IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
AMALIA P. FERARA, No. 83404-5-I
the FERARA LIVING TRUST,
the IVAN FERARA FAMILY TRUST, DIVISION ONE
and the AMALIA FERARA TRUST.
_____________________________ ORDER DENYING MOTION
FOR RECONSIDERATION AND
DIANA M. FERARA, as the WITHDRAWING AND
Personal Representative of SUBSTITUTING OPINION
the Estate of Amalia Ferara, and as
Trustee of the Ivan Ferara Living
Trust, the Ferara Family Trust,
and the Amalia Ferara Trust,
Respondent,
v.
ALICIA K. FERARA,
ALBERT E. FERARA,
KRISTY L. FERARA,
NANCY S. FERARA, and
JOHNNY T. FERARA,
Appellants.
Appellants Kristy Ferara, Nancy Ferara, and Johnny Ferara filed a motion to
reconsider the opinion filed on September 5, 2023, in the above case. Respondent
Diana Ferara filed an answer opposing the motion to reconsider and seeking
additional fees and costs.
The panel has determined that Appellants’ motion for reconsideration should
be denied. Respondent’s request for fees and costs is denied. The panel has also
No. 83404-5-I/2
determined that the opinion in the above-entitled case filed on September 5, 2023
should be withdrawn and a substitute published opinion be filed.
Now, therefore, it is hereby
ORDERED that the opinion filed on September 5, 2023, is withdrawn and a
substitute published opinion shall be filed.
2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
AMALIA P. FERARA, No. 83404-5-I
the FERARA LIVING TRUST,
the IVAN FERARA FAMILY TRUST, DIVISION ONE
and the AMALIA FERARA TRUST.
_____________________________ PUBLISHED OPINION
DIANA M. FERARA, as the
Personal Representative of
the Estate of Amalia Ferara, and as
Trustee of the Ivan Ferara Living
Trust, the Ferara Family Trust,
and the Amalia Ferara Trust,
Respondent,
v.
ALICIA K. FERARA,
ALBERT E. FERARA,
KRISTY L. FERARA,
NANCY S. FERARA, and
JOHNNY T. FERARA,
Appellants.
CHUNG, J. — When two of her siblings would not accept the distribution of
a property as directed by a family trust, trustee Diana Ferara petitioned under
TEDRA 1 to compel the distribution. Her siblings filed a counterclaim for breach of
fiduciary duty, in part based on alleged mismanagement of the trust property.
After determining that the siblings failed to proffer admissible evidence under CR
1 Trust and Estate Dispute Resolution Act (TEDRA), ch. 11.96A RCW.
No. 83404-5-I/2
56(e), the trial court granted Diana’s motion for summary judgment and
dismissed the counterclaim. The court also ordered the two siblings to accept
their distribution or be deemed to have constructively disclaimed their interest in
the property and awarded costs and fees to Diana. Diana’s siblings appeal.
Statements that are not based on personal knowledge do not satisfy CR
56(e). Nor are documents automatically rendered admissible if the party moving
for summary judgment submits them with its motion without proper supporting
affidavits. Finally, the court’s order of constructive disclaimer by two of the
beneficiaries of their interests in a trust asset was within its broad authority under
TEDRA “to proceed with such administration and settlement in any manner and
way that to the court seems right and proper,” RCW 11.96A.020(2), as it did not
supersede the disclaimer statute, RCW 11.86.031, and it was consistent with the
trustors’ intent. Therefore, the trial court did not err in granting Diana’s motion for
summary judgment on her TEDRA petition. We affirm.
FACTS
Ivan and Amalia Ferara created the Ferara Living Trust. The Living Trust
was funded with four properties: one in Bellevue, one in Duvall, and two in San
Pedro, California, at 729 and 735 West 22nd Street (the 729 Property and 735
Property, or the Properties). The Living Trust provided that, on the death of either
parent, its assets were to be apportioned between a trust bearing the surviving
parent’s name and the Ivan Ferara Family Trust. The Living Trust nominated Ivan
and Amalia’s daughter Diana as successor trustee for these two trusts and for
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No. 83404-5-I/3
the Living Trust, with their daughter Kristy as the next in line. 2 The Living Trust
specified that, upon the death of the surviving parent, the Bellevue property “shall
be distributed” to Albert, the Duvall property to Nancy and Johnny, the 729
Property to Diana and Nancy, and the 735 Property to Alicia and Kristy.
When Ivan died in 2016, per the terms of the Living Trust, Amalia became
its trustee. Amalia resigned her role as trustee of the Living Trust and declined to
serve as trustee of the Family Trust and the Amalia P. Ferara Trust. Diana
accepted the role of trustee of the three trusts. As trustee, in 2016, Diana had the
two trust properties in California inspected by a local realtor and hired a property
management company to manage them.
When Amalia died in February 2020, Diana distributed the properties to
the trust’s beneficiaries. Kristy and Alicia, however, refused to accept distribution
of the 735 Property until it was returned to “a good and reasonable condition.”
They commissioned an inspection report of the 735 Property in August 2020 by
Frank Overbeek (the Overbeek Report).
Diana filed a TEDRA petition in December 2020 to require Kristy and
Alicia to either accept transfer of title to the 735 Property or be deemed to have
disclaimed their interest in it. She also requested costs and fees.
2 There were six Ferara children: Alicia, Albert, Kristy, Diana, Nancy, and Johnny.
Because the parties share a surname, we use their first names for clarity, as did the parties’
briefing. Albert is not a party to this litigation. Alicia was a party to the litigation below. She
withdrew from this appeal prior to passing away in October 2022.
