Guardianship Of Cheryl Russell: Earl Russell v. Melanie Reynolds

Filed
Washington State
Court of Appeals
Division Two
September 4, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Guardianship of: No. 51591-1-II
CHERYL RUSSELL,
An Incapacitated Person. UNPUBLISHED OPINION
LEE, J. — Earl Russell appeals the superior court’s denial of his motion to revise a superior
court commissioner’s order denying his motion for CR 60(b) relief from an order approving the
guardian’s reports in his mother’s guardianship proceeding. Earl1 argues that the superior court
abused its discretion in denying his motion to revise because his mother’s guardian never provided
notice of the underlying proceeding that led to the entry of an order approving the guardian’s
reports. He also challenges the superior court’s subject matter jurisdiction over his mother’s trust
and two of the superior court’s findings of fact in its order on revision. We affirm.
FACTS
A. THE LIVING TRUST
Cheryl Russell established a revocable living trust in 2008. The trust instrument named
Cheryl as the trustee and provided Cheryl exclusive power during her lifetime to control and direct
1
Because multiple parties share the last name “Russell,” we refer to the parties by their first names
for clarity. We mean no disrespect.
No. 51591-1-II
payments, remove trust property, and amend or revoke the trust. The trust also provided for the
distribution of Cheryl’s remaining property to her children upon her death, including to her son
Earl.
In 2011, Cheryl amended the trust and designated Earl as the successor trustee in the event
of her disability. Under the terms of the trust, Cheryl shall be deemed disabled upon a court
determination that she is incompetent, incapacitated, or otherwise unable to effectively manage
her property or financial affairs.
B. ORDER APPOINTING GUARDIAN
In May 2016, Earl filed a petition for guardianship, wherein he alleged that Cheryl, who
was 76 years old at the time, was exhibiting signs of dementia and was unable to manage her
personal and financial affairs. Earl asked the superior court to appoint a guardian of Cheryl’s
person and estate.
The superior court appointed a guardian ad litem (GAL) to meet with Cheryl and prepare
a written report. Following an investigation, the GAL recommended that Cheryl be found
incapacitated and that Anchor Guardianship Services, Inc. be appointed to serve as limited
guardian of Cheryl’s person and full guardian of her estate.
Earl filed an objection to the GAL’s recommendation and asked the superior court to
appoint him as guardian for his mother. The court denied this request and on September 2,
appointed Anchor Guardianship to serve as full guardian of Cheryl’s estate and limited guardian
of her person. In its order appointing Anchor Guardianship, the court entered a finding that “[t]here
is a [L]iving Trust in place to manage most of Cheryl Russell’s financial assets. The trust shall
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remain in place for the named trustee to manage assets pursuant to its terms and directions.”
Clerk’s Papers (CP) at 116. The order also authorized the guardian:
To close any financial accounts, including bank accounts held individually or
jointly with another, and to make withdrawals, deposits or transfer of funds into or
out of any such accounts, without the necessity of obtaining the written authority
of any other person named on any such joint accounts and opening guardianship
accounts for the Incapacitated Person. The signature of the guardian of the estate
holds the full force and effect of the signature of CHERYL RUSSELL with all the
rights and authority and access to the asset as the signature of CHERYL RUSSELL
would provide, whether the account is individually held by CHERYL RUSSELL
or held jointly with another person;
....
. . . To convert all holdings, including but not limited to, savings accounts,
money market accounts, IRAs, mutual funds, stocks, bonds, cash, automobiles,
mobile homes, and any other personal property, including pension annuities, 401Ks
and any other income, into the name of said guardian for the purposes of the
guardianship.
CP at 119-20.
The superior court’s order identified the due date as December 1 for the guardian’s 90 day
reports, which included the guardian’s initial personal care plan, inventory, and proposed budget.
The order also listed January 6, 2017, as the next court date to review the 90 day reports.
