In Re The Estate Of Geneiva Tate: Monica Tate, App. v. Partners In Care ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
No. 78411-1-I
GENEIVA TATE.
DIVISION ONE
MONICA TATE,
UNPUBLISHED OPINION
Appellant,
V.
PARTNERS IN CARE, LLC,
FILED: September 30, 2019
Respondent.
LEACH, J. — In this probate action, Monica Tate challenges superior court
orders approving a settlement, authorizing the distribution of real property, and
determining the amount and reasonableness of attorney fees she owed to her
former lawyer. Because she does not show the court abused its discretion with
regard to any of these orders, we affirm.
FACTS
Geneiva Tate died intestate on April 19, 2015, predeceased by her
husband, Eddie Tate. Four children survived her, including Monica.1 At the time
of her death, Geneiva owned about 15 parcels of real property in Washington
1 Because many parties share the same last name, we refer to them by
their first name for clarity.
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and Louisiana. Many of the properties were in dilapidated or uninhabitable
condition. Still, all four of the heirs opposed sale of any of the real property based
on their parents’ wishes.
The court originally appointed Monica’s sister Azani Tate as administrator
of Geneiva’s estate (“the Estate”). Monica retained attorney Jason Burnett and
sought to remove Azani as the administrator. On October 16, 2015, the court
appointed Partners in Care (PlC) as the successor administrator. The court
revoked nonintervention powers at PlC’s request, and probate proceeded under
court supervision.
Settlement of Briar Box Litigation
In October 2012, Geneiva and Eddie agreed to sell one of the parcels,
located on East Howell Street, to Briar Box II, LLC. Briar Box developed plans for
the property and incurred costs for engineering and permitting. When the parties
did not complete the sale, Briar Box sued Geneiva and Eddie for specific
performance and damages. The lawsuit was still pending when PlC became the
administrator.
PlC met with all four heirs. They expressed that “the Estate should direct
its efforts to retaining the property as a meaningful part of the legacy left to them
by their parents.” In April of 2016, PlC and Briar Box settled the lawsuit,
contingent upon court approval in the probate action. The settlement provided
that the Estate would keep the East Howell Street property and pay Briar Box
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$295,000 in damages. The Estate also would receive the right to all plans and
designs created by Briar Box for its planned development of the property.
On April 29, 2016, PlC asked the court to approve the settlement. PlC
justified the settlement as follows:
14. The Estate’s heirs have repeatedly expressed to the PR
[personal representative] their overriding concern for retaining the
subject property (and all the properties belonging to the parents).
While the Estate believes its defenses are very strong against any
demand for specific performance, a loss at trial would not only lose
the property but cause a judgment for damages and attorney fees,
probably well in excess of $300,000. Given the assets of the
Estate, this would almost certainly necessitate sale of one or more
other properties, in addition to the loss of the subject property in the
lawsuit. As the PR’s primary duty is to settle an estate “as rapidly
and quickly as possible, without sacrifice,” RCW 11.48.010, the
definite risk of such a substantial loss is better avoided by paying
an amount to compensate the Plaintiff for damages and fees.
15. This particularly is true given the second portion of
Plaintiff’s claim, for damages, which would not be automatically
defeated even if specific performance were denied. Plaintiff’s
damages also include a potential for interest on liquidated amounts
that substantially increases the magnitude of a loss at trial.
16. Finally, the Estate will receive the benefit of the
development work done by Plaintiff. While this is not essential, it is
at least some compensatory value to offset the amount of the
settlement payment.
Monica objected to the settlement, arguing that PlC should have sought
specific performance of the contract. Noting that the property was appraised at
approximately $366,000. Monica complained that the Estate was in essence
paying $295,000 to preserve only $71,000 in value. And Monica contended that
the planning and development work had no value to the Estate because it “lacks
the money, the sophistication, the time and the authority to develop the subject
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property in any fashion.” On May 16, 2017, the superior court approved the
settlement.