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Four of Diana’s five siblings counterclaimed against her, including a claim
that Diana breached her fiduciary duty to keep the property in good condition. 3
The Siblings’ response to Diana’s TEDRA petition attached a 2017 inspection
report Diana requested from the property management company of both the
upper and lower rental units at the 735 Property (the 2017 Inspections), and the
Overbeek Report. However, there was no declaration or affidavit attesting to
either the 2017 Inspections or the Overbeek Report. Instead, each sibling signed
a “verification statement,” stating each had personal knowledge of the contents of
the response “as they pertain to myself and the matters discussed” and verifying
that the response’s factual statements “concerning myself, my activities, my
knowledge and my intentions are true” under penalty of perjury.
The Siblings moved for partial summary judgment on their TEDRA
defenses, counterclaims, and request for costs and fees. Diana moved for
summary judgment dismissing the Siblings’ counterclaims and ordering Kristy
and Alicia to accept the 735 Property or disclaim their interest in it, and for costs
and fees. In support of her motion, Diana submitted an expert declaration stating
that she had satisfied her fiduciary duties, a declaration from a real estate agent
who inspected the 729 and 735 Properties in 2016 and again in 2021, and a
declaration from the property management company she hired to manage the
Properties. Also filed as exhibits to her attorney’s declaration were her Siblings’
answers to her interrogatories, which stated they “incorporated” the Siblings’
3 Appellants’ briefing refers to these four—Alicia, Kristy, Nancy, and Johnny—as the
Siblings. We do the same.
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No. 83404-5-I/5
TEDRA response and verified counterclaims and “attach[ed]” copies of both the
2017 Inspections and the Overbeek Report. The Siblings’ response to Diana’s
summary judgment motion, in turn, also purported to “incorporate and attach”
their verified TEDRA counterclaims, the 2017 Inspections, the Overbeek Report,
and their attorney’s letter to Diana.
At an October 2021 hearing on both Diana’s and her Siblings’ summary
judgment motions, the trial court rejected the Siblings’ claim that it lacked
jurisdiction over the California property and lacked the authority to order
constructive disclaimer of Kristy’s and Alicia’s interest in the 735 Property.
Further, the court denied the Siblings’ breach of fiduciary duty counterclaim and
granted Diana’s motion to dismiss all the Siblings’ counterclaims. Finally, the
court ordered Kristy and Alicia to accept transfer of title to the 735 Property within
30 days or be deemed to have disclaimed their interest in it.
Diana later moved for fees and costs, which the court awarded to her, to
be paid by the Siblings. The Siblings timely appeal.
DISCUSSION
The Siblings assign error to the trial court’s ruling that the Overbeek
Report and other evidence was inadmissible, its dismissal of their claim that
Diana breached her fiduciary duties, its order of the constructive disclaimer of
Kristy and Alicia’s interest in the 735 Property, and its award of attorney fees to
Diana. 4
4 The Siblings assign error only to the court’s award of attorney fees, not costs, which
were also awarded to Diana.
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No. 83404-5-I/6
On appeal of an order granting summary judgment, we review de novo
whether “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a
matter of law.” CR 56(c); see Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545,
552, 192 P.3d 886 (2008). We view all facts and reasonable inferences in the
light most favorable to the nonmoving party. Elcon Constr., Inc. v. E. Wash.
Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012). “ ‘[B]are assertions that a
genuine material issue exists’ do not constitute facts sufficient to defeat a motion
for summary judgment.” SentinelC3, Inc. v. Hunt, 181 Wn.2d 127, 140, 331 P.3d
40 (2014) (quoting Trimble v. Wash. State Univ., 140 Wn.2d 88, 92-93, 993 P.2d
259 (2000)). “Instead, an affidavit opposing summary judgment must (1) be made
on the affiant’s personal knowledge, (2) be supported by facts admissible in
evidence, and (3) show that the affiant is competent to testify to the matters
therein.” Id. (citing CR 56(e)).
I. Admissibility of Evidence Supporting Summary Judgment Motions
The Siblings argue that the evidence they submitted to establish a
question of material fact regarding a breach of fiduciary duty—i.e., evidence of
the poor condition of the 735 Property—was admissible on two grounds. They
argue it was admissible, first, because it was based on their personal knowledge
and sworn under penalty of perjury and, second, because Diana attached it to
her motion for summary judgment. We disagree with both arguments.
6
No. 83404-5-I/7
A. Personal knowledge and authentication requirements
The Siblings argue that the evidence they rely on to support their motion
for partial summary judgment and to oppose Diana’s motion for summary
judgment was admissible because it was based on personal knowledge and
sworn under penalty of perjury. Specifically, they claim because their
counterclaim complaint was “verified” through accompanying verification
statements, the statements of facts in the counterclaim, as well as exhibits
attached to their complaint, were admissible. 5
CR 56(e) specifies the acceptable methods for presenting facts for
consideration at the summary judgment stage:
(e) Form of Affidavits; Further Testimony; Defense Required.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of
all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions, answers
to interrogatories, or further affidavits. . . .
(Boldface omitted.)
Thus, “an affidavit opposing summary judgment must (1) be made on the
affiant’s personal knowledge, (2) be supported by facts admissible in evidence,
5 In response to Diana’s question asking the Siblings to set forth all facts relating to
breach of fiduciary duty, the Siblings’ interrogatory answers refer to their verified counterclaim, as
well as to a November 2020 letter sent by their attorney to Diana’s attorney that was also
attached to their TEDRA response. To the extent the Siblings argue that their discovery
responses provide substantive evidence and to the extent the discovery responses rely in turn on
the admissibility of the statements in, and exhibits attached to, the “verified” counterclaim, our
analysis need not separately address the Siblings’ discovery responses.
7
No. 83404-5-I/8
and (3) show that the affiant is competent to testify to the matters therein.”
