In Re The Estate Of: Ernest A. Howisey

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE THE PROBATE ESTATE
DIVISION ONE
OF No. 69175-9-
ERNEST A. HOWISEY, UNPUBLISHED OPINION
Deceased. FILED: January 27, 2014
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Dwyer, J. - For the second time, Carol Carnahan appeals from probate s» ^<~
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proceedings involving the estate of her father, Ernest A. Howisey. Because the 3£ o .,„n
law of the case doctrine precludes consideration of her challenge to the same oh^o
judgment at issue in the first appeal, and her remaining arguments are without a? £>£
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merit, we affirm.
I
In 2008, Carnahan entered into a settlement agreement pursuant to CR
2A and the Trust and Estate Dispute Resolution Act, chapter 11.96A RCW.
Under the terms of the agreement, which resolved a dispute over Howisey's will,
respondents Marilyn Jensen and Anne Sinnett (Jensen/Sinnett) received
$200,000 as their share of the estate, and the trial court appointed Carnahan
successor personal representative (PR).
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The estate paid Jensen/Sinnett $100,000 shortly after the settlement and
executed a promissory note for the remaining $100,000, due upon sale of
Howisey's house or within one year, whichever occurred earlier. The estate
distributed the net proceeds to Jensen/Sinnett after the sale of the house, leaving
approximately $29,000 of the note unpaid.
In November 2009, Jensen/Sinnett filed a petition for judgment on the note
against Carnahan personally and in her capacity as PR for the unpaid balance.
They also asked the court to remove Carnahan as PR.
On March 12, 2010, following a three-day trial, the trial court entered
extensive findings of fact, conclusions of law, and a judgment in favor of
Jensen/Sinnett. The court concluded that Jensen/Sinnett were creditors of the
estate and therefore entitled to payment before any distribution of property to the
heirs. The court determined that both the estate and Carnahan personally were
liable for the remaining balance on the promissory note and removed Carnahan
as PR. The court also directed Craig Coombs, the new successor PR, to sell the
estate's interest in family property located near Beaver Lake (Beaver Lake
property).
Carnahan appealed. This court affirmed, concluding that substantial
evidence supported all of the material findings offact and that the trial court did
not err in determining that Jensen/Sinnett were estate creditors or that Carnahan
was personally liable for the unpaid portion of the promissory note. In re Estate
of Howisev, noted at 162 Wash. App. 1038 (2011) (Howisev I).
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The PR eventually sold the Beaver Lake property, but the proceeds were
insufficient to pay all of the administrative expenses or provide for a distribution
to the heirs. The trial court closed the estate by order entered on June 29, 2012.
Carnahan appeals once more, challenging the trial court's order closing
the estate and several earlier orders. Among other things, she asks this court to
vacate the March 12, 2010 judgment entered against her, direct Jensen/Sinnett
to return $175,000 to the estate for the payment of administrative expenses and
distribution to certain heirs, and "honorably discharge!]" her as successor PR.
Carnahan's current appeal is devoted almost exclusively to allegations of
error involving the trial court's March 12, 2010 judgment that she chose not to
raise in Howisev I. Among other things, she asserts that substantial evidence
failed to support numerous previously unchallenged findings offact, that the trial
court's entry of "unusual numbers" of unsupported findings offact demonstrated
violations of the Code of Judicial Conduct and the trial court's bias, and that the
trial court erred in removing her as successor PR. Although Carnahan has
assigned error to several trial court decisions entered after our decision in
Howisev I, her arguments on those issues rest primarily on the same alleged
errors in the March 12, 2010 judgment.
Carnahan concedes that her second attempt to challenge the March 12,
2010 judgment implicates both the "law of the case" doctrine and res judicata.
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Under the law of the case doctrine, an appellate court will generally refuse to
consider issues that were decided—or could have been decided if raised—in a
prior appeal. See Folsom v. County of Spokane. 111 Wash. 2d 256, 263-64, 759
P.2d 1196 (1988); RAP 2.5(c)(2). Res judicata bars the relitigation of claims and
issues that were litigated or could have been litigated in a prior action. Loveridqe
v. Fred Meyer. Inc.. 125 Wash. 2d 759, 763, 887 P.2d 898 (1995); see also In re
Marriage of Aldrich. 72 Wash. App. 132, 138, 864 P.2d 388 (1993) (res judicata
operates to preclude collateral attack on a final decision). Both doctrines serve
the goal of avoiding the indefinite relitigation of the same issue and ensuring the
finality ofjudgments. See Spokane Research &Def. Fund v. City of Spokane.
155Wn.2d89, 99, 117 P.3d 1117 (2005V State v. Harrison. 148 Wash. 2d 550, 562,
61 P.3d 1104(2003).
Carnahan contends that the law of the case and res judicata doctrines do
not apply to her second appeal because the trial court's order approving the
personal representative's final report and closing the estate "didn't finalize the
original [March 12, 2010] ruling; it superceded it in every respect." As a result,
Carnahan concludes, "findings of fact that were verities from the first appeal
come out of retirement for the second appeal, except those findings that were
considered in the first appeal and are now res judicata." Carnahan cites no
authority or coherent legal theory to support this novel claim, and we decline to
consider it further. See Saunders v. Llovd's of London. 113 Wash. 2d 330, 345, 779
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No. 69175-9-1/5
P.2d 249 (1989) (appellate court will decline to consider issues unsupported by
cogent legal argument and citation to relevant authority).