Distribution of Property and Burnett’s Attorney Fees
On January 24, 2017, Plc asked the court for approval of its annual report
dated December 20, 2016. The report included a list of the Estate’s real property
and each parcel’s current market value. The report also included a distribution
schedule dividing the assets into four shares of real property and cash, each
valued at $1,019,516.81. Monica’s share consisted of (1) the house in which she
lived, on 51st Avenue South, with an estimated market value of $875,000; (2) a
property on 64th Avenue South, with an estimated market value of $125,000; and
(3) a cash distribution of $19,516.81.
~ic requested authority to distribute the Estate’s property. Because the
Seattle Police Department was investigating allegations that Monica had
neglected and financially abused Eddie before his death, PlC asked to withhold
Monica’s share until the investigation was complete.
On February 14, 2017, a superior court commissioner granted PlC’s
requests and approved the distribution schedule. Monica did not appear at the
hearing, nor did she challenge the court’s order or the distribution schedule. PlC
distributed property to the other three heirs.
On September 12, 2017, PlC asked the court to approve its final report
dated August 23, 2017. The final report repeated the distribution schedule and
market values stated in the prior annual report. PlC asked the court to hold a
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hearing on its request on October 5, 2017. PlC agreed to Monica’s request to
continue the hearing to November 30, 2017.
On September 28, 2017, Monica responded to PlC’s request. She did not
object to the valuation or distribution of the property. Monica’s response provided
only that “[amy deed of distribution to Monica Tate should be recorded by the
Personal Representative at estate expense” and “[amy funds distributed to
Monica Tate should be sent directly to her counsel of record, Jason W. Burnett of
Reed Longyear Malnati & Ahrens.”
Soon afterward, Monica fired Burnett. On October 25, 2017, Burnett filed a
notice of withdrawal and a lien for attorney fees in the amount of $17,477.27.
On November 13, 2017, Burnett asked the court to find his attorney fee
request reasonable. Burnett explained that he sent Monica monthly statements
detailing the work he performed and the rate charged. Burnett stated that Monica
never objected to any statement. But, aside from an initial deposit, Monica had
not paid Burnett in over two years.
On November 22, 2017, a superior court commissioner heard argument
on Burnett’s fee request. For the first time, Monica asserted she did not
understand the monthly statements. She identified some billing entries she found
confusing. The court explained them to her. Monica requested a continuance to
obtain new counsel and have them review Burnett’s billing statements. The court
denied this request, stating, “I find the bill to be very detailed, very
comprehensible, and quite reasonable in light of what went on during this
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probate.” On November 27, 2017, the court entered an order finding that
Burnett’s attorney fees were reasonable and ordering PlC to pay Burnett
$18,793.45 out of Monica’s share of the estate.
On November 30, 2017, the commissioner heard argument on PlC’s
request about the final distribution. Again, Monica did not object to the valuation
or distribution of the property. Instead, she asked for a continuance so she could
assert a creditor’s claim against the Estate for various repairs she claimed that
she had made to Estate property. Referring to RCW 11.40.051, the court noted
that the period for filing creditor’s claims had ended. The court denied the
continuance request and entered an order approving PlC’s final report.
Monica sought revision of both the court’s November 27 and November 30
orders. In her revision requests, Monica challenged PlC’s valuation of the 51st
Avenue South property. She contended that it was based on a “desktop
appraisal” that did not adequately consider the property’s dilapidated interior.2
Monica asserted that the property needed between $250,000 and $300,000 of
repairs and should be valued no higher than $575,000.
On January 17, 2018, a superior court judge heard argument on the
revision requests. Monica hired attorney Darcie Byrd to ask for a continuance.
Byrd told the court that Monica retained her the previous evening, and she
2 A desktop appraisal is based on records rather than an in-person
inspection of the property.
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No. 78411-1-1/7
needed additional to “review the voluminous record in this matter.” The court
denied the continuance and denied both requests for revision. Monica appeals.