SentinelC3, 181 Wn.2d at 140 (citing CR 56(e)).
Separate from the requirement in CR 56(e) that supporting affidavits must
be made on personal knowledge, ER 901 requires that documents be authentic.
Int’l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wn. App. 736, 745-46,
87 P.3d 774 (2004). “Authentication is a threshold requirement designed to
assure that evidence is what it purports to be. ER 901 sets forth a number of
ways that evidence may comply with the rule. For example, the rule allows
documents to be admitted based on the testimony of witnesses with knowledge.”
Id. at 746-47 (footnotes omitted).
The Siblings’ counterclaim, contained in their response to Diana’s TEDRA
petition, alleges that Diana breached her fiduciary duty by failing to maintain the
735 Property in good and reasonable condition. Along with making factual
allegations, the counterclaim attached as exhibits the 2017 Inspections and the
Overbeek Report, which both contain photos. The Siblings contend that their
verification statements establish they have personal knowledge of the factual
statements in their counterclaim and its attached exhibits.
The Siblings’ counterclaim repeats verbatim some statements from the
Overbeek Report and summarizes others. For example, it asserts, “on
information and belief,” that the 735 Property lacks the certificate of occupancy
required in California for a rental property. Further, the counterclaim “assert[s]”
that Diana failed to maintain the 735 Property in a good and reasonable
8
No. 83404-5-I/9
condition, and concludes that Diana “has breached” her fiduciary duty. And it
alleges Diana “may” have exposed the property to “potential” criminal liability.
Each Sibling’s verification statement for the counterclaim states:
I, [Sibling], declare:
I am a Respondent and Counter Petitioner in the above
referenced matter. I have read the foregoing RESPONSE TO
TEDRA PETITION, MOTION TO DISMISS TEDRA PETITION AND
COUNTERCLAIM TO TEDRA PETITION and know the contents
thereof.
I have personal knowledge of the information contained
therein as they pertain to myself and the matters discussed. If
called upon to testify, I would competently testify as to the matters
as stated above.
I verify under penalty of perjury under the laws of the United
States of America and the States therein that the factual statements
in this RESPONSE TO TEDRA PETITION, MOTION TO DISMISS
TEDRA PETITION AND COUNTERCLAIM TO TEDRA PETITION
concerning myself, my activities, my knowledge and my intentions
are true and correct to the best of my knowledge and belief.
While each Sibling claims to “have personal knowledge of the information
[as it pertains] to myself and the matters discussed” in their response, the record
before the court on summary judgment contained no declarations from the
people who conducted the inspections, prepared the reports, and had personal
knowledge of the information in the reports, such as Scott Colette of Harbor
Property Management or Frank Overbeek of Bona Fide Home Inspections. The
Siblings have not themselves demonstrated that they have the requisite firsthand
knowledge or observations. “[L]ay witness opinion testimony must be based on
firsthand knowledge or observation.” SentinelC3, 181 Wn.2d at 142 (explaining
that lay opinions based solely on consultations with experts whose reports are
not authenticated cannot be considered on summary judgment). Because neither
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No. 83404-5-I/10
the 2017 Inspections nor the Overbeek Report was based on the Siblings’
personal knowledge, the Siblings’ “verification” statements did not render them
admissible.
Likewise, the photographs contained within those reports cannot be
authenticated by the Siblings’ verification statements. A party may authenticate a
photograph by “evidence sufficient to support a finding that the matter in question
is what its proponent claims”—for example, the testimony of a witness with
knowledge. ER 901(a), (b)(1). The witness need not be the photographer or have
been present when the picture was taken, but “the proponent must put forward a
witness ‘able to give some indication as to when, where, and under what
circumstances the photograph was taken, and that the photograph accurately
portrays the subject illustrated.’ ” State v. Sapp, 182 Wn. App. 910, 914-15, 332
P.3d 1058 (2014) (quoting State v. Newman, 4 Wn. App. 588, 593, 484 P.2d 473
(1971)). Thus, for example, in Sapp, the court held that the victim’s grandmother
could authenticate the photographs and video recordings depicting sexual abuse,
based on her prior personal knowledge of the people and places depicted and
the grandchild’s age. Id. at 913, 916.
Here, however, the Siblings’ verification statements do not establish that
any of them took the photographs or were present when the photos were taken.
Nor, unlike in Sapp, is there evidence establishing the Siblings had prior personal
knowledge sufficient to establish when, where, and under what circumstances
the photographs were taken, as is required to authenticate them under ER
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No. 83404-5-I/11
901(b)(1). 6 Therefore, the Siblings’ general verification statements are not
sufficient to authenticate the photos included in the 2017 Inspections or
Overbeek Report, so those photos were also not admissible.
As evidence of their counterclaim, the Siblings also point to a letter from
their attorney, which alleges, inter alia, that “it is an obvious conclusion” that
differences between the photos in the 2017 Inspections and the Overbeek Report
show Diana “clearly failed ‘to ensure that the properties are maintained in their
historic condition.’ ” This letter was provided in response to Diana’s discovery
requests, and the Siblings’ discovery responses were “sworn under penalty of
perjury as true and correct.” However, at most, this attestation establishes only
that the attorney letter is what it purports to be—i.e., a letter from their attorney.
Their attestation does not establish that the Siblings have personal knowledge of
the facts discussed in the attorney letter. Thus, the information discussed in the
attorney letter also is not admissible as substantive evidence of the counterclaim.
