FILED
JUNE 27, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Estate of )
) No. 34226-3-111
DOROTHY C. MILLER, )
)
)
Deceased. ) UNPUBLISHED OPINION
)
KORSMO, J. -William (Bill) Miller appeals from rulings related to his eviction
from a house formerly owned by his mother that became part of her estate. Concluding
that there was no error below, we affirm the trial court and award the estate some of its
fees on appeal.
FACTS
Dorothy Miller passed away in 2011, leaving her estate to her three children: John
Miller, Bill Miller, and Lori Montgomery. Each of the boys was to receive 40 percent of
the estate, with their sister to receive the remainder. The primary assets of the estate
included three houses in Walla Walla. After his mother's death, Bill Miller moved into
the house on University Street. Bill and John were named personal representatives. 1
1 Since the sons share the same surname, we will refer to them where necessary by
their first names. William Miller signs his pleadings as Bill Miller, so will use that name
in this opinion.
No. 34226-3-III
In re Estate of Miller
Bill resigned as personal representative after it was discovered that he was using
estate funds to pay some of his personal expenses. John continued as the sole personal
representative. The estate was able to sell two of the houses and offered to sell Bill the
University Street house for $152,000. When Bill had not secured financing after four
months, John initiated an unlawful detainer action in July 2014. John suspended the
action upon Bill's request that he receive additional time to secure financing.
Three months later, Bill still had not even applied for financing, so John returned
to court. Bill eventually applied for a loan, but did not receive a preliminary loan
commitment. The court ordered Bill to vacate the residence by March 31, 2015. Bill
ignored the deadline and John obtained another writ of restitution. When the sheriff
served the writ, it was discovered that tenants were living in the house. The court then
ordered Bill to pay back rent and tum over any rent received from the tenants to the
estate. Bill was removed from the house and the property ultimately was sold.
John sought to have the expenses of the action taken from Bill's share of the
estate. The trial court found that Bill had resisted reasonable attempts to be removed
from the house and engaged in intransigent conduct. The court ordered on February 29,
2016, that the estate's fees and costs would be deducted from Bill's share of the estate.
The award included attorney fees of $4,707.50 related to probate proceedings, $6,607.50
in attorney fees for the unlawful detainer action, and another $3,260.20 in costs related to
the unlawful detainer.
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No. 34226-3-111
In re Estate of Miller
Bill filed a motion for reconsideration 10 days later. The court denied the motion
on March 17 without requiring argument. Bill then filed an appeal to this court on March
29, 2016.
ANALYSIS
Bill argues that the court erred in awarding the costs against his share of the estate
and in denying reconsideration. The estate seeks costs on appeal. We address Bill's two
arguments in the order noted before turning to the estate's claim.
Costs Against Bill's Share of the Estate
Bill argues that the trial court erred in assessing the costs incurred by the estate
against his share of the inheritance. That was a common, and totally appropriate, action
for the judge to make. There was no abuse of the trial court's discretion.
By statute, the judge is authorized to assign costs of estate administration,
including litigation expenses. RCW 11.96A.150(l)(c) provides in part that
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.
The statute squarely recognizes that trial judges have discretion in their authority
to act equitably. Accordingly, the appellate courts consistently have reviewed attorney
fee awards under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A
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No. 34226-3-III
In re Estate of Miller
RCW, for abuse of discretion. See, e.g., In re Guardianship of Lamb, 173 Wn.2d 173,
198,265 P.3d 876 (2011) ("The express language ofRCW 11.96A.150 leaves attorney
fee awards in cases resolving guardianship disputes to the court's discretion. The statute
allows a court considering a fee award to consider any relevant factor."); In re Estate of
Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004). Discretion is abused when it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the trial court found that Bill did not act in good faith when he failed to
vacate the house after the court ordered him to do so, did not pay rent for the time spent
living in the University Street house, failed to procure financing to purchase the house,
and allowed others to live there without informing the estate. These actions were to the
detriment of the estate. It was unable to make use of the property for several years while
Bill treated the property as his own. The estate then had to expend close to $15,000 to
remove Bill from the property.
Directing Bill to reimburse the estate for some of the costs he had imposed on it
was a very tenable basis for ruling. Taking that money from his share of the estate
ensured repayment. The trial court did not abuse its considerable discretion in these
circumstances.
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No. 34226-3-111
In re Estate of Miller
Denial of Reconsideration
Bill next argues that the trial court erred in denying reconsideration. Since he
provided no new evidence or argument in support of his motion, the trial court did not err.
This court also reviews a trial court's decision on a motion for reconsideration for
abuse of discretion. Lilly v. Lynch, 88 Wn. App. 306,321,945 P.2d 727 (1997). Once
again, there was a very tenable basis for the trial court ruling as it did. The motion for
reconsideration presented nothing new for the trial court's consideration. At a minimum,
a reconsideration motion should be able to point to something overlooked in the court's
original analysis. E.g., ABC Holdings, Inc. v. Kittitas County, 187 Wn. App. 275,287,
348 P.3d 1222 (2015). See generally, CR 59(a).
That was not done here. Although Bill reargued his position, giving the trial court
a second opportunity to see the facts as he saw them, the trial court was not compelled to
return a different result simply because it was given an opportunity to do so. As there
was no new reason to change its mind, the trial court could not have abused its discretion
when it declined to do so.
The trial court did not err in denying reconsideration.
Costs on Appeal
The estate seeks its costs, including reasonable attorney fees, for the defense of
this appeal. RAP 18.1; RCW 11.96A.150(1). These costs are available on appeal. In re
Estate ofJones, 152 Wn.2d 1, 20-21, 93 P.3d 147 (2004).
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No. 34226-3-111
In re Estate of Miller
It is appropriate to award costs in this instance. The estate incurred significant
costs due to Bill's intransigence. It should not have to lose money to defend that cost
award on appeal.
Accordingly, we award the estate its costs related to the preparation of its brief on
appeal. No costs are allowed for the unsuccessful challenge to Bill's appeal that
previously was litigated before our Commissioner. In the event that the estate makes a
proper and timely claim for costs, our Commissioner is empowered to award reasonable
costs, including attorney fees, to be paid from Bill's share of the estate.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
22~{,l)~ ~-
Siddoway, J.
Pennell, J.
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