In Re Estate Of Karen Hurteau, Dana Floth Et Ano, Resp. V. Brandon Donaly, App. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Estate of ) No. 80556-8-I
KAREN L. HURTEAU, )
)
Deceased. )
)
DANA FLOTH and MICHELLE )
HURTEAU, )
)
Respondents, ) UNPUBLISHED OPINION
)
v. )
)
BRANDON DONALY, )
)
Appellant. )
In the Matter of the GARY L. and ) No. 81415-0-I
KAREN L. HURTEAU TRUST, dated )
March 10, 1999. )
)
BRANDON DONALY, )
)
Appellant, ) UNPUBLISHED OPINION
)
v. )
)
DANA FLOTH, Trustee of the Gary L. )
and Karen L. Hurteau Trust, )
)
Respondent. )
Bowman, J. — Karen Hurteau died in a house fire, leaving a sizeable
estate. Her daughters Michelle Hurteau and Dana Floth petitioned under the
Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW,
alleging Dana’s son Brandon Donaly unduly influenced their mother to name him
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80556-8-I & No. 81415-0-I/2
as the sole beneficiary on two retirement accounts. Brandon then separately
filed a petition under TEDRA to remove his mother as trustee of the Gary L. and
Karen L. Hurteau Trust (Hurteau Trust), alleging she refused to distribute funds
to him. The trust counterclaimed, seeking to disinherit Brandon for violating the
Hurteau Trust’s no contest clause. The trial court concluded that Brandon did not
unduly influence his grandmother but that he acted in bad faith and contrary to
the trust’s no contest clause in seeking to remove Dana as trustee. We affirm.
FACTS
Karen and Gary1 established the Hurteau Trust (Trust) in 1999 and served
together as trustees during their lifetimes. Gary died in 2012 and Karen became
the sole trustee. Karen died on June 11, 2018 in a house fire at the age of 77.
She was survived by her daughters Michelle and Dana as well as Dana’s son
Brandon. At the time of Karen’s death, the Trust was valued at about $3.2
million. Dana, Michelle, and Brandon were the beneficiaries of the Trust.
Separate from the Trust, Karen had two IRAs2 that also designated Dana,
Michelle, and Brandon as the beneficiaries.
After Karen’s death, Dana became the sole trustee of the Trust. The Trust
provided that the trustee must retain its assets until the estate taxes and other
liabilities were determined and paid. It called for a one-year administration
period, during which the trustee had the “sole and absolute discretion” to make
1 We refer to Karen Hurteau, Gary Hurteau, Michelle Hurteau, Dana Floth, and Brandon
Donaly by their first names for purposes of clarity and mean no disrespect by doing so.
2 Individual retirement accounts.
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distributions to beneficiaries.3 The Trust authorized the trustee to serve,
regardless of any conflicts of interest with beneficiaries. And the Trust included a
strict “no contest clause”:
If any of Trustors’ statutory heirs, and beneficiary mentioned or
referred to in this Trust or for whom or for whose benefit Trustors,
or either of them, have made any provisions in this Trust, or any
other person shall in any manner contest in any court or before any
tribunal, this Trust or the validity thereof, or its due and proper
execution, or the provisions applicable to him or her, or any other
provision of this Trust, or shall in any way question Trustor’s acts in
making this Trust or any of its provisions, or file any claim against
this Trust exceeding One Hundred Dollars ($100.00) then, in that
event, such beneficiary or heir shall forfeit and cease to have any
right, title or interest in or any portion of the Trust Estate or any
property given under this Trust or any income from such property,
and any and all provisions of this Trust in favor of or for the benefit
of such beneficiary or heir are revoked.
At the time of Karen’s death, Brandon was one month shy of his 23rd
birthday. Before he turned 35, a “sub-trust” held and administered Brandon’s
share of the Trust. The Trust provision specified that the trustee
shall use so much of the income or principal from the beneficiary’s
share as Trustee deems necessary for the beneficiary’s
maintenance, education, support and health to the age of [25]
considering the availability to the beneficiary of other sources of
funds.
