In the Matter of the Estate of: Mildred Ilene Smith ( 2021 )

FILED
APRIL 13, 2021
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
In the Matter of the Estate of )
) No. 37231-6-III
MILDRED ILENE SMITH. )
)
) UNPUBLISHED OPINION
)
)
)
FEARING, J. — An heir of an intestate estate challenges the probate court’s closure
of the estate and the heir’s distributive share of the estate. We affirm the probate court’s
rulings.
FACTS
Mildred Smith died intestate on January 29, 2018 in Walla Walla County. Her
estate included her College Place residence, initially valued at $135,470, and real
property in Iowa. Her three sons, Kenneth Smith, Guillermo F. Garcia (formerly Billy
Smith), and Robbie Smith, survived her. On June 12, 2018, the Walla Walla County
Superior Court appointed Suzanne Knapp, a family friend, and Justin Cadwallader,
Mildred’s grandson and Garcia’s son, as personal representatives of the estate.
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Suzanne Knapp and Justin Cadwallader sought nonintervention powers. The two
mailed, to the heirs, notice of a July 9, 2018 hearing on their petition for nonintervention
powers. Robbie Smith filed a July 1, 2018 declaration in support of nonintervention
powers. Robbie signed the declaration as “Robert Henry Smith,” although the
declaration noted that Robert H. Smith’s legal name is “Robbie Kenneth Smith.” Clerk’s
Papers (CP) at 18.
Guillermo Garcia attending the hearing on the motion for nonintervention powers.
Report of Proceedings (RP) (Jul. 9, 2018) 1. During the hearing, Garcia mentioned that
he and his mother wrote a will for her in 2015, which she signed but not in front of
witnesses. He questioned why his mother would appoint Suzanne Knapp as a personal
representative. He had expected his son, Justin Cadwallader, to be the sole executor of
the will. Nevertheless, he expressed no objection to the granting of nonintervention
powers, provided that the estate closed “according to the explicit terms and language of
Mildred Smith’s last will and testament.” Report of Proceedings (RP) (Jul. 9, 2018) at 4.
Presumably he referred to the will he prepared that was not probated. The probate court
responded to Garcia’s demand by stating Garcia could register objections to any
purported breach of duty by the personal representatives. The court informed Garcia that
an order of nonintervention powers would not prevent him from expressing his wishes.
The probate court determined that Garcia had consented to nonintervention powers. The
court granted Knapp and Cadwallader nonintervention powers.
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At the death of Mildred Smith, her College Place home lay in disarray. Smith was
a hoarder. Garbage crowded the house, garage, and outbuildings on the property. Boxes
and debris prevented access across the floors.
Suzanne Knapp consulted a real estate broker and builder for recommendations
about repairs and cleaning that the personal representatives should undertake. The real
estate broker and local builder advised that the expense of cleaning the home would
benefit the estate by garnering a higher sales price.
Beginning in the summer of 2018, Robbie Smith lived in the College Place home.
He removed some of the clutter. Robbie held six yard sales and accrued $3,355 from the
sales. The personal representatives eventually deducted this amount from Robbie’s share
of the estate.
Mildew, dust, and animal feces infected many boxes on Mildred Smith’s property.
Suzanne Knapp, on behalf of the estate, hired professional haulers who specialized in
clearing the properties of hoarders. For three to four days in June 2018, trucks removed
objects from inside the house. Jose Pepe Quezada, Mildred Smith’s neighbor for thirty
years, wrote a declaration, in which he declared that the haulers removed some objects
that held value. Robbie Smith deemed all objects junk.
From May 16, 2018 to August 2018, Guillermo Garcia wrote twelve e-mails to
Mildred Smith Estate’s attorney Lenard Wittlake expressing his frustrations regarding his
mother’s estate. His e-mail often referenced his mother’s will. He threatened
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disinheritance of his brothers, and, on June 9, 2018, he stated that he planned to file the
2015 will in probate court.
Guillermo Garcia’s access to the College Place abode was limited during the time
that Robbie Smith lived therein. On June 22, 2018, the Walla Walla County District
Court granted Robbie Smith’s petition for an order of protection against Garcia. Pursuant
to the order, Garcia could only visit the College Place home from 8 a.m. to 12 p.m.
In a July 10, 2018 e-mail, Guillermo Garcia contended that Lenard Wittlake
served as the attorney not only for the estate of Mildred Smith, but also for Robbie and
Kenneth. He insisted that, since the estate paid Wittlake’s fees, Wittlake functioned as
Garcia’s lawyer also. Garcia employed colorful language when referencing his brothers
as “MORONS” and accusing Kenneth of being a “LIAR AND A THIEF.” CP at 306.