C. EARL’S REQUEST FOR SPECIAL NOTICE
On September 26, 2016, Earl filed a request for special notice pursuant to RCW 11.92.150.2
In his request, Earl identified himself as “A relative of the Incapacitated Person.” CP at 85. He
2
RCW 11.92.150 allows any relative of the incapacitated person in a guardianship proceeding to
submit a written request stating the specific action for which he or she request advance notice. If
the applicant does not specify which matters for which notice is requested, the guardian or limited
guardian “shall provide copies of all documents filed with the court and advance notice of his or
her application for court approval of any action in the guardianship.” RCW 11.92.150.
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asked for “special notice of all matters, steps, and proceeding described in RCW 11.92.150,
including a copy of all documents filed with the Court and advance notice of any application for
Court approval of any action in the guardianship.” CP at 85.
D. ORDER APPROVING THE GUARDIAN’S 90 DAY REPORTS
On December 2, Anchor Guardianship filed its 90 day reports. The inventory identified a
$6,500 monthly trust fund allowance as part of Cheryl’s monthly income. The inventory also
explained that Cheryl had created a revocable living trust and that Earl was the successor trustee
due to Cheryl’s incapacity. The inventory stated that “Earl Russell, in his role as Trust Manager,
will continue to provide funds from the Trust for IP’s use and benefit, as necessary.” CP at 52.
The inventory also listed the current trust fund balance as approximately $2.5 million. These
reports were not served on Earl at the time they were filed.
On December 21, Anchor Guardianship filed a docket notice for the January 6, 2017,
hearing. The docket notice identified the nature of the January 6 hearing as “APPROVAL OF
FIRST ANNUAL ACCOUNTING.” CP at 23. Anchor Guardianship also filed a petition for
approval of its 90 day reports. The petition requested that Earl, as trustee of Cheryl’s trust,
continue to pay $6,500 per month and to also “pay any expenses that exceed her monthly income”
from the trust. CP at 38. Anchor Guardianship provided Earl a copy of the petition for approval
of 90 day reports and the docket notice of the January 6 hearing.
A hearing on Anchor Guardianship’s petition for approval of its 90 day reports was held
before the superior court on January 6, 2017. Earl did not attend the hearing. The court entered
an order approving Anchor Guardianship’s 90 day reports (1/6/17 order). The 1/6/17 order
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obligated Earl, as trustee of Cheryl’s trust, to pay a monthly sum of $6,500 to the guardianship and
“any expenses that exceed the monthly income of [Cheryl].” CP at 10. Earl received a copy of
the initial personal care plan and inventory on January 11.
E. MOTION TO VACATE AND MOTION TO REVISE
On May 12, Earl, in his capacity as trustee of Cheryl’s trust, filed an amended CR 60(b)
motion to vacate the January 1/6/17 order approving Anchor Guardianship’s 90 day reports. Earl
acknowledged that he had received a copy of the Anchor Guardianship’s petition for approval of
90 day reports on December 23. However, Earl argued that relief from judgment was warranted
under CR 60(b)(1) because Anchor Guardianship did not provide him with a copy of the initial
personal care plan and inventory until after the January 6 hearing. The petition contained the
following request:
[Cheryl] has funds available in excess of approximately 2.5 million from
the Cheryl Russell Living Trust, of which she is the sole beneficiary. Even though
[Cheryl] has funds in Vanguard Roth IRA[s], [Cheryl]’s CPA has suggested to the
Guardian that funds should be pulled from the Trust and not the IRA[s] if needed
to support [Cheryl]. The Guardian is thus requesting the Trustee to continue to pay
the $6,500 per month to [Cheryl] and also pay any expenses that exceed her
monthly income.
CP at 38.
Earl also argued that the superior court did not have jurisdiction over Cheryl’s trust and
that the court’s lack of jurisdiction was an extraordinary circumstance justifying relief under CR
60(b)(11). Earl claimed that the Anchor Guardianship’s failure to make timely service of the initial
personal care plan and inventory and to provide him notice of the correct subject for the January 6
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No. 51591-1-II
hearing were an extraordinary circumstances justifying relief under CR 60(b)(11). On June 16, a
superior court commissioner denied Earl’s CR 60(b) motion to vacate the 1/6/17 order.
