected:

[MS.] ALLEN: Tracy, you should put your glasses on.
[GOLDBERG LAWYER]: Stop. Okay. Inappropriate.

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[MS.] ALLEN: Okay. Well, he can’t read.
[MR. POTTER]: I can read.
[MS.] ALLEN: I mean, you’re trying to trick him.
[GOLDBERG LAWYER]: Okay. Can we take a break?
[MS.] ALLEN’S LAWYER]: No, you don’t need to.
[GOLDBERG LAWYER]: Okay. I’m going to ask you not to interrupt
when I’m asking questions.
[MS.] ALLEN: Whatever.
[GOLDBERG LAWYER]: You have to—
[MS.] ALLEN: You’re a fricken liar. And I know it.
[GOLDBERG LAWYER]: You have an attorney.
[MS.] ALLEN: You’re full of shit.
[MS.] ALLEN’S LAWYER]: Hey.
[GOLDBERG LAWYER]: You have an—
[MS.] ALLEN: I’m sorry. But I’m tired of this shit.
[MS. ALLEN’S LAWYER]: Hey, this is all—
[MS.] ALLEN: I am tired of this.
[MS. ALLEN’S LAWYER]: Jennifer, this is all on the record. Stop it.
[MS.] ALLEN: I don’t care. I’m tired of it.
[GOLDBERG LAWYER]: Yeah, let the record—
[MS.] ALLEN: These fuckers have been badgering me for months. Fuck
you. This is all true. This is bullshit. I don’t care if it’s on the record. It’s
true.
[MS. ALLEN’S LAWYER]: Stop.
[MS.] ALLEN: They deserve it.
THE WITNESS: Come on, Jennifer.
[MS.] ALLEN: Whatever. I’m turning you in to the bar. I don’t care.
This is fraud. I am sorry, but they have it coming.

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Ex. 3, at 20-21. After a bit more of this sort of exchange, the Goldbergs’ lawyer insisted

on taking a break.

When the deposition continued, Mr. Potter testified that when the will was brought

for the Potters to sign in December 2014, it was brought by Dr. Goldberg. But he also

testified twice more that when the supplemental declaration was brought for the Potters to

sign, it, too, was signed in Dr. Goldberg’s presence.

An evidentiary hearing was held a couple of days later. At the Goldbergs’ request,

and with Ms. Allen’s agreement, only the Goldbergs’ challenge that the will had not been

executed with the formalities required by RCW 11.12.020 was at issue. If that challenge

to the 2014 will was not dispositive, the parties agreed that additional discovery would be

conducted before trial of the remaining claims raised in the TEDRA petition.

The Goldbergs called Mr. Potter and Mr. Visser as witnesses. Mr. Visser testified

consistent with the facts recounted above. No objection was made when he testified

about statements made to him by Mr. Potter. His recorded interview was played during

his testimony without objection.

When questioned during the Goldbergs’ case, Mr. Potter testified it was Dr.

Goldberg who brought him and his mother the will in 2014 and was present when they

signed as witnesses. He testified it was Ms. Allen who brought the supplemental

declaration to the house for signature. (On the latter point, he was confronted with his

conflicting deposition testimony.) Mr. Potter testified that when presented with and

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asked by Ms. Allen to execute the supplemental declaration, he did not review anything

other than the declaration itself. Before the Goldbergs rested their case, the will, the 2018

declaration, the transcript of Mr. Potter’s deposition, and the transcript of his interview by

Mr. Visser were all admitted as exhibits without objection.

Ms. Allen called as witnesses Mr. Potter, her husband, and a former contractor

who offered little admissible testimony. She concluded by testifying on her own behalf.

When called as a witness in Ms. Allen’s case, Mr. Potter testified he had two

alcoholic beverages before his January 2019 interview by Mr. Visser but said he wasn’t

“shit-faced.” RP (Trial) at 80. He testified that given the passage of time, he had some

confusion about when the will was signed. Asked if Ms. Allen instructed Mr. Potter to

call Mr. Visser to correct statements made during his interview, Mr. Potter testified, “She

said it might be good.” RP (Trial) at 83. Asked if Mr. Visser “intimidate[d] you at all?,”

Mr. Potter answered yes, because “he’s a big guy.” RP (Trial) at 84. Mr. Visser had

formerly been in law enforcement, and when Mr. Potter was asked by Ms. Allen’s

lawyer, “[D]id you think he was still a deputy sheriff?,” Mr. Potter answered, “Yeah,

kind of. Yeah.” RP (Trial) at 84-85.