At age 25, Brandon would receive “one-third of the net value of the then
remainder of his . . . share.” Then at 30 years old, Brandon would receive one-
half of the net value of his share of the Trust. Finally, at age 35, he would
receive the rest of his share.
3 Such distributions would “be a charge against the share of the recipient who received
the disbursement.”
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Brandon was not employed. He had been financially dependent on his
grandmother since 2014. Karen paid Brandon’s rent and utilities and gave him
cars and money. In exchange, Brandon was to help Karen weekly with
groceries, mail, bills, and housekeeping. In the last 37 months of her life, Karen
made $59,800 in check and cash transfers to Brandon.
Dana knew that Brandon was financially dependent on Karen. So within a
week of Karen’s death, Dana in her capacity as trustee requested Brandon’s
lease and financial information so that she could try to disburse money from the
Trust for his living expenses. Despite many requests, Brandon did not send
Dana any documents showing his need. Even so, to ensure that Brandon had
rent money, Dana wrote him a $2,000 check from her personal account as a
“[T]rust advance.”
After Karen’s death, Dana and Michelle learned that Karen changed the
beneficiary designations of both IRAs in the last year of her life. Karen named
Brandon the sole beneficiary. Knowing that their mother had been an infirm and
mostly homebound alcoholic in the year before her death, Dana and Michelle
were concerned that Brandon unduly influenced Karen to change the beneficiary
designations on the accounts.4 Dana and Michelle filed a TEDRA petition
contesting the beneficiary designations and alleging Brandon unduly influenced
Karen over the disposition of the IRAs.
The court set a trial date in December 2018. The court later granted Dana
and Michelle’s motion to amend their complaint and continue the trial to April
4 Even during times of sobriety, Karen’s “ability to process facts or understand what was
happening remained significantly diminished.”
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2019. Dana and Michelle’s amended petition included a claim of financial abuse
and exploitation of a vulnerable adult. Brandon did not file an amended answer
to the complaint.
Instead, two months before trial, Brandon separately petitioned under
TEDRA to remove Dana as trustee of the Trust. He alleged that Dana was
“preventing the distribution of any funds from the [T]rust to [him] contrary to [its]
language and intent.” Brandon claimed that Dana was “taking advantage” of his
financial need to “obtain leverage” in her litigation. Shortly after petitioning,
Brandon’s attorney Christopher Lee contacted the Trust’s administrative attorney
with an urgent request for a Trust disbursement because Brandon was facing
eviction. After producing documents showing his need, Dana disbursed funds to
Brandon from the Trust.
While Brandon’s petition to remove Dana as trustee was pending, the
parties engaged in settlement discussions. They reached a resolution but
Brandon later changed his mind. Dana and Michelle moved to enforce the
settlement agreement, which the trial court denied.
The Trust on behalf of Dana as trustee answered Brandon’s petition to
remove her and filed a counterclaim seeking to disinherit Brandon under the
Trust’s no contest clause. At the initial TEDRA hearing on Brandon’s petition, the
court found his claims “meritless” and unsupported by any facts. The court
dismissed Brandon’s petition with prejudice but allowed the Trust’s counterclaim
to proceed to trial. Brandon moved for reconsideration but later withdrew the
motion. Brandon did not appeal the court’s order dismissing his petition to
remove Dana as trustee.
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The trial court consolidated Dana and Michelle’s TEDRA petition alleging
undue influence and financial exploitation with the Trust’s counterclaim to
disinherit Brandon. The court set a trial date in May 2019.
The Trust’s trial attorney considered calling Brandon’s attorney Lee as a
“fact witness” to Brandon’s bad faith in seeking to remove Dana as trustee and
asked to take his deposition. In response, Lee stated, “I am not a fact witness”
and refused to sit for a deposition without a motion to compel his testimony. The
Trust served Lee with a subpoena but then decided not to depose him pending
its filing of a motion for summary judgment.
The Trust moved for summary judgment to enforce the no contest clause
against Brandon. It argued that since Brandon did not appeal the trial court’s
dismissal of his TEDRA petition to remove the trustee, the court’s legal
determination that his petition was meritless and brought in bad faith was final.
