In Re The Donna Clark Irrevocable Trust

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Irrevocable Trust of No. 83996-9-I
(consolidated with
DONNA CLARK, No. 84055-0-I)

Deceased. DIVISION ONE

UNPUBLISHED OPINION

CHUNG, J. — Gary Clark is the trustee of his deceased mother’s trust. The

trust documents instructed that upon his mother’s death, Gary was to split her

trust into two separate trusts for himself and his brother Curtis. After the parties

failed to reach agreement on how to divide her trust, Curtis filed a petition under

the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW.

The parties resolved some issues at a mediation, but some issues remained

unresolved, and Curtis amended the TEDRA petition to include claims of breach

of the trust instrument and breach of fiduciary duty. The trial court granted

Curtis’s motion for partial summary judgment on the breach claims and ordered

Gary to repay the trust and pay Curtis’s legal fees for litigating them. Curtis and

Gary continued to litigate other issues, and the court awarded fees to both from

the trust.
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In their cross-appeals, the two parties dispute most of the trial court’s

decisions and orders. We affirm the trial court’s substantive decisions, including

granting summary judgment on the claims of breach of fiduciary duty and breach

of the trust instrument, affirm the attorneys’ fees as awarded by the trial court,

and award attorney fees on appeal to Curtis.

FACTS

In 2014, Donna Clark executed the Donna Clark Irrevocable Trust and a

“pour over” will that added all probate assets to the Trust property upon her

death. Article 2 of the Trust defined the beneficiaries as follows:

Gary Dean Clark, born on July 18, 1966 and
Curtis Gene Clark, born on April 14, 1969
All references in this agreement to "my children" are references to
these children.
References in this agreement to "my descendants" refer to my
children and their descendants.
The "lifetime beneficiaries" of my trust are my children.

Gary 1 served as co-trustee with Donna until her death September 2, 2018, at

which time he became the sole trustee. The Trust established a plan for

administration after Donna’s death:

Section 6.01 Division of Remaining Trust Property
My Trustee shall divide the remaining trust property into separate
shares for my descendants, per stirpes.
My Trustee shall administer the share for each descendant in a
separate trust for the benefit of the descendant as provided below.

Section 6.02 Administration of the Separate Trusts
My Trustee shall administer the trust for each child as provided in
this Section:

1 Because the people involved all share the same last name, this opinion will refer to

them by first name. No disrespect is intended.

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(a) Distributions of Net Income
The Trustee shall distribute all of the net income of the
beneficiary’s trust to the beneficiary at least monthly.
(b) Distributions of Principal
The Trustee shall distribute to the beneficiary as much of the
principal of the beneficiary’s trust as the Trustee determines
is necessary or advisable for the health, education,
maintenance and support of the beneficiary.

At the time of Donna’s death, the Trust contained over $1 million in investments

and bank accounts, as well as three real properties located in Bellingham,

Washington. The real property consisted of homes on Coronado Avenue and

Waterside Lane, which were vacant, and a home on Hemmi Road occupied by

Curtis and his family.

Gary and Curtis disagreed about the disposition of Trust assets. Curtis

wanted the Hemmi Road property as well as half the other two real properties in

his name. The brothers argued over the process for transferring title of the

Hemmi Road property from the Trust to Curtis, and Gary wanted to maintain the

Coronado and Waterside properties in the Trust, disbursing to Curtis only his

share of the mutual funds. Gary and Curtis also argued about use of Trust

property and division of the assets.

In February 2019, Gary sent a letter to Curtis’s attorney stating that Curtis

was $6,000 in arrears on his rent payments for the Hemmi Road property and

accusing Curtis of “squatting” on the property. Curtis expressed concern about

self-dealing based on Gary’s use of Trust funds to pay his daughters’ college

tuition, personal use of a vehicle owned by the Trust, and rent-free use of the

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Coronado property garage for storage. Efforts to reach an agreement to divide

the Trust failed.

In July 2019, the Trust remained undivided. Curtis filed a petition under

TEDRA. He requested discovery under RCW 11.96A.115, as well as Gary’s

removal as Trustee, reimbursement of the Trust for self-dealing payments,

division of the Trust into equal shares, and attorney fees and costs.

Subsequently, Curtis filed a notice of mediation in compliance with RCW

11.96A.300. Gary did not object to mediation. However, Gary filed a request for a

Trust Protector as allowed under the terms of the Trust.

After a hearing, the trial court denied Gary’s request for a Trust Protector

due to a potential conflict of interest with the proposed appointee and the

upcoming mediation. The court granted Curtis’s request for discovery and

reserved his request for attorney fees and costs.

Gary and Curtis engaged in mediation, signing a Civil Rule (CR) 2A

agreement in December 2019. The CR 2A distributed the Hemmi Road property

to Curtis, with Curtis assuming all liens and mortgages. The brothers agreed to

sell the Coronado and Waterside properties, with the proceeds to be deposited in

the Trust and divided. The CR 2A stipulated:

The issues of attorney fees, distributions to Gary Clark, distributions
to Curtis Clark, compensation due to Gary Clark as Trustee, the
final accounting, and any alleged wrongdoing by Gary Clark as
Trustee, are not resolved. If not resolved by agreement, these
issues will be returned to the Court for disposition under TEDRA.

