IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In re the Matter of the Trust of: LISA 

DAWN LEWIS, A Single Adult.

)

)

)

)

)

)

)

No. 37972-8-III

UNPUBLISHED OPINION

FEARING, J. — In this disjointed appeal, the grantor and beneficiary of a special 

needs trust, Lisa Dawn Lewis, assigns error to the superior court’s refusal to terminate the 

trust or to revoke the transfer of an inheritance into the trust. Lewis and her attorney, 

Douglas Schafer, also seek reversal of CR 11 sanctions against them. Because Lewis 

approved of the creation of the trust and the transfer of assets to the trust, we affirm the 

superior court’s ruling with regard to the trust. We reverse the award of sanctions 

because the award, contrary to law, was afforded witnesses rather than parties to the suit. 

FACTS

The appeal surrounds the creation and administration of a trust for Lisa Dawn 

Lewis. Lisa Lewis, born August 17, 1974, suffers from a severe form of cervical spinal 

stenosis. The physical disability precludes most employment. Lisa Lewis’ sister, Lana 

Prinz, declares that Lewis has cognitive delays. Responding attorneys in this appeal, Paul 

FILED

AUGUST 24, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

2

Ferman and Larry Hall, based on interactions with Lewis, also believe that Lewis 

possesses cognitive delays. Lewis denies any mental deficiencies. No court has ruled 

Lewis legally incapacitated. 

Since her mother’s death in 2007, Lisa Lewis has received social security 

disability insurance (SSDI), a benefit based on her father’s work record, in the amount of 

$1,600 per month. Lewis manages these funds herself with the approval from the Social 

Security Administration (SSA). Because Lewis receives SSDI, she also receives 

Medicare benefits. Benefits received from SSDI and Medicare do not require that she 

have limited access to resources or a limited income. 

According to Lana Prinz, Lisa Lewis has received Medicaid benefits, not to be 

confused with Medicare benefits, and food stamps for most of her adult life. As recently 

as January 29, 2018, Lewis acknowledged in an e-mail that she received Medicaid 

assistance. Medicaid is a needs-based benefit requiring the recipient to have limited 

income and resources. See Wilson v. State, 142 Wn.2d 40, 44, 10 P.3d 1061 (2000); Stell 

v. Boulder County Department of Social Services, 92 P.3d 910, 912 (Colo. 2004). Lewis 

understands that her Medicaid benefits pay the monthly premiums on her Medicare 

benefits. 

On May 16, 2017, Lisa Lewis’ father, Larry Low, died intestate. Lewis and her 

two older sisters, Lana Prinz and Lorraine Bayless, are the only surviving heirs. Lewis 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

3

anticipated an inheritance from her father’s estate. After her father’s death, Lewis 

became homeless. 

On June 2, 2017, Lisa Lewis met with her sisters and two attorneys from the law 

firm, Hall & West, Larry Hall and Paul Ferman. Sister Lana Prinz, as administrator to 

Larry Low’s estate, hired the attorneys for the estate. According to Lewis, Hall insisted 

that she establish a special needs trust and choose a trustee. Lewis avers that Hall told 

her that, if she did not create the trust, she would not receive her inheritance. Hall 

acknowledges that he told Lana Prinz, with Lewis present, that he did not believe Lewis

competent to manage her own affairs. He denies, however, telling Lewis at any time that 

she must establish a trust in order to receive her distribution from the father’s estate. 

Larry Hall and Paul Ferman directed Lisa Lewis to meet John Tracy, a lawyer

from a separate firm, for preparation of a trust. Tracy conferenced with both Lewis and 

her chosen trustee, Michael Torell, on July 25, 2017. Tracy described the nature of a 

special needs trust, and he told both that, in the preparation of the trust, he acted as the 

lawyer solely for Torell. 

By early August 2017, John Tracy prepared a document that created an 

irrevocable special needs trust. The document declared that a trust was created “[b]y and 

through the Superior Court of Kitsap County,” Lisa Lewis’ home county. Clerk’s Papers 

(CP) at 7. The document named Lewis as the grantor and beneficiary of the trust. The 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

4

instrument contained lines for the signatures of Lewis, her trustee, Michael Torell, the 

superior court, and the attorney who created the trust document, John Tracy. 