The Trust also argued Brandon brought his petition without disclosing to his
attorney that the trustee had in fact disbursed funds to him. The trial court
granted the motion in part, ruling Brandon “did not disclose a material fact to
counsel before suing the Trustee and therefore is not entitled to a presumption
[that he sought to remove Dana in] good faith.” The trial court reserved for trial
the issue of whether Brandon brought the petition in bad faith and continued the
trial to July 2019.
Ten days before trial, Lee listed himself as a witness on the joint
statement of evidence to testify “as to the facts and circumstances related to the
counterclaim to enforce the no contest clause of the Hurteau Trust.” The Trust’s
trial attorney then told Lee, “As you know, we identified you as a witness months
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ago and attempted to take your deposition. You refused to appear for your
deposition. Now that you have identified yourself as your own witness, we insist
upon taking your deposition.” Lee responded, “I don’t anticipate testifying. I put
myself down because you listed me.” After this exchange, the Trust’s attorney
removed Lee from the joint statement of evidence.
The issue of Lee testifying arose again on the first day of trial. Lee
suggested that the court could rule on whether Brandon violated the Trust’s no
contest clause without hearing testimony from witnesses. The trial court
disagreed. Lee then asked that the court allow him to testify. The Trust objected
because Lee refused to sit for a deposition, and allowing him to testify would
prejudice the Trust. The trial court excluded Lee’s testimony.5
After a five-day bench trial, the court entered extensive findings of fact and
conclusions of law. It concluded that Dana and Michelle failed to prove that
Brandon exploited or unduly influenced Karen to name him as the sole
beneficiary of the IRAs.
The court also concluded that Brandon petitioned to remove Dana as
trustee in bad faith and without probable cause. The court called Brandon’s
actions against the trustee “essentially a fraud” because he filed the lawsuit as an
“attack” on the petition filed by Dana and Michelle. The court concluded that the
meritless suit, brought in bad faith and without probable cause, triggered the no
contest clause of the Trust. As a result, the court ordered, “Brandon has forfeited
and shall cease to have any right, title, or interest in or to any portion of the Trust,
5 Brandon moved to reconsider excluding Lee’s testimony, which the court denied.
Brandon appealed this order.
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and all provisions of the Trust in favor of Brandon or for Brandon’s benefit are
hereby revoked.”
Brandon moved for a new trial and sanctions based on discovery
violations. He claimed that he could not prepare for trial because of “false
witness designations” and “the unnecessary assertion of [attorney-client]
privileges.” Brandon also claimed that disinheriting him did not fulfill the intent of
trustors Gary and Karen. The trial court denied Brandon’s motion for a new trial.
Brandon then moved to reconsider the trial court’s order enforcing the
Trust’s no contest clause. He argued that substantial evidence did not support
the court finding he acted in bad faith in petitioning to remove Dana as trustee
and claimed that Dana breached her fiduciary duty as trustee by bringing her
counterclaim to enforce the no contest clause. The court denied the motion to
reconsider. Brandon appealed.
Four months later, Brandon moved under CR 60(b) for relief from the
court’s order dismissing his petition to remove Dana as trustee.6 Brandon
claimed that new evidence revealed during trial demonstrated Dana was not an
“appropriate” trustee for Brandon. Brandon also alleged fraud,
misrepresentation, and misconduct that he claimed warranted relief.
The court held a hearing on the CR 60(b) motion and expressed serious
disapproval of having to revisit the case a year later, stating, “It was meritless
then, and it remains meritless now.” The court found the motion “disingenuous,
at best.” The court pointed to the findings and conclusions entered after the five-
6 Brandon filed the CR 60(b) motion to vacate on February 11, 2020, almost a year after
entry of the order dismissing his petition on April 19, 2019.
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day trial that “specifically address” Brandon’s allegations. Declaring the motion a
“complete waste of judicial resources,” the trial court denied the motion to vacate
and awarded the Trust attorney fees and costs. Brandon appeals this ruling as
well.
Brandon moved to consolidate his appeals. We granted his motion in
part. Because we consider Brandon’s two appeals linked, we address them in a
single opinion.