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With several issues still undecided after mediation, Curtis filed an

amended TEDRA petition, adding claims for breach of the trust instrument and

breach of fiduciary duty. Curtis followed the amended petition with a partial

motion for summary judgment on the issues of breach of the trust and breach of

fiduciary duty. The trial court granted partial summary judgment, finding that Gary

had engaged in self-dealing and ordered reimbursement of $19,758 paid toward

his daughters’ tuition. 2 The court also awarded attorney fees to Curtis. The order

specified that the fees were to be paid by the Trust, but Gary was to reimburse

the Trust for the amount because “but for Gary’s actions . . . Curtis would not

have to have needed to bring this litigation.” Gary moved for reconsideration of

the decision, but the court denied his request.

Gary subsequently filed a motion to compel Curtis to pay rent on the

Hemmi Road property. After hearing oral arguments, the court concluded that

Gary had not provided evidence of a lease agreement that required Curtis to pay

rent on the property. The court determined that the mortgage, property taxes,

and property insurance on the Hemmi Road property were expenses of the Trust

that should be paid from the trust and denied Gary’s motion.

Gary also requested a trial setting. After oral argument, the trial court

determined that a trial was not necessary at that time and denied motion.

2 The trial court determined that Gary had used $29,758 in Trust funds for his daughters’

college tuition. Prior to her death, Donna had authorized $10,000 gifts to both Curtis and Gary.
Curtis, but not Gary, had received his $10,000 gift from the Trust prior to Donna’s death. The
court offset Gary’s reimbursement for the self-dealing tuition payments by the $10,000 gift and
ordered Gary to repay the Trust $19,758.

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According to the court, the parties had few remaining issues, and if no agreement

could be reached, one of the parties could note a motion for resolution under

TEDRA or set for trial.

In April 2020, the mediator appointed a realtor to sell the Coronado and

Waterside properties. The realtor recommended marketing the two properties at

the same time after a few minor updates, landscaping, cleaning, and staging.

After the updates were completed, the properties went on the market in

November 2020, with Coronado listed at $775,000 and Waterside listed at

$650,000. The properties sold quickly, with Coronado selling for $935,000, and

Waterside selling for $700,000. Unbeknownst to Curtis, Gary and his wife, Cindy,

were the highest bidders for the Coronado house. When he later discovered this

information, Curtis objected strenuously to the sale of the Coronado house to

Gary. The mediator appointed a second realtor to evaluate the propriety of the

sale to Gary and Cindy. That agent concluded that the method of sale was fair

and resulted in a sale at the highest and best terms.

Beginning in February 2021, Gary prepared and submitted several

versions of a final accounting. Curtis argued the final accountings were

inadequate. Initially, in March 2021, the trial court determined the final accounting

did not comply with RCW 11.106.030 and significant disputed issues remained to

preclude approval of the accounting, distribution, and termination of the Trust.

In April 2021, Curtis discovered through Gary’s response to his discovery

request that Cindy had received a referral fee of $25,050 from the sales

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commission of the realtor who assisted them in the purchase of the Coronado

property. 3 Based on this information, in response to one of Gary’s motions to

approve the final Trust accounting, Curtis alleged that Gary failed to account for

the referral fee in the final Trust accounting. Gary did not respond to this

argument. Accordingly, in March 2022, in supplemental findings of fact and

conclusions of law on the accounting, the court, noting that Gary had not

provided “any argument that the refund should not be included in the net value of

the property to the Trust,” ordered Gary to return Cindy’s portion of the sales

commission to the Trust. The court also ordered Gary to file an amended final

accounting and distribution that reflected the court’s rulings, including

reimbursement of Cindy’s commission. Gary filed a motion for reconsideration of

the commission issue, which the trial court denied.

The March 2022 supplemental findings of fact and conclusions of law on

the accounting also included awards of attorney fees and costs to both Gary and

Curtis. The court summarized that it had previously awarded $12,500 from Gary

to Curtis and $46,935.46 from the undivided Trust related to the successful

summary judgment for breach of fiduciary duty and breach of the Trust, and an

additional award of $9,662.50 from the Trust.

3 Cindy is also a real estate agent. As part of the purchase and sale of the house, the

buyer’s and seller’s agents each received a 3% commission of $28,050. Cindy and Gary’s agent
gave Cindy the majority of that commission, $25,050, as a referral fee “in acknowledgement that
this was her personal purchase.”

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Curtis requested $69,703.75 in additional attorney fees and costs. The

court decreased the fees for work on an unsuccessful motion and ordered the

Trust to pay an additional $63,130.75. Gary petitioned the court for $165,000 in

attorney fees and costs. The court reviewed the supporting documentation and

awarded Gary $131,948.35 from the Trust.