The trust document prepared by John Tracy stated that the trust was created to 

receive gifts and inheritance benefiting Lisa Lewis. The document also purported to 

comply with both federal and state benefits eligibility requirements. The document 

declared: 

This Trust is created with the understanding that the Trust will allow 

LISA to preserve or obtain government benefits to which she is or may be 

entitled. This Trust is being established to receive proceeds that LISA 

would otherwise receive directly by gift, inheritance, or other source. This 

Trust is established for the sole benefit of LISA [Lewis], in accordance 

with the requirements of 42 U.S.C. 1382e(5), 42 U.S.C. Sec. 

1396p(c)(2)(B)(iv) and WAC 182-513-1365(1)(e) & (4), so that the transfer 

of assets to the Trust shall not cause the imposition of a period of 

ineligibility for Supplemental Security Income (SSI) and Medicaid. 

Further, for purposes of SSI and Medicaid eligibility, the Trust corpus shall 

not be deemed a resource available to LISA because the Trust meets the 

requirements set forth at 42 U.S.C. 1382b(e), 42 U.S.C. Sec. 

1396p(d)(4)(A), and WAC 182-516-0100(5)(a).

CP at 7 (emphasis added). The trust referenced property in the trust:

1.1 Trust Property: The Grantor and the Kitsap County Superior 

Court hereby establish the Trust as an irrevocable Trust. The Grantor may 

assign to the Trustee all right, title, and interest in any property at any time, 

the receipt of which shall be acknowledged by the Trustee. . . .

1.2 Additional Property: The Grantor has the right to add to the 

corpus of the Trust, and any property so added shall be held, administered 

and distributed as provided in this document. With the prior written 

consent of the Trustee, any other person may add to the corpus of the Trust.
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

5

CP at 7 (boldface and underlining in original). A Schedule A was attached to the trust 

instrument, but the schedule was blank. The body of the trust document did not mention 

any Schedule A. 

Under the April 2017 trust language, the trustee may supplement care “over and 

above the benefits LISA [Lewis] otherwise might receive or is receiving as a result of 

need, or disability, from any local, state, or federal program . . . which might provide 

services or benefits to persons with disabilities or who are in financial need.” CP at 9. 

The trust precluded the trustee from disbursing funds that would render Lewis ineligible 

for such benefits. 

The trust document provided for termination of the trust in two circumstances. 

First, the trust would end at Lisa Lewis’ death, in which case the trust document provided 

that the State of Washington would first receive a distribution for benefits paid as 

required under 42 U.S.C. Sec. 1396p(d)(4)(A), WAC 182-513-1365(1)(e)&(4), or other 

applicable federal or state law. Second, the trust provided for early termination in the 

event Lewis’ disability ended. The trust document provided for no distribution to the 

State in the event of early termination. 

On August 2, 2017, Lisa Lewis and her designated trustee, Michael Torell, signed 

the document. The notarized document states that Lewis signed the document of her own 

free will. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

6

On August 4, 2017, attorney John Tracy gave notice to trustee Michael Torell and 

beneficiary Lisa Lewis that he planned to bring a motion for approval of the special needs 

trust in probate court on August 11, 2017. On August 11, 2017, the probate court entered 

an order approving Lisa Lewis’ special needs trust. The court also signed the trust 

instrument. The following language appeared above the court’s signature: “Established 

By and Through the Kitsap County Superior Court.” CP at 13. 

By late August 2017, Paul Ferman, attorney for the estate of Larry Low, learned 

that trustee Michael Torell had a felony conviction. The conviction disqualified Torell 

from serving as a trustee. Ferman urged Lisa Lewis to appoint a new trustee, but Lewis 

insisted that Torell remain as trustee. Larry Low’s estate refused to release funds to the 

trust while Michael Torell served as trustee. 

On March 22, 2018, Paul Ferman requested that Jenifer Mick, a certified 

professional guardian, succeed Michael Torell as trustee of Lisa Lewis’ trust. At the 

request of Ferman, Carol Rainey, Mick’s attorney, filed a petition to appoint Mick as 

successor trustee for Torell. 