STANDARD OF REVIEW
A court’s decision about the reasonableness of a settlement agreement
involves a factual determination that we review for abuse of discretion.3 We also
review a trial court’s fee decision in a probate case for abuse of discretion.4
When a party appeals an order denying revision of a court commissioner’s
decision, we review the superior court’s decision, not the commissioner’s.5 We
review the superior court’s decision for abuse of discretion. 6 Abuse of discretion
occurs “when the trial court’s decision rests on untenable grounds or untenable
reasons.”7
ANALYSIS
Monica first challenges the court’s approval of the Briar Box settlement.8
She argues that the settlement did not protect the assets of the Estate.9
The administrator of an estate has a duty to settle the estate “as rapidly
and as quickly as possible, without sacrifice to the probate or nonprobate
~ Werlinger v. Warner, 126 Wash. App. 342, 349, 109 P.3d 22 (2005).
~ In re Estate of Larson, 103 Wash. 2d 517, 521, 694 P.2d 1051 (1985).
~ In re Marriage of Williams, 156 Wash. App. 22, 27, 232 P.3d 573 (2010).
6 Williams, 156 Wash. App. at 27.
~ In re Estate of Peterson, 102 Wash. App. 456, 462, 9 P.3d 845 (2000).
8 PlC argues that Monica was estopped from challenging the approval of
the settlement or PlC’s property valuation because she had prior opportunity to
do so in the hearing on the interim report. We decline to consider this argument
because PlC did not raise it below. See RAP 2.5(a).
~ Because Monica did not designate the transcript of the hearing on the
motion to approve the settlement, our review is limited to the pleadings.
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No. 78411-1-I/S
estate.”1° A court may authorize an administrator to settle any claim owing the
estate, with the aim of protecting the assets of the estate for the benefit of the
beneficiaries.11
A settlement agreement must be “fair and equitable.”12 In determining the
fairness, reasonableness, and adequacy of a proposed settlement agreement,
the court must consider
(a) The probability of success in the litigation; (b) the difficulties, if
any, to be encountered in the matter of collection; (c) the
complexity of the litigation involved, and the expense,
inconvenience and delay necessarily attending it; (d) the paramount
interest of the creditors and a proper deference to their reasonable
views in the premisesJ13]
Here, Monica does not show that the settlement was unreasonable.
Monica does not dispute that “she attended the family meeting with [PlC] prior to
the mediation” and all four siblings “unanimously desired that the property be
kept, not just for its economic value but also because it represents a part of their
parents’ legacy, and it honors their parents’ repeatedly expressed desires never
to sell any of the land they had accumulated.” Given the siblings’ unified refusal
to consider selling the property, it was reasonable for the court to approve a
settlement addressing damages.
Moreover, the Estate had been involved in the Briar Box litigation for over
three years. As PlC noted, the risks of an adverse outcome at trial were high.
10RCW 11.48.010.
~ RCW 11.48.130; Snyder v. Tompkins, 20 Wash. App. 167, 171, 579 P.2d
994 (1978).
12 In re A & C Props., 784 F.2d 1377, 1381 (9th Cir. 1986).
13A & C Props., 784 F.2d at 1381.
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No. 78411-1-1/9
The Estate faced the loss of the property in addition to a judgment for damages
and attorney fees that could exceed $300,000. After considering the evidence
and the arguments of the parties, the court properly exercised its discretion in
approving the settlement.
Monica next challenges the court’s denial of a continuance of the hearing
on Burnett’s fees. She contends that the court abused its discretion in
determining Burnett’s fees were reasonable without giving her a fair opportunity
to review the billing statements.