ANALYSIS
Brandon argues the trial court erred in concluding that his petition to
remove Dana as trustee triggered the Trust’s no contest clause. Specifically,
Brandon alleges that the court improperly excluded his attorney’s late-disclosed
testimony and denied his motion to reconsider, erred in finding that Dana clearly
told him how to access Trust distributions, and erred in concluding that he acted
in bad faith and without probable cause. Brandon also challenges the court’s
order denying his motion to reconsider its order enforcing the no contest clause
and his motion to vacate its order dismissing Brandon’s petition to remove Dana
as trustee. We address each assignment of error in turn.
Exclusion of Witness Testimony
Brandon contends the trial court erred by excluding his attorney Lee as a
witness to his good faith in petitioning for Dana’s removal as trustee. According
to Brandon, the trial court abused its discretion because “Lee’s refusal to have
his deposition taken was not willful,” it did not substantially prejudice the Trust’s
ability to prepare for trial, and a lesser sanction “would have sufficed.” The Trust
claims that the trial court properly applied Burnet v. Spokane Ambulance, 131
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Wn.2d 484, 933 P.2d 1036 (1997), to exclude Lee’s late-disclosed testimony.
We agree with the Trust.
We review a trial court’s decision to exclude evidence for an abuse of
discretion. Viereck v. Fibreboard Corp., 81 Wn. App. 579, 587, 915 P.2d 581(1996); see Burnet, 131 Wn.2d at 494. A trial court abuses its discretion when its
decision is manifestly unreasonable or based on untenable grounds or reasons.
Burnet, 131 Wn.2d at 494.
A trial court’s discretion to exclude a witness is “cabined by . . . Burnet and
its progeny.” Jones v. City of Seattle, 179 Wn.2d 322, 338, 314 P.3d 380 (2013)
(Burnet applies when imposing a severe sanction under CR 37(b),7 such as
witness exclusion). Under Burnet, the trial court must consider (1) whether the
noncompliant party’s conduct was willful or deliberate, (2) whether the conduct
substantially prejudiced the opponent’s ability to prepare for trial, and (3) whether
a lesser sanction would suffice before imposing “ ‘one of the harsher remedies
allowable under CR 37(b).’ ” Jones, 179 Wn.2d at 3388 (quoting Burnet, 131
Wn.2d at 494). A party’s failure to comply with a court order is willful if it occurs
without reasonable justification. Jones, 179 Wn.2d at 345. But violation of a
discovery order alone is not enough; “[s]omething more is needed.” Jones, 179
Wn.2d at 345.
7 CR 37(b) allows sanctions for failure to comply with a discovery order.
8 Internal quotation marks omitted.
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No. 80556-8-I & No. 81415-0-I/11
Here, the trial court considered the Burnet factors on the record before
excluding Lee’s late-disclosed testimony:
Mr. Lee was offered the opportunity, if we can call it that, by way of
a subpoena to sit for deposition and declined, listed himself as a
witness but then clarified that he would not be a witness when the
petitioner asked if he would be a witness, indicating they would
need to depose him if he was going to be and so the petitioners
were relying on that.
So at this point, at the beginning of trial, the prejudice
is simply too great to the petitioner and so lesser — there is no
lesser sanction that would — I guess there’s no lesser sanction that
would suffice as far as I’m concerned other than excluding Mr.
Lee’s testimony . . . as a witness.
The record supports the trial court’s decision. King County Superior Court
Local Civil Rule (LCR) 4(k) requires parties to file a joint statement of evidence,
including “a list of the witnesses whom each party expects to call at trial,” at least
five court days before the trial date. The trial court here specifically ordered the
disclosure of witnesses and warned that failure to comply with LCR 4(k) “shall
result in the exclusion of the witnesses’ testimony at the time of trial, or such
other sanctions as the Court deems appropriate.” Despite Lee listing himself as
a witness in the joint statement of evidence, he told the Trust that he would not
testify as a fact witness twice—once when the Trust asked to depose him, and
again after he disclosed himself as a fact witness in the joint statement of
evidence.9 Lee’s repeated assurances that he would not testify, along with his
refusal to be deposed, reasonably led the Trust to believe that he would not be a
witness. His change of strategy the first day of trial amounts to a willful and
deliberate violation of the discovery rules without reasonable justification.
