Darrell Riste v. Pers. Representative of the Estate of Dan McAnally ( 2020 )

FILED
January 9, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DARRELL RISTE, TYLER RISTE, and ) No. 35681-7-III
CATHY RISTE, )
)
Appellants, )
)
v. )
)
THE PERSONAL REPRESENTATIVE )
OF THE ESTATE OF DAN )
McANALLY, THE TRUSTEE OF THE ) UNPUBLISHED OPINION
RISTE TRUST, BAKER BOYER BANK, )
VICE PRESIDENT OF BAKER )
BOYER BANK, ALAN M. DILLMAN, )
VELIKANJE, MOORE & SHORE, )
ATTORNEYS AT LAW, STOKES )
LAWRENCE, VELIKANJE MOORE & )
SHORE, STOKES LAWRENCE, P.S., )
GEORGE VELIKANJE, and DOES 1-30, )
)
Respondents. )
LAWRENCE-BERREY, C.J. — Darrell Riste, Cathy Riste, and Tyler Riste appeal the
summary judgment dismissal of their claims against numerous defendants. The claims
arise out of the probate of Dan McAnally’s estate. This is the third time we have
considered similar arguments. We affirm the trial court’s summary judgment dismissal of
the Ristes’ latest claims and award attorney fee sanctions against the Ristes and their
attorney for a frivolous appeal.
No. 35681-7-III
Riste v. Estate of Dan McAnally
FACTS1
This is the third appeal arising from the probate of Dan McAnally’s estate (the
Estate) after he died testate on September 22, 2012. Estate of McAnally, No. 35054-1-III;
see also Riste, No. 35821-6-III. The Estate consisted of a personal residence, tangible
personal property, bank accounts, and—the major subject of litigation below and the
multiple appeals to this court—commercial property in Selah, Washington, known as the
Viking Village Shopping Center (hereinafter Viking Village). Estate of McAnally, No.
35054-1-III, slip op. at 1.
After Mr. McAnally died, his will was admitted to probate, Baker Boyer Bank was
appointed personal representative (PR), bond was waived, and nonintervention powers
were granted. Riste, No. 35821-6-III, slip op. at 4. The will directed the PR to pay, from
the residue of the Estate, all costs and taxes payable because of McAnally’s death. Estate
of McAnally, No. 35054-1-III, slip op. at 2. It directed the remaining residue to go into a
testamentary trust (the Riste Trust) for the benefit of Darrell Riste. Id.
1
Many of the facts are taken from this court’s recent opinions in In re Estate of
McAnally, No. 35054-1-III (Wash. Ct. App. May 3, 2018) (unpublished),
http://www.courts.wa.gov/opinions/pdf/350541_unp.pdf, and Riste v. Idaho Law Group
LLP, No. 35821-6-III, (Wash. Ct. App. Mar. 19, 2019) (unpublished)
http://www.courts.wa.gov/opinions/pdf/358216_unp.pdf.
2
No. 35681-7-III
Riste v. Estate of Dan McAnally
On February 25, 2014, the PR filed a “Petition for Order Determining Amount of
Pecuniary Requests.” Riste, No. 35821-6-III, slip op. at 4. The PR provided notice to
Darrell Riste, and he executed a receipt acknowledging he had received his distributive
share. Id. On June 5, 2014, the PR then filed a “Petition for Order for Authorizing Sale
of Real Estate Property,” which entailed Viking Village. Id.
An appraisal valued Viking Village at $1,700,000 at the time of Mr. McAnally’s
death. Estate of McAnally, No. 35054-1-III, slip op. at 4. The PR received an offer of
$1,451,000, subject to an environmental assessment. Id. The Ristes demanded not to sell
Viking Village. Id. The PR relayed several concerns it had of the risks associated with
keeping Viking Village as a trust asset. Id. It then petitioned the court to approve the
conditional sale. Id. The PR informed the court of the contentious relationship that had
developed between the PR and the Ristes. Id. A hearing was held on July 8, 2014, in
which notice was provided to the Ristes, but counsel for the Ristes did not object to the
sale. Id. Thus, the court authorized the sale of Viking Village. Id.
The environmental assessment on Viking Village revealed the property had severe
soil contamination, and the buyer withdrew its offer. Id. at 4-5. On January 15, 2014,2 a
new appraisal, with the soil contamination noted, valued Viking Village at $1,100,000.
2
We believe our last opinion misstated the date, which should be January 15,
3
No. 35681-7-III
Riste v. Estate of Dan McAnally
Id. at 5. A new buyer made an offer of $1,100,000. Id. Although unnecessary, on
March 20, 2015, the Ristes authorized the PR to sell Viking Village. Id. After this, there
was no court action on this case for a period of time. Riste, No. 35821-6-III, slip op. at 5.
On September 6, 2016, the Ristes hired new counsel, the Idaho Law Group, and
filed a “Notice of Motion and Motion to Recuse Judge Hahn; to Remove the Personal
Representative of the Estate of Dan McAnally and the Trustee of the Riste Trust for
Conflict of Interest and Breach of Fiduciary Duties; For and [sic] Order Requiring the
Personal Representative to File and [sic] Accounting; Denial of Fiduciary and Attorney’s
Fees; and for Pendente Lite Orders Freezing Assets and Appointing a Successor
Fiduciary.” Id. The Ristes generally claimed that the PR and its attorneys violated
fiduciary duties owed to them and that the PR should be removed. Riste, No. 35821-6-III,
slip op. at 3. We will refer to this matter as the “Probate Matter.”
On November 18, 2016, a Yakima County court commissioner heard argument on
the Probate Matter. Estate of McAnally, No. 35054-1-III, slip op. at 7. The commissioner
rejected the Ristes’ arguments, approved the final accounting of the Estate, and granted
the PR’s request to close the Estate. Id. The commissioner signed the PR’s proposed
findings and conclusions. Id.
2015, based on the timeline of events.
4
No. 35681-7-III
Riste v. Estate of Dan McAnally
Because collateral estoppel was the basis for the trial court’s dismissal on
summary judgment in this current appeal, we quote extensively from the commissioner’s
findings and conclusions in its letter decision in the Probate Matter:
Issue #1—Sale of Shopping Center
Many of Mr. Riste’s objections concern the sale of the Shopping Center.
Mr. Riste wanted the Estate/Trust to retain the Shopping Center as he
believed it would produce more annual income than a liquid financial
investment and he was to personally receive the annual income from the
Trust. The P.R. sought to sell the Shopping Center in order to have a more
diverse trust estate. This was the subject of much discussion between the
parties. The P.R. petitioned the court for authority to sell the Shopping
Center. No one filed any objections, apparently no one objected at the
hearing and the Court (Judge Hahn) authorized the sale. There was no
Motion for Reconsideration. Now, 26 months after the Order Authorizing
Sale was entered, Mr. Riste’s [sic] makes objections. His objections are
untimely.
Mr. Riste’s opportunity to object to the sale, or to object to the conduct of
the P.R. relating to the sale, was in July 2014. If Mr. Riste felt that he did
not have enough information to form an objection, he could, at a minimum,
have sought a continuance. Mr. Riste ultimately agreed to have it sold at
$1,100,000.00.
Mr. Riste challenges the validity of the Trust. He maintains that no will can
create a trust, but that all trusts must be created by a document separate
from the will. He cites RCW 11.25.250. His reliance is misplaced. “There
are four elements required to create a testamentary trust: (1) a will
evidencing testamentary intent to create a trust, (2) designation of the trust
corpus, (3) designation of beneficiaries, and (4) specification of the terms of
the trust.” All of these elements are present in Decedent’s Will, so the Trust
is valid.
5
No. 35681-7-III
Riste v. Estate of Dan McAnally
Mr. Riste also challenges the P.R.’s right to sell the property by citing
RCW 11.04.250. Mr. Riste’s interpretation is too narrow and is rejected by
RCW 11.68.090 which gives a personal representative with non-
intervention power to sell real property without court approval.
The P.R. had non-intervention powers. The Shopping Center was not a
specific devise. Instead, it passed through the general residual clause of the
Will. Thus, the P.R. had the authority to sell the asset. The Trust does not
fail because it is a testamentary trust and no separate document is needed.
The P.R. gave notice of the hearing. The P.R. provided a rational basis for
the sale in that it wanted to diversify the Trust estate. The P.R. obtained an
appraisal to determine the value of the property. There were no objections.
There was no violation of any fiduciary duty. There was no conflict of
interest.
Issue #2—TEDRA Matter Regarding “Funds on Deposit”
Mr. Riste’s [sic] objects to the P.R.’s “Petition for Order Re Bequests” on
the grounds that it was unnecessary and, thus, incurred unnecessary fees.
There was $442,499.97 in a money market account at Baker Boyer Bank
upon Decedent’s death. The Will had several specific bequests. Two of
these bequests were similar in nature in that Darrel Riste and Fred
Wickholm were each to receive 30% of “all bank accounts and other bank
deposits standing in my name at the time of my death” with the remaining
40% being a part of the residual estate. This meant that if the money
market accounts were “bank deposits,” $265,499.98 would pass as specific
bequests. If the money market accounts were not “bank deposits,” the
$265,499.98 would pass to the residual estate which was the Trust. Darrell
Riste’s grandchildren, Kyler Riste and Gracie Riste, hold remainder
interests in the Trust. Because they are minors, a Guardian ad Litem was
appointed for them. University of Denver is a contingent remainder
beneficiary of the Trust. Not surprisingly, Fred Wickholm and Darrell Riste
did not object to the P.R. classifying the money market accounts as bank
deposits.
6
No. 35681-7-III
Riste v. Estate of Dan McAnally
It was neither frivolous nor a breach of fiduciary duty for the P.R. to seek to
prevent any future litigation by asking the Court to review this issue. The
P.R.’s action brought stability to both the Estate and Trust by foreclosing
any possible future claim that the money market accounts were not bank
deposits.
Issue #3—Information Flow
Mr. Riste sought the P.R.’s removal and sought to have the P.R. (and its
agents) not be paid as Mr. Riste claimed the P.R. (or its agents) breached its
fiduciary duty by providing false or misleading information, or by simply
not providing any information at all.
There is no credible evidence in the record that the P.R. or its agents
provided false or misleading information. It does appear, however, that Mr.
Riste did not receive all of the information he requested.
An heir’s right to information from a personal representative in a non-
intervention estate is limited. It is not a breach of a fiduciary duty if a
personal representative in a non-intervention estate does not provide heirs
with financial information, estate records, valuation of the estate, and
information relating to estate property during probate unless ordered to do
so by the Court. Mr. Riste requested information pursuant to RCW
11.76.010. However, that section is not applicable in non-intervention
estates. Mr. Riste never sought a court order via RCW 11.68.065 which
would have then compelled the P.R. to provide timely information.
Mr. Riste asked, in writing, for a copy of the Inventory and Appraisement at
least three times with the earliest request on or about February 7, 2013. A
copy was provided to him on May 6, 2014. The statute required that the
Inventory and Appraisement be completed by December 5, 2012, and that a
copy be given to any heir within 10 days of the personal representative’s
receipt of the request. There is no explanation why the P.R. waited
approximately 15 months to respond to Mr. Riste’s request. The issue
before this court is whether this delay rises to the level of being deemed a
breach of fiduciary duty.
7
No. 35681-7-III
Riste v. Estate of Dan McAnally
The statute makes failures such as this a basis to revoke letters testamentary
and imposition of terms against the personal representative. However, this
is discretionary. When I weigh this failure against several factors, I find
that it does not rise to the level of a breach of fiduciary duty. These factors
are: the P.R. did finally provide Mr. Riste with a copy, Mr. Riste never
sought Court action against the P.R. pursuant to RCW 11.44.050, Mr. Riste
did not object to the late delivery to the Court until months after the fact,
Mr. Riste did not challenge the validity of the information contained in the
Inventory and Appraisement and Mr. Riste did not show that the late
delivery harmed him.
In his Petition #1, Mr. Riste provided copies of letters and emails. These
show that the P.R. and/or its attorney responded to most of Mr. Riste’s
inquiries although the level of detail and [sic] may not have been as great as
Mr. Riste expected. Additionally, as of July 2, 2014, the P.R. arranged for
Mr. Riste to have electronic access to the monthly statement concerning the
financial accounts managed by the Trustee.
Issue #4—Professional Fees
Mr. Riste objected to the payment of professional fees to the P.R. and its
attorney based upon alleged breach of fiduciary duties and reasonableness.
Having found no breach of fiduciary duty, I focus on the reasonableness of
the fees.
A personal representative and its attorney are entitled to be compensated.
“In fixing the amount of such fee, the court is to consider: the amount and
nature of the services rendered, the time required in performing them, the
diligence with which they have been executed, the value of the estate, the
novelty and difficulty of the legal questions involved, the skill and training
required in handling them, the good faith in which the various legal steps in
connection with the administration were taken, and all other matters which
would aid the court in arriving at a fair and just allowance.”
8
No. 35681-7-III
Riste v. Estate of Dan McAnally
Mr. Velikanje provided a fee affidavit which showed the activity, time, and
fee for each entry. Mr. Riste provided no specific objection or contrary
evidence. I have reviewed the time/fee entries against the factors listed
above and find the attorneys’ fees and costs to be reasonable. Of note is
that the estate was inventoried at $2,642,936 and that it involved the sale of
commercial property that had issues of environmental contamination.
The P.R. charged a fee according to its published fee schedule. Mr. Riste
provided no specific objection or contrary evidence. The Estate Fee
Schedule is reasonable.
Clerk’s Papers (CP) at 670-73 (footnotes omitted); see also Riste, No. 35821-6-III, slip
op. at 6-10. Furthermore, the commissioner entered and incorporated the following
findings:
12. The Personal Representative paid itself fees in accordance with
its published fee schedule. Those fees through the end of the calendar year
2016 total $96,800.74. Those fees are reasonable and were incurred for the
benefit of Decedent’s estate.
13. The Personal Representative paid its counsel Stokes Lawrence
Velikanje Moore & Shore fees through October 31, 2016, in the amount of
$117,703.79. Which fees the court finds to be reasonable and were incurred
for the benefit of Decedent’s estate.
14. Paul M. Larson of Larson Berg & Perkins was appointed the
Guardian ad Litem for the minor grandchildren of Darrell Riste. Fees have
been paid to the Guardian ad Litem in the amount of $1,787.50, which fees
are reasonable and are approved.
15. The Personal Representative paid accounting fees to Alegria &
Company in the amount of $1,240.00 for the preparation of the Decedent’s
final federal income tax return and to Thompson & Kreitzberg and its
successor, TKCPA, in the amount of $8,610.00 for the preparation of the
estate’s federal fiduciary income tax returns which fees are reasonable and
are approved.
9
No. 35681-7-III
Riste v. Estate of Dan McAnally
16. The Personal Representative paid Davis Appraisal Service fees
in the amount of $6,500 for the appraisal of the estate’s commercial real
estate which fees are reasonable and are approved.
....