Ms. Allen’s husband testified that he interrupted Mr. Visser’s interview of Mr.

Potter because horses were loose, but the horses were “already caught up” when Mr.

Potter got to the barn. RP (Trial) at 91. He testified that Mr. Potter was “totally drunk”

the afternoon he was interviewed by Mr. Visser. Id. He acknowledged that he and Ms.

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Allen were present when Mr. Potter called Mr. Visser to correct what he had said when

interviewed. RP (Trial) at 92-93.

Ms. Allen testified she had nothing to do with the preparation of Dr. Goldberg’s

will and did not take it to the Potters to be signed.

At the conclusion of the hearing, the trial court took the matter under advisement.

It reconvened the parties a week later to deliver its oral ruling. It announced its

conclusion that the will was not executed in accordance with the required formalities

based on its finding that Dr. Goldberg was not the one who took the will to the Potters for

signature, so they did not witness its execution.

Ms. Allen timely moved for reconsideration, but without raising any issue of the

admissibility of Mr. Potter’s statements when interviewed. The Goldbergs filed proposed

findings of fact and conclusions of law and moved for an award of attorney fees and

costs.

A hearing on Ms. Allen’s motion for reconsideration, the proposed findings of fact

and conclusions of law, and the Goldbergs’ motion for attorney fees was held on June 5,

2019. After hearing argument from both sides on all issues, the trial court orally denied

reconsideration, identified changes to be made to the proposed findings and conclusions,

and took the attorney fee issue under advisement.

The final findings and conclusions and an order awarding attorney fees were noted

for presentment on August 9, 2019. After the trial court announced its attorney fee

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award, Ms. Allen’s lawyer informed the court that Ms. Allen wished to lodge a new

objection to the final proposed findings and conclusions. The lawyer explained, “I’ve

been made aware since our hearing that Potter’s statements to Visser and the recording

are hearsay under Evidence Rule 801.” RP (Aug. 9, 2019) at 6-7. He continued that

while the evidence was admissible as a prior inconsistent statement under ER 613, it “can

be used only for impeachment. It’s not substantive evidence.” RP (Aug. 9, 2019) at 7.

The trial court refused to modify any of its findings, explaining that because there

was no hearsay objection at the evidentiary hearing, “there is a waiver at that point.” RP

(Aug. 9, 2019) at 13. The court agreed that the interview “impeachment[-]wise totally

impeaches Mr. Potter. Mr. Potter did not have any credibility at all throughout his

testimony and that was shown in multiple ways.” Id.

Ms. Allen timely appealed. This Division Three panel considered the appeal

without oral argument after receiving an administrative transfer from Division Two.

ANALYSIS

Following a bench trial, appellate review is limited to determining whether

substantial evidence supports the trial court’s findings of fact and, if so, whether the

findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114

P.3d 699 (2005). “Substantial evidence” is evidence sufficient to persuade a fair-minded

person of the truth of the asserted premise. Id. The trial court’s resolution of witnesses’

differing accounts of events are entitled to great deference. State v. Harrington, 167

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Wn.2d 656, 662, 222 P.3d 92 (2009). Appeals courts treat unchallenged findings of facts

supported by substantial evidence as verities on appeal. Schmidt v. Cornerstone Invs.,

Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990). We review challenges to a trial court’s

conclusions of law de novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426

(2008).

I. MS. ALLEN’S CHALLENGE TO EVIDENCE SUFFICIENCY

The argument section of Ms. Allen’s opening brief is devoted almost entirely to

her challenge to the trial court’s findings, based on Mr. Potter’s statements when

interviewed, that it was Ms. Allen, not Dr. Goldberg, who brought the will to the Potters

and asked them to sign it as witnesses. Under RCW 11.12.020(1), “[e]very will . . . shall

be attested by two or more competent witnesses, by subscribing their names to the will,

or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of

the testator and at the testator’s direction or request.” (Emphasis added.) Once a will

has been admitted for probate, “RCW 11.24.030 provides that . . . the will is presumed to

be valid, and the burden is upon the contestants to prove the contrary by clear, cogent,

and convincing evidence.” In re Estate of Reilly, 78 Wn.2d 623, 656, 479 P.2d 1 (1970).

Ms. Allen argues that the evidence that she, not Dr. Goldberg, presented the will

for signature by the Potters was insufficient, because Mr. Potter’s unsworn statements to

that effect were hearsay, admissible only for impeachment. Hearsay is an out-of-court

statement offered in evidence to prove the truth of the matter asserted. ER 801(c). In

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general, hearsay evidence is inadmissible at trial. ER 802. However, “[a] witness may

be impeached with a prior out-of-court statement of a material fact that is inconsistent

with his testimony in court, even if such a statement would otherwise be inadmissible as

hearsay.” State v. Clinkenbeard, 130 Wn. App. 552, 569, 123 P.3d 872 (2005).