Earl then filed with the superior court a motion to revise the court commissioner’s order
denying his motion to vacate the 1/6/17 order. Earl argued that the commissioner had ignored the
jurisdictional issues he had raised, and he again claimed that the late service of the initial personal
care plan and inventory was a procedural irregularity justifying relief.
The superior court heard Earl’s motion to revise on November 17. In issuing its oral ruling,
the superior court observed that Judge Brosey, who had entered the underlying 1/6/17 order, was
“very thorough” and “incredibly attentive to detail.” Verbatim Report Proceedings (VRP) (Nov.
17, 2017) at 21. The superior court found that Earl had sufficient notice of the January 6 hearing
and held that the late service of the initial personal care plan and inventory was not an extraordinary
circumstance justifying relief under CR 60(b)(11). Thus, the superior court denied Earl’s motion
to revise the commissioner’s order denying Earl’s CR 60(b) motion to vacate the 1/6/17 order.
The superior court entered several findings of fact in its written order denying Earl’s
motion to revise, including “the court takes judicial notice of the carefulness of Judge Brosey in
matters appearing before him and he vigorously reviews the files before the hearings.” CP at 604.
The court also entered a finding “that the appropriate remedy for the 1/6/17 order was appeal or
request for discretionary review.” CP at 605.
Earl appeals the superior court’s order denying revision of the commissioner’s order
denying Earl’s CR 60(b) motion to vacate.
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ANALYSIS
A. MOTION FOR REVISION
Earl argues that the superior court erred in denying his motion to revise the court
commissioner’s order denying his motion for CR 60(b) relief to vacate the 1/6/17 order because
(1) Anchor Guardianship never provided Earl notice of the January 6 hearing or a copy of the
initial personal care plan and inventory, and (2) the superior court did not have subject matter
jurisdiction over Cheryl’s trust. We disagree.
1. Standard of Review and Legal Principles
On a motion for revision, the superior court reviews a superior court commissioner’s ruling
de novo based on the evidence and issues presented to the court commissioner. RCW 2.24.050;
In re the Marriage of Williams, 156 Wash. App. 22, 27, 232 P.3d 573 (2010). When a party appeals
from an order denying revision of a court commissioner’s decision, we review the superior court’s
decision, not the commissioner’s ruling. In re Guardianship of Decker, 188 Wash. App. 429, 438,
353 P.3d 669, review denied, 184 Wash. 2d 1015 (2015).
We review a superior court’s revision of a commissioner’s ruling under RCW 2.24.050 for
an abuse of discretion.3 See In re Marriage of Dodd, 120 Wash. App. 638, 644, 86 P.3d 801 (2004).
A court abuses its discretion if it exercises its discretion on untenable grounds or for untenable
reasons. Williams, 156 Wash. App. at 27. We defer to the superior court’s findings of fact, and we
3
Earl incorrectly maintains that the standard of review is de novo because he argues that the
superior court made several errors of law. Alleging that the superior court misinterpreted the law
does not change our standard of review. However, we will find an abuse of discretion where the
lower court’s ruling is based on a misinterpretation of a statute or rule. Diaz v. Med. Ctr. Lab.,
Inc., 175 Wash. 2d 457, 462, 285 P.3d 873 (2012).
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do not substitute our judgment for that of the superior court. In re Marriage of Dodd, 120 Wn.
App. at 644; State v. Ramer, 151 Wash. 2d 106, 115, 86 P.3d 132 (2004).
“‘Irregularities pursuant to CR 60(b)(1) occur when there is a failure to adhere to some
prescribed rule or mode of proceeding, such as when a procedural matter that is necessary for the
orderly conduct of trial is omitted or done at an unreasonable time or in an improper manner.’”