19. The testamentary trust (“Riste Trust”) created in Decedent’s
Will is a valid trust under the laws of the State of Washington.
....
23. Decedent’s Will did not contain any provision prohibiting or
restricting the right of the Personal Representative to sell the Viking Village
Shopping Center.
24. The Personal Representative did not commingle its assets with
the assets of Decedent’s estate and did not improperly commingle assets of
Decedent’s estate with the assets of the Riste Trust.
25. The Personal Representative did not violate any of its fiduciary
duties or responsibilities.
26. Counsel for the Personal Representative did not violate any of
its fiduciary duties or responsibilities.
CP at 655-57.
The Ristes appealed the Probate Matter to this court and challenged many of the
commissioner’s findings and conclusions. In an unpublished decision, we affirmed the
dismissal on all matters. Estate of McAnally, No. 35054-1-III.
On May 4, 2017, the Ristes then sued their former attorneys—the Idaho Law
Group—for pecuniary damages resulting from malpractice, breach of contract, breach of
fiduciary duties, fraud, and for violating the Consumer Protection Act (CPA), chapter
19.86 RCW. Riste, 35821-6-III, slip op. at 2. The Idaho Law Group filed a motion to
10
No. 35681-7-III
Riste v. Estate of Dan McAnally
dismiss. Id. at 2-3. The trial court dismissed the Ristes’ claims on summary judgment,
ultimately finding them barred by collateral estoppel. Id. at 6, 11-12.
In an unpublished decision, we affirmed the trial court, finding the Ristes’ claims
were barred by collateral estoppel and summary judgment was appropriate because the
Ristes did not present survivable claims of legal malpractice, breach of fiduciary duty,
breach of contract, and CPA violations. Id. at 12-18. We awarded the Idaho Law Group
attorney fees for defending a frivolous appeal. Id. at 18-19.
In this appeal, the Ristes sued numerous defendants including the PR, Baker Boyer
Bank, the Vice President of Baker Boyer Bank, Alan Dillman (collectively the Bank), and
its attorneys George Velikanje, Stokes Lawrence Velikanje Moore & Shore, and Stokes
Lawrence, P.S. (collectively Stokes Lawrence). This is referred to here, and in our
former opinion, as the “Fiduciary Matter.” Riste, No. 35821-6-III, slip op. at 3. The
Ristes pleaded claims of breach of contract, breach of fiduciary duty, legal malpractice,
negligence, gross negligence, fraud, collusion, unjust enrichment, and CPA violations.
The Ristes’ complaint, as best we can discern, claims: breach of contract for
negligent and fraudulent drafting of the McAnally will and the Riste Trust, breach of
fiduciary duties, collusion, and unjust enrichment through the sale of Viking Village and
the amount of attorney and fiduciary fees paid to the Bank and Stokes Lawrence, legal
11
No. 35681-7-III
Riste v. Estate of Dan McAnally
malpractice for actions relating to the sale of Viking Village and the disposition of the
Estate, fraud for the sale of Viking Village and the fraudulent creation of the McAnally
will and the Riste Trust, CPA violations during the dissolution of the Estate, and
negligence and gross negligence on behalf of the Bank and Stokes Lawrence.3
The Bank and Stokes Lawrence responded to the Ristes’ complaint with motions
for summary judgment. They argued that the Ristes’ claims were barred by collateral
estoppel because the Ristes already asserted and litigated the same claims and allegations
in the Probate Matter. Alternatively, Stokes Lawrence argued that the Ristes’ claim for
legal malpractice must be dismissed because, as attorney for the PR, Stokes Lawrence did
not owe a duty of care to the Ristes as beneficiaries. The Ristes opposed the Bank’s and
Stokes Lawrence’s motions for summary judgment and argued that collateral estoppel
was improper because the Probate Matter did not consider all of the claims asserted, the
issues were not identical, Cathy Riste and Tyler Riste were not a party to the Probate
Matter, and collateral estoppel would work an injustice against the Ristes.
On October 27, 2017, the trial court heard argument on the Bank’s and Stokes
Lawrence’s motions for summary judgment. On November 6, 2017, the trial court issued
3
The Ristes asserted the negligence and gross negligence causes of action with no
argument or explanation on how they apply.
12
No. 35681-7-III
Riste v. Estate of Dan McAnally
a letter decision finding the Ristes’ claims were identical to the claims in the Probate
Matter and were barred by issue preclusion, and the Ristes’ claim of legal malpractice
against Stokes Lawrence was barred as a matter of law. The trial court filed an amended
order that incorporated its letter decision and dismissed all of the Ristes’ claims with
prejudice.
The Ristes timely appealed.
ANALYSIS
SUMMARY JUDGMENT
The Ristes contend the trial court erred by granting summary judgment in favor of
the Bank and Stokes Lawrence.