He accused Wittlake of lying and acting unethically. Garcia threatened to disinherit his
brothers for retaining Wittlake and Suzanne Knapp.
On August 23, 2018, the Walla Walla County District Court modified the order of
protection and prohibited Guillermo Garcia from approaching the College Place dwelling
at any time.
In November 2018, two sewer lines broke and created water and mold damage to
the home. Suzanne Knapp, on behalf of the estate, paid $17,535.36 for extensive work to
replace the sewer lines. According to Jose Pepe Quezada, after installation of a new
sewer line, no one cared for the College Place residence’s lawn. The lawn lay in
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shambles with the presence of large patches of dirt and rocks unearthed during the
digging for the new sewer.
Jose Quezada declared that Robbie Smith offered to sell him the College Place
house for $150,000. At a later time, however, according to Quezada, Robbie told him
that he could no longer sell the house for $150,000 because he spent $20,000 in removing
the hoarded detritus. Robbie disclosed that he needed to disappear because “‘We are in
big trouble.’” CP at 73.
From September 2018 to May 2019, Guillermo Garcia wrote abusive e-mail to
Suzanne Knapp. In a September 11, 2018 e-mail, Garcia stated that he did not desire any
objects to the residence as he held no emotional attachment to the house or its contents.
In other messages, Garcia accused Knapp of stealing and labeled her a “lying piece of
filth.” CP at 315 (capitalization omitted). Knapp obtained a protection order against
Garcia.
In March 2019, the estate of Mildred Smith sent Guillermo Garcia an inventory of
probate assets.
After the sewer repairs and removal of the hoarded personal property, Guillermo
Garcia asked to live in the College Place residence. If Garcia had earlier expressed his
wish to own the home, the personal representatives would have ceased the repairs and
cleanup and attempted to reach an agreement to sell the home to Garcia. Garcia did not
mention his desire to own the residence until the personal representatives hired a realtor,
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and Garcia then attempted to preclude realtors from showing the home. Despite his
conduct, the personal representatives still asked Garcia to tender a formal offer through a
realtor.
Guillermo Garcia submitted a bid higher than other offers to purchase Mildred
Smith’s College Place residence. The estate accepted the bid. On June 28, 2019,
Guillermo Garcia signed a purchase and sale agreement for the purchase of the College
Place home at $185,000. On July 1, 2019, both personal representatives signed a
declaration acknowledging Garcia’s offer to purchase the home “for $185,000.00 using
part of his share of the proceeds from the sale of land in Iowa to fund the transaction.”
CP at 211. The personal representatives declared that they agreed to a value of the
premises of $185,000. Robbie and Kenneth Smith both agreed to a valuation of the home
at $185,000.
On July 8, 2019, Guillermo Garcia signed a declaration which confirmed his offer
to purchase the College Place home “from the estate for $185,000.00 using part of my
share of the proceeds from the sale of land in Iowa to fund the transaction. . . . I
acknowledge that the value of the premises is $185,000.00 and agree it shall be valued at
that amount in a non-prorata distribution.” CP at 210.
On July 12, 2019, a year after the probate court granted the personal
representatives nonintervention powers, Guillermo Garcia filed a petition requesting a
report on the affairs of Mildred I. Smith pursuant to RCW 11.68.065 “Report of affairs of
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estate – Petition by beneficiary.” CP at 12-17. Garcia contended that the personal
representatives withheld information about the estate from him. Garcia averred that he
repeatedly asked attorney Lenard Wittlake to explain how Suzanne Knapp became a
personal representative. He also alleged that Robbie Smith’s July 1, 2018 declaration
agreeing to non-intervention powers contained a forged signature. He asserted that, at the
time the court awarded nonintervention powers, he permitted Suzanne Knapp and her
counsel to “believe they had succeeded in gaining legal authority to administer the
estate.” CP at 13.
In his petition for a report of estate affairs, Guillermo Garcia alleged mishandling
of the estate by the personal representatives and the estate’s attorney. Garcia contended
that, in June 2018, Suzanne Knapp promised to provide a financial spreadsheet of the
affairs of the estate, but she failed to do so. He averred that someone told him that he
would receive $7,000 in rent from the Iowa land, but he only received $2,000.