Lane v. Brown & Haley, 81 Wash. App. 102, 106, 912 P.2d 1040 (1996) (quoting Mosbrucker v.
Greenfield Implement, Inc., 54 Wash. App. 647, 652, 774 P.2d 1267 (1989)).
Relief under CR 60(b)(11) is limited to situations involving extraordinary circumstances
that are not covered by any other section of the rule. Union Bank, N.A. v. Vanderhoek Assocs.,
191 Wash. App. 836, 844, 365 P.3d 223 (2015). Extraordinary circumstances involve irregularities
extraneous to the action of the court and are generally confined to unusual circumstances that are
outside the control of either party. Tatham v. Rogers, 170 Wash. App. 76, 100, 283 P.3d 583 (2012);
State v. Gamble, 168 Wash. 2d 161, 169, 225 P.3d 973 (2010).
2. Failure to Provide Notice
Earl first argues that the superior court erred in finding that he had notice of the January 6
hearing, relying on the fact that the docket notice incorrectly identified the nature of the January 6
hearing as “‘Approval of First Annual Accounting.’” Br. of Appellant at 23 (quoting CP at 23).
Earl also argues that the superior court should have revised the commissioner’s ruling and vacated
the order approving the guardian’s 90 day reports because he did not receive a copy of the initial
personal care plan or inventory until after the January 6 hearing. We disagree.
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As an initial matter, we note that Earl’s arguments conflate his dual roles. Earl filed a
petition for guardianship as Cheryl’s son. And he requested special notice of all matters and
proceedings in the guardianship as “A relative of the Incapacitated Person.” CP at 85. However,
Earl filed his CR 60(b) motion to vacate and his motion to revise the commissioner’s order denying
his motion to vacate in his capacity as trustee of Cheryl’s trust, not as her relative. Thus, Earl’s
reliance on his request for special notice as Cheryl’s relative is misplaced on review of the motions
he brought in his capacity as trustee of Cheryl’s trust.
Guardianships are created by the courts to protect vulnerable persons who are unable to
provide for their basic needs or manage their own financial affairs. RCW 11.88.005. The scope
of a guardianship is expressly limited to the minimum extent necessary to adequately protect an
incapacitated person’s health, safety, or ability to adequately manage his or her financial affairs.
RCW 11.88.005. Once appointed, a guardian serves under the general direction and control of the
court. In re Guardianship of Cornelius, 181 Wash. App. 513, 523, 326 P.3d 718 (2014). However,
the court retains the ultimate responsibility for protecting the ward’s person and estate. In re
Guardianship of Lamb, 173 Wash. 2d 173, 184, 265 P.3d 876 (2011).
The guardianship statutes provide a mechanism by which interested persons may request
notice of actions in the guardianship:
At any time after the issuance of letters of guardianship in the estate of any person
and/or incapacitated person, any person interested in the estate, or in the
incapacitated person, or any relative of the incapacitated person . . . may serve upon
the guardian or limited guardian . . . a written request stating the specific actions of
which the applicant requests advance notice. Where the notice does not specify
matters for which notice is requested, the guardian or limited guardian shall provide
copies of all documents filed with the court and advance notice of his or her
application for court approval of any action in the guardianship.
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RCW 11.92.150.
Here, Earl requested notice of actions in Cheryl’s guardianship under RCW 11.92.150.
Anchor Guardianship provided Earl with a copy of the petition for approval of its 90 day reports
and the docket notice for the January 6 hearing. However, the docket notice for the January 6
hearing incorrectly identified the nature of the January 6 hearing as “APPROVAL OF FIRST
ANNUAL ACCOUNTING.” CP at 23. And Anchor Guardianship did not provide to Earl a copy
of the initial personal care plan and inventory until after the hearing.
Earl argues that Anchor Guardianship’s failure to comply with the special notice statute
was a procedural irregularity compelling relief from judgment under CR 60(b)(1). However, the
purpose of notice statutes is to provide due process for a nonmoving party and to allow that party
an opportunity to intelligently respond. See Nisqually Delta Ass’n v. City of DuPont, 103 Wash. 2d
720, 727, 696 P.2d 1222 (1985). Under the facts of this case, Earl was provided due process and
was not prejudiced by the defective notice.
