In Re The Matter Of: The Beverly C. Morgan Trust v. Thomas E. Morgan

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Matter of: No. 72657-9-I
THE BEVERLY C. MORGAN FAMILY DIVISION ONE
TRUST, dated April 3, 1985, as
amended and restated in its entirety on UNPUBLISHED
November 6, 2013.
FILED: August 10. 2015
Cox, J. — The Trust and Estate Dispute Resolution Act (TEDRA) provides
for the award of attorney fees and costs. Specifically, courts may, in their
discretion, award these amounts to be paid by any party to a TEDRA proceeding
in such manner as a court determines to be equitable.1
Here, Thomas Morgan appeals the trial court's order awarding fees and
costs against him in favor of Nancy Shurtleff. We hold that the trial court did not
abuse its discretion in awarding fees against him. But the findings of the trial
court do not fully address his objections to the amount of fees awarded.
Accordingly, we affirm in part, vacate in part, and remand for further proceedings.
Thomas Morgan, Nancy Shurtleff, and John Morgan (John2), are the
children of Beverly C. Morgan. They, along with Shurtleffs two daughters, are
beneficiaries of the Beverly C. Morgan Family Trust.
1 RCW11.96A.150.
2 Due to the similarity in names, we refer to John Morgan by his first name.
No. 72657-9-1/2
Beverly C. Morgan died in January 2014. Following her death, Morgan, as
trustee, issued a "Notification by Trustee Under Probate Code Section 16061.7."
This notified the beneficiaries of the Beverly C. Morgan Family Trust "as
amended and completely restated on November 6, 2013," identified Morgan as
the trustee, and identified the principal place of administration of the trust in
Seattle, Washington. The notification further stated that an action to contest the
trust must be brought within 120 days.
Shurtleff timely petitioned to challenge the amended trust in King County
Superior Court in May 2014. The petition sought to construe the trust terms, to
determine the validity of a trust provision, to ascertain beneficiaries, and, in the
alternative, to invalidate the trust on the basis of undue influence, lack of
capacity, and fraudulent representations.
Notwithstanding Shurtleff's petition in Washington, Morgan filed a petition
for interpretation of the Beverly C. Morgan Family Trust in Orange County,
California. He then filed in King County Superior Court his opposition to
Shurtleff's petition and a motion for the courtto decline jurisdiction. Morgan
submitted a declaration offering to reimburse Shurtleff for her travel to Orange
County "to defend against the proper petition brought there once [the King
County Superior Court] has declined jurisdiction."
Shurtleff moved in the Orange County superior court to dismiss Morgan's
pending California petition or, in the alternative, to stay the matter.
On July 16, 2014, Morgan issued an "Amended and Corrected Notification
by Trustee Pursuant to Probate Code § 16061.7." This notification was sent to
No. 72657-9-1/3
the beneficiaries "to amend and correct the principal place of administration of
the Trust." It stated that the amended and corrected address was in Newport
Beach, California.
A hearing on Shurtleff's petition commencing this action occurred on July
22, 2014. The case was set for trial.
One week later, Morgan filed a declaration in Orange County, offering to
allow Shurtleff to file the claims from her Washington petition in California without
raising any defense based on the statute of limitations.
On August 8, 2014 the Orange County court heard Shurtleff's motion to
dismiss or stay proceedings. It denied the motion. It stated, "Shurtleff's claims,
as alleged in her May 28, 2014 Washington petition, may be tried in this pending
action without any defense of statute of limitations or any other time barred
defense " It also stated, "[l]n the alternative, [Shurtleff] may file a petition in
this action, seeking all the relief that she sought in the Washington action without
any defense of statute of limitations or any other time barred defense."
Following this ruling, Shurtleff filed a petition in Orange County that
included the same claims brought in the Washington action, along with other
claims brought under California law.
Thereafter, Shurtleff moved to dismiss this Washington proceeding. This
motion was conditioned on the court awarding her attorney fees and costs
incurred in this proceeding. Morgan opposed Shurtleffs motion for fees. We
describe this motion and the opposition in more detail later in this opinion.
No. 72657-9-1/4
The trial court granted Shurtleff's motion for an award of attorney fees and
costs against Morgan. There was no award against the trust estate.
Morgan appeals.