A trial court has broad discretion to grant or deny a continuance.14 This
court reviews the denial of a continuance for an abuse of that discretion.15 A
court may deny a motion for a continuance when
“(1) the requesting party does not offer a good reason for the delay
in obtaining the desired evidence; (2) the requesting party does not
state what evidence would be established through the additional
discovery; or (3) the desired evidence will not raise a genuine issue
ofmaterial fact.”~16]
Monica did not tell the court what evidence she planned to obtain if it
continued the hearing. She stated only that she found the billing statements
confusing and wished to have an attorney explain them to her. But Monica did
not specifically identify any erroneous or unreasonable charges. And Monica had
the billing statements in her possession for years. She could have asked Burnett
14 Trummel v. Mitchell, 156 Wash. 2d 653, 670, 131 P.3d 305 (2006).
15 Tellevik v. 31641 W. Rutherford St., 120 Wash. 2d 68, 90, 838 P.2d 111,
845 P.2d 1325 (1992).
16Tellevik, 120 Wash. 2d at 90 (quoting Turner v. Kohler, 54 Wash. App. 688,
693, 775 P.2d 474 (1989)).
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No. 78411-1-1110
to explain them to her at any time. “[W]here a party requests a continuance
merely to seek information already provided by a declaration, the trial court does
not err by denying such a request.”17
On appeal, Monica cites discrepancies between the fees claimed in
Burnett’s declaration and the amount of the court’s fee award. Because Monica
did not raise this argument below, she fails to show that the court abused its
discretion on these grounds. And because this court generally will not consider
issues raised for the first time on appeal, we decline to address it.18
Citing Aiken, St. Louis & Siljeg, PS v. Linth,19 Monica argues that the court
should have conducted an evidentiary hearing on the amount of fees. But Aiken
stands only for the proposition that a court did not abuse its discretion in finding
that the total amount of fees was a contested factual issue requiring a hearing for
determination.20 A court has considerable discretion to determine whether factual
and credibility issues require an evidentiary hearing.21 And the court did conduct
an evidentiary hearing at which it reviewed and considered Burnett’s billing
statements. Monica fails to show that the court abused its discretion.
Finally, Monica argues that the court approved an unequal distribution of
property. She contends that PlC overvalued the 51st Avenue South property at
$875,000 when in fact the property was worth much less.
17In re Estate of Fitzgerald, 172 Wash. App. 437, 448, 294 P.3d 720 (2012).
18 RAP 2.5(a).
19195 Wash. App. 10, 21, 380 P.3d 565 (2016).
20Aiken, 195 Wn.App. at2l.
21 City of Blame v. Feldstein, 129 Wash. App. 73, 76, 117 P.3d 1169 (2005).
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RCW 11.108.030 provides that when a fiduciary distributes property in
kind, the property ‘shall be valued at their respective fair market values on the
date or dates of distribution.” But a court does not abuse its discretion if its
property valuation is within the range of the evidence.22 PlC provided an
appraisal of the property’s market value based on the sale of other comparable
properties in the neighborhood. Monica provided no evidence showing that the
property needed $250,000 to $300,000 worth of repairs or that the needed
repairs reduced the property’s market value to $525,000.23 A reviewing court
does not reweigh the evidence or reassess the credibility of witnesses.24
PlC asks this court to award it attorney fees and costs on appeal pursuant
to RAP 18.1(a). RCW 11.96A.150(1) allows a court to award costs and
reasonable attorney fees to any party in an estate dispute; “[un 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.” Because the Estate is
the prevailing party on appeal, we award PlC its reasonable attorney fees
conditioned on its compliance with RAP 18.1(d). We also award costs to the
Estate as the prevailing party pursuant to RAP 14.2.25
22In re Marriage of Soriano, 31 Wash. App. 432, 435, 643 P.2d 450 (1982).
23 Monica’s motion for revision references a letter from a contractor.
However, Monica acknowledges that the letter is absent from the record.
24 State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
25 Counsel for Monica filed a motion requesting this court disregard two
unpublished cases inadvertently cited in the appellant’s opening brief. The
motion is granted.
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No. 78411-1-1/12
Affirmed.
WE CONCUR:
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