Carol Rainey served notice on Lisa Lewis and Michael Torell for an April 27, 

2018 hearing on the removal of Michael Torell and the appointment of a successor 

trustee. At the hearing, Paul Ferman appeared on behalf of the estate of Larry Low. 

Carol Rainey appeared on behalf of proposed successor trustee, Jennifer Mick. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

7

During the April 27 hearing, attorneys Paul Ferman and Carol Rainey explained to 

the court that Michael Torell had a felony conviction and he did not qualify to serve as a

trustee. Rainey mentioned that Lisa Lewis would soon receive an inheritance and the 

inheritance should be protected in a trust. Ferman commented that a delay in appointing 

a successor trustee could further bleed trust funds. The trust was then advancing funds to 

provide hotel housing for Lewis, who was otherwise homeless. At the hearing, Lewis 

requested a continuance in order to obtain an attorney. 

The trial court denied Lisa Lewis’ request for a continuance because of Michael 

Torell’s ineligibility to serve as a trustee. At the conclusion of the April 27, 2018 

hearing, the superior court signed an order approving the appointment of a successor 

trustee and a restatement of the trust. The order discharged Michael Torell as trustee and 

appointed Jenifer Mick as successor trustee. The order also directed the court to sign a 

restatement of the trust but did not declare that another trust was created. 

Also at the conclusion of the April 27, 2018 hearing, the superior court signed the 

Restatement of the Lisa Dawn Lewis Special Needs Trust upon Appointment of 

Successor Trustee. The opening to the trust restatement declares:

THIS Trust was established by the Kitsap County Superior Court for 

LISA DAWN LEWIS (the “Grantor”) by order entered in Kitsap County 

Cause No. 17-4-00646-6 on August 11, 2017 for the benefits of LISA 

DAWN LEWIS, hereinafter referred to as “LISA” or the “Beneficiary.” 

MICHAEL WILLIAM TORELL was appointed Trustee initially, however 

he is not qualified to serve as Trustee and by order dated April 27, 2018 

MR. TORELL was removed as Trustee and JENIFER MICK was 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

8

appointed Successor Trustee, hereinafter referred to as the “Trustee.” This 

Restatement of the Trust was ordered by the Court to provide the necessary 

powers to JENIFER MICK, Trustee.

CP at 49. Otherwise the body of the restatement trust reads the same as the initial trust 

instrument. Schedule A, attached to the restatement of trust reads:

Inheritance from Estate of Larry Dean Low 

Kitsap County Cause No. 17-4-00501-0

CP at 57. The body of the trust instrument does not reference a Schedule A. Lisa Lewis 

did not sign the restatement of trust. 

On May 1, 2018, Lisa Lewis wrote to attorney Paul Ferman and asked for 

evidence of the special needs trust to forward to the Department of Health and Social 

Services (DSHS), who asked how she afforded to stay at a motel. Ferman e-mailed 

Lewis a copy of the trust instrument. Ferman informed Lewis that the estate of Larry 

Low would soon release funds to Jenifer Mick to place in the trust. 

On May 23, 2018, Jenifer Mick, as successor trustee of Lisa Lewis’ special needs 

trust, signed a Trust and Estate Dispute Resolution Act (TEDRA), 11.96A RCW,

agreement in the settlement of Larry Low’s estate. The agreement read that the estate 

would distribute Lewis’ share of the estate directly to the trust. On May 31, 2018, Jaime 

S. Huff replaced Carol Rainey as Mick’s attorney. On June 1, 2018, Mick, as trustee, 

received $60,949.70 from Lewis’ father’s estate, and Mick placed the funds in the trust. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

9

Jenifer Mick, as trustee, frequently communicated with Lisa Lewis, largely by email and text. Mick often received requests from Lewis for distributions from the trust. 

Lewis presented Mick bills to pay that included past due rent, vehicle impound fees, 

parking fines, fines for criminal violations, and payments to other creditors. Mick 

concluded that Lewis’ SSI funds, not the trust, should pay these debts. 

Trustee Jennifer Mick met Lisa Lewis in person when paying larger expenditures. 

CP 188. Mick supplied Lewis with Quicken printouts of her expenditures. Mick 

documented her communications with Lewis and expenditures for Lewis’ needs and 

Mick’s trustee fees. 