We review a summary judgment order de novo, considering the evidence and
reasonable inferences from the evidence in the light most favorable to the nonmoving
party. Keck v. Collins, 181 Wash. App. 67, 78-79, 325 P.3d 306 (2014), aff’d, 184 Wash. 2d
358, 357 P.3d 1080 (2015). Summary judgment is proper when the records on file with
the trial court show there is no genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. Id.; CR 56(c). Initially, the burden is on the
party moving for summary judgment to prove by uncontroverted facts that there is no
genuine issue of material fact. Seattle Police Officers Guild v. City of Seattle, 151 Wash. 2d
13
No. 35681-7-III
Riste v. Estate of Dan McAnally
823, 848, 92 P.3d 243 (2004). Once the moving party meets this burden, the burden shifts
to the nonmoving party to set forth specific facts showing a genuine issue of material fact
exists warranting a trial. CR 56(e); Heath v. Uraga, 106 Wash. App. 506, 513, 24 P.3d 413
(2001). This court “may affirm summary judgment on any grounds supported by the
record.” Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wash. App. 449, 453, 266 P.3d
881 (2011).4
Claims Dismissed on Collateral Estoppel
The Ristes contend that the trial court erred by concluding that their claims were
collaterally estopped by the Probate Matter. We disagree.
First, the Ristes initially argue for this court to remand the case because the trial
court did not enter adequate findings in its order of dismissal on summary judgment.
“Findings of fact and conclusions of law are inappropriate on summary judgment.” Kries
v. WA-SPOK Primary Care, LLC, 190 Wash. App. 98, 117, 362 P.3d 974 (2015). Even if
the trial court entered findings, we would not consider them. Id.; see also Chelan County
4
The Bank and Stokes Lawrence assert this court should affirm summary
judgment because the Ristes cannot collaterally attack a closed estate. See Resp’t’s Br. at
16-17. The record does not support this argument. The Ristes filed their complaint on
September 6, 2016. The Estate closed after the November 18, 2016 hearing. See Estate
of McAnally, No. 35054-1-III, slip op. at 7.
14
No. 35681-7-III
Riste v. Estate of Dan McAnally
Deputy Sheriffs’ Ass’n v. County of Chelan, 109 Wash. 2d 282, 294 n.6, 745 P.2d 1 (1987).
We reject the Ristes’ initial argument.
“Whether collateral estoppel applies to bar relitigation of an issue is reviewed de
novo.” Christensen v. Grant County Hosp. Dist. No. 1, 152 Wash. 2d 299, 305, 96 P.3d 957
(2004). Collateral estoppel prevents a second litigation of an issue even though a different
claim or cause of action is asserted. Id. at 306. The doctrine promotes judicial economy
and serves to prevent inconvenience or harassment of parties. Id.
Collateral estoppel may be applied to preclude only those issues that have been
actually litigated and necessarily and finally determined in the earlier proceeding. Id. at
307. The party against whom collateral estoppel is asserted must have had a full and fair
opportunity to litigate the issue in the earlier proceeding. Id.
The party asserting collateral estoppel must show (1) the issue decided in the
earlier proceeding was identical to the issue presented in the later proceeding, (2) the
earlier proceeding ended in a judgment on the merits, (3) the party against whom
collateral estoppel is asserted was the party to, or in privity with a party to, the earlier
proceeding, and (4) application of collateral estoppel does not work an injustice on the
party against whom it is applied. Id.
15
No. 35681-7-III
Riste v. Estate of Dan McAnally
The Ristes have previously litigated a majority of the issues raised. The first issue
related to the sale of Viking Village. The commissioner found the PR had
nonintervention powers, it had the authority to sell Viking Village, and the Ristes
approved the sale. The second issue related to the PR’s and its attorneys’ performance of
their duties when closing the Estate. The commissioner found the PR and its attorneys
did not violate a fiduciary duty or have a conflict of interest in selling Viking Village; it
was for the proper purpose to diversify the Estate, and the trust and will, as written, were
valid under Washington law. Third, the Ristes challenged the PR’s and its attorney fees
and expenses as being unreasonable, a conflict of interest, and a violation of a fiduciary
duty. The commissioner held that the PR’s fees were reasonable, the PR’s attorney fees
were necessary and reasonable, and the accounting and appraisal fees the PR paid were
reasonable and approved. The commissioner further found the PR and its attorneys did
not violate any fiduciary duty or responsibility. The Ristes litigated these issues fully.
With respect to these issues now, collateral estoppel bars their relitigation.
The Ristes raised identical issues in the Probate Matter and this matter
In this appeal, the Ristes raise identical issues that were litigated and necessarily
decided in the Probate Matter. Although the Ristes assert new claims or causes of action,
the Ristes raise identical issues that were litigated and necessarily decided in the Probate
16
No. 35681-7-III
Riste v. Estate of Dan McAnally
Matter. Collateral estoppel prevents relitigation of an issue even though a different claim
or cause of action is asserted. Christensen, 152 Wash. 2d at 306.
The Ristes challenge the sale of Viking Village, allege a breach of fiduciary duties
as to the PR and its attorneys, and challenge the reasonableness of the PR’s and its
attorney fees as a breach of fiduciary duty, fraud, embezzlement, and collusion. The sale
of Viking Village, the PR and its attorneys’ actions, and the PR and its attorney fees were
issues that were litigated and decided in the Probate Matter.