Gary appealed many of the court’s decisions. Curtis separately appealed

the attorney fee awards, claiming fees awarded to him should be paid by Gary’s

portion of the Trust, not the undivided Trust, and that fees awarded to Gary

should not be paid by the undivided Trust. This court consolidated the appeals,

designating Gary as the Appellant/Cross-Respondent and Curtis as the

Respondent/Cross-Appellant.

DISCUSSION

The trial court’s decisions and orders all occurred pursuant to Curtis’s

petition filed under TEDRA. In cases involving trusts, TEDRA provides the court

with “full power and authority to proceed with such administration and settlement

in any manner and way that to the court seems right and proper, all to the end

that the matters be expeditiously administered and settled by the court.” RCW

11.96A.020(2). Given this broad grant of power, we must accord significant

deference to a trial court’s decisions. In re Est. of Fitzgerald, 172 Wn. App. 437,

448, 294 P.3d 720 (2012) (reviewing a trial court’s decision to deny a

continuance to conduct discovery in a TEDRA proceeding for abuse of

discretion). “Where the decision or order of the trial court is a matter of discretion,

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it will not be disturbed on review except on a clear showing of abuse of

discretion, that is, discretion manifestly unreasonable, or exercised on untenable

grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971) 4 Untenable reasons include errors of law. Noble v. Safe

Harbor Fam. Pres. Tr., 167 Wn.2d 11, 17, 216 P.3d 1007 (2009).

Gary assigns error to many of the trial court’s findings of fact and

conclusions of law. We review findings of fact for substantial evidence. In re Est.

of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). Substantial evidence is “evidence

that is sufficient to persuade a rational, fair-minded person of the truth of the

finding.” Id. If substantial evidence supports the findings of fact, we then decide

whether the findings of fact support the trial court’s conclusions of law. Landmark

Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). We review

conclusions of law de novo. Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873,

880, 73 P.3d 369 (2003).

I. Order Denying Motion to Appoint Trust Protector

Article Four of the Trust provides that a Trustee or beneficiary may petition

the court to appoint a Trust Protector to direct the Trustee in matters concerning

the Trust and to assist in achieving Donna’s expressed objectives. Gary

4 Gary claims that “[t]he trial court made all of its decisions, including attorney fees,

summarily” and, thus, the standard of review should be de novo. Gary’s argument ignores that
TEDRA allows for witness testimony by affidavit, and the court may enter any order it deems
appropriate to “(a) resolve such issues as it deems proper, (b) determine the scope of discovery,
and (c) set a schedule for further proceedings for the prompt resolution of the matter.” RCW
11.96A.100(10). In this context, the lack of trial proceedings with live testimony does not require
de novo review of issues within the trial court’s discretion.

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requested appointment of John Kamrar, who drafted the Trust instrument and

represented him in Trust matters prior to the TEDRA petition. The trial court

denied the motion to appoint Kamrar due to the potential conflict of interest after

having represented Gary, but it did not foreclose the possibility of appointing a

Trust Protector in the future.

Gary contends the trial court erred by denying his request to appoint a

Trust Protector. However, he fails to comply with RAP 10.3(a)(6), which requires

legal and factual argument in support of his claim. Given this lack of legal

argument, as well as the trial court’s concerns about the conflict of interest with

Kamrar and Curtis’s representation that the parties hoped to resolve their

disputes at mediation without incurring the added cost of the Trust Protector, it

was not an abuse of discretion for the court to deny Gary’s motion to appoint

Kamrar as Trust Protector.

II. Order Granting Discovery and Related Fees

At the same hearing regarding the Trust Protector, the court allowed

discovery and mediation to proceed. Gary assigns error to the trial court’s entry

of the order granting discovery. Again, Gary fails to provide any legal argument

as to why the trial court’s action was an abuse of discretion.

TEDRA allows discovery if the court orders it. RCW 11.96A.100; RCW

11.96A.115. Moreover, Gary objected to the discovery request only insofar as it

requested attorney fees. In response, the trial court struck the request for fees on

the motion, but reserved the issue for future consideration. Because TEDRA

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allows the court to award attorney fees, its reservation of the final decision on

fees related to the discovery request was well within its discretion. See RCW

11.96A.150.

III. Breach of Trust and Breach of Fiduciary Duty

Gary argues the trial court erred by granting Curtis’s motion for partial

summary judgment determining he breached his fiduciary duty by paying his

daughters’ college tuition from the Trust. Curtis claims the undisputed facts show

that by making these payments, Gary breached the Trust instrument and

engaged in self-dealing in breach of his fiduciary duty. Curtis also claims that

Gary’s failure to divide the Trust into shares was a breach of the Trust

instrument. We agree that Gary’s conduct amounted to a breach of fiduciary duty

and breach of the Trust.