ATTORNEY FEES
Morgan challenges the award of attorney fees to Shurtleff on two bases.
First, he argues that Shurtleff was not entitled to an award under RCW
11.96A.150. Second, he challenges the amount of fees awarded.
Statutory Equitable Considerations
Morgan first argues that Shurtleff was not entitled to an award of
reasonable attorney fees under RCW 11.96A. 150. We disagree.
Under RCW 11.96A. 150(1):
Either the superior court or any court on 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 involvedP]
As the plain words of this statute indicate, the award of fees under the
statute is discretionary. Accordingly, we review for abuse of discretion.4 A trial
3 (Emphasis added.)
4 In re Estate of Black, 153Wn.2d152, 173, 102 P.3d 796 (2004).
No. 72657-9-1/5
court abuses its discretion when its decision is manifestly unreasonable or is
based on untenable grounds or reasons.5
Here, the trial court did not abuse its discretion when it determined that
Shurtleff was entitled to an award of attorney fees on equitable grounds.
Morgan's conduct directly resulted in Shurtleff filing her petition to contest the
trust in Washington.
The trial court made the following findings with respect to its fee award:
iii) [Shurtleff] properly filed the Petition in Washington as a
direct result of [Morgan's] designation of King County Washington
as the principal place of administration; and was not required to
dismiss until the trust administration location was changed to
California.
iv) [Morgan's] unilateral decision to change the principal
place of administration after the Petition was filed appears to be an
action which benefited himself to the detriment of the other
beneficiaries.[61
And the court reiterated:
None of these [fees] (which are reasonable as to hours and rate
charged) would have been incurred but for [Morgan's] designation
of Washington as the situs of trust administration.[7'
As stated earlier, the statute makes clear that the court may award fees
based on equitable considerations. It further specifies that the court may
5 In re Marriage of Littlefield. 133 Wash. 2d 39, 46-47, 940 P.2d 1362 (1997).
6 Clerk's Papers at 572.
7 Id. at 573.
No. 72657-9-1/6
consider "any and all" factors that it deems "relevant and appropriate" in the
exercise of its discretion in awarding fees on an equitable basis.8
The court's primary basis for the award of fees was that Morgan's conduct
directly resulted in Shurtleff filing her petition in Washington. This was a proper
equitable basis to award fees.
On January 30, 2014, Morgan, as trustee, issued the "Notification by
Trustee under Probate Code Section 16061.7." This notification stated that the
principal place of administration of the trust was in Seattle, Washington. It further
stated that any action to contest the trust must be brought within 120 days.
Following this notification, Shurtleff brought her petition in King County. Thus,
Shurtleff's action was a natural consequence of Morgan's actions. On this basis
alone, the court properly exercised its discretion.
Also in support of its award, the court found that the decision to change
the principal place of administration appeared to be an action to the detriment of
other beneficiaries. This is supported by the record, and it further supports the
award of fees.
Declarations provided by the beneficiaries establish that they are
Washington residents. John testified in his declaration that it "would be a
hardship on [him] if this litigation were to be conducted in California." He further
testified, "This recent change in the location of the Trust appears to be a direct
result ofthe pending litigation and an attempt to make it more difficult for me, and
the other beneficiaries, to participate in the litigation." And he testified that
RCW11.96A.150(1).
No. 72657-9-1/7
consultation with his tax advisors indicated that moving administration of the trust
to California "may expose [him] to California income tax that would be avoidable
if administration of the trust remainfed] in Washington." Morgan's prior attorney
expressed similar concerns in a deposition:
Q: So what is the net tax effect, positive or negative, tax only, of
[sjiting the trust in California versus Washington?
A: Ifthe fiduciary were located in California, then California's
income tax would apply to all income and gain recognized by the
trustee regardless of source.
Q: So how would it be in the best interest of the trust and its
beneficiaries to [s]ite the trust in California?
A: I don't know that it would be.191
In sum, the court did not abuse it discretion when it determined that
Shurtleff was entitled to an award of attorney fees to be paid by Morgan based
on these equitable considerations.