On July 3, 2018, Jenifer Mick filed a petition for instructions from the court as to 

which bills the trust should pay for Lisa Lewis. In the petition, Mick remarked that

Lewis failed to take advantage of state resources before seeking assistance from the trust. 

Mick sought instructions from the court on payment for unpaid tickets, for a car in which 

Lewis could live, and for temporary housing in motel rooms. 

On July 13, 2018, the superior court ordered that the trust pay Lisa Lewis’ past 

parking tickets and impound fees, but no future fines or fees. The court authorized the 

trust to purchase an automobile for Lewis, provided Lewis obtained her driver’s license 

and insurance for the vehicle. Lewis, not the trust, would pay to maintain any car. 

Finally, the court approved of the trust tendering a deposit and the first months’ rent on 

housing. The court prohibited use of trust funds for hotels. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

10

In early 2019, Lisa Lewis retained attorney Douglas Schafer. On February 19, 

2019, Schafer e-mailed attorney Paul Ferman inquiring as to facts relevant to the special 

needs trust of Lewis. In a responding e-mail, Ferman informed Schafer that Lewis 

created and the court approved the trust. Ferman explained that Lewis refused to 

cooperate with finding a replacement trustee. Ferman remarked that John Tracy 

represented Lewis when Tracy created the trust document. Ferman mentioned that Lewis 

sought trust distributions for temporary hotel housing, gas, and other expenses, which did

not serve her best interests. Ferman added that Lewis’ excessive spending confirmed the 

need for a trust. In Paul Ferman’s e-mail response to Doug Schafer, Ferman suggested 

that Lisa Lewis gambled, took illicit drugs, and suffered a mental disability. 

PROCEDURE

We move to an extensive description of the motions on appeal. The extensive 

review of the procedural record enables us to determine what issues are before this court. 

On May 2, 2019, Jenifer Mick filed a petition for the approval of her first trustee 

report and accounting from April 27, 2018 through March 31, 2019. The accounting 

erroneously labeled Mick as the guardian for Lisa Lewis, not as trustee of a trust. 

Through counsel, Douglas Schafer, Lisa Lewis objected to Jenifer Mick’s first 

annual accounting and filed a motion to terminate the trust. In the motion to terminate, 

Lewis took advantage of Jenifer Mick’s mistaken classification of Mick’s role as a 

guardian, rather than a trustee. Lewis contended that the superior court lacked personal 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

11

jurisdiction over her because she never received service of a summons or other type of 

judicial process. Lewis, thus, asked the court to vacate all orders that authorized Mick to 

administer the trust and manage her money. Lewis asked for the distribution of trust 

funds to her. Lewis also asked that all fees paid from the trust to Mick and Mick’s 

attorney be reimbursed to Lewis. Finally, she requested attorney fees for Schafer, who 

acted in a pro bono capacity. 

In support of her motion to terminate the trust, Lisa Lewis filed a declaration in 

which she declared her full legal capacity. Lewis acknowledged signing the trust 

document, but insisted that she did not carefully read the document before signing. She 

maintained that she signed the document because she trusted Michael Torell, her 

appointed trustee. More importantly, Lewis denied authorizing her inheritance from her 

father to be placed in the trust. 

On May 10, 2019, the trial court conducted a hearing on trustee Jenifer Mick’s 

request for approval of her accounting and Lisa Lewis’ motion to terminate the trust. The 

court noted the lack of a response from Jenifer Mick to Lisa Lewis’ motion to terminate. 

Jaime Huff, attorney for Jenifer Mick, replied that Mick took no position as to the 

termination or continuance of the trust. Huff added that Mick played no role in the 

establishment of the trust. The superior court asked attorney Huff to identify the counsel 

who should respond to Lewis’ motion to terminate the trust. Huff named Paul Ferman, 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

12

Carol Rainey, and John Tracy. The court directed that Jaime Huff, Paul Ferman, Carol 

Rainey, and John Tracy all submit individual responses to Lisa Lewis’ motion. 

Thereafter John Tracy, the attorney who drafted Lisa Lewis’ trust, filed a 

declaration that explained his role in preparing the special needs trust. Tracy stated that 

the estate refused to release funds to the trust while Michael Torell served as trustee. He 

explained that Lewis never opposed the special needs trust, and she acted of her own free 

will when signing the trust instrument. Tracy declared that he explained the nuances of a 

special needs trust to both Lewis and Torell. 