We review orders on summary judgment de novo. Kim v. Lakeside Adult

Fam. Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). Summary judgment is

appropriate when there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Folsom v. Burger King, 135 Wn.2d 658,

663, 958 P.2d 301 (1998) (citing CR 56(c)). We consider the evidence and

reasonable inferences in the light most favorable to the nonmoving party. Kim,

185 Wn.2d at 547.

We also interpret trust instruments de novo. In re Joanne K. Blankenship

Survivor’s Tr., 18 Wn. App. 2d 686, 694, 493 P.3d 751 (2021). When interpreting

a trust, our duty is to give effect to the trustor’s intent. In re Guardianship of

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Jensen, 187 Wn. App. 325, 331, 350 P.3d 654 (2015). If possible, we ascertain

that intent from the unambiguous language of the trust. Id.

A trustee’s duties are determined by the terms of the trust, common law,

and statute. Cook v. Brateng, 158 Wn. App. 777, 785, 262 P.3d 1228 (2010). “A

trustee must administer the trust solely in the interests of the beneficiaries.” RCW

11.98.078(1). Additionally, “[a] trustee owes the beneficiaries of the trust ‘the

highest degree of good faith, care, loyalty, and integrity.’ ” In re Marriage of

Petrie, 105 Wn. App. 268, 275, 19 P.3d 443 (2001) (quoting Esmieu v. Schrag,

88 Wn.2d 490, 498, 563 P.2d 203 (1977)). Self-dealing violates the trustee’s duty

of loyalty to the beneficiaries. Id. at 276.

According to Gary, his use of Trust funds for his daughters’ college tuition

payments was not self-dealing because the Trust described the importance of

education, Donna had used the Trust for college tuition in the past, and his

daughters were beneficiaries of the Trust. However, the language of the Trust

belies this argument. The provision for administration of the Trust after Donna’s

death requires the Trustee to “divide the remaining trust property into separate

shares for my descendants per stirpes.” The Trust defines “per stirpes”:

Whenever a distribution is to be made to a person’s descendants
per stirpes, the distribution will be divided into as many equal
shares as there are then-living children and deceased children who
left then-living descendants. Each then-living child will receive one
share, and the share of each deceased child will be divided among
the deceased child’s then-living descendants in the same manner. 5

5 This definition is consistent with case law. “Per stirpes” “allows a lineal descendant to

take to the same degree as they would have taken had the beneficiaries within the chain survived
the testator.” Erlenbach v. Est. of Thompson by Newbigging, 90 Wn. App. 846, 851, 954 P.2d 350

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Here, the Trust’s language and intent are unambiguous as to how and when the

Trust was to be divided. Because Gary and Curtis both survived Donna, the Trust

was to be divided between them as her then-living children.

Donna died on September 2, 2018. In July 2019, Curtis filed his initial

TEDRA action requesting division of the Trust. Mediation occurred in December,

and the parties signed the CR 2A on December 10, 2019. Curtis filed his

amended TEDRA petition with the breach allegations and the subsequent motion

for summary judgment in January 2020, more than a year after Donna’s death. At

that time, Gary had liquidated and given Curtis his share of some investment

accounts, but had not yet divided the Trust or taken substantial steps toward

selling the properties to facilitate division of the Trust assets.

Gary noted substantial challenges to division of the Trust assets,

particularly due to Curtis’s behavior. While the parties clearly had animosity

toward each other and differences of opinion on the distribution of Trust assets,

the evidence submitted in support of the motion for summary judgment shows

that Gary did not want to sell the real properties in the Trust. Gary told Curtis that

long-term rentals made more financial sense than sale of the properties. This

may have been a sound financial decision, but maintaining the real properties in

(1998). As further explained, “[f]or example, if a testator dies leaving her estate to her two
children, A & B, and A predeceases the testator leaving two children, C & D, then one-half of the
estate goes to B, and the other half is divided between C & D.” Id.

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the Trust hindered the required division of assets for Gary and Curtis. Failure to

divide the Trust was a breach of its terms.

Gary’s daughters would become beneficiaries of the Trust only upon his

death. As a result, Gary’s daughters were not beneficiaries of the Trust at the

time Gary used Trust funds to pay for their tuition, in August 2019. By disbursing

funds to non-beneficiaries, Gary breached the Trust. Partial summary judgment

was properly granted for breach of the Trust instrument.

Additionally, Gary’s use of Trust funds for his family’s benefit amounted to

self-dealing, a breach of his fiduciary duty. 6 Gary contends that he intended the

tuition payments to come from his portion of the Trust, and he “never, in any

accounting prepared or information exchanged, required or asked that Curtis’s

share of the Trust pay any portion of the college expenses.” Gary claims that

because the funds came out of his share, Curtis suffered no injury to support a

breach of fiduciary duty. Gary ignores that at the time of the tuition payments, the

Trust remained undivided. The Donna Clark Irrevocable Trust was one undivided

Trust; there was no “Gary’s share” and “Curtis’s share.” Any distribution

decreased the amount of the Trust as a whole. Even if Gary may have planned to

reduce his portion when finally dividing the Trust, those future intentions did not

change the undisputed facts that Gary disbursed undivided Trust assets to non-

6 Gary claims Donna used the Trust to make tuition payments for her granddaughters

prior to her death as evidence that she intended for the granddaughters to receive Trust funds for
education. But the checks were written from personal accounts belonging to Donna Marie Clark
and Donna M Clark, and provide no evidence that they drew from the Trust. Moreover, that
evidence was not before the trial court on summary judgment.