9 Lee stated he did not anticipate testifying the second time on July 8, 2019. Trial began
July 17, 2019.
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Lee’s conduct also prejudiced the Trust’s ability to prepare for trial.
Relying on Lee’s representations, the Trust chose not to compel a deposition
after he refused. The Trust renewed its request to depose Lee after he listed
himself in the joint statement of evidence. But again, Lee assured the Trust that
he would not testify. As a result, the Trust did not depose Lee and was
unprepared for Lee’s testimony at trial.
Even so, Brandon argues that the court could have ordered Lee to sit for a
deposition before his testimony, and that it “would have been an appropriate
[lesser] sanction to make Brandon responsible for the fees and costs” incurred.
But Brandon ignores the potential ethical issues inherent in a trial attorney
testifying as a fact witness for his client. See RPC 3.7(a). Lee’s testimony would
have delayed trial indefinitely not only to depose him, but then to resolve the
accompanying ethical issues, including Lee’s potential disqualification as
Brandon’s attorney. The court did not abuse its discretion in excluding Lee’s
testimony.10
Finding of Fact on Documenting Need for Trust Distributions
Brandon argues, “There is insufficient evidence to support a finding that
[he] was informed by Dana that he needed to provide certain documents in order
to obtain a distribution” from the Trust. We review a trial court’s findings of fact
for substantial evidence. In re Estate 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.” Jones, 152 Wn.2d at 8.
10 We also conclude the court did not abuse its discretion in denying Brandon’s motion to
reconsider its order excluding Lee’s testimony. O’Neill v. City of Shoreline, 183 Wn. App. 15, 21,
332 P.3d 1099 (2014).
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First, Brandon misstates the trial court’s finding of fact. The finding states,
“After Karen’s death, Dana as Trustee asked Brandon what he needed for his
maintenance and support and asked him to document those needs. Brandon did
not respond to Dana’s requests.” In any event, testimony from both Dana and
Brandon as well as text messages between the two support the finding that Dana
asked Brandon to document his needs.
Brandon testified that Dana asked him for copies of financial documents in
support of his request for a Trust distribution, but he did not provide them:
Q. When you told your mother shortly after your
grandmother’s death that you needed money to pay your rent, did
she ask you for a copy of your lease, a budget, proof of your
expenses?
A. She asked me for my lease and a few other
documents. I can’t remember exactly what.
Q. Did you give her those documents?
A. No.[11]
Dana gave similar testimony:
I told [Brandon] when I talked to him [six days after Karen’s death]
that if I were to give him any distributions, he had to demonstrate
need. So I asked him to send me a copy of his lease . . . .
I needed a copy of his bank statements because I
needed to determine his availability to other funds. I didn’t know if
he had money in savings or what have you, and then a copy of his,
you know, budget or expenses because I didn’t know if he had
credit cards or cell[ ]phones or cable or any of that.
Dana followed up the request for documents with text messages asking,
“Are you going to send me your info[rmation] that we talked about,” “Are you
going to send me you[r] documents so we can figure out a plan,” and, “What
about the lease and other paperwork we discussed.” In response to one of
11 Boldface omitted.
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Dana’s text messages asking, “Are you going to send me your stuff,” Brandon
responded, “No, not now.” Brandon often responded to Dana’s requests that he
was too “busy” at the moment or did not respond at all.
The record shows Dana made several attempts to get Brandon’s financial
documents to support his requests so that she could properly disburse funds
from the Trust. The record also shows that Brandon was aware of her requests
and chose not to comply. Substantial evidence supports the trial court’s finding
that Dana asked Brandon to provide documentation to show his financial needs
in order to obtain a distribution from the Trust.
Conclusion of Law on Bad Faith
Brandon contends the trial court erred when it concluded that he “filed his
TEDRA petition [to remove Dana as trustee] . . . in bad faith and without probable
cause.” We disagree.
After a bench trial, our review is limited to whether substantial evidence
supports a trial court’s findings of fact and whether those findings support the
conclusions of law. Endicott v. Saul, 142 Wn. App. 899, 909, 176 P.3d 560(2008). “Substantial evidence is the quantum of evidence sufficient to persuade
a rational fair-minded person the premise is true.” Endicott, 142 Wn. App. at 909.
In evaluating the sufficiency of the evidence, we consider only the evidence
favorable to the prevailing party. Endicott, 142 Wn. App. at 909. We also view
all reasonable inferences in the light most favorable to the prevailing party.
Jensen v. Lake Jane Estates, 165 Wn. App. 100, 104, 267 P.3d 435 (2011).
While the trier of fact is free to believe or disbelieve any evidence presented at
trial, “[a]ppellate courts do not hear or weigh evidence, find facts, or substitute
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their opinions for those of the trier-of-fact.” Quinn v. Cherry Lane Auto Plaza,
Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). Unchallenged findings are
verities on appeal. Endicott, 142 Wn. App. at 909. We review questions of law
de novo. Endicott, 142 Wn. App. at 909.
Generally, a no contest clause is valid and enforceable. See In re Estate
of Mumby, 97 Wn. App. 385, 393, 982 P.2d 1219 (1999). But a no contest
clause will not operate when a beneficiary contests in good faith and with
probable cause. Mumby, 97 Wn. App. at 393. “If a contestant initiates an action
on the advice of counsel, after fully and fairly disclosing all material facts, [he] will
be deemed to have acted in good faith and for probable cause as a matter of
law.” Mumby, 97 Wn. App. at 393. But when a contestant fails to disclose all
material facts to his attorney fully and fairly, the contestant is not entitled to a
presumption of good faith. Mumby, 97 Wn. App. at 394.
When, as here, the presumption of good faith does not apply,12 the trier of
fact will determine whether the contestant acted “in bad faith and without
probable cause.” Mumby, 97 Wn. App. at 394. A party can show bad faith by
actual or constructive fraud; neglect or refusal to fulfill a duty; or “an act ‘not
prompted by an honest mistake as to one’s rights or duties, but by some
interested or sinister motive.’ ” In re Estate of Gillespie, 12 Wn. App. 2d 154,
173, 456 P.3d 1210 (2020) (quoting Mumby, 97 Wn. App. at 394).
12On summary judgment, the trial court concluded that Brandon was not entitled to the
presumption of good faith because he failed to disclose the material fact to his attorney that Dana
disbursed funds to him. Brandon did not appeal this decision. The outstanding issues for trial
were whether Brandon acted in bad faith and without probable cause, invoking the no contest
clause.
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Brandon argues the trial court’s conclusion that his lawsuit “was
essentially a fraud” and that he brought it in bad faith to “attack the [TEDRA
action] filed by Dana and Michelle” is not supported by the findings of fact. He
complains that the court “does not explain” how his “extensive arguments” about
Dana and Michelle in his petition to remove Dana as trustee and the timing of his
petition amount to bad faith. But the court explained in its written findings and
conclusions that Brandon’s extensive arguments about “beneficiary designations
and financial exploitation” in his petition to remove Dana as trustee “show that
Brandon’s petition was really meant as an attack on the allegations against
Brandon” in Dana and Michelle’s separate lawsuit. The court also explained,
“The fact that Brandon filed his petition . . . before answering the amended
allegations relating to financial exploitation” in Dana and Michelle’s lawsuit and
noted it for hearing “just three days before trial was to begin” suggests that
Brandon “brought [his petition] in bad faith to derail the suit” brought by Dana and
Michelle.
And Brandon ignores the trial court’s finding that he petitioned to remove
Dana as trustee for failure to disburse funds even though
Brandon had not been denied anything that he was otherwise
entitled to from the Trust. To the contrary, when Dana as Trustee
asked Brandon to specify his needs to enable Dana to exercise her
discretion to make distributions to Brandon to help provide for his
needs, Brandon did not respond.
Viewed in the light most favorable to the Trust, the trial court’s findings support its
conclusion that Brandon petitioned for Dana’s removal as trustee in bad faith and
without probable cause.