In his petition, Guillermo Garcia contended that the decision to permit Robbie to
live in the College Place home left Garcia homeless. Further, he contended that Smith
illegally rented rooms in the home and never lived there. He complained that he never
received any portion of the rent payments. He also alleged that no one prepared a ledger
of income from Robbie Smith’s yard sales. Garcia explained that he offered to buy the
house for $185,000, the high end value for the residence, but he lacked any intention of
purchasing the house for that price since he already owned one-third of the home.
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In his petition for a report, Guillermo Garcia asserted that the estate parked his
mother’s Cadillac at a Walla Walla shop. A for-sale sign in the window of the car listed
the car’s price as $1,999 or best offer. Garcia averred that he spoke to the shop owner
and offered to purchase the car. The shop owner replied that the car would be sold as
part of an estate sale. According to Garcia, personal representative Justin Cadwallader
later contacted Garcia and told him that the car would cost $2,500, because the personal
representatives had added a new battery and detailed the car.
Guillermo Garcia concluded his petition by requesting a full accounting for estate
affairs. In an attachment titled “Correction, Exhibit B,” Garcia asked that the
nonintervention powers granted to the personal representatives be revoked. CP at 19.
Garcia attached to his petition forty-four pages of low quality, black and white pictures
without an explanation of the relevance of the photographs.
On July 26, 2019, Guillermo Garcia filed a supplemental declaration. This
declaration attached more photographs that purportedly showed neglect of the lawn and
the stacking of materials outside the home. The photos of the house were shadowed and
taken from a distance. In the declaration, Garcia complained that Suzanne Knapp paid
thousands of dollars to herself and her counsel.
On July 29, 2019, the estate of Mildred Smith filed a declaration of Suzanne
Knapp with an annual report on the affairs of the estate attached. The annual report,
dated July 11, 2019, detailed that the estate intended to close the sale of Mildred Smith’s
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home to Guillermo Garcia by July 15. The sale would constitute a beneficiary
distribution. According to Knapp, on July 12, 2019, she e-mailed the annual report of the
estate to Kenneth and Robbie. She declared that she handed the annual report, keys to the
estate home, and a note about a cat to ReNae Davis of Sotheby’s International Realty for
distribution to Garcia. Davis confirmed via e-mail that she hand delivered the package to
Garcia at approximately 5 p.m. on July 12.
On July 29, 2019, the trial court conducted a hearing on Guillermo Garcia’s
petition for a report of the affairs of the estate. Garcia appeared pro se. At the hearing,
estate attorney Leonard Wittlake asked the superior court for a continuance since he
lacked an opportunity to discuss Garcia’s supplemental declaration, filed the Friday
before the hearing, with his clients. Garcia agreed to a continuance. The trial court
scheduled the next hearing for August 12.
On August 12, 2019, the estate of Mildred Smith filed another declaration of
Suzanne Knapp regarding the estate accounting. The declaration provided additional
details, including pictures of the property before Robbie Smith took possession, copies of
bills for cleaning the property, a copy of the order of protection against Guillermo Garcia
that kept him from returning to the College Place home, all bank statements for the estate
account, copies of comparable homes used by the realtor to price the College Place home,
and a spreadsheet of all transactions on behalf of the estate.
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On August 12, 2019, the probate court conducted the continued hearing. Lenard
Wittlake told the trial court that Suzanne Knapp’s report included:
all of the estate taxes, and it does include the bank statements so he
can verify the transactions actually went through the estate bank account. It
includes comparable on the house in College Place that is to be distributed
to Mr. Garcia. It includes the listing agreement.
. . . Mr. Garcia indicated an intent that he wanted the College Place
house, so the personal representatives took it off the market and will
include that a non pro rata distribution as part of Mr. Garcia’s inheritance,
and he also signed a declaration agreeing to receive that as part of his
inheritance.
Report of Proceedings (RP) (Aug. 12, 2019) at 5-6. Counsel Wittlake indicated that the
personal representatives would soon close the estate. Nevertheless, he noted:
[I]n attempting to transfer title to the house, Mr. Garcia refused to
sign the Writ of Real Estate Excise Tax Affidavit and his declarations on
this petition indicate that he made that refusal because he thought that that
[sic] would close the estate and he would no longer have a right to an
accounting. I do have the excise tax affidavit available if he cares to sign it,
and take title, or we can leave that for a Decree of Distribution and decide
that at that time. Whatever Mr. Garcia prefers to do.
RP (Aug. 12, 2019) at 6.