The Probate Matter ended in a final judgment on the merits
We have found the Probate Matter ended in a final judgment on the merits, and we
find it again here. See Riste, No. 35821-6-III, slip op. at 14. The Ristes do not challenge
this. The second element of collateral estoppel is satisfied.
The Ristes were a party to the Probate Matter
The Ristes contend Cathy and Tyler Riste were not a party to the Probate Matter;
thus, collateral estoppel cannot be used against them. However, as we have previously
found, “all three of the Ristes participated in the litigation. Although Mr. Riste was the
only family member who actively participated, the other two family members were
represented by counsel and had a right to participate.” Riste, 35821-6-III, slip op. at 14.
17
No. 35681-7-III
Riste v. Estate of Dan McAnally
We do not change that holding here. Because all three Ristes were a party to the Probate
Matter, and all are parties here, the third element of collateral estoppel is satisfied.
Application of collateral estoppel will not work an injustice against the Ristes
Collateral estoppel does not work an injustice against the Ristes. The “injustice
element” of collateral estoppel “is rooted in procedural unfairness. ‘Washington courts
look to whether the parties to the earlier proceeding received a full and fair hearing on the
issue in question.’” Schibel v. Eymann, 189 Wash. 2d 93, 102, 399 P.3d 1129 (2017)
(internal quotation marks omitted) (quoting Thompson v. Dep’t of Licensing, 138 Wash. 2d
783, 795-96, 982 P.2d 601 (1999)). The Ristes were heard during the Probate Matter and
had a full and fair opportunity to litigate. Their attorneys filed extensive motions and
documents. They argued at the trial court and on appeal, twice. Collateral estoppel bars
the Ristes’ attempt to relitigate the same issues.
Fraud
The Ristes make allegations of fraud that the Bank and Stokes Lawrence:
fraudulently induced the creation of the McAnally will and the Riste Trust, fraudulently
and unlawfully drafted the McAnally will and the Riste Trust, and fraudulently sold
Viking Village. The nine elements of fraud are: (1) a representation of an existing fact,
(2) the fact is material, (3) the fact is false, (4) the defendant knew the fact was false or
18
No. 35681-7-III
Riste v. Estate of Dan McAnally
was ignorant of its truth, (5) the defendant intended the plaintiff to act on the fact, (6) the
plaintiff did not know the fact was false, (7) the plaintiff relied on the truth of the fact,
(8) the plaintiff had a right to rely on it, and (9) the plaintiff had damages. Baddeley v.
Seek, 138 Wash. App. 333, 338-39, 156 P.3d 959 (2007). The plaintiff must show each
element by clear, cogent, and convincing evidence. Id. at 339.
The trial court did not err in summarily dismissing the Ristes’ fraud claims.
Among most of the other elements, the Ristes cannot show how they were damaged. The
Ristes’ argument that the Bank and Stokes Lawrence fraudulently induced the creation of
the McAnally will and the Riste Trust is a mere assertion with no details or specifics other
than the accusation. The will and trust were litigated and found valid under Washington
law; therefore, they were not fraudulently drafted. The PR had the authority to sell
Viking Village, the Ristes approved the sale, and the PR and its attorneys did not have a
conflict of interest or violate any fiduciary duty by selling Viking Village.
CPA claims
The Ristes claim the Bank and Stokes Lawrence violated the CPA by intentionally
misstating their qualifications to administer the Estate, falsely advertising their services,
and deceptively selling Viking Village. To prevail on a private CPA claim, a plaintiff
must establish the following elements: (1) that the defendant engaged in an unfair or
19
No. 35681-7-III
Riste v. Estate of Dan McAnally
deceptive act or practice, (2) occurring in trade or commerce, (3) a public interest impact,
(4) injury to plaintiffs in their business or property, and (5) causation. Univ. of Wash. v.
Gov’t Emps. Ins. Co., 200 Wash. App. 455, 467, 404 P.3d 559 (2017).
The Ristes make the CPA allegations with no details or specifics of what the Bank
and Stokes Lawrence did or did not do that was fraudulent or deceptive. Their arguments
boil down to the same arguments they asserted in the Probate Matter. Nonetheless, as the
commissioner found: “There is no credible evidence in the record that the PR or its agents
provided false or misleading information.” CP at 672. The only harm the Ristes allege is
from the sale of Viking Village. However, as we have found, the PR had nonintervention
powers and the authority to sell Viking Village. Furthermore, the PR and its attorneys did
not violate a fiduciary duty or have a conflict of interest in selling Viking Village.
Therefore, the Ristes cannot show the harm they suffered or causation. The trial court did
not err in summarily dismissing these claims.
In summary, the trial court did not err by granting the Bank’s and Stokes
Lawrence’s motions for summary judgment based on collateral estoppel. The Ristes
raised identical issues in the Probate Matter, the Ristes were parties to the Probate Matter,
the Probate Matter ended in a final judgment on the merits, and application of the doctrine
does not work an injustice against the Ristes. The Ristes’ claims for negligence, gross
20
No. 35681-7-III
Riste v. Estate of Dan McAnally
negligence, fraud, and CPA violations were also properly dismissed on summary
judgment as they presented no genuine debate of material fact.5
LEGAL MALPRACTICE
The Ristes contend the trial court erred by finding their legal malpractice claim
was barred as a matter of law against Stokes Lawrence because Stokes Lawrence owed no
duty to the Ristes. We disagree.