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Motion for Reconsideration
Brandon argues the trial court erred in denying his motion to reconsider its
order enforcing the no contest clause. According to Brandon:
It is not substantial justice that Gary and Karen’s only
grandchild and last descendent is disinherited from the Hurteau
Trust when he had a close, affectionate relationship with his
grandmother and spent much time with her during the last years of
her life, unlike her daughters.
We review a trial court’s denial of a motion to reconsider for an abuse of
discretion. O’Neill, 183 Wn. App. at 21. When interpreting a trust, our duty is to
give effect to the trustor’s intent. In re Guardianship of Jensen, 187 Wn. App.
325, 331, 350 P.3d 654 (2015). If possible, we ascertain that intent from the
unambiguous language of the trust. Jensen, 187 Wn. App. at 331.
Here, the Trust’s no contest clause is unambiguous. The clause calls for
disinheritance of any beneficiary that contests “this Trust or the validity thereof, or
its due and proper execution, or the provisions applicable to him or her, or any
other provision of this Trust, or shall in any way question Trustor’s acts in making
this Trust or any of its provisions.” Substantial evidence supports the court’s
conclusion that Brandon petitioned for removal of the trustee in bad faith and
without probable cause. Enforcing the strict no contest clause aligns with the
terms of the Trust and intent of the trustors. The trial court did not abuse its
discretion in denying Brandon’s motion for reconsideration.13
13 Below, Brandon filed a motion for a new trial based on discovery violations, which the
court denied. Brandon now appeals the order, arguing for the first time that he is entitled to a
new trial because Dana committed misconduct by acting in her own self-interest rather than as
trustee in pursuing her counterclaim to disinherit him. He also argues for the first time that the
trial court failed to consider Dana’s duty to act in the interests of the beneficiaries during litigation.
Because Brandon did not raise these issues below, we decline to review them. RAP 2.5(a).
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Motion To Vacate
Brandon claims the court abused its discretion in denying his CR 60(b)
motion to vacate its order dismissing his petition to remove Dana as trustee. We
disagree.
“On motion and upon such terms as are just, the court may relieve a party
or the party’s legal representative from a final judgment, order, or proceeding” for
many reasons, including newly discovered evidence, fraud, misrepresentation, or
misconduct. CR 60(b)(3), (4). We review a trial court’s decision on a CR 60(b)
motion for abuse of discretion. Union Bank, NA v. Vanderhoek Assocs. LLC, 191
Wn. App. 836, 842, 365 P.3d 223 (2015).
New Evidence
Brandon cites newly discovered evidence as a ground for his motion to
vacate the order dismissing his petition to remove the trustee. A party may move
to vacate for “[n]ewly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial.” CR 60(b)(3). To successfully
vacate a judgment for newly discovered evidence, the moving party must show
that the evidence (1) would probably change the result if the court granted a new
trial, (2) was discovered since trial, (3) could not have been discovered before
trial by the exercise of due diligence, (4) is material, and (5) is not merely
cumulative or impeaching. Jones, 179 Wn.2d at 360.
According to Brandon, he “presented new evidence from the trial that his
mother did in fact have significant negative attitudes and opinions” of him. He
also claims that evidence produced at trial shows Dana instructed the Trust
attorney “not to send a written communication to Brandon regarding how to
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obtain distributions from the [T]rust.” But Brandon fails to show that Dana’s
animosity toward him would have changed the result of the court’s order
dismissing the petition to remove Dana as trustee. The Trust specifically
exempts disqualification of a trustee who has a personal conflict with a
beneficiary:
A Trustee shall not be barred or disqualified from acting in a
fiduciary capacity other than and in addition to Trustee of this Trust
in matters and decisions hereunder, regardless of whether his or
her interest conflicts with those of any beneficiary.
Moreover, Dana’s instructions to the Trust attorney are of little value because the
evidence shows Dana disbursed Trust assets to Brandon when he provided the
documents supporting his need.