During the August 12 hearing, Guillermo Garcia informed the court that he would
like to compare Suzanne Knapp’s report to other documents in order to determine the
report’s veracity. Garcia also requested that the trial court require the personal
representatives to give him invoices from the distribution of the Iowa land rent. He
contended that he was entitled to such documentation under RCW 11.68.065. Lenard
Wittlake responded that, under the statute in question, Garcia did not have a right to the
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documentation he requested, until a year had passed from the appointment of the personal
representatives. He also affirmed that the report contained a complete accounting for all
estate transactions and affairs.
Before the conclusion of the August 12 hearing, Lenard Wittlake informed the
probate court that he needed clarification from Guillermo Garcia as to his address.
Wittlake commented that mail sent to Garcia was returned marked “‘Return to Sender.’”
RP (Aug. 12, 2019) at 13. Garcia responded to Wittlake’s remarks: “Because you are not
my attorney, remember?” RP (Aug. 12, 2019) at 14. The court told Garcia that, in the
future, he should open mail from Wittlake.
At the conclusion of the August 12, 2019 hearing, the probate court denied
Guillermo Garcia’s requests for relief. The court explained that Garcia would have the
opportunity to raise any objections at the time that the estate petitioned for a decree of
distribution. Lenard Wittlake stated that the personal representatives anticipated closing
the estate within twenty days. The superior court informed Wittlake to give Guillermo
Garcia plenty of notice when filing the petition to close the estate.
On August 14, 2019, Guillermo Garcia filed another supplemental declaration. In
the declaration, he characterized the personal representatives’ August 12 accounting as
insufficient and he announced his opposition to closing the estate. He demanded
documents and answers to questions. Garcia asked why his mother’s grave still lacked a
headstone. He demanded verified statements showing what beneficiaries received from
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the estate in 2018. He demanded photocopies of all estate checks payable to
beneficiaries, Suzanne Knapp, and Lenard Wittlake. He asked to whom Robbie rented
the College Place home and demanded a full accounting of rent Robbie received. He
requested a list of all objects sold during estate sales in 2018 and 2019, a list of his
mother’s button and doll collections, copies of all communications exchanged between
beneficiaries, Lenard Wittlake, or the personal representatives. Garcia demanded, before
distribution of the estate benefits, Robbie’s portion of the family property for his failure
to meet the terms of the court order allowing him residency in the College Place home.
He requested sanctions against Suzanne Knapp.
Guillermo Garcia filed numerous other declarations, addenda, motions to compel,
and requests for sanctions during August and September 2019.
PROCEDURE
We now arrive at the motion that gives rise to this appeal. On October 1, 2019,
the personal representatives of the estate of Mildred Smith filed a notice of final
accounting and intention to distribute assets. The final accounting included an updated
inventory and calculations of distributive shares, early distributions, and remaining
distributions. The final accounting noted that Guillermo Garcia would receive an
$185,000 distribution in the form of the College Place property. With the final
accounting, the personal representatives filed a motion to close the estate. The estate
scheduled the hearing on the motion for October 21, 2019. The three heirs all received
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the motion, notice of final accounting and intention to distribute assets, note for motion
docket, and the proposed order closing the estate.
On October 4, 2019, Guillermo Garcia filed a notice requesting a six-week
continuance because the October 21 hearing was inconvenient. The hearing was
continued to November 4, 2019. On October 4, 2019, Garcia also filed a response to the
motion to close the estate. He agreed with the estate’s calculations that he should receive
a gross share of $275,110.34. Nevertheless, he insisted that only $124,334 of the
$185,000 should be deducted from his approximately $275,000 share of the distribution
of the estate. He reasoned that he already owned a one-third share.
In early October 2019, Guillermo Garcia filed more pleadings. On October 7,
2019, Garcia filed a motion to freeze the estate. In this motion, Garcia informed the court
that he intended to contest the $185,000 purchase price of the property. He wrote:
[E]ven if we were to deduct the entire $185,000, from the
$275,000.00, that would leave a balance of $90,000.00! Apparently, their
math skills are sadly lacking or they are intent—as they have been from the
start—to deny my inheritance or significantly diminish it.
However, if we take $275,000.00 and remunerate back to me 1/3 of
that as I was already a 1/3 owner of the property, I am still owed around
$150,000.00!
CP at 248. He requested that the trial court freeze the estate until the personal
representatives delivered requested documents to him and until a forensic accountant
delivered a report of the accountant’s review of the records.