Successor trustee Jenifer Mick submitted a declaration, in which she stated that 

Lisa Lewis, at the beginning of each month, asked for a distribution from the trust to pay 

for ordinary or inappropriate expenses. Therefore, Mick concluded that Lewis used her 

SSDI on unsuitable or unnecessary items. Mick declared that, when unsure of 

expenditures, she petitioned the court for instructions. Mick added that, as trustee, she 

attempted to protect the trust from people taking advantage of Lewis and from Lewis 

insisting on funds to replace multiple lost or stolen computers and phones. 

Jaime Huff, attorney for Jenifer Mick, submitted a declaration that attached an email from Kenneth Washington, a revenue agent with the Division of Finance and 

Financial Recovery of DSHS, which e-mail read that Lisa Lewis owed payment for past 

medical assistance in the sum of $41,902.50. Washington wrote that DSHS enjoyed a 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

13

lien for the amount owed and, if the trust terminated, DSHS could seize the trust funds to 

satisfy the lien. 

In a second declaration, Jaime Huff attached, among other e-mails, an e-mail dated 

January 29, 2018 from Paul Ferman to Lisa Lewis, in which Ferman explained that, if she 

lost her Medicaid benefits, she would lose her electronic benefits transfer (EBT) card and 

health benefits. Ferman explained that, having a trustee to disburse funds would permit 

her to keep these benefits. 

Trustee Jenifer Mick, through her counsel, Jaime Huff of Richmond & Richmond, 

also filed a memorandum in opposition to Lisa Lewis’ motion to terminate the trust. 

Neither Mick nor Huff filed a motion for sanctions or requested sanctions against Lisa 

Lewis or her counsel, Douglas Schafer, in the memorandum. Carol Rainey, Jenifer 

Mick’s former counsel, also did not file a motion seeking an award of sanctions. 

The law firm of Hall & West filed a declaration of Larry Hall, a declaration of 

Paul Ferman, a memorandum in opposition to Lisa Lewis’ motion to terminate the trust, 

and a motion for sanctions against Lewis and her counsel Douglas Schafer for the filing 

of a frivolous motion. The law firm sought sanctions for the time spent in responding to 

Lewis’ motion. 

In his declaration, Paul Ferman testified that any reference to a guardianship in 

earlier pleadings of trustee Jenifer Mick constituted a clerical error. Ferman asserted that 

Lisa Lewis suffered from an obvious cognitive disability and that she acted in a child-like 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

14

manner. He declared that Lewis’ sisters informed him of Lewis’ history of mental 

illness, drug abuse, and crime. Lewis also had many unpaid debts. Ferman stated that, 

based on Lewis’ history and mounting debt, he sent Lewis to John Tracy to create a 

special needs trust. 

In its memorandum of law, Hall & West wrote that Paul Ferman and Larry Hall 

expected that John Tracy would serve as Lewis’ attorney. Ferman later learned that 

Tracy acted as the attorney for Michael Torell to ensure that Torell would fulfill his 

fiduciary role for the trust. 

Also in Hall & West’s memorandum of authorities in opposition to Lisa Lewis’ 

motion to terminate the trust and in support of its motion for sanctions, the law firm 

acknowledged that the trust document did not explicitly mention the inheritance from the 

estate of Larry Low as the reason for the special needs trust or the asset to be placed in 

the trust. Nevertheless, according to the memorandum, the establishment of the trust 

after Low’s death and the trust document’s mention of creating the trust to receive 

proceeds from an inheritance confirmed the creation of the trust for the purpose of 

protecting Lisa Lewis’ inheritance. 

Lisa Lewis’ sister, Lana Prinz, submitted a declaration. Prinz declared that Lewis

continually asked her sisters for money after their father’s death. She opined that Lewis 

needed a trustee to manage her inheritance. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

15

Lisa Lewis filed a reply memorandum to the responses to her motion to terminate 

the trust. Lewis argued that attorneys Larry Hall and Paul Ferman erroneously believed 

her to suffer a disability, yet the two attorneys for her father’s estate never asked the 

superior court to appoint her a guardian ad litem. She reiterated her full capacity to 

manage her affairs. 