An appellate court has discretion to revisit a prior appeal if "the prior
decision is clearly erroneous, and the erroneous decision would work a manifest
injustice to one party." Roberson v. Perez. 156 Wash. 2d 33, 42, 123 P.3d 844
(2005). But Carnahan makes no showing that would justify present consideration
of this exception to the law of the case doctrine.
Carnahan's current challenge to the March 12, 2010 judgment rests on
highly argumentative accounts of her actions and the actions of others during
probate proceedings and on conclusory allegations about her intent as successor
personal representative, the intent ofthe opposing parties, and the intent ofthe
trial judge. But she has not provided relevant citations to the record to support
the majority of her factual assertions.
The Rules of Appellate Procedure require parties to include a "fair
statement" of the relevant facts in their briefs, with "[reference to the record . . .
for each factual statement." RAP 10.3(a)(5); see also RAP 10.3(a)(6)
(arguments in briefs must include "references to relevant parts ofthe record").
Carnahan's failure to identify the evidence in the record supporting many of her
factual allegations precludes any meaningful review of the alleged errors. An
appellate court has no obligation to search the record for evidence supporting a
party's arguments. See Cowiche Canyon Conservancy v. Boslev. 118Wn.2d
801,819, 828 P.2d 549 (1992).
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No. 69175-9-1/6
Under the circumstances, Carnahan has not demonstrated any basis that
would warrant revisiting our decision in Howisev I. We therefore decline to
consider her challenges to the March 12, 2010 trial court judgment, including the
sufficiency of the evidence to support previously unchallenged findings of fact,
the trial court's alleged bias based on those findings of fact, Carnahan's
dismissal as successor PR, and the entry of judgment in favor of Jensen/Sinnett.
Ill
Carnahan has raised two additional issues that arguably arise out of trial
court decisions entered after March 12, 2010. Neither issue has merit.
Carnahan challenges the trial court's procedure in selling the Beaver Lake
property, although the precise nature of the alleged error is unclear. The Beaver
Lake property was located among a group of other lots, all owned by Howisey
family members and the Howisey Family Beaver Lake Community Club for many
years. Family buy/sell agreements limited the potential sale ofthe properties on
the open market. The estate's parcel was a relatively narrow, undivided portion
of a larger lot.
In its March 12, 2010 judgment, the trial court directed the new successor
PR to sell the property in a private sale to any interested Howisey family member
for a minimum bid of $105,000. Carnahan claims that the trial court erred by
setting the minimum price at an unrealistically high amount and by waiving the
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requirement of an appraisal for a court-ordered private sale under RCW
11.56.090.
But these arguments rest on the alleged lack of substantial evidence to
support the trial court's findings of fact on the Beaver Lake property. The law of
the case doctrine precludes our consideration of those arguments. Moreover,
after the Beaver Lake property did not sell at the initial price, the trial court
considered two appraisals for $50,000 and $30,000. Those appraisals did not
take into account the legal restraints on the sale of the property. One Howisey
family member eventually offered about $20,000 for the property. At a hearing
on March 9, 2012, Carnahan expressly agreed with the trial court's decision to
sell the property for the bid amount. Carnahan fails to demonstrate any
reversible error in the order approving the sale of the Beaver Lake property.
IV
Carnahan contends that the trial court erred in denying her motion to
modify or to delete Finding of Fact 27 and Conclusion of Law 15 in the March 12,
2010 judgment. Carnahan filed her motion on June 15, 2012, apparently in
response to the successor PR's petition for an order approving the final report
and closing the insolvent estate.
Finding of Fact 27 provided that Carnahan "caused financial harm to the
estate by not wrapping up the estate in a timely and efficient manner."
Conclusion of Law 15 provided that Carnahan "has been unable or unwilling to
No. 69175-9-1/8
sell the Beaver Lake property to satisfy the balance of the amounts owing by this
estate." Carnahan essentially argued that subsequent events placed her actions
as successor PR in a more favorable light.
To the extent that Carnahan was attempting to amend or alter the March
12, 2010 judgment, her motion was untimely. See CR 59(h) (motion to alter or
amend judgment must be filed within 10 days after entry). To the extent that
Carnahan was seeking to vacate the judgment on the basis of newly discovered
evidence, her motion failed to address, much less satisfy, the requirements of CR
60(b)(3), and was, in any event, untimely. See CR 60(b) (CR 60(b)(3) motion
must be filed within one year after entry of judgment). The trial court did not
abuse its discretion in denying Carnahan's motion.
V
Respondents Jensen/Sinnett and Craig Coombs, successor PR, have
requested an award of attorney fees on appeal. See RAP 18.1(a). In Howisev I,
this court awarded attorney fees on appeal under RCW 11.96A.150 (courts have
broad discretion to award attorney fees in proceedings involving decedents'
estates). Because Carnahan's current appeal is devoted primarily to challenging
the same judgment at issue in Howisev I, an award under RCW 11.96A.150 is
appropriate. A commissioner of our court will enter an appropriate order
awarding attorney fees, subject to compliance with RAP 18.1(d).
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Affirmed.
We concur: