John E. Cook v. A. Diane Brateng

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IN THE COURT OF APPEALS OF THE STATE OF W NG N
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DIVISION II Y
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JOHN E. COOK, a married man, No. 43683 -3 -II
Respondent,
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A. DIANE BRATENG, a married woman
concerning her interest in Realty subject to
Partition Action, and A. DIANE BRATENG,
as Successor sole Trustee of the Elmer J. Cook PUBLISHED OPINION
Living Trust,
WORSWICK, C. J. — A. Diane Brateng appeals an attorney fees award entered after we
remanded this case to the trial court. In Cook v. Brateng, 158 Wash. App. 777, 262 P.3d 1228
1
2010), we vacated the trial court' s award of attorney fees to John E. Cook and remanded to the
trial court for a determination of Brateng' s reasonable attorney fees at trial and on appeal. The
trial court then awarded to Brateng attorney fees in the amount of $53, 910. 29 against the subject
estate under RCW 11. 96A. 150, concluding that RCW 11. 96A.310( 10) did not apply. Because
the trial court erred by concluding that RCW 11. 96A.310( 10) did not apply to its attorney fees
determination, we remand to the trial court for a redetermination of Brateng' s reasonable
attorney fees under that statutory provision.
1 Several of the facts below are taken from our opinion in Cook v. Brateng, 158 Wash. App. 777,
262 P.3d 1228 ( 2010), as well as from the trial court' s unchallenged supplemental findings of
fact. See In re Estate of Jones, 152 Wash. 2d 1, 8, 93 P.3d 147 ( 2004) ( unchallenged findings are
verities on appeal).
No. 43683 -3 - II
FACTS
Cook and Brateng are siblings. In 1995, their father, Elmer Cook, executed a living trust
that named himself and Brateng as trustees. After Elmer2 was declared incompetent in 1997,
Brateng became the sole trustee of Elmer' s estate. Elmer passed away on January 1, 2000. In
October. 2001, Cook sued Brateng, and the two entered into mediation and arbitration under the
Trust and Estate Dispute Resolution Act, chapter 11. 96A RCW. Cook appealed the arbitrator' s
decision and requested a trial de novo before the superior court under RCW 11. 96A.310( 9)( a).
Following the de novo bench trial, the trial court concluded that Brateng could not
compensate herself from Elmer' s trust for her caregiving expenses because she had breached her
fiduciary duty to inform Cook of her decisions to ( 1) " claim and defer charges against Elmer' s
estate for providing Elmer' s care" and ( 2) " not to encumber Elmer' s ... house to pay for Elmer' s
care." Cook, 158 Wash. App. at 784. The trial court awarded Cook all his requested attorney fees
and awarded Brateng half of her requested attorney fees.
Brateng appealed, and we reversed the trial court' s conclusion that Brateng had breached
her fiduciary duties,-holding that Brateng had no`duty to inform Cook of her decisions to claim
and defer her caregiving charges against the estate and not to encumber Elmer' s house to pay for
his care. We also vacated the trial court' s award of attorney fees to Cook and remanded to the
trial court " to set reasonable attorney fees to award to [ Brateng] for both the trial and the appeal."
Cook, 158 Wash. App. at 797. Brateng moved for partial reconsideration of our decision, which
motion we denied on December 6, 2010.
2 Because John and Elmer Cook share a last name, we refer to Elmer by his first name for clarity
and intend no disrespect.
2
No. 43683 -3 -II
On remand, Brateng requested the trial court to award her $54, 077 against Elmer' s trust
for her caregiving expenses, trustee expenses, and out - pocket costs, and she requested the trial
of-
court to award her $ 134, 000 in reasonable attorney fees against Cook personally, under RCW
11. 96A.310( 10) and RCW 11. 96A. 150. The trial court found that the reasonable value of
Brateng' s caregiving expenses totaled $38, 250 and awarded those expenses against Elmer' s
estate. 3 The trial court found Brateng' s reasonable attorney fees were $24,716. 34 for the trial,
24, 193. 95 for the appeal, and $ 5, 000 for the remand proceedings. The trial court concluded that
RCW 11. 96A.310 did not apply and instead awarded the attorney fees against Elmer' s estate
under RCW 11. 96A. 150. In determining that Brateng' s attorney fees should be paid from
Elmer' s estate rather than from Cook personally, the trial court found that Cook was " not
personally liable for any of [Brateng' s] attorney fees as that would penalize [ Cook] for
exercising his non -frivolous right to challenge the trustee' s conduct in managing the estate."