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On October 9, Guillermo Garcia filed a motion to compel the production of names
and contact information for the “illegal” renters of the College Place residence. On
October 10, Garcia filed a letter to Lenard Wittlake regarding the closing of the estate.
On October 11, 2019, Guillermo Garcia filed a motion agreeing to docket the
hearing on the motion to close the estate for November 4, 2019. In the motion agreeing
to the hearing date, he offered to settle his claims against the estate for title to the College
Place residence and $250,000. In turn, he would release Robbie from liability for his
misconduct if he would not return to the Walla Walla Valley. On October 11, Garcia
filed a letter written to Lenard Wittlake, in which he demanded $250,000 in exchange for
approving a November 4 hearing for closing the estate.
On October 30, Guillermo Garcia filed a notice that repudiated his July 8, 2019
declaration, in which he agreed to purchase the College Place property for $185,000. He
claimed duress at the time of agreeing to the purchase price. He also claimed that he
suffered duress when he signed the July 8 declaration. He asserted that, had he not
signed the declaration, the personal representatives would have rejected his bid and the
house would have sold to another. Garcia declared that, at the time of Mildred Smith’s
death, the home was valued at $131,000. On October 30, Garcia also filed another
motion to freeze the estate. Garcia filed additional motions between October 30 and
November 1, including a response to Lenard Wittlake’s motion to close the estate.
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On November 1, 2019, the estate of Mildred Smith filed an updated accounting.
The estate also filed a response to Guillermo Garcia’s various motions.
On November 4, 2019, the trial court convened to address the estate of Mildred
Smith’s motion to close the estate. Both parties then requested a continuance. Lenard
Wittlake, counsel for the estate of Mildred Smith, stated that the personal representatives
wished to postpone the hearing for two weeks in order to complete final tasks. Guillermo
Garcia claimed that he had not received any estate documents. Garcia insisted that he
needed to obtain an attorney and a forensic accountant to show that the personal
representatives failed in their legal and fiduciary capacities. The probate court granted
the two week continuance.
On November 6, 2019, two days after the hearing at which he expressed a desire
to retain an attorney, Guillermo Garcia filed a notice of appearance on his behalf. In the
notice, Garcia contended that Lenard Wittlake was a liar, and Garcia complained about
actions of the probate judge. Garcia asserted:
Apparently, the bench and Lenard Wittlake feel they aren’t bound by
legal ethics when it comes to dealing with me. . . . It is clear that the
[judge’s] decision was reached in chambers in illegal consultation with
Lenard Wittlake, ‘ex parte’ as evidenced by the notification of the bench’s
decision emanated from the Wittlake Law Firm and not from the Court.
Apparently, these two are good buddies.
CP at 324.
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On November 7, 2019, Guillermo Garcia filed a letter sent to Lenard Wittlake and
the trial court that challenged the final report of the estate as “insane.”
I, already, own 1/3 of the family property. My share of the estate—
from your final report—is $275,000.00. I accept that figure.
As such, my cost for purchasing the family property is not
$185,000.00, but around $124,000.00. That leaves a balance in my share of
the family estate of around $151,000.00. Not $68,000.00! You, either,
failed grade school math or you are a lying, thieving, insult to the practice
of law and the judge is complicit in your lies and thievery. I will find out,
trust me!
....
My last offer to save your bacon—and the rest of the criminals with
which you have aligned yourself—still stands. I inherit the family
property, free and clear, and you send me a money order for $600,000.00
for the $275.000.00 share of the estate, reparations and remunerations to me
for your criminal acts; including, illegal ex parte communication and
conversations with the bench. I will find out the truth!
CP at 339 (some capitalization omitted) (boldface omitted). On November 8, Guillermo
Garcia filed other pleadings, including a request to bring Robbie Smith in person to court,
a demand for copies of contracts between Wittlake and Suzanne Knapp that would show
whether he should be considered a client of Wittlake, and a request for sanctions against
Wittlake and Knapp for violating legal ethics.
On November 12, 2019, the Wednesday before the Monday hearing to close the
estate, Guillermo Garcia filed a letter to Lenard Wittlake again requesting estate
documents. On November 14, Garcia filed a motion to compel his son, Justin
Cadwallader, to appear in court and provide testimony. On November 14, he filed a
request for mediation. Garcia did not serve the November 14 filings on estate counsel.
