SCHINDLER, J.
Kenneth and Jackie Griffith filed a petition under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, to cancel letters of administration and remove and replace the personal representative of the estate of their son Taylor Griffith. We affirm the order denying the TEDRA petition but reverse the award of attorney fees and the judgment against Kenneth and Jackie Griffith.
On December 10, 2014, Stefanie Harris as the personal representative of the estate of Steven Harris and her mother Margaret Harris (collectively, Harris) filed a complaint against the estate of Taylor Griffith (the Estate) and his parents Kenneth and Jackie Griffith for wrongful death and damages. The complaint alleged that on August 24, 2014, 16-year-old Taylor was driving a Dodge Dakota pickup truck at a high rate of speed when he crossed the center line and hit a Ford Explorer head on.
The complaint alleged that the defendants were jointly and severally liable for all injuries and damages and that the "fatal and severe injuries and damages claimed by Plaintiffs were the direct and proximate result of the conduct of the defendants and their negligence, recklessness and/or fault." The complaint alleged Kenneth Griffith was the registered owner of the pickup truck, the truck was a family car, and Taylor was "a permissive and entrusted user" of the truck.
The complaint also alleged breach of contract and bad faith claims against the insurance carrier Travelers Home and Marine Insurance Company (Travelers). The complaint alleged Travelers violated insurance regulations and the deliberate failure to respond and disclose liability insurance limits "precluded plaintiffs from timely pursuing their own underinsurance benefits, cut off negotiations," and foreclosed a settlement within policy limits.
Travelers' insurance attorney Michael Jaeger filed a notice of appearance on behalf of the Estate and Kenneth and Jackie Griffith. The February 23, 2015 answer to the complaint asserts a number of affirmative defenses, including that Taylor Griffith "may have been confronted with a sudden emergency," contributory or comparative fault of the plaintiffs or other entities, and failure to mitigate damages. The answer states, "Pursuant to RCW 4.22.070, the defendants request the trier of fact apportion the fault of all persons, parties, or entities involved herein, with the resultant reduction in defendant's alleged liability."
The court scheduled trial for January 4, 2016. The case scheduling order required the parties to engage in dispute resolution before trial.
Taylor died intestate. His parents are the sole beneficiaries of the Estate. The Griffiths did not file a probate action. If a probate action had been filed within 40 days of death, the statute gives the parents priority to be appointed to administer the Estate. RCW 11.28.120(7), (2)(b).
Approximately six weeks before trial on November 19, 2015, Harris filed a probate action and petition to appoint a personal representative.
The petition describes the need to appoint a personal representative for the estate of Taylor Griffith. The petition asserts the parents "have personal liability for the actions of their son under the family car doctrine and other legal principles" and the Estate is liable for the collision caused by Taylor.
The petition alleges Travelers "refused to disclose the liability insurance policy limits and otherwise negotiate in good faith, forcing the Harris Estate and family to file and pursue a lawsuit." The petition requests the court appoint attorney Brad Moore or "some suitable person" as personal representative of the Estate. Moore is an experienced personal injury and insurance attorney.
The Travelers insurance attorney filed a response on behalf of the Griffiths and the Estate. The Estate and the Griffiths agreed a personal representative must be appointed for the Estate "to allow the Lawsuit to proceed against Decedent, and/or for there to be a person with legal authority on behalf of Decedent." The Griffiths and the Estate requested the court appoint Taylor's father Kenneth Griffith as the personal representative. The response states the parents deny liability for the accident and the allegations against Travelers are not relevant to appointment of a personal representative.
The attorney representing Harris in the wrongful death lawsuit, David Beninger, and probate attorney Carolann Storli represented Harris at the December 8 hearing on the petition to appoint a personal representative.
Harris argued the complaint alleged claims against the parents and joint and several liability and bad faith claims against Travelers. Harris argued Moore had the experience and background necessary to act as the personal representative because of the "specialized nature" of wrongful death claims and bad faith claims against an insurance company.
The attorney representing the Griffiths and the Estate conceded Moore is "qualified to be a Personal Representative" but objected to Moore on the grounds that Moore and Beninger worked on a case together a "long time ago." The attorney stated, "I can see a bit of a conflict of interest there. . . . Just don't have a good feeling about it. . . . Not that there is any bad intention. I just feel like it's not independent enough if you're considering" appointing Moore. Beninger told the court he was not "aware of any time [Moore]'s ever worked on a case where we've worked on a case."
The superior court commissioner appointed Moore as the personal representative of the Estate.
The order issuing letters of administration and appointing Moore expressly states the "Personal Representative is authorized to participate in litigation and to settle or assign claims on behalf of Decedent's estate." Moore filed an oath to comply with the duties of the personal representative of the Estate:
On December 15, the Travelers' insurance attorney filed a motion on behalf of the Griffiths in the probate action to revise the commissioner's order appointing Moore as personal representative of the Estate. The parents argued Kenneth Griffith had statutory priority to act as the personal representative. The Griffiths asserted that Moore was not suitable because of "the appearance of conflict" between his duties to the Estate and "his prior relationship and affiliation with Plaintiff's Counsel."
On December 17, Jacquelyn Beatty filed a notice of association of counsel with the Travelers attorneys representing the Estate and defendants Kenneth and Jackie Griffith.
On November 20, 2015, Harris filed a motion for partial summary judgment on liability, undisputed medical expenses and lost wages, and dismissal of the affirmative defenses. Harris submitted the WSP investigation of the collision. The WSP concluded there was no evidence that vehicle or roadway defects, weather, visibility, or road conditions contributed to the collision. The WSP report states there were no marks on the road to suggest Taylor crossed the center line to avoid an obstacle. The WSP concluded Taylor was the sole cause of the collision and there was no evidence that Taylor encountered either a mechanical defect, a sudden emergency, or an unavoidable accident. The WSP report states there was no evidence that Steven Harris contributed to the cause of the collision.
The court ruled on the plaintiffs' motion for partial summary judgment approximately two weeks before trial. The court ruled Taylor was liable for the collision. The court ruled Harris established the amount of medical expenses and lost wages. The court found the total amount of the past medical bills and lost wages for Margaret was $314,491.63. The court ruled Harris was entitled to dismissal of the affirmative defenses asserted by the Estate and the parents. But the court denied summary judgment on liability of the parents. On December 18, the court entered "Order on Motion Establishing Liability and Damages."
Moore published notice to creditors of the Estate beginning on December 29, 2015.
Trial began on January 4, 2016. Attorney Michael King filed a "Notice of Association of Co-Counsel for Defendants" in the wrongful death lawsuit.
The court addressed the motions filed by Harris and the personal representative of the Estate to reconsider denial of summary judgment on liability of the parents. The court denied reconsideration. The court ruled Harris did not "sufficiently" raise the argument in the motion for partial summary judgment.
On the second day of trial, Harris filed a CR 41 motion to voluntarily dismiss the Griffiths without prejudice, change the caption of the case, and preclude making any reference to the jury that the parents had been parties to the lawsuit. Without objection, the court granted the motion and entered an order dismissing the Griffiths without prejudice.
The court and the remaining parties, Harris and the Estate, addressed motions in limine and outstanding discovery.
After the noon recess, Harris and the personal representative of the Estate presented an agreement for arbitration with former Washington Supreme Court Justice Faith Ireland on the amount of general damages. Moore informed the court:
The attorney representing the Estate and the Griffiths objected to the agreement to arbitrate. The attorney asserted, "I represent the estate of Taylor Griffith and the beneficiaries Ken and Jackie Griffith."
The court entered an order to arbitrate subject to a decision on the pending motion to revise the commissioner decision to appoint Moore as the personal representative of the Estate.
The Griffiths filed a motion to stay the arbitration and to intervene. The Griffiths noted the pending motion to revise and their objection to Moore serving as the personal representative of the Estate. The court granted the motion to intervene. The court stayed the arbitration pending the hearing on the motion to revise.
On January 27, attorneys Beatty and King filed a petition on behalf of the Griffiths under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, to cancel letters of administration and to remove and replace Moore as personal representative of the Estate. The Griffiths argued Moore breached the fiduciary duty he owed to the Estate and the beneficiaries by (1) disregarding "the legal requirements for creditor's claims against an estate," (2) entering into an agreement to arbitrate and assign bad faith claims to Harris, and (3) threatening to sue the Griffiths on "bogus claims" of "indemnity." The Griffiths asserted Moore had an actual or potential conflict of interest that warranted removal because of his relationship with plaintiffs' attorney and the terms of the compensation agreement. In the alternative, the Griffiths argued the court should allow discovery "to obtain additional evidence." The court entered an order consolidating the TEDRA petition with the pending motion to revise.
On January 29, Harris filed a creditors' claim against the Estate. The claim states the WSP determined Taylor was at fault for the collision, the court found Taylor liable for the collision and resulting damages, and the court dismissed all affirmative defenses. The stated value of the claim is between $8 million and $24 million. On February 11, 2016, Moore rejected the claims.
Harris and the personal representative filed briefs and declarations in opposition to the TEDRA petition, including the declaration of Harris' attorney Beninger, the personal representative, and expert witness Leland Ripley.
Harris denied there was a conflict of interest. The attorney asserts the personal representative complied with the claim filing requirements and the personal representative did not assign any claims to the plaintiffs.
The personal representative denied there was a conflict of interest and asserts the Estate has potential claims against the insurance carrier Travelers and against the Griffiths. The personal representative states he would be compensated from the assets of the Estate.
Ripley states he is an expert on "legal ethics, lawyer discipline, [and] legal malpractice" retained to "offer opinions on the conflicts of interest of insurance-defense counsel" and "the standards of care and fiduciary duties of Brad Moore, the court appointed Personal Representative of the Estate of Taylor Griffith." Ripley notes the order appointing Moore as the personal representative of the Estate authorizes Moore to "`participate in litigation and to settle or assign claims on behalf of Decedent's estate.'" Ripley states that in his opinion, there is no conflict of interest and the personal representative acted reasonably and within the standard of care.
Ripley states that with policy limits of $100,000, "even before trial, the estate's potential liability exceeds the available policy limits." And after the court entered the order establishing liability and damages, "the Estate faces the possibility of a large excessive judgment." In Ripley's opinion, the decision of the personal representative of the Estate to arbitrate was "a proper exercise of his fiduciary duty."
On March 31, Harris filed a motion under RPC 1.9 to disqualify Beatty and King from representing the Griffiths. On April 27, the court entered an order prohibiting Beatty and King from representing the Griffiths in the pending TEDRA petition and the probate action and the wrongful death action.
The court held a hearing on May 26 on the motion to revise the decision of the commissioner to appoint Moore as the personal representative of the Estate and the TEDRA petition to remove and replace Moore.
The court denied the motion for revision. The court ruled, "Based on the record before the commissioner, I don't see any reason at all to grant the motion for revision."
The court denied the TEDRA petition. The court concluded the Griffiths did not show "a breach of fiduciary duty or mismanagement or waste of assets." The court found, "The fact that Mr. Moore is also a plaintiff's lawyer, I don't find that to even be particularly relevant." The court concluded the evidence that Moore and the plaintiffs' attorney worked together "was about a very old case." The court concluded the Griffiths did not show that the decision to arbitrate was a breach of fiduciary duty. The court states the allegations of a potential bad faith claim against the insurance carrier presents "a good reason to have someone with his background rather than someone with just a straight estate's background handle the case." The court pointed out there was "no evidence" that Moore had assigned the potential bad faith claim to Harris. Because the court would review any request for compensation, the court concluded the Griffiths could file an objection when Moore submitted a request for fees. The court entered an order denying the petition to cancel letters of administration and replace Moore as the personal representative of the Estate and lifted the stay of arbitration.
Moore filed a motion for an award of attorney fees and costs under RCW 11.96A.150 for $28,380.62. The court found the amount reasonable and necessary.
The court entered a judgment for attorney fees and costs in the amount of $31,910.62.
Preliminarily, Harris and the personal representative contend the Griffiths do not have standing to challenge denial of the TEDRA petition.
Under TEDRA, "any party may have a judicial proceeding for the declaration of rights or legal relations with respect to any matter." RCW 11.96A.080(1). TEDRA defines a "party" as any member of a listed category "who has an interest in the subject of the particular proceeding." RCW 11.96A.030(5). The statutory categories include "heir" and "beneficiary." RCW 11.96A.030(5)(d), (e). The definition of "persons interested in the estate or trust" includes "all persons beneficially interested in the estate or trust." RCW 11.96A.030(6). RCW 11.96A.030(2)(c)(ii) defines "matter" to include a dispute "arising in the administration of an estate" that relates to "a change of personal representative." RCW 11.68.070 gives heirs, devisees, legatees, and creditors of an estate the right to file a petition to remove a personal representative. Here, Taylor Griffith died intestate, and his parents are the only heirs.
The Griffiths contend (1) that Moore acted contrary to the fiduciary duty owed to the Estate and the beneficiaries and (2) that he had an actual or potential conflict of interest.
We review the decision to deny the petition to remove Moore as the personal representative of the Estate for abuse of discretion.
The personal representative "stands in a fiduciary relationship to those beneficially interested in the estate."
The petition to remove the personal representative must be supported by an affidavit "which makes a prima facie showing of cause for removal." RCW 11.68.070. The record must support valid grounds to remove a personal representative.
If the personal representative "`is subject to removal for any reason specified in [RCW] 11.28.250,'" RCW 11.68.070 gives the court the discretion to remove the personal representative.
The Griffiths contend the court abused its discretion by denying their TEDRA petition because Moore breached his fiduciary duty. The Griffiths argue Moore breached his fiduciary duty by (1) not complying with the statutory claim filing requirements, (2) agreeing to arbitration, (3) threatening to sue them, and (4) considering the assignment of the potential bad faith claim to Harris.
Under RCW 11.40.010, "[a] person having a claim against the decedent may not maintain an action on the claim unless a personal representative has been appointed and the claimant has presented the claim as set forth in this chapter." A claimant must include a statement of the facts providing the basis for the claim and the amount of the claim. RCW 11.40.070(1)(c), (d).
The record shows Moore followed the statutory procedures on behalf of the Estate. The commissioner appointed Moore as the personal representative of the Estate on December 8, 2015. Beginning December 29, 2015, Moore published a notice to potential creditors of the Estate. Harris filed a claim against the Estate on January 29, 2016. Moore rejected the claim on February 11. Harris refiled the wrongful death lawsuit before the hearing on the TEDRA petition.
The Griffiths claim Moore breached his fiduciary duty by agreeing to arbitration. The personal representative of an estate has the duty to settle the estate "as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate estate." RCW 11.48.010. The record and the expert testimony of Ripley support the trial court's conclusion that Moore did not breach his fiduciary duty by agreeing to arbitrate.
The court ruled as a matter of law on the liability of Taylor for the head-on collision and death of Steven Harris and dismissed all of the affirmative defenses asserted by the Estate and the Griffiths. After the court granted the motion to dismiss the Griffiths without prejudice on the second day of trial, the Estate was the only remaining defendant, and the only remaining claim against the Estate was the amount of general damages. Ripley states:
The Griffiths argue Moore breached his fiduciary duty by considering the assignment of potential insurance bad faith claims to Harris. The Griffiths assert that if Moore believed the Estate has a bad faith claim against Travelers, Moore should have pursued the bad faith claim directly rather than assign the claim to Harris. But the court noted below that the record showed Moore had not yet pursued or assigned any potential bad faith claims to Harris. Further, Ripley states the decision to assign any bad faith claim is within the standard of care.
Next, the Griffiths contend Moore breached his fiduciary duty by threatening to sue them on "bogus claims for `indemnity.'" As the personal representative of the Estate, Moore had a fiduciary duty to prosecute potential claims against the Griffiths and the insurance company. RCW 11.48.010. The personal representative has authority to bring a lawsuit on behalf of the estate. RCW 11.48.010.
Harris sued the Estate and Kenneth and Jackie Griffith in the wrongful death action. Harris alleged the parents negligently entrusted Taylor with the truck and were liable under the family car doctrine. Harris alleged the Griffiths and the Estate were jointly and severally liable. Where multiple tortfeasors are responsible for the plaintiff's injuries and the plaintiff was not at fault, the tortfeasors against whom judgment is entered are jointly and severally liable for the sum of their proportionate shares of the plaintiff's damages. RCW 4.22.070(1)(b);
The expert testimony of Ripley establishes that Moore had a fiduciary duty to "pursue and maximize the Estate's most valuable assets," including claims against the Griffiths under the family car doctrine and bad faith claims against the insurance carrier.
Citing
For the first time on appeal, the Griffiths cite RCW 11.40.060 to argue Moore breached the fiduciary duty owed to the Estate and the beneficiaries by failing to seek a confession of judgment in the amount of the insurance policy limits. The Griffiths assert that when Harris filed a creditors' claim on January 29, 2016, the liability of the Estate was limited by statute to the liability limits of Taylor's insurance policy. We do not consider arguments raised for the first time on appeal. RAP 2.5(a);
We conclude the court did not abuse its discretion and substantial evidence supports denying the TEDRA petition to remove Moore as the personal representative of the Estate for breach of fiduciary duty.
The Griffiths argue (1) the longstanding professional relationship between Moore and Harris' attorney Beninger and (2) Moore's compensation as the personal representative of the Estate created a conflict of interest.
Where a personal representative has a conflict of interest that "would contravene the rights of the beneficiaries and result in waste of the estate," the personal representative should be disqualified.
The Griffiths assert that at the hearing on the motion to appoint a personal representative, Beninger misrepresented his relationship to Moore, stating that he never worked with Moore on a case. Substantial evidence supports the trial court finding there was no conflict of interest between Moore and Beninger that required removal of Moore as personal representative of the Estate.
Beninger and Moore submitted declarations addressing the conflict of interest claim. Beninger states that at the hearing before the commissioner, he "did not recall any prior case and truthfully said so." Beninger said that Moore was not his co-counsel in the case that settled in April 1998 but instead, represented a separate client whose claims were partly adverse to his client. Beninger had no other recollection of associating with Moore on a case. Moore confirmed that he and Beninger have not served as co-counsel on the same case or shared fees in a case. Moore states the work he did on the cases in 1998 was minimal and there was no fee sharing. Moore described his relationship with Beninger as "professional competitors."
The Griffiths assert that Moore's reliance on potential bad faith claims for compensation as the personal representative of the Estate creates a conflict of interest. Moore testified that he "expect[s] to be compensated either by Travelers pursuant to the insurance policy, out of the proceeds of claims against Travelers should it not honor its obligations under the policy, or other revenues the Estate might receive."
Under RCW 11.48.210, the personal representative of an estate may be compensated for his or her services "as the court shall deem just and reasonable." Because the court will review any request for compensation, the court concluded the Griffiths could file an objection when Moore submitted a request.
The trial court did not abuse its discretion in concluding the relationship between Harris' attorney and the personal representative and compensation of the personal representative did not create a conflict of interest that required removal.
The Griffiths contend the court erred in entering an order and judgment against Kenneth and Jackie Griffith for attorney fees and costs under TEDRA. The Griffiths argue the motion for attorney fees and costs was not timely filed under CR 54(d)(2).
The application of a court rule to a particular set of facts is a question of law reviewed de novo.
In opposition to the TEDRA petition filed by the Griffiths to remove and replace the personal representative, Moore argued the court should award the Estate and Moore attorney fees and costs under RCW 11.96A.150. Under TEDRA, the trial court has discretion to award attorney fees:
RCW 11.96A.150(1).
On May 26, 2016, the court entered an order denying the TEDRA petition to remove and replace the personal representative. The order states, "Petition is denied for all the reasons the Court stated (which are incorporated herein)."
On August 2, 2016, Moore filed a motion for attorney fees and costs and entry of judgment against the Griffiths. Moore argued it was "appropriate, fair, and equitable" to award fees and costs against the Griffiths for "defending against the Motion for Revision and the TEDRA Petition." On August 10, the court entered an order granting Moore's motion for an award of attorney fees and costs and on August 25, entered a judgment in favor of Moore against the Griffiths for $31,910.62.
In opposition, the defendant disputed the principal amount owed but "did not respond" to the assertion that North Coast was entitled to attorney fees.
Here, an award of attorney fees and costs under TEDRA is discretionary. And unlike in
We affirm denial of the TEDRA petition to remove and replace the personal representative of the Estate and reverse the award of attorney fees and the judgment against Kenneth and Jackie Griffith.
DWYER and BECKER, JJ., concurs.