In her reply memorandum, Lisa Lewis renewed her arguments that the court 

lacked personal jurisdiction over her. Lewis also addressed the possibility that a 

Medicaid lien existed. She argued that the trust, if terminated, would be required to repay 

the state for past medical assistance only if the trust was properly created, which it was 

not. She contended that the law limited a state’s ability to recover past medical benefits 

and that the DSHS claim for reimbursement would require further examination. She 

further maintained that, even if a Medicaid lien existed, DSHS could now attempt to seize 

trust money. She added, however, that she might possess defenses to collection or DSHS 

may compromise its claim. She speculated that DSHS might afford her a hardship 

waiver or permit her to use her inheritance to purchase an exempt asset. Lewis contended 

that Jennifer Mick failed in her duty as a trustee by failing to investigate whether Lewis 

received needs-based benefits and whether disbursements for food and shelter would 

affect Lewis’ ability to acquire those benefits. 

On June 17, 2019, the superior court entertained oral argument on Lisa Lewis’

motion to the terminate trust. During the hearing, Lewis contended that the court never 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

16

obtained personal jurisdiction over her. Paul Ferman responded that Lewis, the trust

grantor, consented to a self-imposed special needs trust. Ferman argued that a person, 

such as Lewis, who consents to and creates a trust and who obtains an order from the 

court confirming the existence of the trust, cannot thereafter complain that the court 

lacked personal jurisdiction over her and the trust. Ferman warned that termination of the 

trust would harm Lewis. He added that sanctions should be imposed against Lewis’ 

counsel, Douglas Schafer, because his representation damaged his client’s best interests. 

During oral argument on June 17, trustee Jenifer Mick emphasized that Lisa Lewis 

never claimed she signed the trust under duress. Mick contended that Lewis was on 

Medicaid and Medicare, and she informed the court that Medicaid was needs-based and 

required the State to look to Lewis’ resources. Mick mentioned that a special needs trust 

allows the beneficiary to continue to receive medical assistance from the government 

despite the trust asset. 

During the June 17 hearing, Carole Rainey, former attorney for Jenifer Mick,

commented that the special needs trust served Lisa Lewis’ interests. Rainey added that, 

after investigating the facts, Doug Schafer should have advised his client not to challenge 

the trust. 

Lisa Lewis, through counsel, responded that, in the context of guardianships, one 

must first obtain jurisdiction over an alleged incapacitated person. Lewis then argued

that the record did not support that John Tracy explained the special needs trust to Lewis 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

17

or that she “carefully read” the trust document. Report of Proceedings (RP) (June 17, 

2019) at 28. According to Lewis, she also lacked representation when signing the 

instrument, and the trust document made no reference to her inheritance. Lewis insisted 

that a state-funded Medicare program paid her modest premiums. She asserted that, 

rather than investigating the source of the premium payment, trustee Jenifer Mick and her 

attorneys assumed that Lewis received Medicaid and that she needed a trust. She 

concluded by arguing that the law does not protect funds in a self-created special needs 

from creditors. 

In its oral ruling on June 17, 2019, the trial court rejected Lisa Lewis’ contention 

that the court lacked personal jurisdiction because Lisa Lewis signed and agreed to the 

special needs trust. The court denied the motion to terminate the trust because Lewis 

would immediately forfeit the funds in the trust to the government. The court then 

entered an order approving the trustee’s accounting and denying the motion to terminate. 

At the end of the June 17 hearing, the superior court granted the requests for CR 

11 sanctions. Counsel Jaime Huff inquired whether the court intended to impose fees 

against Douglas Schafer or the trust. The following exchange occurred:

THE COURT: Well, that’s the Court’s concern. I don’t want all of 

it against the trust.

MS. HUFF: It’s significant.

THE COURT: It’s significant. I think your amount was $900.

MS. HUFF: Well, that was just for the accounting, Your Honor.

THE COURT: What’s your most recent?
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

18

MS. HUFF: My most recent from January is $4,670.67. The bulk 

of that is responding to this. 

THE COURT: All right. Let’s go through those carefully. Your 

amount is $4,670.67?

MS. HUFF: $4,670.67. $959.97 is what I was originally requesting 

when we were going to ask the Court to approve the accounting. 