Fraud, Misrepresentation, and Misconduct
Brandon also moved to vacate under CR 60(b)(4), which allows for relief
from judgment because of “[f]raud (whether . . . intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party.” Under this
subsection, “the fraudulent conduct or misrepresentation must cause the entry of
the judgment such that the losing party was prevented from fully and fairly
presenting its case or defense.” Lindgren v. Lindgren, 58 Wn. App. 588, 596,
794 P.2d 526 (1990). The party attacking the judgment must establish the
misconduct by clear and convincing evidence. Lindgren, 58 Wn. App. at 596.
Brandon claims that “Dana misled [him] regarding her position as trustee
as to whether distributions could be allowed,” and that ”[s]uch misrepresentation
went directly to the substance of [his] claim.” Brandon asserts Dana “admitted to
knowing that representations were made to the court in pleadings in November
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No. 80556-8-I & No. 81415-0-I/20
2019 that Brandon should not receive distributions, and that no distributions had
been made.” Brandon’s argument again ignores the evidence that he knew he
needed to document his needs before Dana could disburse Trust funds to him
and that he refused to do so. In any event, the record shows Dana disbursed
personal funds in response to Brandon’s request as a “[T]rust advance.”
Brandon also received Trust disbursements after he produced eviction
documentation. The trial court did not abuse its discretion in denying Brandon’s
motion to vacate under CR 60(b)(3) and (4).
Attorney Fees and Costs
TEDRA gives courts the discretion to award reasonable attorney fees and
costs
a) [f]rom 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. In re Estate of Hook, 193 Wn. App. 862, 873-74,
374 P.3d 215 (2016). We review an award of attorney fees for an abuse of
discretion. In re Estate of Evans, 181 Wn. App. 436, 451, 326 P.3d 755 (2014).
Trial
Brandon contends the trial court’s denial of his motion for attorney fees
and costs following trial was “unreasonable” because RCW 11.96A.150 awards
fees based on equity rather than solely to the prevailing party. We disagree.
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After trial, the court denied fees to both parties, concluding that “it would be
inequitable to award Petitioners or Respondents their fees and costs.” In
reaching this conclusion, the court considered that Dana and Michelle based
their claims on “little more than speculation” and that Brandon brought his suit in
bad faith. The trial court weighed the evidence and conduct of the parties and
made a reasoned decision. There was no abuse of discretion.
CR 60(b) Motion
The court awarded attorney fees and costs to the Trust in its order
denying Brandon’s CR 60(b) motion to vacate. Brandon argues the trial court
“[a]cted [i]nequitably” by awarding attorney fees and costs against him after his
motion failed. According to Brandon, “[t]here was substantial evidence
supporting [his] decision to file a CR 60(b) motion.” We disagree.
Brandon brought his motion to vacate 10 months after entry of the order
dismissing his petition to remove Dana as trustee. His motion was also 7 months
after the 5-day bench trial, in which the court entered findings and conclusions
finding Brandon’s petition meritless. Substantial evidence supports the trial
court’s finding that the motion was “meritless and frivolous.” The trial court did
not abuse its discretion in ordering Brandon to pay the Trust’s attorney fees and
costs for defending against the motion to vacate.
Appeal
Brandon and the Trust both request attorney fees and costs on appeal
under RCW 11.96A.150. Appellate courts also have broad, equitable discretion
to award fees under TEDRA. RCW 11.96A.150(1). Brandon bases his appeal
mostly on his perceived unfairness of his disinheritance. The issues he raises
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verge on frivolous. We therefore deny his request. We exercise our discretion to
award appellate fees and costs to the Trust subject to compliance with RAP 18.1.
In sum, the trial court did not err in concluding that Brandon’s petition to
remove Dana as trustee triggered the Trust’s no contest clause disinheriting him
as a beneficiary. Substantial evidence supports the court’s findings and
conclusions that Brandon brought his petition in bad faith and without probable
cause. Nor did the court abuse its discretion in excluding Lee’s testimony,
denying Brandon’s motion to reconsider its order enforcing the no contest clause,
and denying his CR 60(b) motion to vacate. Finally, the court did not abuse its
discretion in denying Brandon’s request for attorney fees and costs after trial and
awarding attorney fees and costs to the Trust for defending against Brandon’s
frivolous CR 60(b) motion. The Trust is entitled to attorney fees and costs on
appeal.
Affirmed.
WE CONCUR:
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