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beneficiaries so as to benefit his family. Regardless of his intentions, Gary

engaged in self-dealing, thereby breaching his fiduciary duty.

The undisputed evidence shows that Gary breached the terms of the Trust

and his fiduciary duties. 7 Gary failed to present evidence raising a genuine issue

of material fact to defeat summary judgment on these grounds. Curtis was

entitled to a judgment as a matter of law on breach of the Trust instrument and

breach of fiduciary duty. 8

IV. Denial of Motion to Compel Rent

Gary contends the trial court incorrectly determined that Curtis could stop

paying rent on the Hemmi Road property and allowed Curtis 16 months of free

possession of the property. However, the trial court’s decision was well

supported by evidence in the record and was not an abuse of discretion.

The Trust specifically addressed a beneficiary’s occupation of a Trust

property:

My Trustee may permit any Income Beneficiary of the trust to
occupy any real property or use any personal property owned by
the trust on terms or arrangements that my Trustee determines,

7 Gary assigns error to several findings of fact related to the court’s decision on the

motion for summary judgment. Assignments of error 4-8 pertain to findings of fact in the court’s
order on attorney fees and costs awarding fees to Curtis after granting his motion for partial
summary judgment. These findings are all supported by the evidence of Gary’s breaches.
Assignments of error 10-14 relate to the conclusions of law awarding fees for the breaches to
Curtis from Gary from the undivided Trust. Assignments of error 20, 27, and 33 relate to the
court’s supplemental findings and conclusions re: accounting; these assignments of error merely
reiterate facts pertaining to reimbursement of the Trust for the tuition and attorney fees related to
the breach.
8 Gary also assigns error to the trial court’s denial of his motion to reconsider its decision

on Curtis’s motion for summary judgment. However, he makes no argument in support of this
assignment of error. An appellate court will not consider a claim of error unsupported by legal
argument in the opening brief. Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 845, 347
P.3d 487 (2015).

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including rent free or in consideration for the payment of taxes,
insurance, maintenance, repairs, or other charges.

Thus, the Trustor’s intent was clear that a beneficiary could occupy a Trust

property rent-free. 9

In his motion to compel rent, Gary stated that Curtis had paid rent for more

than five years prior to Donna’s death. Curtis agreed that he had paid $1,000 per

month prior to Donna’s death, but provided a check showing that he paid Donna

rather than the Trust. In his declaration, Curtis stated that he had not received a

written lease or entered an agreement with Gary to lease the Hemmi Road

property. The trial court noted that the record did not contain evidence of a lease

agreement that required Curtis to pay rent on the property. Additionally, the court

ruled the mortgage, property taxes, and property insurance on the Hemmi Road

property “are expenses of the trust that should be paid from the trust. So until it is

divided, those expenses are expenses of the trust.”

The house on Hemmi Road was a property of the Trust. The terms of the

Trust allowed a beneficiary to live in Trust property without cost. Gary failed to

show that Curtis was expected to pay rent to the Trust in order to occupy a Trust

9 Indeed, the terms of the Trust even contemplated payment for a beneficiary’s residence

in a real property outside the Trust, even to the financial detriment of the Trust:
My Trustee may acquire, maintain, and invest in any residence for the
beneficiaries’ use and benefit, whether or not the residence is income producing
and without regard to the proportion that the residence’s value may bear to the
trust property’s total value, even if retaining the residence involves financial risks
that Trustees would not ordinarily incur. My Trustee may pay or make
arrangements for others to pay all carrying costs of any residence for the
beneficiaries’ use and benefit, including taxes, assessments, insurance,
maintenance, and other related expenses.

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property. In light of the evidence, the trial court did not abuse its discretion by

denying Gary’s motion to compel rent.

V. Cindy’s Commission

Gary claims that by ordering Gary to reimburse the Trust for the

commission paid to Cindy for the purchase of the Coronado home, the trial court

impermissibly interfered with Cindy’s contract with their agent because neither

Curtis nor Gary was a party to the contract, and Cindy was not a party to the

TEDRA action. However, Gary failed to respond to Curtis’s request for refund of

the commission or properly support his motion for reconsideration.