The Siblings also contend that because Diana had originally provided the
2017 Inspections in her responses to their discovery requests, those documents
are therefore authenticated. They cite International Ultimate, which held that
“authentication may be satisfied when the party challenging the document
originally provided it through discovery,” 122 Wn. App. at 748, but they overstate
its import. The fact that a document was produced in discovery does not
6 The 735 Property was a rental property not in the Siblings’ possession, and there is no
evidence in the record to establish the Siblings’ prior personal knowledge of the 729 or 735
Properties. Kristy lives in Georgia, Johnny lives in Florida, and Nancy lives in Washington State.
Only Alicia lived in California.
11
No. 83404-5-I/12
automatically render it self-authenticating. Rather, distinguishing the
requirements of CR 56(e) and ER 901, the court in International Ultimate
explained, “If the documents are properly authenticated and are not excluded
because of hearsay, then an attorney may rely on them in a summary judgment
motion regardless of any lack of personal knowledge.” Id. at 746. In other words,
a party may use documents produced in discovery in a summary judgment
proceeding “ ‘if appropriately authenticated by affidavit or declaration.’ ” Id. at
747-48 (internal quotation marks omitted) (quoting Carson Harbor Vill., Ltd. v.
Unocal Corp., 287 F. Supp. 2d 1118, 1134 n.64 (C.D. Cal. 2003)). Therefore, in
International Ultimate and in Carson Harbor Village, documents were admissible
for purposes of summary judgment because the party offering the documents
had submitted a declaration that the documents were true and correct copies of
the documents produced by the opposing party during discovery.
By contrast, here, the Siblings did not submit any declarations or
affidavits, by their attorney or otherwise, to establish that the documents at issue
were provided by Diana in response to discovery. Instead, the documents were
simply attached as exhibits to the Siblings’ response to Diana’s summary
judgment motion. Because they were not properly authenticated as Diana’s
discovery responses, they were not admissible for purposes of summary
judgment, and the trial court properly declined to consider them on that basis.
We conclude that without declarations or affidavits establishing either the
Siblings’ personal knowledge of the contents of the 2017 Inspections and
Overbeek Report or their photographs, or that Diana provided the 2017
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No. 83404-5-I/13
Inspections in discovery responses, this evidence does not satisfy the CR 56(e)
standard for admissibility in a summary judgment proceeding.
B. Siblings’ evidence submitted with Diana’s motion
In the alternative, the Siblings argue the evidence they submitted in
support of their counterclaims 7 was admissible because Diana submitted the
same evidence with her motion for summary judgment. Therefore, the Siblings
argue, they “had no reason to present additional affidavits” or other evidence
because Diana’s choice “necessarily admits . . . the facts” and “waive[s] any
defect[ ] in the admissibility” of their evidence. We disagree that a moving party
renders evidence admissible under CR 56(e) by including documents in their
summary judgment pleadings.
A party against whom a claim is asserted “may move with or without
supporting affidavits for a summary judgment in such party’s favor.” CR 56(b).
Then, the adverse party defending against the motion has the burden of setting
forth specific facts showing that there is a genuine issue for trial with admissible
evidence. CR 56(e); Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d
182 (1989) (after moving party points to absence of genuine issue of fact, “then
the inquiry shifts to the party with the burden of proof at trial”). “ ‘[B]are assertions
that a genuine material issue exists’ do not constitute facts sufficient to defeat a
7 Appellants refer to the evidence that they submitted as “the Siblings’ evidence.” We do
the same to distinguish it from other evidence in the summary judgment record that only Diana
submitted.
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No. 83404-5-I/14
motion for summary judgment.” SentinelC3, 181 Wn.2d at 140 (quoting Trimble,
140 Wn.2d at 92-93).
Here, Diana and the Siblings filed cross motions for summary judgment on
the Siblings’ counterclaim. In support of her motion, Diana’s attorney signed,
under penalty of perjury, a declaration attesting that attached as exhibits were
true and correct copies of the Siblings’ responses to Diana’s discovery requests,
as well as Diana’s responses to the Siblings’ discovery requests. The Siblings’
discovery responses included their verified counterclaim, their interrogatory
answers that incorporate their counterclaim, their attorney’s letter to Diana, the
2017 Inspections, and the Overbeek Report.
The Siblings contend that even if their submissions of this information did
not satisfy CR 56(e), the same evidence became admissible because Diana
provided this information in support of her cross motion for summary judgment.
They argue that when the moving party chooses to present the nonmoving
party’s evidence, that choice “comes with consequences: namely, that . . . the
nonmoving party’s evidence is admissible and should be considered.” The
Siblings cite two cases for this proposition, Bates v. Grace United Methodist
Church, 12 Wn. App. 111, 529 P.2d 466 (1974), and Klossner v. San Juan
County, 21 Wn. App. 689, 586 P.2d 899 (1978) (plurality opinion), aff’d, 93
Wn.2d 42, 605 P.2d 330 (1980). But neither case supports the proposition that
merely attaching information to a motion for summary judgment satisfies the
requirements of CR 56(e).
14
No. 83404-5-I/15
In Bates, the defendant supported his motion for summary judgment
“exclusively” with the plaintiff’s deposition. 12 Wn. App. at 112. By doing so, “the
defendant was essentially declaring that he had no dispute with any of the
material facts asserted in that deposition, and that even if all the material facts
therein were assumed to be true, the defendant was entitled to judgment as a
matter of law.” Id. at 115. The plaintiff also relied exclusively on his own
deposition in opposition to the motion. Id. at 112. The court reasoned that “the
nonmoving party may not successfully oppose the motion by nakedly asserting
that there are unresolved factual questions,” but must set forth specific facts
showing a genuine issue of material fact. Id. at 115. The record “did not disclose
that the parties were ‘disputing’ any material issue of fact that would establish the
defendant’s negligence,” so summary judgment was properly granted. Id. at 116.