Clerk' s Papers ( CP) at 85. Brateng timely appeals the trial court' s attorney fees ruling.
ANALYSIS
1. RES JUDICATA DOES NOT BAR BRATENG' S CLAIM ON APPEAL
As an initial matter, Cook asserts that the doctrine of res judicata bars Brateng' s claim
that the trial court erred by failing to apply RCW 11. 96A.310( 10) to its attorney fees
determination. Cook first argues that because our opinion in Cook directed the trial court to
award Brateng her attorney fees under RCW 11. 96A. 150, res judicata bars Brateng' s claim that
the trial court erred by failing to apply RCW 11. 96A. 310( 10). We disagree.
3
Brateng does not appeal this finding.
3
No. 43683 -3 - II
Res judicata, or claim preclusion, prohibits the same parties from litigating a second
lawsuit on the same claim or any other claim that could have been, but was not, raised in the first
suit. Roberson v. Perez, 156 Wash. 2d 33, 41 n. 7, 123 P.3d 844 ( 2005). That doctrine does not
apply here because this case does not involve a second suit between the parties, but instead
involves a subsequent stage of the same litigation. Cook thus appears to confuse the doctrine of
res judicata with the law of the case doctrine. See Roberson, 156 Wash. 2d at 41. " In its most
common form, the law of the case doctrine stands for the proposition that once there is an
appellate holding enunciating a principle of law, that holding will be followed in subsequent
stages of the same litigation." Roberson, 156 Wash. 2d at 41.
Even assuming, however, that Cook had argued that Brateng' s claim on appeal was
barred under the law of the case doctrine, his argument would nonetheless fail. In the parties'
original appeal, we held the following with regard to the issue of attorney fees:
Both [ Brateng] and [ Cook] requested attorney fees below. The trial court
awarded [ Cook] all of his requested attorney fees, amounting to $ 24, 425. 00 and
awarded [ Brateng] one -half of her requested attorney fees, amounting to
12, 358. 17. RCW 11. 96A. 150( 1) grants both trial courts and appellate courts
broad discretion to order attorney fees. "
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." RCW 11. 96A. 150( l).
Generally, attorney
fees may be awarded against only where the litigation results in a
a trust "
substantial benefit to the trust." Bartlett v. Betlach, 136 Wash. App. 8, 22, 146 P.3d
1235 ( 2006) ( citing In re Estate ofNiehenke, 117 Wash. 2d 631, 648, 818 P.2d 1324
1991)), review denied, 162 Wash. 2d 1004 ( 2007). [ Brateng] correctly argues that
the trial court improperly awarded attorney fees to [ Cook] because the litigation
did not result in a substantial benefit to the trust.
Because the trial court erred in finding that [ Brateng] breached her duty to
the trial court improperly awarded [ Cook] all of his attorney fees.
inform [ Cook],
Because we hold that [ Brateng] did not breach her fiduciary duties as trustee,
Cook] is not entitled to attorney fees for this appeal. RCW 11. 96A. 150( 1).
Instead, [ Brateng] is entitled to an attorney fee award, both at the trial court and
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No. 43683 -3 - II
on appeal. Accordingly, we vacate the award of attorney fees to [ Cook] below
and remand to the trial court to award [ Brateng] attorney fees, for her expenses
incurred below and on this appeal, after the estate is revalued and distributed.
Cook, 158 Wash. App. at 795 -96.
Although our previous opinion in Cook discussed RCW 11. 96A. 150, it did so only in
reference to the trial court' s error in awarding attorney fees to Cook. Our opinion did not direct
the trial court to award Brateng attorney fees under any particular statute. Accordingly, our prior
opinion in Cook does not bar Brateng' s claim in this appeal under either the doctrine of res
judicata or the law of the case doctrine.
Cook next argues that our denial of Brateng' s motion for partial reconsideration, in which
she requested we modify the opinion to clarify that the trial court must award her fees under
RCW 11. 96A.310( 10), bars her claim on appeal under the doctrine of res judicata. Again, we
disagree. As addressed above, the doctrine of res judicata does not apply. The law of the case
doctrine similarly does not bar Brateng' s claim. The law of the case doctrine provides that an
appellate holding enunciating a principle of law must be followed in subsequent stages of the
litigation.
same - Roberson, 156 Wash. 2d at 41.
-- Here our order denying Brateng' s motion for
partial reconsideration did not state our reasons for denying her motion and, thus, did not
enunciate any principle of law that was required to be followed in later stages of litigation.
Accordingly, our summary denial of Cook' s motion for reconsideration does not bar Brateng' s
claim under either the doctrine of res judicata or the law of the case doctrine.
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No. 43683 -3 - II
II. RCW 11. 96A.310( 10) GOVERNS A TRIAL COURT' S ATTORNEY FEE DETERMINATION
FOLLOWING A TRIAL DE NOVO UNDER RCW 11. 96A.310( 9)
Brateng asserts that the trial court erred by failing to apply RCW 11. 96A.310( 10) to its
attorney fees determination. We agree and remand back to the trial court to determine Brateng' s
reasonable attorney fees under RCW 11. 96A.310( 10).
We apply a dual standard of review to a trial court' s award of attorney fees. Gander v.
Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 ( 2012). We review a trial court' s initial
determination of the legal basis for an award of attorney fees de novo. Gander, 167 Wash. App. at
646 -47. And "we review a discretionary decision to award or deny attorney fees and the
reasonableness of any attorney fee award for an abuse of discretion. ". Gander, 167 Wash. App. at
647. A trial court abuses its discretion when its decision is manifestly unreasonable, based on
untenable grounds, or made for untenable reasons. In re Marriage ofLittlefield, 133 Wash. 2d 39,
46 -47, 940 P.2d 1362 ( 1997). " An error of law constitutes an untenable reason." In re Marriage
ofFarmer, 172 Wash. 2d 616, 625, 259 P.3d 256 ( 2011).
When a question of law requires us to interpret a statute, " our objective is to ascertain and
carry out the legislature' s intent." Dep' t ofRevenue v. Sprint Spectrum, LP, 174 Wash. App. 645,
658, 302 P.3d 1280, review denied, 178 Wash. 2d 1024 ( 2013) ( citing Lake v. Woodcreek
Homeowners 4ss' n, 169 Wash. 2d 516, 526, 243 P.3d 1283 ( 2010)). We begin by looking to the
statute' s plain meaning. Sprint, 174 Wn. App. at 658. " We discern the plain meaning from the
ordinary meaning of the language at issue, the statute' s context, related provisions, and the
statutory scheme as a whole." Sprint, 174 Wash. App. at 658. If the language of the statute is
unambiguous, we discern the legislature' s intent from the plain language alone. Sprint, 174 Wn.
App. at 658 ( citing Waste Mgmt. of Seattle, Inc. v. Util. & Transp. Comm' n, 123 Wash. 2d 621,
G
No. 43683 -3 - II
629, 869 P.2d 1034 ( 1994)). Statutes concerning the same subject matter must be read together
to give effect and to harmonize each with the other. US W. Commc' ns, Inc. v. Utils. & Transp.
Comm' n, 134 Wash. 2d 74, 118, 949 P.2d 1337 ( 1997).
RCW 11. 96A.310 provides in relevant part:.
9) Appeal. ( a) The final decision of the arbitrator may be appealed by filing a
notice of appeal with the superior court requesting a trial de novo on all issues of
law and fact.
10) Costs on appeal of arbitration decision. The prevailing party in any
such de novo superior court decision after an arbitration result must be awarded
costs, including expert witness fees and attorneys' fees, in connection with the
judicial resolution of the matter. Such costs shall be charged against the
nonprevailing parties in such amount and in such manner as the court determines
to be equitable. The provisions of this subsection take precedence over the
provisions of RCW 11. 96A. 150 or any other similar provision.
Emphasis added.).
And RCW 11. 96A. 150( 1) provides:
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; from any nonprobate asset that is the subject of the
or ( c)
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.
The plain language of RCW 11. 96A.310( 10) requires a trial court to award fees against
the nonprevailing party of a trial de novo following an appeal of an arbitrator' s decision under
RCW 11. 96A.310( 9). The plain language of RCW 11. 96A.310( 10) also provides that its
provisions " take precedence over the provisions of RCW 11. 96A. 150." Here, Cook appealed the
arbitrator' s decision and requested a trial de novo in the superior court under RCW
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No. 43683 -3 - II
11. 96A.310( 9), thus invoking the fee provisions of RCW 11. 96A.310( 10). Accordingly, the trial
court was required to consider RCW 11. 96. 310( 10)' s fee provisions in making its attorney fees
determination.
The trial court' s finding that Cook was " not personally liable for any of [Brateng' s]
attorney fees as that would penalize [ Cook] for exercising his non -frivolous right to challenge the
trustee' s conduct in managing the estate" is an untenable reason for the trial court to conclude
that RCW 11. 96A.310( 10) did not apply to its attorney fee determination. CP at 85. The
frivolity of an appeal of an arbitrator' s decision under RCW 11. 96A.310( 9) is not a relevant
factor in a trial court' s initial consideration of whether RCW 11. 96A.310( 10)' s fee provisions
apply. Rather, RCW 11. 96A.310( 10) directs the trial court to award costs to the " prevailing
party" of a trial de novo following an appeal of the arbitrator' s decision. Here, because Brateng
was the prevailing party in the trial de novo following her successful appeal in Cook, the trial
court erred by refusing to award attorney fees under RCW 11. 96A.310( 10).
Although RCW 11. 96A.310( 10) states that its fee provisions " take precedence over the
provisions of RCW I1. 96A.150, we do not interpret this language to require the trial court on
remand to apply RCW l l. 96A.310( 10) to the exclusion of RCW 11. 96A. 150. Rather, reading
these related statutes in harmony with each other and giving effect to both, we hold that the trial
court must first determine Brateng' s reasonable attorney fees to be awarded against Cook
personally " in such amount and in such manner as the court determines to be equitable" under
No. 43683 -3 - II
4
RCW 11. 96A. 310( 10). After making this initial determination, the trial court may, in its
discretion, award Brateng reasonable attorney fees under RCW 11. 96A. 150 in consideration of
any and all factors that it deems to be relevant and appropriate," which may include
consideration of the amount of attorney fees already awarded to Brateng under RCW
11. 96A. 310( 10). Further, the trial court may direct that any attorney fees awarded under RCW
11. 96A. 150 " be paid in such amount and in such manner as the court determines to be
equitable,"
including from "the assets of the estate or trust involved in the proceedings."
Cook requests attorney fees under RAP. 18. 9 for defending a frivolous appeals Because
Brateng succeeded in her appeal, we deny Cook' s request for attorney fees.
We hold that the trial court erred by failing to apply the fee provisions of RCW
11. 96A.310( 10) and remand for the trial court to determine Brateng' s reasonable attorney fees
under that statutory provision.
r
Worswick, C. J.
117P rnnriir- TI
4 To the extent that Brateng argues that the trial court lacked discretion under RCW
11. 96A.310( 10) to award her less than her requested attorney fees and costs following her
successful appeal from the trial de novo, the quoted language above defeats her argument.
s
Brateng has not requested attorney fees related to this current appeal.
9