Curtis raised the issue of Cindy’s referral fee in his December 2021

response to Gary’s second motion for approval of final Trust accounting and

requested the court require Gary to reimburse the Trust for this “kickback.” 10 In

its March 2022 “Supplemental Findings and Conclusions re: Accounting,” the trial

court found that Gary neither responded to the allegation that he had failed to

account for this money in the accounting nor provided any argument as to why

the referral fee should not be refunded to the Trust. 11 Based on these findings,

the court concluded: “The Court orders that Gary Clark reimburse the Trust in the

10 It is undisputed that Cindy and Gary form a marital community.
11 In considering Curtis’s claim that Gary failed to account for Cindy’s commission in the

final accounting, the trial court found that “Gary Clark did not respond to this allegation or provide
any argument that the refund should not be included in net value of the property to the Trust.” As
Gary did not assign error to this finding, it is a verity on appeal. See Cowiche Canyon
Conservancy v. Bosley,118 Wn.2d 801, 808, 828 P.2d 549 (1992) (unappealed findings of fact
are verities on appeal). Gary assigned error to the concluding statement from the court that it
“orders that Gary Clark reimburse the Trust in the amount of $25,050.” This conclusion is
supported by the finding that is a verity on appeal.

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amount of $25,050.” Gary moved for reconsideration of the court’s order to

refund the amount of Cindy’s commission to the Trust. During the oral argument

on the motion for reconsideration, the trial court denied the motion, stating:

I just think it’s part of the accounting that that was what the net
proceeds of the sale of the house were that should go to the Trust
were whatever the sale price was, minus the cost of sale, which
includes the realtors’ fees. So if the realtors’ fees were half as much
as they thought they would be, then that goes to the Trust, not to
Gary and Cindy Clark.

The trial court denied the motion for reconsideration without written findings of

fact and conclusions of law.

CR 59(a) allows for an aggrieved party to request reconsideration for

irregularity in the proceedings, misconduct of the prevailing party, accident or

surprise, newly discovered evidence, excessive damages, error in assessment of

the recovery, no evidence or reasonable inference to justify the decision or that it

is contrary to law, error of law, or that substantial justice has not been done. The

motion must identify “the specific reasons in fact and law as to each ground on

which the motion is based.” CR 59(b). CR 59 does not permit new theories of the

case that could have been raised before entry of an adverse decision. Wilcox v.

Lexington Eye Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005). “The trial

court’s discretion extends to refusing to consider an argument raised for the first

time on reconsideration absent a good excuse.” River House Dev. Inc. v.

Integrus Architecture, P.S., 167 Wn. App. 221, 231, 272 P.3d 289 (2012).

Because Gary failed to submit any argument below on the issue of Cindy’s

commission in response to Curtis’s initial request, his motion for reconsideration

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was based solely on new legal theories. Gary also failed to provide a good

excuse for the new arguments or identify the grounds for reconsideration as

required by CR 59(b). In light of these failures, the trial court did not abuse its

discretion by denying Gary’s motion for reconsideration.

VI. Denial of Trial Setting

Gary repeatedly requested a trial to resolve all outstanding issues. In

response to the request for a trial setting, the court noted that few issues

remained and a trial was unnecessary at the time. Gary argues on appeal that

the trial court’s decision-making process erroneously resolved disputed issues of

fact through motions and hearings.

Gary misunderstands the authority of the court and procedural rules under

TEDRA. The statute specifies that “[i]f the initial hearing is not a hearing on the

merits or does not result in a resolution of all issues of fact and all issues of law,

the court may enter any order it deems appropriate,” including an order that

“resolve[s] such issues as it deems proper.” RCW 11.96A.100(10). To facilitate

the quick resolution of cases, TEDRA allows for testimony by witnesses by

affidavit. RCW 11.96A.100(7). As a result, “[i]t is not necessary that the court

hear oral testimony in order to make findings.” Foster v. Gilliam, 165 Wn. App.

33, 55, 268 P.3d 945 (2011). The trial court’s decision to resolve contested

issues without hearing oral testimony was within its authority under TEDRA.

Therefore, the denial of trial setting was not an abuse of the court’s discretion.

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VII. Attorney Fees Awarded by the Trial Court

Both parties appeal the trial court’s award of attorney fees and costs

below. Gary appeals the award of fees to Curtis from both himself and from the

undivided Trust, claiming he is the only party entitled to fees under TEDRA.

Curtis argues that Gary should not have received any fees below and that the

trial court should have awarded all fees from Gary personally, rather than the

undivided Trust.

TEDRA gives courts the discretion to award reasonable attorney fees and

costs:

(a) From any party to the proceedings; (b) from the assets of the
estate or trust involved in the proceedings; or (c) from any
nonprobate asset that is the subject of 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.

RCW 11.96A.150(1). Under this statute, courts have considerable discretion over

whether to award fees. Atkinson v. Est. of Hook, 193 Wn. App. 862, 874, 374

P.3d 215 (2016). We review an award of attorney fees for abuse of discretion. In

re Est. of Evans, 181 Wn. App. 436, 451, 326 P.3d 755 (2014).

Generally, a trust bears the cost of its administration, including litigation. In

re Est. of Boatman, 17 Wn. App. 2d 418, 427, 488 P.3d 845 (2021). But “where

litigation is necessitated by the inexcusable conduct of the fiduciary, the fiduciary

individually must pay those expenses.” Id. However, if the court makes no finding

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of fact of a breach of fiduciary duties or inexcusable conduct, the fiduciary should

not be ordered to personally pay attorney fees. Id. at 428.

A. Gary’s Appeal of Fees to Curtis

Gary argues that Curtis should not receive attorney fees because his

litigation did not benefit the Trust. 12 He cites In re Est. of Niehenke, 117 Wn.2d

631, 648, 818 P.2d 1324 (1991), and Bartlett v. Betlach, 136 Wn. App. 8, 22, 146

P.3d 1235 (2006), which both state that attorney fees should be awarded against

a trust only where the litigation results in substantial benefit to the trust. However,

subsequent to those cases, RCW 11.96A.150(1) was amended to explicitly allow

the trial court to consider “any and all factors that it deems to be relevant and

appropriate, which factors may but need not include whether the litigation

benefited the estate or trust involved.” As a result, the trial court has the

discretion to consider benefit to the trust as a factor, but such benefit is not

required for an award of attorney fees. Thus, the trial court’s award of fees to

Curtis without a determination that the litigation benefited the Trust was not an

abuse of discretion.

Additionally, the trial court did not abuse its discretion in ordering Gary to

personally pay attorney fees related to the partial motion for summary

judgment. 13 Here, Curtis brought the successful partial summary judgment

motion on Gary’s breach of the trust instrument and breach of fiduciary duty. The

12 Gary’s assignments of error 14, 21, 22, 24-26, 28, 30-31, and 33-34 correspond to this

argument.
13 Gary’s assignments of error 12-13, 20, 27, and 34 correspond to this argument.

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trial court found that “[b]ut for Gary Clark's failure to divide the Trust into the

Beneficiary Trusts and his distributions from the undivided assets of the Trust,

Curtis Clark would not have had to bring this litigation,” which satisfies the

requirement under Boatman for such findings. Therefore, the trial court did not

abuse its discretion in ordering Gary personally to pay Curtis’s attorney fees and

costs associated with his successful claims for breach of trust and breach of

fiduciary duty. 14

B. Curtis’s Appeal of Fees Awarded from the Undivided Trust

Curtis contends the trial court abused its discretion by awarding a portion

of his attorney fees and costs from the undivided Trust, rather than from Gary’s

personal share. According to Curtis, this means he “would be required to pay half

of Gary’s fees in prosecuting failed motions that served [Gary’s] own interests

and in defending an action brought about by [Gary’s] own gross misconduct.”

During the first review of Curtis’s request for attorney fees, the trial court

ordered fees from both Gary individually and the undivided Trust. For bringing

the successful motion for partial summary judgment on the breach claims, the

trial court awarded Curtis $12,500 in fees from Gary rather than the Trust. The

court awarded the remaining $46,935.46 from the undivided Trust, explaining in

its oral ruling that “[Gary and Curtis] share that cost because that did benefit both

brothers.” Curtis argues the court erred by ordering fees from the undivided Trust

14 The trial court also included Curtis’s fees for responding to Gary’s motion to compel

rent in its order.

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after acknowledging that the litigation would have been unnecessary if Gary had

abided by the terms of the Trust and his fiduciary duty. Curtis points to the

findings of facts and conclusions of law for the attorney fee award, in which the

court stated, “[b]ut for Gary Clark’s failure to divide the Trust into the Beneficiary

Trusts and his distribution from the undivided assets of the Trust, Curtis Clark

would not have had to bring this litigation.”

While this statement seems to support Curtis’s argument, the court

provided a more detailed explanation of what it meant by “litigation” and clarified

its intentions orally during discussion with the parties:

Gary Clark would bear the cost of -- when I say the litigation, I
mean the litigation to bring the summary judgment motion that had
to do with the self-dealing, breach of fiduciary duty, and that sort of
thing, not the entire cost of the litigation from the beginning of the
TEDRA and all the way through, because I do think that a great
part of that litigation benefited both parties, and that everybody was
setting forth reasonable positions, good faith arguments, and did
mediate in good faith, as well, and a lot of the case was resolved in
mediation which benefitted everybody.

The trial court explained that it examined Curtis’s attorney fees application and

bill and extracted the line items related to the summary judgment motion and the

motion to compel rent and estimated the percentage of work on those motions for

mixed entries on the bill. The court arrived at $12,500 to be paid from Gary to

Curtis.

Generally, a court’s oral ruling, if not incorporated into its factual findings

or order, has no binding effect on the parties. See Garza v. Perry, No. 83377-4,

slip op. at 18-19 (Wash. Ct. App. January 30, 2023) (published)

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https://www.courts.wa.gov/opinions/pdf/833774.pdf. However, “a trial court’s oral

decision may be considered . . . in interpreting findings of fact and conclusions of

law, so long as there is no inconsistency.” City of Lakewood v. Pierce Cnty., 144

Wn.2d 118, 127, 30 P.3d 446 (2001) (internal quotation marks omitted) (citation

omitted). When a trial court’s findings are incomplete or indecisive, we may “look

to the oral decision of the trial court to eliminate speculation as to the premises

upon which the trial court based its decision.” Schoonover v. Carpet World, Inc.,

91 Wn.2d 173, 177-78, 588 P.2d 729 (1978).

Here, reference to the trial court’s oral statement clarifies the term

“litigation” in the written order. The trial court intended for Gary to pay Curtis’s

fees only for the work pertaining to the summary judgment and motion to compel.

The court provided its reasons for finding that the litigation benefitted both

parties, including that many of the issues were resolved in mediation prior to

summary judgment. Given this explanation, the trial court’s decision to award the

$46,935.46 from the undivided trust was within the trial court’s considerable

discretion under TEDRA.

Curtis also contends the trial court erred by awarding him $9,662.50 in

attorney fees and costs from the undivided Trust, rather than from Gary

personally, for responding to Gary’s motion asking the court clarify whether

Donna’s grandchildren were beneficiaries under the terms of the Trust. Curtis

successfully argued that he should be awarded fees because the trial court had

previously determined this issue in ruling on the summary judgment motion for

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breach of fiduciary duty. 15 In that previous ruling on summary judgment, the court

had ordered attorney fees and costs to be paid by the undivided Trust. 16

However, in its order on the subsequent motion by Gary to define

beneficiaries, the trial court did not make findings of fact that Gary breached his

fiduciary duty. The court again made no mention of a breach of fiduciary duty or

“inexcusable conduct” in its order awarding Curtis’s fees from Gary personally.

While the motion to define beneficiaries arguably relitigated an issue that related

to Curtis’s claims of self-dealing and breach of fiduciary duty, attorneys’ fees and

costs for the subsequent motion cannot be assessed against Gary personally

without supporting findings of fact. See Boatman, 17 Wn. App. 2d at 428-29. As

there were no findings that Gary breached his fiduciary duty by bringing the

motion to define beneficiaries, the court properly exercised its discretion to award

fees from the undivided Trust.

Finally, Curtis argues the trial court should not have ordered the Trust to

pay attorney fees of $33,145.81 awarded to him for additional discovery and

15 In finding that Gary had breached the Trust and breached his fiduciary duty by self-

dealing, the trial court necessarily determined that the grandchildren were not beneficiaries under
the Trust. Gary argued the grandchildren were entitled to tuition payments from the Trust as
beneficiaries. The trial court disagreed, and concluded that Gary’s use of the Trust for that
purpose was a breach of the instrument and fiduciary duties. Therefore, Gary’s motion to
determine whether the grandchildren were beneficiaries of the Trust was an attempt to relitigate
the issue. See Section III, supra, of this opinion.
16 The court originally ordered attorney fees and costs from Gary individually. After

Boatman, 17 Wn. App. 2d at 228-29, the court reconsidered and ordered the fees paid by the
undivided Trust because “it was error to order a personal representative of an estate to personally
pay attorney fees of an opposing party, absent a finding that the personal representative
breached their fiduciary duty.”

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No. 83996-9-I/26

opposition to Gary’s final accounting, which the trial court deemed incomplete. 17

Again, the trial court did not make any determination that Gary breached his

fiduciary duty with respect to these issues. Therefore, the record does not

support Gary’s being personally liable for the attorney fees incurred in this

litigation over Trust matters. The trial court did not abuse its discretion by

awarding these fees to Curtis from the undivided Trust, rather than from Gary.

C. Curtis’s Appeal of Fees Awarded to Gary

Curtis argues that “[i]n fairness, none of Gary’s fees should be paid out of

the undivided Trust.” However, the Trust provides for the use of its assets to

defend the Trustee: “any individual or corporate fiduciary that serves as my

Trustee will not incur any liability for any action, omission, or forbearance made

in good faith reliance on information, consent, or directions received from a Trust

Protector, except for cases of willful misconduct or gross negligence on the

Trustee’s part.” Where the trial court made no findings of willful misconduct or

gross negligence, as Trustee, Gary was entitled to payment of his attorney fees

by the Trust. Additionally, TEDRA gives the trial court discretion to award fees

under RCW 11.96A.150(1). The Trust’s payment of Gary’s attorney fees was in

keeping with terms of the Trust and within the trial court’s discretion.

17 This total results from $21,502.10 for the period of February 23, 2021 and May 3, 2021

and $11,643.71, which was a portion of the fees from May 27, 2021 through November 19, 2021,
discounted for $6,573 for hours spent on an unsuccessful summary judgment motion on
September 7, 2021.

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VIII. Fees on Appeal

Both Gary and Curtis request attorney fees on appeal. Appellate courts

also have broad equitable discretion to award fees under TEDRA. RCW

11.96A.150(1).

As discussed above, the terms of the Trust allow an award of fees from

the Trust to Gary as Trustee. However, Gary should not receive fees for appeal

of any issues regarding his breach of fiduciary duties or breach of the trust

instrument. In addition to appealing the rulings on the breach claims, Gary

assigned error to almost every order entered by the trial court but prevails on

none. Thus, we award fees on appeal to Curtis from the Trust subject to

compliance with the requirements of RAP 18.1(d).

Affirmed.

WE CONCUR:

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