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On November 15, the Friday before the scheduled Monday hearing, the estate of
Mildred Smith filed a response to the extensive motions, requests, and demands of
Guillermo Garcia. The response referenced pending motions and other pleadings filed by
Garcia between October 9, 2019 and November 14, 2019. The estate also filed a
declaration by its counsel, Lenard Wittlake. In attachments to the declaration, Wittlake
outlined the time and expenses incurred by his office to resolve the probate. He averred
that the estate incurred, among other expenses, $12,146 “solely due to the actions of Mr.
Garcia.” CP at 381. The amount included a district court award of sanctions against
Garcia. Wittlake provided an accounting for time worked.
On November 18, 2019, the trial court held the continued hearing on the motion to
close the estate. During the hearing, the following exchange transpired between the
probate court and Guillermo Garcia:
MR. GARCIA: . . . I have had absolutely nothing to address this
thing, and I am contesting the closing of the estate. Because it’s—he says
he’s ready to close if no one contests it. Well, I am contesting it. I need
those documents. Okay? We could, you know, move this thing along if
you could just ask him who signed that declaration on July 6, 2018. Just
ask him. It’s his work product. He knows who signed it. It wasn’t my
brother.
But be that as it may, I think we need to go to mediation.
THE COURT: What are you going to mediate?
MR. GARCIA: Hmm?
THE COURT: What are you going to mediate? There is an
accounting in the file as to the estate.
MR. GARCIA: For instance, I just found out this week that my one-
third inheritance in the family property got stolen and given to the other
two beneficiaries. I had already reputed the declaration. The $185,000 that
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I bid to buy the house, the property, was already under duress. They were
trying to sell it without contacting me . . . .
THE COURT: Did they sell it?
MR. GARCIA: Pardon?
THE COURT: Did they sell it?
MR. GARCIA: Yes, they sold it to me.
THE COURT: Well, no, it’s being distributed to you.
MR. GARCIA: No.
THE COURT: Well, obviously it’s part of your inheritance. You
don’t get it plus a third of the rest of the estate, or whatever your share is,
I’m sorry.
RP (Nov. 18, 2019) at 19-20.
At the November 18 hearing, estate of Mildred Smith counsel Lenard Wittlake
acknowledged that he filed pleadings the Friday before the hearing and he did not know
if Guillermo Garcia had seen the documents. He mailed the documents instead of hand-
delivering them, because Garcia, as recently as two weeks ago, had declined hand-
delivery. Garcia returned the envelope from the earlier personal service, on which
envelope Garcia wrote: “‘Step on my property again and I will have you arrested for
trespass.’” RP (Nov. 18, 2019) at 25. Garcia never disclosed whether he received the
pleadings filed by the estate on November 15.
During the November 18 hearing, the estate of Mildred Smith requested that
Guillermo Garcia be assessed $12,146 in legal fees incurred by the estate as a result of
his litigious conduct. The estate requested that the amount be deducted from Garcia’s
distributive share.
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At the conclusion of the November 18, 2019 hearing, the probate court
announced:
I’m denying your [Guillermo Garcia’s] motions, requests and
demands and I’m ordering the estate be closed. I’m satisfied that it’s been
handled properly. If you want to appeal it you can do that within 30 days.
And Mr. Wittlake, you can deduct two-thirds from his share of the costs.
RP (Nov. 18, 2019) at 28. On the same day, the trial court entered a written order
denying all of Guillermo Garcia’s motions, requests, and demands and awarding the
estate of Mildred Smith $12,146.00 against Garcia’s share of the distribution because of
his pleadings that did not benefit the estate.
LAW AND ANALYSIS
On appeal, Guillermo Garcia assigns three errors to the probate court proceeding.
First, he complains that the court proceeded with the November 18, 2019 hearing to close
the estate despite the estate mailing him reply pleadings the business day before. Second,
the probate court erroneously deducted the full value of the College Place residence from
his share of the distribution. Third, the probate court mistakenly assessed him two-thirds
of some of the estate of Mildred Smith’s attorney fees.
Notice of Estate Closure Hearing
Guillermo Garcia contends the probate court erred in ordering the estate closed
when the estate of Mildred Smith mailed him pleadings supporting closure on the Friday
before the Monday hearing. He argues that filing the documents on the last business day
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before the hearing violated notice requirements under RCW 11.68.100 and RCW
11.76.040. He also contends that, even if the documents were supplemental or in
response to his own filings, they violated Walla Walla County Local Rules 7 B.1 and 7
B.2. The estate responds that Garcia received notice of the hearing to close the estate on
October 1 in compliance with the statute.
Chapter 11.68 RCW governs settlement of estates without administration. Under
RCW 11.68.100(2), when a personal representative seeks to obtain a decree to close an
estate, he or she must give notice “as provided for in the settlement of estates by a
personal representative who has not acquired nonintervention powers.” In turn, RCW
11.76.040 governs settlements of estates and requires a personal representative to give an
heir twenty days’ notice of a hearing:
Whenever a final report and petition for distribution, or either, shall
have been filed in the estate of a decedent and a day fixed for the hearing of
the same, the personal representative of such estate shall, not less than
twenty days before the hearing, cause to be mailed a copy of the notice of
the time and place fixed for hearing to each heir, legatee, devisee and
distributee whose name and address are known to him or her, and proof of
such mailing shall be made by affidavit and filed at or before the hearing.
(Emphasis added.)
We note that the estate of Mildred Smith gave Guillermo Garcia twenty days’
notice of the initial October 21, 2019 hearing date to close the estate. Garcia was
afforded even more time because of continuances of the October 21 hearing date. The
estate filed the November 15, 2019 pleadings, the late filing about which Garcia
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In re Estate of Smith
complains, in response to Garcia’s pleadings, including motions that Garcia filed on
November 14. Garcia does not mention when he first saw the estate’s November 15
pleadings. He does not suggest he would have acted differently had he received the
pleadings sooner.
We reject the first assignment of error because Guillermo Garcia did not object to
proceeding with the motion to close on November 18, nor did he then ask for a
continuance. He had asked for a continuance two weeks earlier, so he knew he could
have asked for one on November 15. At the November 18 hearing, Garcia did not
reference the statute or local court rules, on which he now relies. We will not address an
argument raised for the first time on appeal. RAP 2.5(a).
Distribution of Residence
Guillermo Garcia contends that Suzanne Knapp violated her fiduciary duty owed
to him by failing to inform him, before closure of the estate, that his election to receive
the College Place home as a non-pro-rata distribution meant that the distribution would
be at its full value, $185,000. He contends that Knapp knew that he believed only two-
thirds of the property or $125,000 would count toward his share as he already owned 1/3
of the estate of Mildred Smith. He asks this court to reverse the closure of the estate
based on a unilateral mistake and to order that the non-pro-rata distribution be that of the
actual market value of the home on the date of distribution or the amount of $123,201.
He then requests that amount be used to determine what he is still owed from the
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No. 37231-6-III
In re Estate of Smith
remaining assets. The estate responds that the actual “cost” of the home to Garcia was
only two-thirds of the full cost of the house even though the entire $185,000 was
calculated against his share. In reply, Garcia concedes the accuracy of the estate’s
calculations, but he emphasizes that he misunderstood that only $125,000 would be
credited against his share of the distribution.
The personal representative stands in a fiduciary relationship to those beneficially
interested in the estate. In re Estate of Larson, 103 Wn.2d 517, 521, 694 P.2d 1051(1985). She is obligated to exercise the utmost good faith and diligence in administering
the estate in the best interests of the heirs. In re Estate of Larson, 103 Wn.2d 517,
521(1985). The personal representative acting with nonintervention powers has the
discretionary power to make non-pro-rata distributions. In re Estate of Ehlers, 80 Wn.
App. 751, 763, 911 P.2d 1017 (1996).
One party to a contract is not liable if the contract is based on that party’s
unilateral mistake and the other party to the contract knows of or is charged with
knowledge of the mistake. Gill v. Waggoner, 65 Wn. App. 272, 276, 828 P.2d 55 (1992).
A party to a contract is entitled to reformation of the contract based on one party’s
unilateral mistake only if the other party engaged in inequitable conduct. Oliver v. Flow
International Corporation, 137 Wn. App. 655, 664, 155 P.3d 140 (2006). A party acts
inequitably if she knowingly conceals a material fact from the other party and has a duty
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No. 37231-6-III
In re Estate of Smith
to disclose that knowledge to the other party. Oliver v. Flow International Corporation,
137 Wn. App. 655, 664 (2006).
Although he initially argued otherwise, Guillermo Garcia now agrees the estate of
Mildred Smith properly calculated his distribution. Nevertheless, he contends he should
be able to profit by his original mistake in understanding with the result that he would
receive more than his two brothers. We reject this argument because he presented no
evidence that the personal representatives knew he labored under a misunderstanding or
that the personal representatives acted inequitably. If anything, the record shows that he
understood that he was purchasing the College Place home for $185,000. Garcia’s
position is unfair to his brothers.