Thus, Bates does not stand for the general proposition that if a moving party
includes any evidence with its motion, it concedes that it is admissible. Here,
unlike the defendant in Bates, Diana submitted her own evidence. She did not
rely exclusively on “the Siblings’ evidence” but, rather, explicitly challenged its
admissibility. 8
In Klossner, the wife of a man who was killed driving on a San Juan
County road sued the county for negligence. 21 Wn. App. at 690. In moving for
summary judgment, the county relied solely on Klossner’s answers to
8 The Siblings contend Diana first challenged the Siblings’ evidence as inadmissible in
her reply brief below, too late for the Siblings to respond adequately. Regardless, the trial court
did hear argument and considered the issue below. We review the trial court’s grant of summary
judgment de novo, Ranger Ins. Co., 164 Wn.2d at 552, and the issue of admissibility has been
fully briefed on appeal, so it is appropriate for our consideration.
15
No. 83404-5-I/16
interrogatories, which “describe[d] in detail the action of the truck during the
accident and the effect of the road’s defects on the path of the truck.” Id. at 691-
92. But the interrogatories were silent regarding whether her answers were
based on her personal knowledge. Id. at 692. This court reversed the summary
judgment dismissal, reasoning that by relying solely on Klossner’s answers to
support its motion, the county admitted her answers and all reasonable
inferences therefrom, including an inference of negligence. Id. at 693-94. Two
judges concurred only in the result because Klossner’s answers “demonstrate[d]
on their face that they were based on hearsay,” and thus were inadmissible
under CR 56(e) and could not provide the factual basis for determining liability as
a matter of law. Id. at 696 (Andersen, A.C.J., concurring in result, with James, J.,
concurring in result separately at 697).
The Washington Supreme Court affirmed, but on different grounds. The
county relied on Klossner’s interrogatory answers to establish the nonexistence
of an eyewitness to the accident, but also contended Klossner could not use the
same documents to establish a material issue of fact because they were not
based on her personal knowledge. 93 Wn.2d at 45. The court stated that the
county “may not have it both ways. Indeed, it may not have it either way, for none
of the documents satisfies CR 56(e).” Id. Because Klossner’s interrogatory
answers were not made on personal knowledge, nor did they establish she was
competent to testify to the matters stated, they were inadmissible for summary
judgment purposes. Id.
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No. 83404-5-I/17
While the Siblings argue that by presenting their evidence, Diana
“admitted” that evidence, Klossner does not support this conclusion. Unlike the
moving party in Klossner, Diana has presented other admissible evidence
establishing that there is no material issue of fact. Moreover, Klossner reinforces
the rule that in the absence of personal knowledge, evidence does not satisfy CR
56(e) and may not be considered by a court on summary judgment. Here, by
including the Siblings’ discovery responses in the summary judgment record,
Diana did not thereby concede admissibility under CR 56(e), nor did she render
the responses admissible.
As the nonmoving party opposing Diana’s motion for summary judgment,
it was the Siblings’ burden to set forth specific facts with admissible evidence
showing a genuine issue for trial. CR 56(e); SentinelC3, 181 Wn.2d at 140.
Because the Siblings did not set forth admissible evidence based on personal
knowledge and because documents are not rendered admissible as evidence
solely because the moving party filed them with a motion for summary judgment,
the court did not err by excluding the Siblings’ evidence from consideration in
summary judgment proceedings.
II. Breach of Fiduciary Duty
On appeal, the Siblings claim that Diana breached her fiduciary duty in
several ways: (1) mismanaging the 729 and 735 Properties, resulting in defects
that could expose the beneficiaries to potential liability upon taking ownership, (2)
proceeding with a distribution plan and treating the transfer of the 729 Property
differently than the transfer of the 735 Property, and (3) failing to keep
17
No. 83404-5-I/18
beneficiaries informed about the trust, failing to provide an accounting, and
refusing to make reasonable arrangements for beneficiaries to review trust
documents. 9 As the summary judgment record shows no genuine issue of
material fact, the trial court did not err in dismissing the Siblings’ counterclaim of
breach of fiduciary duty.
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) (internal quotation marks omitted) (quoting Esmieu v.
Schrag, 88 Wn.2d 490, 498, 563 P.2d 203 (1977)). Washington courts have
defined a trustee’s duty of care, skill, and diligence to be that degree of care,
skill, and diligence that an ordinary prudent person exercises in similar affairs.
Cook v. Brateng, 158 Wn. App. 777, 785, 262 P.3d 1228 (2010) (citing In re
Nontestamentary Tr. of Parks, 39 Wn.2d 763, 767, 238 P.2d 1205 (1951)).
A. Mismanagement of properties
Regarding property, a trustee owes a general duty to use reasonable care
and skill to make the trust property productive through leasing or managing it to
generate income. Conserv. Nw. v. Franz, 199 Wn.2d 813, 829-30, 514 P.3d 174
(2022) (citing RESTATEMENT (SECOND) OF TRUSTS § 181 & cmt. a (AM. L. INST.
1959). “Waste” is an unreasonable or improper use, abuse, mismanagement, or
9 Diana notes that the Siblings’ counterclaim has varied over the course of litigation. In
their counterclaim, the Siblings initially alleged Diana breached her fiduciary duty by “failing to
maintain Trust and Estate assets in good and reasonable condition,” attempting to transfer
property that was “not reasonably maintained,” failing to provide an accounting, and “attempting
to disinherit” beneficiaries. In their motion for partial summary judgment, the Siblings alleged
breach through “forced disclaimer of interest in inheritance” regarding the 735 Property.
18
No. 83404-5-I/19
omission of a duty touching real estate by one rightfully in possession that results
in its substantial injury. Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d
858 (1948). If a trust gives the trustee discretion with respect to the management
of the trust property, exercise of that discretion is subject to the court’s control
only when it is necessary to prevent an abuse of that discretion. Conserv. Nw.,
199 Wn.2d at 830 (citing RESTATEMENT (SECOND) OF TRUSTS § 187 & cmt. a).
In this case, while her mother, Amalia, was alive, the trusts obligated
Diana to generate rental income, invading the principal if necessary, and
expressly permitted her to hire agents without liability for their omissions or
neglect. To establish that she had satisfied her duty to use reasonable care in
managing the 729 and 735 Properties to generate rental income, Diana
submitted her own sworn declaration that she “responded in a timely manner to
maintenance and repair requests” at the 729 and 735 Properties. She hired a
professional property management company, Harbor Property Management, to,
among other purposes, “abide by all applicable California rental laws,” address
“needed repairs and maintenance issues,” and “[c]oordinate the services above
to minimize expenses and lost rent.” She maintained voluminous records, 45
binders full, to “prove that I have done everything in my power to maintain the
properties, not let them fall into disrepair, and to avoid waste.” 10
10 In support of her summary judgment motion, Diana also submitted her interrogatory
responses, which included a detailed narrative of the expenses paid for maintenance work and
the income produced by those two properties. On appeal, the Siblings challenge Diana’s answers
to their interrogatories as not signed under penalty of perjury. Generally, issues not raised below
may not be raised on appeal. See RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d
844 (2005). Regardless, even without the information in Diana’s interrogatory responses, the
other evidence in the summary judgment record is sufficient to support the court’s grant of
19
No. 83404-5-I/20
The summary judgment record also contains the sworn declaration of a
local real estate agent, Gustavo Cardenas, who toured both properties in 2016
and 2021. Cardenas’s declaration attached photos of the 729 Property at the
time he toured it, but he took no photos of the 735 Property because that
property was occupied by a long-term tenant. As to both properties, the real
estate agent states that the properties showed “no deferred maintenance” but
“will need a deep cleaning and new paint.”
Finally, the record contains the sworn declaration of Harbor Property
Management’s managing broker, Scott Colette, which attached his letter stating
that Diana “always asked for estimates” and expressing his view “that the overall
condition of the property and the intended us [sic] an income producing
investment has improved considerably” over the time his company had been
maintaining the properties. 11
By contrast, as discussed above, the record does not contain admissible
evidence of mismanagement, much less that the Siblings would be exposed to
liability under California rental law, other than the Siblings’ “ ‘bare assertions.’ ”
SentinelC3, 181 Wn.2d at 140 (quoting Trimble, 140 Wn.2d at 93). Therefore, we
Diana’s motion for summary judgment dismissing the Siblings’ counterclaim that Diana
mismanaged the properties.
11 The record also includes a report from Diana’s expert, attorney Mark Vohr, concluding
that Diana “clearly met her fiduciary duty” to generate income for her mother and that “nothing in
the trust documents” supports the Siblings’ contention that the two properties must be refurbished
before being transferred to them. The Siblings challenged the expert on multiple grounds,
including Diana’s failure to disclose him as an expert and their lack of opportunity to depose him.
Like the trial court, we determine it unnecessary to rely on the expert report to determine the
summary judgment record establishes no genuine issue of material fact as to the claimed breach
of fiduciary duty.
20
No. 83404-5-I/21
conclude no admissible evidence supports the Siblings’ claim that Diana
breached her fiduciary duty by exposing them to potential liability upon their
taking ownership of the 735 Property.
B. Distribution plan for transfer of 729 Property and 735 Property
The Siblings claim that Diana “had a duty to treat the Siblings equally,”
and that she breached this duty because she distributed the 729 Property to
herself and Nancy but “treated Kristy and Alicia differently by filing the TEDRA
petition to force them to accept the 735 Property.” However, the Siblings provide
no legal authority for their argument, and they point to no provision of the trust
supporting a duty to treat siblings equally.
Rather, regarding the properties, the trust states, “The Trustee shall
distribute the lots and residences described below as follows”: the 735 Property
“shall be distributed to KRISTY L. FERARA and ALICIA K. FERARA in equal
shares if they are then living,” and the 729 Property “shall be distributed to
DIANA M. FERARA and NANCY S. FERARA in equal shares if they are then
living . . . .” No trust provision required the trustee to retain the 735 Property
indefinitely or to undertake any improvements to it. Accordingly, Diana did not
breach her fiduciary duty by filing a TEDRA petition seeking to distribute the 729
Property when Kristy and Alicia refused to accept it. To the contrary, in so doing,
Diana was fulfilling her obligation as trustee to distribute assets in accordance
with the trust’s directives. Thus, the evidence establishes no triable issue as to
whether Diana’s actions in distributing any of the trust properties breached her
fiduciary duties, including the duty of impartiality under RCW 11.98.078.
21
No. 83404-5-I/22
C. Providing information to beneficiaries
The Siblings also argue that Diana breached her fiduciary duty because
they “endure[d] delay and costs” trying to obtain information regarding the trust.
Below, the Siblings conceded that Diana provided an accounting for the trust. On
appeal, they argue that a genuine issue exists because “[e]ven though [they]
eventually received the documents, they should not have had to endure the delay
and costs that Diana imposed on them.”
The trial court dismissed the Siblings’ demand for an accounting as moot,
and, as to Diana’s alleged “failure to provide regular accounting,” it held that
there was no genuine issue of material fact. We likewise conclude no admissible
evidence sets forth specific facts showing a genuine issue for trial regarding the
Siblings’ claim that Diana breached her fiduciary duties by imposing delay and
costs on the Siblings in their pursuit of information regarding the trust’s operation.
As discussed above, viewed in the light most favorable to the Siblings, no
admissible evidence creates a question of fact as to whether Diana committed
waste at either the 729 or the 735 Property, abused her discretion by hiring a
property management company to manage them, or exposed the Siblings to
potential liability as California landlords. Further, Diana did not breach her
fiduciary duty by filing a TEDRA petition in order to distribute the 735 Property.
Finally, the Siblings have not raised a genuine issue that Diana breached her
fiduciary duty by allegedly imposing delay and costs on the Siblings in their
pursuit of documents regarding the trust’s operations. Therefore, the court
22
No. 83404-5-I/23
properly granted Diana’s motion for summary judgment dismissing the Siblings’
claim of breach of fiduciary duty.
III. Constructive Disclaimer
The Siblings also appeal the court’s order requiring two of the Siblings,
Kristy and Alicia, to accept transfer of title to the 735 Property within 30 days or
be deemed to have disclaimed their interest in it. Below, the court noted that
neither party cited authority for or against constructive disclaimer and
acknowledged that it “has considerable equitable powers” under RCW
11.96A.020. On appeal, the Siblings concede that the trial court had the authority
to order Kristy and Alicia to execute documents effectuating the transfer of
property located in another state to them, 12 but nevertheless contend it erred.
The Siblings argue that the court abused its discretion because even if
had the power to order the transfer of the 735 Property to Kristy and Alicia, “there
is no statute or case law that grants a trial court the authority to constructively
disclaim a beneficiary’s interest in a specific bequest.” Br. of Appellant at 55. The
Siblings also argue that the court’s constructive disclaimer order was contrary to
Ivan and Amalia’s intent that Kristy and Alicia personally inherit the 735
Property. 13
12 See OneWest Bank, FSB v. Erickson, 185 Wn.2d 43, 61, 367 P.3d 1063 (2016) (trial
court has power to “ ‘indirectly act upon real estate in another State’ ” through its in personam
jurisdiction over the parties (quoting Fall v. Eastin, 215 U.S. 1, 8, 30 S. Ct. 3, 54 L. Ed. 65 (1909));
In re Marriage of Kowalewski, 163 Wn.2d 542, 547, 182 P.3d 959 (2008) (trial court may
“exercise its coercive powers” to order the parties to do that which the court cannot do directly,
namely, transfer title to out-of-state real property).
13 The Siblings also argue for the first time on appeal that if they prevail on their
counterclaim for breach of fiduciary duty, then the court’s order would be inequitable because it
would force them to accept ownership and attendant liability for mismanaged property. Given that
23
No. 83404-5-I/24
TEDRA provides for the resolution of probate matters through nonjudicial
dispute resolution methods, such as mediation, arbitration, and agreement. RCW
11.96A.010. Under TEDRA, superior courts have original subject matter
jurisdiction over trusts “and all matters relating to trusts.” RCW 11.96A.040(2).
Regarding the settlement of trusts, the court “has full power and authority to
proceed . . . 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). 14 Nonetheless, TEDRA’s provisions “shall not
supersede, but shall supplement, any otherwise applicable provisions and
procedures.” RCW 11.96A.080(2); In re Est. of Harder, 185 Wn. App. 378, 384,
341 P.3d 342 (2015). “TEDRA does not independently give trial courts authority
when there is another statute” on point. In re Est. of Rathbone, 190 Wn.2d 332,
345, 412 P.3d 1283 (2018).
The Siblings argue that a different statute, RCW 11.86.031, controls the
disclaimer of an interest, so a court cannot order “constructive disclaimer”
the Siblings fail to establish a question of fact as to their claim of breach of fiduciary duty, we
reject this argument.
14 The statute states in relevant part:
(1) It is the intent of the legislature that the courts shall have full and ample power
and authority under this title to administer and settle:
....
(b) All trusts and trust matters.
(2) If this title should in any case or under any circumstance be inapplicable,
insufficient, or doubtful with reference to the administration and settlement of the
matters listed in subsection (1) of this section, the court nevertheless has 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.
24
No. 83404-5-I/25
because it would be contrary to that statute. They claim that because RCW
11.86.031 sets “strict requirements and limitations for disclaimers,” there is “no
room” for the possibility of constructive disclaimer.
Chapter 11.86 RCW authorizes beneficiaries to disclaim an interest and
sets out specific parameters for how they may do so. RCW 11.86.021, .031. But
the statute sets limits only on how a beneficiary would affirmatively disclaim an
interest; it does not divest the court of its equitable powers under TEDRA. 15
Rather, chapter 11.86 RCW anticipates judicial process. For example, RCW
11.86.051(1)(c) anticipates that an interest may not be disclaimed if sold “or
otherwise disposed of pursuant to judicial process.” Thus, the court’s order of
constructive disclaimer under TEDRA—i.e., pursuant to judicial process—
supplemented chapter 11.86 RCW, rather than conflicted with it.
As for the Siblings’ argument that ordering constructive disclaimer was
contrary to Ivan and Amalia’s intent, while they are correct that a court’s
“paramount duty in construing wills is to give effect to the testator’s intent,” In re
Est. of Riemcke, 80 Wn.2d 722, 728, 497 P.2d 1319 (1972), the court-ordered
15 Diana cites Norris v. Norris as precedent for disclaimer by operation of law, 25 Wn.
App. 290, 297, 605 P.2d 1296 (1980). In Norris, a surviving husband, acting as executor of his
first wife’s prior will, elected to probate the will and accepted its benefits; therefore, he
“disclaimed, by operation of law,” his rights under a community property agreement executed
after the will. However, Norris does not shed light on the issue here regarding the interplay of
TEDRA and the disclaimer statute, ch. 11.86 RCW, as the disclaimer statute was not in effect at
the time of the wife’s death, Norris, 25 Wn. App. at 297, and the case also predates the
enactment of TEDRA by two decades. Further, as the Siblings note, on subsequent review by the
Washington Supreme Court, while the Court of Appeals decision cited by Diana was affirmed, the
reasoning was different. The Supreme Court held that the husband’s probate of the will was an
election of the provisions of the will over the community property agreement, and while that
agreement “could and should have been determined in the probate of [the wife’s] estate, res
judicata prevents the court from now reexamining the distribution in light of the community
property agreement.” Norris v. Norris, 95 Wn.2d 124, 130-31, 622 P.2d 816 (1980).