To prove a legal malpractice claim, one must show:
“(1) The existence of an attorney-client relationship which gives rise to
a duty of care on the part of the attorney to the client; (2) an act or
omission by the attorney in breach of the duty of care; (3) damage to the
client; and (4) proximate causation between the attorney’s breach of the
duty and the damage incurred.”
Schmidt v. Coogan, 181 Wash. 2d 661, 665, 335 P.3d 424 (2014) (internal quotation marks
omitted) (quoting Ang v. Martin, 154 Wash. 2d 477, 482, 114 P.3d 637 (2005)). At issue
here is the first element—whether Stokes Lawrence owed a duty to the Ristes. “[A] duty
is not owed from an attorney hired by the personal representative of an estate to the estate
5
Arguably, the Ristes’ claims for negligence, gross negligence, fraud, and CPA
violations are just new and different causes of action in an attempt to relitigate the same
issues that were litigated in the Probate Matter. These claims likely could be dismissed
on collateral estoppel grounds because they are attempts to relitigate the same issues, just
through new causes of action. See Christensen, 152 Wash. 2d at 306.
21
No. 35681-7-III
Riste v. Estate of Dan McAnally
or to the estate beneficiaries.” Trask v. Butler, 123 Wash. 2d 835, 845, 872 P.2d 1080
(1994).
In Trask, Laurel Slaninka and Russell Trask were the children of George and
Johanna Trask. Id. at 837. George died and Laurel was appointed PR of his estate and
attorney-in-fact for Johanna. Id. Laurel retained an attorney, Richard Butler, to assist
her. Id. Before George died, he conveyed a piece of land to Russell via quitclaim deed.
Id. Johanna did not sign the deed. Id. Laurel attempted to negotiate the return of the
conveyed land from Russell to assist paying some of Johanna’s health care expenses. Id.
at 837-38. Russell refused. Id. at 838. Laurel initiated a quiet title action on the
conveyed piece of land and on Johanna’s homestead property on which Russell
constructed a garage, greenhouse, and turnaround driveway. Id.
Because Johanna’s assets were almost depleted, Laurel sold the homestead
property on disadvantageous conditions. Id. Then, Johanna died. Id. Laurel was
appointed PR and the estate was to be divided equally between Russell and her. Id.
Russel petitioned to remove Laurel as PR, and a court found Laurel breached her
fiduciary duties by attempting to set aside the land George conveyed to Russell and by
selling Johanna’s homestead property on disadvantageous conditions. Id. Butler
continued to represent Laurel. Id.
22
No. 35681-7-III
Riste v. Estate of Dan McAnally
Russell was appointed PR and threatened to sue Laurel. Id. at 839. Laurel settled
with Russell and Russell then sued Butler, alleging Butler negligently advised Laurel in
the quiet title action, by advising the sale of Johanna’s homestead property, and by
representing Laurel in the PR removal proceedings. Id. Russell argued Butler’s advice
depleted the estate by approximately $90,000. Butler moved for summary judgment, but
it was denied. Id. On appeal, the Supreme Court reversed.
The court started with the first element of a legal malpractice claim—whether
Butler, as attorney for the PR, owed a duty of care to Russell, the estate’s beneficiary. Id.
at 840. The court recognized that two tests, the “multifactor balancing” test and the
Illinois “third party beneficiary” test, had been used in Washington to determine whether
an attorney owes a duty to a nonclient. Id. The court combined the two tests to create a
six element determination:
(1) The extent to which the transaction was intended to benefit the
plaintiff;
(2) The foreseeability of harm to the plaintiff;
(3) The degree of certainty that the plaintiff suffered injury;
(4) The closeness of the connection between the defendant’s
conduct and the injury;
(5) The policy of preventing future harm; and
(6) The extent to which the profession would be unduly burdened by
a finding of liability.
Id. at 843.
23
No. 35681-7-III
Riste v. Estate of Dan McAnally
The first element is a threshold question: its answer does not totally resolve the
issue, but an intent is required for further inquiry. Id. The court answered the question in
the negative, finding that estate beneficiaries are incidental, not intended beneficiaries of
the attorney-personal representative relationship. Id. at 844-45. Moreover, beneficiaries
have two preexisting legal procedures to protect their interest: the PR owes beneficiaries a
fiduciary duty and beneficiaries can take a proactive role in estate matters by requesting a
judicial proceeding under former RCW 11.96.070(2) (1994), repealed by LAWS OF 1999,
ch. 42, § 637; see RCW 11.96A.080(1). Therefore, an attorney hired by a PR is not
intended to benefit the beneficiaries of the estate, but the PR. Id. at 844-45.