“Impeachment evidence affects the witness’s credibility but is not probative of the

substantive facts encompassed by the evidence.” Id.

Rulings on evidence are governed by ER 103, which provides that “[e]rror may

not be predicated upon a ruling which admits or excludes evidence unless a substantial

right of the party is affected, and . . . [i]n case the ruling is one admitting evidence, a

timely objection or motion to strike is made, stating the specific ground of objection, if

the specific ground was not apparent from the context.” ER 103(a)(1) (emphasis added).

Although ER 103 most often comes up in the context of evidentiary errors raised for the

first time on appeal, the same principle applies in the posttrial context, so the fact that

Ms. Allen’s belated evidentiary objection came up in a final hearing in the trial court does

not change the analysis. See 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE

LAW AND PRACTICE § 103.7, at 46 (6th ed. 2016); see also Estate of Stalkup v.

Vancouver Clinic, Inc., P.S., 145 Wn. App. 572, 584-85, 187 P.3d 291 (2008) (new trial

could not be granted on basis of defense expert failing to phrase testimony in terms of

reasonable medical certainty because plaintiff failed to object during trial).

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The rule is reasonable and, frankly, necessary to the effective conduct of trial. As

the trial court observed, parties frequently forego valid objections during trial for

strategic reasons. Their adversaries should be able to rely on evidence that is admitted

without objection, without concern that success at trial might be derailed by new

objections on appeal.

The legal authority Ms. Allen cites for the proposition that a motion for

reconsideration can preserve for appeal an issue or theory not raised at trial has no

application here.3 Those cases depend on a belatedly-raised issue or theory that is

supported by facts established at trial. Facts established at trial are those found by the

court and supported by unobjected-to evidence. In this case, the facts established at trial

include the substance of Mr. Potter’s statements that Ms. Allen, not Dr. Goldberg,

brought the December 2014 will to the Potters for signature. No belatedly-raised issue or

theory can change the evidence.

Because Ms. Allen failed to timely and specifically raise a hearsay objection at the

evidentiary hearing, she waived that objection for purposes of posttrial proceedings and

3
See Reply Br. of Appellant at 4-10 (citing Reitz v. Knight, 62 Wn. App. 575, 581
n.4, 814 P.2d 1212 (1991) (issue of adverse possession was preserved for appellate
review because appellant made extensive adverse possession arguments in his motion for
reconsideration based on evidence presented at trial); Newcomer v. Masini, 45 Wn. App.
284, 287, 724 P.2d 1122 (1986) (issue of subrogation was preserved for appellate review
because appellant, on reconsideration, expanded and refined details of an argument
already presented at trial).

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appeal. The trial court did not err in treating the evidence of Mr. Potter’s statements as

substantive. Mr. Potter was the only witness at the evidentiary hearing who claimed to

have knowledge of the circumstances under which the Potters signed the will. While

there was conflicting evidence of what those circumstances were according to Mr. Potter,

it was for the trial court to decide which evidence to believe. The court chose to believe

Mr. Potter’s statements to Mr. Visser, which is substantial evidence supporting its finding

by clear and convincing evidence that Dr. Goldberg was not present when the Potters

signed the will.

II. OTHER CHALLENGES TO THE TRIAL COURT’S FINDINGS

Ms. Allen makes assignments of error to 17 of the trial court’s findings of fact,

acknowledging that her assignments of error are all in support of her legal argument that

Mr. Potter’s statements could be considered only for impeachment. See Br. of Appellant

at 5-6.

Ten of the findings identified (findings 3.11, 3.13, 3.14, 3.17, 3.18, 3.19, 3.20,

3.25, 3.27, and conclusion 4.8) are assigned as error only, or mostly, because they rely on

evidence of Mr. Potter’s statements to Mr. Visser as substantive evidence or because the

trial court referred to Mr. Potter’s unsworn statements as “testimony.” Assignments of

error on the basis that Mr. Potter’s unsworn statements could not be relied on as

substantive evidence are rejected for the reasons set forth above.

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As for the challenge that Mr. Potter’s unsworn statements were sometimes referred

to in the findings as “testimony,” we observe that in announcing its oral decision the trial

court never referred to those statements as “testimony.” See RP (May 2, 2019) at 10-13.