It is true that the docket notice of the January 6 hearing incorrectly identified the nature of
the January 6 hearing as “APPROVAL OF FIRST ANNUAL ACCOUNTING.” CP at 23.
However, the order appointing Anchor Guardianship as limited guardian of Cheryl’s person and
full guardian of Cheryl’s estate, a copy of which was provided to Earl, specifically ordered that a
hearing to review the guardian’s initial reports be held on January 6, 2017. And Anchor
Guardianship provided Earl a copy of its petition for approval of 90 day reports on December 23,
2016. The petition clearly stated that Anchor Guardianship was requesting the court to order the
trustee of Cheryl’s trust to continue to pay $6,500 per month “and to pay any expenses that exceed
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[Cheryl]’s monthly income.” CP at 39. Thus, the record does not support Earl’s contention that
he was never provided notice as to the nature of the January 6 hearing that led to the 1/6/17 order.
Therefore, although Anchor Guardianship did not provide a copy of the initial personal
care plan and inventory to Earl until after the January 6 hearing, under the circumstances of this
case, Earl received due process.4 The superior court did not abuse its discretion in denying Earl’s
motion to revise on this basis.
And to the extent Earl’s motion to vacate was based on CR 60(b)(11), his delay in receiving
a copy of these documents was not an extraordinary circumstance justifying relief. CR 60(b)(11)
is a catchall provision that allows a lower court to vacate a judgment for “[a]ny other reason
justifying relief.” CR 60(b)(11).
Earl makes no effort to explain how late service of the initial personal care plan and
inventory constituted an extraordinary circumstance justifying relief under CR 60(b)(11). Instead,
he combines his argument under CR 60(b)(11) with his argument under CR 60(b)(1). Because
Earl fails to show that late service of these documents was an extraordinary circumstance justifying
relief under CR 60(b), he fails to show the superior court’s ruling was an abuse of discretion.5
4
Earl also filed a statement of additional authorities, citing the Uniform Guardianship,
Conservatorship, and Other Protection Arrangements Act, SECOND SUBSTITUTE S.B. 5604, 66th
Leg., Reg. Sess. (Wash. 2019). Signed on May 21, 2019, this Act adds a new chapter to Title 11
RCW, and repeals a number of existing guardianship statutes, including RCW 11.92.150.
However, the Act does not take effect until January 1, 2021, and is therefore not applicable to the
issues raised here. Laws of 2019, ch. 437, § 807.
5
Earl also raises several arguments on behalf of Cheryl and his sister Holly. We have repeatedly
held that a third party does not have standing to raise another party’s or an incapacitated person’s
due process rights. Decker, 188 Wash. App. at 445 (former attorney of incapacitated person in
guardianship case did not have standing to vindicate her due process rights); In re Guardianship
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3. Subject Matter Jurisdiction
Next, Earl challenges the superior court’s subject matter jurisdiction over Cheryl’s trust.
According to Earl, the 1/6/17 order approving the guardian’s 90 day reports was void because the
superior court did not have subject matter jurisdiction over matters involving Cheryl’s trust. We
disagree.
We review questions of a court’s subject matter jurisdiction de novo. In re Marriage of
McDermott, 175 Wash. App. 467, 479, 307 P.3d 717, review denied, 179 Wash. 2d 1004 (2013). A
party may challenge subject matter jurisdiction for the first time at any point in the proceeding,
including on appeal. Id. Even if neither party initially objected to the court’s exercise of subject
matter jurisdiction, judgments entered without subject matter jurisdiction must be vacated. Id.