Morgan argues that there is "no evidentiary or legal support" for the finding
that his action "appears to be an action which benefited [him] to the detriment of
the other beneficiaries." He asserts that having the principal place of
administration in Washington would have exposed the Trust to payment of estate
taxes, while California would not. If this assertion is true, it is unclear why he first
designated Washington as the place of administration ofthis trust. According to
the argument he now advances, doing so would have exposed the trust to taxes
that would not have been incurred if he had chosen California. That could be
considered a breach of his fiduciary duty to avoid erosion of the trust assets.
Clerk's Papers at 36.
7
No. 72657-9-1/8
In any event, the evidence discussed earlier supports the court's finding
that moving the place of administration of the trust "appears to be" to the
detriment of the beneficiaries. The beneficiaries are all Washington residents,
and John testified that moving the litigation would be a hardship for him.
Morgan also argues that this finding is untenable because there was no
trial or hearing on his conduct to establish his wrongdoing. But even
disregarding this finding, the trial court's award of fees was primarily based on
the fact that Morgan initially designated Washington as the place of
administration of the trust, which directly resulted in Shurtleff filing her petition in
Washington. Neither a trial nor a hearing was required to establish this fact.
Morgan speculates that Shurtleff had other motives to file in Washington. But
that speculation is unsupported by any evidence in this record.
Morgan next argues that "no Washington case has held, that a petitioner,
who files a trust petition, voluntarily dismisses it before a hearing or trial, and
provides no benefit to the Trust is entitled to attorney's fees and costs."10
As for whether benefit to the trust is required, the plain words of the
statute make clear that relevant factors "may but need not include" benefit to the
trust. Thus, to the extent his argument is based on a lack of benefit to the trust, it
is unpersuasive.
As for the remaining challenges, under RCW 11.96A.150(1), the court
may consider "any and all factors that it deems to be relevant and appropriate."
10 Opening Brief of Appellant Thomas E. Morgan at 14.
No. 72657-9-1/9
The factors discussed earlier were appropriate considerations and supported the
award of fees.
Morgan asserts that the "outcome determinative case" is Cook v.
Brateng.11 In that case, Division Two stated, "'Generally, attorney fees may be
awarded against a trust only where the litigation results in a substantial benefit to
the trust.'"12 And it concluded that the trial court improperly awarded attorney
fees in that case because the litigation did not substantially benefit the trust.13
Morgan relies on Cook to argue that Shurtleff is not entitled to fees
because the litigation did not result in a substantial benefit to the trust. But, as
just discussed, the plain words of the statute before us make clear that benefit to
the trust is optional, not mandatory.
Moreover, Cook is distinguishable. In that case, it appears that the trial
court awarded the attorney fees against the trust itself, not from a party in his
individual capacity. Here, in contrast, the trial court awarded attorney fees to
Shurtleff from Morgan's personal assets. It did not award attorney fees against
the trust. Thus, Shurtleff did not need to establish that the litigation resulted in a
substantial benefit to the trust. While the court could consider that factor, it was
not required to. Thus, Cook does not control under these circumstances.
11 180 Wash. App. 368, 321 P.3d 1255 (2014).
12 \± at 374 (internal quotation marks omitted) (quoting Cook v. Brateng.
158 Wash. App. 777, 795, 262 P.3d 1228 (2010)).
13
Id.
No. 72657-9-1/10
Morgan also cites In re Estate of Niehenke14 and Bartlett v. Betlach15 for
the same proposition. But again, this case involves an award against Morgan in
his individual capacity. Thus, reliance on these cases is misplaced.
Next, Morgan challenges the court's findings of fact. Specifically, he
argues that the court erred in finding that: (1) "it was mandatory that [Shurtleffs]
trust petition had to be filed in King County, Washington," (2) "only the notification
of the principal place of administration determines jurisdiction where a trust
petition can be filed," (3) "[Morgan] voluntarily and intentionally transferred the
trust situs from Orange County, California to King County, Washington," and (4)
"the notification of trust situs entitled [Shurtleff] to continue prosecuting her
petition in King County, Washington after [Morgan] offered to return the trust situs
to Orange County, California within 16 days of [Shurtleff] filing her petition."16 But
these assignments of error mischaracterize the trial court's actual findings of fact.
The trial court did not find that it was "mandatory" that Shurtleff's trust
petition "had to be filed in King County, Washington." Nor did it find that "only the
notification of the principal place of administration determines jurisdiction where a
trust petition can be filed." In fact, the trial court made no findings about the
exclusivity of Washington's jurisdiction.