It is clear from the trial court’s rejection of Ms. Allen’s belated hearsay challenge that it

understood Mr. Potter’s unsworn statements to Mr. Visser were only that, not testimony.

The erroneous “testimony” label was introduced by the Goldbergs’ proposed findings and

conclusions. See CP at 228-31. We reject the implication that by failing to correct that

label, the trial court erroneously viewed Mr. Potter’s unsworn interview as testimony.

Ms. Allen’s remaining assignments of error afford no basis for rejecting the trial

court’s decision invalidating the December 2014 will for the following reasons:

Finding 3.8. That Mr. Visser set his laptop on the trunk of the car rather than the

hood is immaterial. The remaining challenge to the finding does not identify error; it

merely identifies how Ms. Allen would weigh the evidence.

Finding 3.10. The evidence supports the finding that on the afternoon he

interviewed Mr. Potter, Mr. Visser asked Ms. Allen several times to move away. See Ex.

4, at 4-8. Her argument that two attempts to interrupt the interview cannot be

characterized as “repeated” is unpersuasive.

Finding 3.17. Insofar as Ms. Allen objects to this finding as reflecting Mr.

Visser’s interpretation of Mr. Potter’s statement that he “f[***]ed” up, no objection was

made to the question or answer at trial. See RP (Trial) at 66-67.

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Finding 3.18. Insofar as Ms. Allen objects to the statement in the finding that

“there is no evidence Tracy Potter felt intimidated” in answering Mr. Visser’s questions,

we agree this is incorrect. CP at 295 (emphasis added). What the trial court explained in

delivering its oral opinion was that it did not believe Mr. Potter was intimidated by Mr.

Visser. See RP (May 2, 2019) at 17. In view of the trial court’s explanation that it did

not believe Mr. Potter was intimidated—a credibility call that was the court’s to make—

the misstatement that “there is no evidence” is immaterial.

Finding 3.21. There is no material difference between Ms. Allen’s stated concern

that Mr. Potter would be “twist[ed],” around in his deposition, Ex. 3, at 23, and the trial

court’s finding that Ms. Allen instructed him not to get “turned around,” CP at 296. The

assigned error otherwise merely identifies how Ms. Allen would weigh the evidence.

Finding 3.22. The statement in the finding that the supplemental declaration was

presented to the Potters “months” after Dr. Goldberg’s death rather than one month after

his death is immaterial. CP at 296. The gist of the finding is that Dr. Goldberg, having

died, could not have brought the supplemental declaration to the Potters.

Findings 3.26 and 3.28. Ms. Allen merely questions the relevance of these

findings and, from that, suggests “that the trial court may not have understood or

absorbed the evidence.” Br. of Appellant at 17-18. It is clear from the posttrial hearings

and the findings and conclusions as a whole that the trial court understood and absorbed

the evidence.

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Finding 3.29. Reasonably read, the “different testimony” of Mr. Potter referred to

in the finding is testimony different from the truth. CP at 297. While Ms. Allen is

correct that her declarations filed outside the context of the trial are not relevant, she does

not explain how the reference to them in this finding is material to the trial court’s

ultimate findings or conclusions of law.

Except for a couple of immaterial errors, substantial evidence supports the trial

court’s findings of fact. Its findings of fact support its conclusions of law.

III. ATTORNEY FEES

Ms. Allen challenges the attorney fees and costs awarded against her in the trial

court, but only on the basis that they were “based on findings not supported by the

evidence,” a premise we have rejected. Br. of Appellant at 48.

Both parties seek an award of reasonable attorney fees and expenses on appeal

under RAP 18.1 and RCW 11.96A.150. RAP 18.1(a) authorizes an award of reasonable

attorney fees and expenses on appeal “[i]f applicable law grants to a party the right to

recover reasonable attorney fees or expenses.” RCW 11.96A.150 gives courts broad

authorization to award attorney fees to “proceedings governed by [Title 11 RCW],

including but not limited to proceedings involving trusts, decedent’s estates and

properties, and guardianship matters.” RCW 11.96A.150(2). Further, under TEDRA,

this court has great discretion in awarding fees and may “consider any relevant factor,

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No. 37986-8-III
In re Estate of Goldberg

including whether a case presents novel or unique issues.” In re Guardianship of Lamb,

173 Wn.2d 173, 198, 265 P.3d 876 (2011).

We award the Goldbergs their reasonable attorney fees and costs on appeal subject

to their timely compliance with RAP 18.1(d).

Affirmed.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_____________________________
Siddoway, J.

WE CONCUR:

_____________________________
Pennell, C.J.

_____________________________
Fearing, J.

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