25
No. 83404-5-I/26
disclaimer here is not contrary to the testator’s intent. The Siblings rely on
Rathbone, 190 Wn.2d at 347, in which the court vacated a trial court’s order
construing a nonintervention will with a no contest clause. “Generally, a superior
court’s authority when dealing with nonintervention wills is statutorily limited.” Id.
at 339 (citing In re Est. of Jones, 152 Wn.2d 1, 9, 93 P.3d 147 (2004)). The
Rathbone court determined that TEDRA did not independently give the trial court
authority to construe a nonintervention will because to do so was contrary to the
testator’s clear intent that her personal representative, not the courts, should
construe her will. Id. at 346-47.
But Rathbone is inapposite; here, there is no nonintervention will at issue.
Instead, RCW 11.86.041 prescribes that a disclaimer has the same legal effect
as a beneficiary predeceasing the surviving trustor. See generally In re Est. of
Baird, 131 Wn.2d 514, 519, 933 P.2d 1031 (1997) (a proper disclaimer passes
the disclaimed interest as if the disclaiming beneficiary predeceased the date of
the transfer of the interest (quoting RCW 11.86.041(1))). Here, the trustors’ intent
is clear that if either Kristy or Alicia predeceases the other, then the 735 Property
is to descend first to the living descendants of the deceased person, then to the
other beneficiary, then to the other beneficiary’s living descendant, and then to
the trustors’ living descendants. 16 Thus, in the event of a disclaimer, the 735
16 The trust specifies that the 735 Property
shall be distributed to KRISTY L. FERARA and ALICIA K. FERARA in equal
shares if they are then living, and if either KRISTY or ALICIA is then deceased,
such deceased beneficiary’s share shall be distributed to her then living
descendants by right of representation, and if she has no descendants then
living, her share shall be distributed to the other beneficiary named in this section
26
No. 83404-5-I/27
Property does not go to the initially named beneficiary. That the disclaimer
occurs by operation of law does not render the transfer contrary to the trustors’
intent.
TEDRA gives courts broad 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). When a beneficiary does not accept a distribution, a
court’s order of constructive disclaimer as an alternative to that inaction is a
reasonable exercise of the court’s authority to proceed with the expeditious
administration and settlement of a trust’s assets.
Therefore, we conclude the court’s order of constructive disclaimer was
within its equitable power and supplemented, without superseding, chapter 11.86
RCW, which authorizes disclaimer by a beneficiary. Moreover, the court’s order
was not contrary to the trustors’ intent because, as with other disclaimers, the
effect was that the property would pass in accordance with the trust’s provisions
in the event of a predeceasing beneficiary.
IV. Fees and Costs
Below, the trial court ordered the Siblings to pay costs and fees of
$73,341.45 to Diana under RCW 11.96A.150 after hearing motions from both
sides and entering findings of fact and conclusions of law.
6.1(b) if she is then living, and if she is not then living, to the other beneficiary’s
then living descendants by right of representation, and if the other beneficiary
has no descendants then living, to Trustors’ then living descendants by right of
representation.
27
No. 83404-5-I/28
Under TEDRA’s attorney fees award provisions, the trial court has
discretion to award fees and other costs to any party in an estate dispute
proceeding governed by Title 11 RCW. RCW 11.96A.150. RCW 11.96A.150(1)
applies not only to trial courts but also to “any court on an appeal.”
The court may award any amount it “determines to be equitable.” RCW
11.96A.150(1). “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). We review a trial court’s decision to award
attorney fees under TEDRA for “ ‘facts and circumstances clearly showing an
abuse of the trial court’s discretion.’ ” In re Est. of Black, 153 Wn.2d 152, 173,
102 P.3d 796 (2004) (quoting In re Est. of Larson, 103 Wn.2d 517, 521, 694 P.2d
1051 (1985)).
The trial court found that Diana was required to file a TEDRA petition and
that her actions benefited the trust. It found that the Siblings’ actions did not
benefit the trust and were harmful. It ordered the four litigating Ferara Siblings,
Alicia, Kristy, Nancy, and Johnny, to pay costs and fees to Diana jointly and
severally, i.e., not from the trust, because their actions were harmful to it. See In
re Est. of Niehenke, 117 Wn.2d 631, 647-48, 818 P.2d 1324 (1991) (stating there
are situations where attorney fees are properly assessed against the estate, but
noting that generally the estate must be benefited if attorney fees are assessed
against it).
28
No. 83404-5-I/29
Diana contends that the trial court properly exercised its discretion to
award her fees below, and she requests fees on appeal under RCW
11.96A.150(1) and RAP 18.1. We agree that the trial court did not abuse its
discretion in awarding her fees and costs. On appeal, Diana is the prevailing
party. The issues raised by the Siblings on appeal did not benefit the trust, and
further harm was done by extending the delay in carrying out the intent of its
trustors, Ivan and Amalia. Therefore, we agree to award costs and fees on
appeal to Diana to be paid by the four litigating Ferara Siblings, not the trust. 17
Affirmed.
WE CONCUR:
17 Because we affirm the trial court’s decision on summary judgment, we deny the
Siblings’ request that we reverse the grant of fees below and grant them fees on appeal.
29