Rather, the trial court found that Shurtleff "properly filed" her petition in
Washington "as a direct result of [Morgan's] designation of King County
14 117 Wash. 2d 631, 818 P.2d 1324 (1991).
15 136 Wash. App. 8, 146 P.3d 1235 (2006).
16 Opening Brief of Appellant Thomas E. Morgan at 3.
10
No. 72657-9-1/11
Washington as the principal place of administration . . . ,"17 This finding
supported the award of fees because it indicated that Shurtleff relied on Morgan's
designation, not because it indicated that Shurtleff could only file her petition in
Washington.
Likewise, the trial court did not find that Morgan "voluntarily and
intentionally transferred the trust situs from Orange County, California to King
County, Washington." Rather, the court found that it was Morgan's "unilateral
decision to change the principal place of administration after [Shurtleff's] Petition
was filed."18 This refers to Morgan's decision to change the principal place of
administration to Orange County, California from King County, Washington.
Lastly, the trial court did notfind that "the notification of trust situs entitled
[Shurtleff] to continue prosecuting her petition in King County, Washington after
[Morgan] offered to return the trust situs to Orange County, California within 16
days of [Shurtleff] filing her petition." Thus, this need not be addressed.
In short, because the trial court did not make the findings alleged by
Morgan, this court need not further address his arguments.
Finally, in his reply brief, Morgan argues that the order awarding attorney
fees is not against him individually. But this is contrary to the record.
As the words of statute make clear, the court may award fees "[f]rom any
party to the proceeding."19 Morgan is such a party.
17 Clerk's Papers at 572.
18 Id.
19RCW11.96A.150(1).
11
No. 72657-9-1/12
Shurtleff argued in her motion that Morgan breached his fiduciary duties
and that his actions necessitated the Washington filing. And she requested that
"Tom" be responsible for fees incurred. It is clear that Shurtleff was requesting
attorney fees to be paid by Morgan personally. It is equally clear that the court
awarded fees against Morgan personally.
Amount of Reasonable Attorney Fees
Morgan next argues that the court abused its discretion in determining the
amount of the fees. Specifically, he argues the court abused its discretion by
conducting in camera review of billing records that were not provided to him and
not a part of this record on appeal. We hold that the findings of the trial court
concerning the amount of fees awarded do not fully support the award.
"A determination of reasonable attorney fees begins with a calculation of
the 'lodestar,' which is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate."20 The court must limit the lodestar to
hours reasonably expended and should discount hours "spent on unsuccessful
claims, duplicated effort, or otherwise unproductive time."21 The trial judge "'who
has watched the case unfold ... is in the best position to determine which hours
20 224 Westlake. LLC v. Engstrom Props.. LLC. 169 Wash. App. 700, 734,
281 P.3d 693 (2012).
21 Bowers v. Transamerica Title Ins. Co.. 100 Wash. 2d 581, 597, 675 P.2d
193(1983).
12
No. 72657-9-1/13
should be included in the lodestar calculation.'"22 After the lodestar figure is
calculated, the court may consider an adjustment based on additional factors.23
"To establish the reasonableness of the fee award, the attorney's
documentation of the work performed must satisfy at least a minimum level of
detail."24 As the supreme court stated in Bowers v. Transamerica Title Insurance
Co.. "This documentation need not be exhaustive or in minute detail, but must
inform the court, in addition to the number of hours worked, of the type of work
performed and the category of attorney who performed the work . .. ."25
"'Courts must take an active role in assessing the reasonableness of fee
awards, rather than treating cost decisions as a litigation afterthought. Courts
should not simply accept unquestionably fee affidavits from counsel.'"26 The trial
court "must supply findings offact and conclusions of law sufficient to permit a
reviewing courtto determine why the trial court awarded the amount in
question."27 "The findings must show how the court resolved disputed issues of
22 224 Westlake. 169 Wash. App. at 735 (alteration in original) (quoting
Chuong Van Pham v. Seattle City Light. 159 Wash. 2d 527, 540, 151 P.3d 976
(2007)).
23 Id
24 \± at 734.
25 100 Wash. 2d 581, 597, 675 P.2d 193 (1983).