Payment of Attorney Fees
Guillermo Garcia next argues that the superior court erred when imposing two-
thirds of attorney fees incurred by the estate of Mildred Smith when he is a one-third
beneficiary. Garcia contends that the trial court erred in failing to enter findings of fact
and conclusions of law explaining the court’s reasoning for requiring Garcia, a one-third
beneficiary, to pay two-thirds of the fees incurred by the estate in handling the closing of
the estate. He argues that, at the very least, this matter should be remanded to the trial
court to enter proper findings of fact and conclusions of law. The estate responds that the
trial court did not order Garcia to pay two-thirds of all fees, but two-thirds of extra costs
incurred by the estate for the work performed by Lenard Wittlake in responding to
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No. 37231-6-III
In re Estate of Smith
Garcia’s pleadings that did not benefit the estate. The estate contends that the trial court
was not required to enter findings of fact or conclusions of law.
RCW 11.96A.150 provides for an award of costs, including reasonable attorney
fees, in the trial court’s discretion:
(1) Either the superior court or any court on an appeal may, in its
discretion, order costs, including reasonable attorneys’ fees, to be awarded
to any party: (a) From any party to the proceedings; (b) from the assets of
the estate or trust involved in the proceedings; or (c) from any nonprobate
asset that is the subject of the proceedings. The court may order the costs,
including reasonable attorneys’ fees, to be paid in such amount and in such
manner as the court determines to be equitable. In exercising its discretion
under this section, the court may consider any and all factors that it deems
to be relevant and appropriate, which factors may but need not include
whether the litigation benefits the estate or trust involved.
(Emphasis added.)
We recognize that the superior court should generally enter findings of fact to
support an award of reasonable attorney fees and costs. Mahler v. Szucs, 135 Wn.2d 398,
435, 957 P.2d 632 (1998). The purpose of the findings is to permit appropriate appellate
review. In re Detention of La Belle, 107 Wn.2d 196, 218-19, 728 P.2d 138 (1986).
In Guillermo Garcia’s appeal, we decline to apply the rule directing the superior
court to enter findings of fact because Garcia does not challenge the amount of the fees or
any particular basis for the award. Instead Garcia argues that he should not have been
assessed two-thirds of the fees. As part of this assignment of error, he further complains
about the probate court’s substantive rulings.
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No. 37231-6-III
In re Estate of Smith
The estate of Mildred Smith astutely notes that the probate court did not impose
two-thirds of all attorney fees incurred by the estate on Guillermo Garcia. Instead, the
court limited the award to conduct of Garcia that unnecessarily and unreasonably
increased the estate’s cost. In its appellate briefing, the estate outlines the lengthy factual
and procedural background that supports the imposition of sanctions by the trial court. In
addition to the insistent and persistent motions, requests, declarations, and demands,
Guillermo Garcia hurled accusatory language, name-calling, and personal attacks toward
Suzanne Knapp and Lenard Wittlake.
Attorney Fees on Appeal
Both parties seek an award of reasonable attorney fees and costs on appeal.
Guillermo Garcia requests attorney fees under RCW 11.68.070 and 11.96A.150. The
estate of Mildred Smith requests attorney fees under RCW 11.96A.150. We award the
estate its attorney fees against Guillermo Garcia.
RCW 11.68.070 provides a procedure for the court to remove a personal
representative from this position and to restrict nonintervention powers. Under such
circumstances, the court may award to a party reasonable attorney’s fees. Guillermo
Garcia filed a motion pursuant to this statute, but the probate court denied the motion. He
does not assign error to this ruling on appeal.
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No. 37231-6-III
In re Estate of Smith
We previously quoted RCW 11.96A.150. Guillermo Garcia argues the merits of
his appeal when contending this court should award him fees under this second statute.
We have already rejected those merits.
The estate requests attorney fees on appeal under RCW 11.96A.150. The estate
contends that Guillermo Garcia waged a war in an effort to disinherit his brothers. None
of his litigation benefited the estate. He never presented evidence that the personal
representatives’ powers should be modified or rescinded. Instead, they acted as
authorized by RCW 11.68.090 and RCW 11.98.070(15). We agree and award the estate
reasonable attorney fees and costs against Guillermo Garcia on appeal.
CONCLUSIONS
We affirm the probate court’s rulings. We award reasonable attorney fees and
costs to the estate of Mildred Smith against Guillermo Garcia.
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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________ _________________________________
Lawrence-Berrey, J. Staab, J.
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