The court also noted that public policy considerations disfavor finding a duty of
care from a PR’s attorney to estate beneficiaries. Id. at 844. Many times, estate matters
are not harmonious, especially between a PR and estate beneficiaries. Id. To require that
a PR’s attorney owes a duty of care to both the PR and the beneficiaries will create
conflicts of interest. Id. The court went on to find, “the unresolvable conflict of interest
an estate attorney encounters in deciding whether to represent the personal representative,
the estate, or the estate heirs unduly burdens the legal profession.” Id. at 845.
We are bound by our highest court’s holding. The Bank hired Stokes Lawrence to
assist the Bank in its PR duties. This transaction was intended to benefit the Bank, not
24
No. 35681-7-III
Riste v. Estate of Dan McAnally
the Ristes. The benefit to the Ristes was incidental, not intentional. Like in Trask, the
Ristes still had legal procedures at their disposal—the Bank as PR still owed the Ristes a
fiduciary duty, and the Ristes could proactively participate through judicial proceedings if
they wished. See RCW 11.96A.080(1). As demonstrated in this case, if Stokes Lawrence
owed both a duty of care to the Ristes and to the Bank, it would create a conflict of
interest and unduly burden them. Frequently, the Bank and the Ristes did not agree on
much, including the sale of Viking Village. Because Stokes Lawrence did not owe a duty
of care to the Ristes, their claim for legal malpractice fails.
Negligence and Gross Negligence
A cause for negligence requires a plaintiff to show (1) duty, (2) breach,
(3) causation, and (4) damages. Keller v. City of Spokane, 146 Wash. 2d 237, 242, 44 P.3d
845 (2002). Gross negligence requires more. Gross negligence is “‘negligence
substantially and appreciably greater than ordinary negligence,’ i.e., ‘care substantially or
appreciably less than the quantum of care inhering in ordinary negligence.’” Johnson v.
Spokane to Sandpoint, LLC, 176 Wash. App. 453, 460, 309 P.3d 528 (2013) (quoting Nist v.
Tudor, 67 Wash. 2d 322, 331, 407 P.2d 798 (1965)). “[T]o raise an issue of gross
negligence, there must be substantial evidence of serious negligence.” Boyce v. West, 71
Wash. App. 657, 665, 862 P.2d 592 (1993).
25
No. 35681-7-III
Riste v. Estate of Dan McAnally
The Ristes’ actions for negligence and gross negligence against Stokes Lawrence
and the Bank fail. First, as discussed above, Stokes Lawrence as attorneys for the Bank
did not owe a duty of care to the Ristes. Without a duty of care, the Ristes’ claims of
negligence and gross negligence fail at the first element.
Although the Bank owed a fiduciary duty to the Ristes, the Bank did not breach
any duty to give rise to a negligence or gross negligence claim. The Bank, as PR, had
nonintervention powers and the authority to sell Viking Village, and the Ristes approved
the sale. The commissioner found the Bank did not violate any fiduciary duty in its
administration of the Estate nor make any false or misleading statements. The Ristes fail
to show any negligence on the part of the Bank, nonetheless gross negligence. Therefore,
the trial court did not err in summarily dismissing the Ristes’ claims for negligence and
gross negligence.
OPPORTUNITY TO AMEND COMPLAINT
The Ristes assign error that the trial court dismissed their claims with prejudice
without allowing them an opportunity to amend their complaint. RAP 10.3(a)(6) requires
an appellant’s brief to contain “argument in support of the issues presented for review,
together with citations to legal authority and references to relevant parts of the record.”
The Ristes assign error to the trial court’s failure to allow them to amend their complaint;
26
No. 35681-7-III
Riste v. Estate of Dan McAnally
however, besides the assignment of error, they make no argument, do not cite to any legal
authority, and do not cite to the record to support their alleged error. Because of this, we
decline to review it. RAP 10.3(a)(6); Scott’s Excavating Vancouver, LLC v. Winlock
Props., LLC, 176 Wash. App. 335, 348, 308 P.3d 791 (2013).
ATTORNEY FEES
Stokes Lawrence and the Bank seek an award of attorney fees under RAP 18.9(a)
for defending an appeal that is frivolous. RAP 18.9(a) permits an appellate court to order
a party or counsel who files a frivolous appeal to pay the harmed party compensatory
damages, including reasonable attorney fees. Under Washington law, “[a]n appeal is
frivolous if, considering the entire record and resolving all doubts in favor of the
appellant, the court is convinced that the appeal presents no debatable issues upon which
reasonable minds might differ, and that it is so devoid of merit that there is no possibility
of reversal.” Ramirez v. Dimond, 70 Wash. App. 729, 734, 855 P.2d 338 (1993). All
doubts regarding frivolity are resolved in favor of the appellant. Cramer v. Seattle Sch.
Dist. No. 1, 52 Wash. App. 531, 540, 762 P.2d 356 (1988). Even under this liberal
standard, this appeal is so devoid of merit that there was no possibility of reversal. The
Ristes have lost on these same or similar issues twice before.
27
No. 35681-7-III
Riste v. Estate ofDan McAnally
Subject to compliance by Stokes Lawrence and the Bank with RAP 18.l(d), we
award them their reasonable attorney fees against the Ristes and their attorneys, jointly
and severally.
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.
Lawrence-Berrey, C.J.
WE CONCUR:
28