26 Berrvman v. Metcalf. 177 Wash. App. 644, 657, 312 P.3d 745 (2013)
(emphasis omitted) (quoting Mahler v. Szucs. 135 Wash. 2d 398, 434-35, 957 P.2d
632, 966 P.2d 305 (1998)), review denied, 179 Wash. 2d 1026 (2014).
27 SentinelC3. Inc. v. Hunt. 181 Wash. 2d 127, 144, 331 P.3d 40 (2014).
13
No. 72657-9-1/14
fact and the conclusions must explain the court's analysis."28
We review for abuse of discretion the reasonableness of an attorney fee
award.29
Here, Shurtleff initially requested that Morgan pay attorney fees and costs
voluntarily before moving for an order to do so. With her e-mail to California
counsel for Morgan, she attached a four-page redacted billing spreadsheet.
Morgan refused, arguing that the information provided in the spreadsheet was
"utterly inadequate." Nevertheless, he identified several categories of objections
to the redacted billing spreadsheet. Of these, one objection was to three lawyers
attending a July 22, 2014 hearing. Another objection was to an entry on May 28,
2014 that failed to specify what was done and who "Sandy J. Ullom," the person
doing the work, was. The remaining objections were more general.
Shurtleff's attorney responded:
We are, of course, between a rock and a hard place with
regard to the redactions because we cannot waive the
attorney/client privilege or work product immunity given the ongoing
litigation. We can give you more descriptions of the activities for
which we do not request reimbursement from [Morgan], and all of
our undertakings will of course be verified by court review of the
unredacted invoices. But we disagree with your characterization of
what information was already provided in any event—we provided
dates, individuals who worked on the efforts described in the
entries (TKPR Name column), and general information about the
work completed. If more detail regarding what we did not request
from [Morgan], or more inclusion of the general subject matter of
the tasks performed, would be helpful, or if you have any other
28 Berrvman. 177 Wash. App. at 658.
29 224 Westlake. 169 Wash. App. at 734.
14
No. 72657-9-1/15
solution to this impasse you would like to share, we certainly would
be willing to try.[30]
Morgan's attorney did not respond to this e-mail.
Thereafter, Shurtleff moved for an award of attorney fees and costs. She
filed a declaration from Bruce McDermott, one of her attorneys. Attached to his
declaration were copies of the e-mails between the parties and the redacted
billing spreadsheet. The motion indicated that an unredacted copy of the billing
spreadsheet was provided to the court for consideration in camera.
We assume that an unredacted copy of the billing spreadsheet was
provided to the court. But whatever was provided to the court is not in the record
on appeal. Thus, we have no ability to review it.
Morgan opposed this motion. He argued that the redacted spreadsheet
was defective for the following reasons:
The chart [of redacted data for billing statements] has no
description of anything done in its 55 work description entries.
The chart has no time for anything done in its 55 work description
entries.
The chart has no nouns or objects in its 55 work description entries.
The chart contains only 137 non-redacted words, mostly verbs.
An example: the 5/28/2014 entry for Sandy J. Ullom has nothing
but black space for which [Shurtleff] is seeking $171 .OOJ31!
He also argued that the legal work performed for the Washington petition was
"used and amplified on" in the California petition. And he argued that in camera
30 Clerk's Papers at 53.
31 Id. at 72.
15
No. 72657-9-1/16
review of unredacted data for billing statements did not solve the problem of the
lack of information in the redacted chart to allow meaningful challenge to the fee
request.
In reply, Shurtleff argued that she provided sufficient information to the
court and that this was all that was required. She also filed another declaration
from McDermott. This declaration set forth the hourly billing rates, timekeepers,
and general descriptions of work both excluded and included in the request for
fees. It stated:
To determine what fees for which to request reimbursement
in this matter, our accounting department downloaded every
account entry from the date of our employment by Nancy Shurtleff
through the date of the initial Washington hearing. We first
eliminated time entries related to interviews with potential witnesses
in both the Washington and California actions. We next eliminated
entries related to the motions to strike and the opposition to the
motion for admission pro hac vice. We did not eliminate entries
that evaluated law particular to the state of Washington and how
that law would or could apply in our case. We then examined the
individual entries and reduced the hours billed on particular entries
to edit out time spent on items that were used in both the California
and the Washington action. Time incurred to respond to Mr.
Morgan's Response was included in the reimbursement request
because his filing was filed as a Response to our initial Petition and
under the rules we were entitled to file a reply to those pleadings.
Filings [sic] reply briefs and documents in support is particularly
important in cases brought under RCW 11.96A. et. seq., as the
initial hearing may be a hearing on the merits. We also billed time
for work with co-counsel, in particular counsel for the other trust
beneficiaries who were never served by Respondent in the
California action, and thus, at that time, were parties only in the
Washington action. When we filed our petition in California, we
properly named all of those individuals as parties and we currently
have a pending motion in California to joint them to Mr. Morgan's
original California petition as indispensable parties.1321
32 id, at 128-29.
16
No. 72657-9-1/17
There was no other information provided.
The trial court awarded Shurtleff her full requested amount of $41,573.64
in attorney fees, $242.49 in court fees, and $1,159 in service costs without
making any discounts. The court stated in its written decision that it considered
"all the pleadings." It further stated that the request was reasonable as to hours
and rates.
The court did not specifically address the objection to the May 28, 2014
entry that has no description of work performed and no information about who
performed the work. Likewise, the court did not address the objection to three
attorneys from the firm attending the July 22, 2014 hearing. And it did not
address Morgan's contention that the legal work performed for the Washington
petition was "used and amplified on" in the California petition.
Morgan first argues that the trial court's ruling violated Berrvman v.
Metcalf.33 In that case, this court reiterated that "[t]he findings must show how
the court resolved disputed issues of fact and the conclusions must explain the
court's analysis."34
We agree that the court's ruling in this case violated Berrvman. The trial
the court failed to enter findings on the specific objections that Morgan raised that
we justdescribed. Thus, this court cannot be sure thatthe trial court considered
33 Opening Brief of Appellant Thomas E. Morgan at 23 (citing Berrvman v.
Metcalf. 177 Wash. App. 644, 312 P.3d 745 (2013)).
34 Berrvman. 177 Wash. App. at 658.
17
No. 72657-9-1/18
his objections. Accordingly, we vacate the fee award, at least to this extent, and
remand for more thorough findings on these objections.
Next, Morgan essentially challenges whether the hours expended were
reasonable. He does not challenge the reasonableness of the hourly billing rates
of those attorneys identified in McDermott's declaration. Rather, he argues that
the trial court abused its discretion by awarding 100 percent of the fees
requested by conducting an in camera review of the unredacted billing records
where he was provided redacted billing records. A recent decision from this
court, 224 Westlake LLC v. Engstrom Properties LLC provides guidance.35
In that case, Westlake's attorney provided Engstrom with declarations
explaining the firm's general billing practices, the qualifications of attorneys,
hourly rates, and a broad summary of the work performed during the litigation.36
It also provided two "Summary Fee Transaction File Lists" of less than one page,
stating the total hours claimed by each attorney, a law clerk and a paralegal.37 It
provided detailed billing history to the court for in camera review.38 The record
on appeal did not contain the documents reviewed in camera.39
Engstrom argued that the court abused its discretion by conducting an in
camera review of Westlake's attorney fee invoices without ordering Westlake to
35 169 Wash. App. 700, 281 P.3d 693 (2012).
36 \± at 735.
37 Id,
38 id, at 736.
39 ]d, at 739.
18
No. 72657-9-1/19
produce detailed fee records for Engstrom's review.40 Engstrom further argued
that the one-page summaries did not provide the detail required by Bowers,
which requires the documentation to "inform the court, in addition to the number
of hours worked, of the type of work performed and the category of attorney who
performed the work."41 Engstrom argued that without this information, it did not
have a foundation to make specific challenges.42 In response, Westlake argued
that the information was protected by attorney-client privilege and the work
product doctrine, and that the one-page summaries were sufficient under
Bowers.43
This court concluded that the one-page summaries did not meet the
Bowers standard because they did "not distinguish among the tasks
accomplished during the hours claimed."44 It further stated, "Without access to
such basic information, Engstrom had no hope of critiquing the request in a
meaningful way."45 And it stated, "Westlake's response that the billings
contained privileged information cannot serve as a final answer to this problem.
40 id, at 740.
41 Bowers. 100 Wash. 2d at 597.
42 224 Westlake. 169 Wash. App. at 740 (citing Bowers, 100 Wash. 2d at 597).