“A court has subject matter jurisdiction where it has authority ‘to adjudicate the type of
controversy involved in the action.’” Id. at 480-81 (quoting Shoop v. Kittitas County, 108 Wn.
of Cobb, 172 Wash. App. 393, 402, 292 P.3d 772 (2012), review denied, 177 Wash. 2d 1017 (2013)
(siblings of incapacitated person lacked standing to vindicate incapacitated person’s constitutional
rights). Because Earl lacks standing to raise issues on behalf of Cheryl or Holly, we do not consider
any assignment of error on this basis.
Also, Earl devotes substantial argument to challenging the validity of the 1/6/17 order,
which he maintains was inaccurate, signed incorrectly, and issued in “secrecy.” Br. of Appellant
at 36. These arguments are not properly before this court.
An appeal from denial of a motion to vacate is not a substitute for appeal and the “exclusive
procedure to attack an allegedly defective judgment is by appeal from the judgment, not by appeal
from a denial of a CR 60(b) motion.” Bjurstrom v. Campbell, 27 Wash. App. 449, 451, 618 P.2d
533 (1980). “An appeal from denial of a CR 60(b) motion is limited to the propriety of the denial
not the impropriety of the underlying judgment.” Id. at 450-51. Thus, Earl’s challenges to the
propriety of the underlying 1/6/17 order are not properly before this court, and we do not consider
them.
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App. 388, 393, 30 P.3d 529 (2001)). The Washington Constitution vests superior courts with
broad original subject matter jurisdiction. WASH. CONST. art. IV, § 6. Exceptions to this broad
grant of jurisdiction are to be construed narrowly. McDermott, 175 Wash. App. at 481. Superior
courts retain jurisdiction in “‘all cases . . . in which jurisdiction shall not have been by law vested
exclusively in some other court’” by either the legislature or an explicit act of Congress. Hous.
Auth. of Seattle v. Bin, 163 Wash. App. 367, 375, 260 P.3d 900 (2011) (quoting WASH. CONST. art.
IV, § 6). And the superior court’s subject matter jurisdiction “‘cannot be whittled away by
statutes.’” McDermott, 175 Wash. App. at 481 (quoting Shoop, 108 Wash. App. at 396).
Earl argues that the superior court did not have subject matter jurisdiction over Cheryl’s
trust under the Trust and Estate Dispute Resolution Act (TEDRA), Chapter 11.96A RCW.
However, TEDRA vests “original subject matter jurisdiction over trusts and all matters relating to
trusts” in the superior courts. RCW 11.96A.040(2). The only support Earl provides to the contrary
is In re the Estate of Rathbone, 190 Wash. 2d 332, 412 P.3d 1283 (2018). However, Rathbone did
not address an issue of subject matter jurisdiction, but instead addressed whether a trial court had
authority under TEDRA to interpret a will’s language and overrule a personal representative’s
interpretation of that language.6 190 Wash. 2d at 339. Given that the superior court had original
6
Earl also quotes, without argument, the language of RCW 11.97.020, which concerns the rules
of construction that apply when interpreting the terms of a trust in the disposition of trust property.
Earl does not explain how RCW 11.97.020 strips the superior court of subject matter jurisdiction
over matters relating to trusts.
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subject matter jurisdiction over all matters relating to Cheryl’s trust, Earl’s challenge on this basis
fails.7
To the extent Earl argues that the superior court lacked authority over Cheryl’s trust assets,
he provides no support for this claim. He similarly fails to provide any support for his argument
that a guardian must file a separate petition under TEDRA in order “to join the assets of the Trust
into the authority of the Guardianship Court.” Br. of Appellant at 41. TEDRA vests superior
courts with “full and ample power and authority under this title to administer and settle . . . [a]ll
trust and trust matters.” RCW 11.96A.020(1)(b). It further provides that the superior court “has
full power and authority to proceed with such administration and settlement in any manner and
way that to the court seems right and proper, all to the end that the matters be expeditiously
administered and settled by the court.” RCW 11.96A.020(2). Thus, Earl’s challenge on this basis
fails.
B. CHALLENGED FINDINGS OF FACT
Earl also assigns error to two findings of fact entered by the superior court in its order
denying his motion for revision. Both of these challenges fail.
7
Again, Earl improperly raises claims on Cheryl’s behalf, arguing that the superior court used her
assets without consent and “violated Cheryl’s right to autonomy.” Br. of Appellant 44. As
explained above, Earl does not have standing to advocate on Cheryl’s behalf. See Cobb, 172 Wn.
App. at 402.
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1. Finding Regarding Appropriate Remedy
Earl first argues that the superior court erred as a matter of law in finding that “the
appropriate remedy for the 1/6/17 order was appeal or request for discretionary review.” 8 CP at
605. Earl’s challenge fails because it is well established that the “exclusive procedure to attack an
allegedly defective judgment is by appeal from the judgment, not by appeal from a denial of a CR
60(b) motion.” Bjurstrom, 27 Wash. App. at 451. Also, “[e]rrors of law may not be corrected by a
CR 60 motion; rather, they must be raised on appeal.” Union Bank, N.A., 191 Wash. App. at 843.
Therefore, Earl’s assignment of error on this basis fails.
2. Judicial Notice
Next, Earl argues that the superior court erred in taking judicial notice that Judge Brosey
carefully prepares for matters appearing before him and vigorously reviews the files before the
hearings. We hold that any error would not compel reversal.
Washington judges may take judicial notice of “adjudicative facts.” ER 201(a). An
adjudicative fact “must be one not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonable be questioned.” ER 201(b).
We review de novo a court’s taking of judicial notice. State v. Disney, 199 Wash. App. 422, 431,
398 P.3d 1218 (2017).
8
Earl incorrectly asserts that the superior court found that appeal was the “only” remedy. Br. of
Appellant at 45. Instead, the superior court found that appeal was “the appropriate remedy.” CP
at 605.
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Here, without deciding error, even if the superior court erred in taking judicial notice of
Judge Brosey’s preparation and attention to detail, any error does not compel reversal. Judge
Brosey entered the 1/6/17 order approving the guardian’s 90 day reports Although the superior
court noted Judge Brosey’s attention to detail, the court reviewed de novo Earl’s motion to revise
the court commissioner’s order denying his CR 60(b) motion. And the superior court denied Earl’s
motion to revise and vacate the 1/6/17 order because it found that Earl had adequate notice of the
January 6 hearing and that the superior court had subject matter jurisdiction over Cheryl’s trust.
Thus, the superior court’s judicial notice finding relating to Judge Brosey did not bear on the
court’s order on revision. Earl fails to show any error would compel reversal.
C. APPELLATE ATTORNEY FEES
Earl and Anchor Guardianship both request reasonable attorney fees on appeal under RAP
18.1 and RCW 11.96A.150(1). We deny both requests.
RAP 18.1(a) allows a party to recover reasonable attorney fees and costs on appeal if
applicable law grants the right to recover attorney fees and costs. RCW 11.96A.150 provides
courts broad discretion to award attorney fees “‘in such a manner as the court determines to be
equitable’ in ‘all proceedings governed by this title.’” Sloans v. Berry, 189 Wash. App. 368, 379,
358 P.3d 426 (2015) (quoting RCW 11.96A.150). In awarding costs, we may consider “any and
all factors that [we] deem[] to be relevant and appropriate.” RCW 11.96A.150(1).
Earl appeals from the order on revision. However, he directs very little argument to the
propriety of the order subject to this appeal. Instead, Earl improperly raises numerous issues that
were not before the superior court, such as the accuracy of the guardianship inventory and the
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No. 51591-1-II
proposed budget filed on December 2. He also repeatedly and improperly challenges the
underlying 1/6/17 order. And he repeatedly attempts to vindicate the rights of others, including
Cheryl. We deny Earl’s request for attorney fees on appeal. And based on the facts of the case,
we also deny Anchor Guardianship’s request for attorney fees on appeal.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J.
We concur:
Maxa, C.J.
Cruser, J.
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