43 id,
44 id,
45 Id,
19
No. 72657-9-1/20
Privileged information could have been redacted or a more detailed summary
could have been prepared."46
Here, of these two options, Morgan does not expressly argue that the
redactions on the chart he received were improper. And the trial court did not
rule on the propriety of the redactions. Thus, Morgan bases his argument on the
second option—that a more detailed summary of redacted information should
have been provided to him. Only then, he argues, could he have meaningfully
challenged the fee application.
224 Westlake suggests that the information provided to an opposing party
must meet the Bowers standard. Neither party provides any contrary authority to
this suggestion.
Assuming that Bowers is the relevant standard for determining the amount
of detail required to be provided to one opposing a fee application, we conclude
that the documentation provided to Morgan in this case was sufficient except for
the objections we previously discussed.
Shurtleff provided the redacted spreadsheet of data used for billing
statements, which contained four columns. The first provided the date, the
second provided the names of the attorneys working on the case, the third
provided a description ofthe type ofwork performed, and the fourth listed the
adjusted billing total for each timekeeper. She also provided McDermott's
second declaration, which detailed each attorney's title and billing rate.
46 id,
20
No. 72657-9-1/21
Accordingly, the documentation provided Morgan with "the category of
attorney who performed the work."47 Each entry listed the attorney's name, and
McDermott's declaration provided additional information on the attorney's
position and billing rate.
The documentation also enabled Morgan to derive the number of hours
worked. Morgan would have been able to calculate this by dividing the adjusted
billing total by the attorney's hourly rate once Shurtleff provided McDermott's
second declaration with the attorney's hourly rates.
Thus, the question is whether the documentation here adequately
provided Morgan with "the type of work performed."48 The descriptions in the
third column are very general. For example, they include descriptions such as:
"Call with," "Begin revising," "Draft," and "Review." They do not provide
information about the specific subjects of these entries.
Our review of Bowers leads us to conclude that these broad terms are
sufficient. In fact, these descriptions resemble an illustrative table in Bowers that
lists under "type of work" such entries as "Review of pleadings," "Research &
drafting," and "Depositions."49 We see no material distinction between these
descriptions in Bowers and the descriptions in this case.
Further, in this case, Shurtleff provided Morgan with a declaration from
McDermott, which generally detailed the type of work for which Shurtleff
47 See Bowers. 100 Wash. 2d at 597.
48 See id.
49 Id. at 598.
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requested attorney fees. For example, the declaration described entries for
which Shurtleff sought reimbursement, such as entries that evaluated law
particular to the state of Washington. It also described entries that were
eliminated from Shurtleff's request, such as entries related to the California
action.
In sum, these descriptions, though general, considered with the other
information provided are sufficient to satisfy the level of detail required in Bowers.
Subject to our prior comments concerning the need for more thorough findings
on Morgan's specific objections, the trial court did not abuse its discretion.
ATTORNEY FEES ON APPEAL
Both parties request attorney fees on appeal. We grant Shurtleff's request
and deny Morgan's request.
Under RCW 11.96A.150(1), an appellate court may, in its discretion, order
costs, including reasonable attorneys' fees, to be awarded to any party from any
party to the proceedings. Like a trial court, an appellate court may consider "any
and all factors that it deems to be relevant and appropriate."
Here, an award of attorney fees to Shurtleff is proper. Morgan initially
designated Washington as the principal place of administration ofthe trust and
stated a deadline by which any contest ofthe trust should be made. Shurtleff,
quite naturally, followed this direction and filed here. Morgan's appeal is from an
adverse order on fees. It would be inequitable to impose the costs of litigation on
appeal on Shurtleff.
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No. 72657-9-1/23
We also deny Morgan's request for fees on appeal on the same equitable
basis.
The amount of reasonable attorney fees on appeal awarded to Shurtleff
shall be determined by the trial court on remand, pursuant to RAP 18.1 (i).
COSTS
Finally, Morgan also appears to object to the award of costs to Shurtleff.
But he fails to make any specific arguments on appeal about costs. Accordingly,
challenges to costs are waived.
We affirm in part, vacate in part, and remand for further proceedings. We
also grant Shurtleff's request for attorney fees on appeal and deny Morgan's
request for attorney fees on appeal.
6^i,x
WE CONCUR:
TA'okgN/ S *4
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