Everything else was in response to this motion.

THE COURT: Mr. Ferman, how much is yours?

MR. FERMAN: $4,013. That’s everything from responding to Mr. 

Schafer originally to doing the memorandum and declarations and 

everything.

THE COURT: How much is Ms. Rainey’s?

MS. RAINEY: $900, Your Honor.

RP (June 17, 2019) at 33-34. 

The superior court asked about the amount in the trust to assist the court in 

deciding against whom to award sanctions. Douglas Schafer then stated:

Your Honor, if I could just comment. I volunteered for this because 

I thought there was a serious injustice being committed on her. If the Court 

is going to order me to pay significant fees, I’m going to have to appeal it. 

I simply have to. I’m just saying that’s the real world we’re in. I will 

appeal this. 

RP (June 17, 2019) at 35. The court responded:

The Court’s main concern is the corpus of the trust and what is in 

her best interests. I’m not taking any remarks of threats. I don’t appreciate 

them in that context. 

I’m concerned, if I award any fees too high, it will be detrimental to 

Ms. Lewis. That is my concern, not the legal ramifications. I’m also 

mindful that appeals are going to cost money. People will have to respond, 

depleting further assets of the trust. 

My job as judge is to protect what little money she has left. I will 

award attorneys’ fees against the trust, but they’re going to be reduced. 

This is going to be over today. I don’t want to continue to drain what 

limited money she has. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

19

RP (June 17, 2019) at 35-36 (emphasis added). 

The trial court awarded fees, under CR 11, at a reduced amount as follows: $2,000 

to Hall & West, $2,000 to Jaime Huff, attorney for Jenifer Mick, and $900 to Carol 

Rainey, former attorney for Mick. The court ordered all sanctions be imposed against the 

special needs trust with the hope that litigation will cease as a result of withholding 

sanctions against Douglas Schafer. In its oral ruling, the trial court acknowledged that 

the reduced fees failed to compensate the responding attorneys for their work in opposing 

the motion to terminate the trust. 

The superior court entered findings of fact in support of granting the motion for 

sanctions against Lisa Lewis’ trust. 

1. Petitioner filed its motion claiming lack of this Court’s 

jurisdiction over a Special Needs Trust it established with the signatures 

and consent of Petitioner.

2. Said position has no basis in law. Ct. [The court] [f]inds no merit 

in this motion.

. . . .

5. Petitioner’s counsel was advised prior to filing that this position 

has no basis in law or fact.

6. Petitioner nonetheless filed her petition.

7. The relief sought by Petitioner’s motion would be detrimental to 

Petitioner, and the mere filing of such Petition could impair Petitioner’s 

claim to valuable benefits.

8. Petitioner’s counsel was advised prior to filing his petition that 

the filing of the petition and the relief he sought could harm his client.

CP at 239-40. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

20

On June 27, 2019, Jenifer Mick, through counsel Jaime Huff and Richmond & 

Richmond, moved for reconsideration and asked that the superior court impose sanctions 

against counsel for Lisa Lewis, Douglas Schafer, instead of the trust. Mick contended 

that the court should not tolerate the bullying of Schafer. Mick noted that the superior 

court’s previous finding of fact showed that Schafer filed a motion with no basis in law or 

fact. Mick stated that, if the court imposed CR 11 sanctions against Schafer, counsel for 

Mick would seek fees from Schafer only in order to protect the trust corpus. Richmond 

& Richmond, the firm which represented Mick, also agreed to defend any appeal should 

one occur and to waive legal fees should this court reverse the award of sanctions against 

Schafer. The motion for reconsideration presumably sought a ruling imposing the fees 

awarded in favor of all three legal entities, Jaime Huff or Richmond & Richmond, Hall & 

West, and Carol Rainey, or at the least the fees incurred by Mick’s current counsel, 

Richmond & Richmond. 

In response to the motion for reconsideration, Douglas Schafer denied any 

bullying behavior. He stated that he merely politely informed the court that he would 

appeal an award of sanctions imposed against him personally, particularly since he 

worked pro bono for Lewis. 

As an exhibit to her response to the motion for reconsideration, Lisa Lewis 

included an e-mail exchange between Douglas Shafer and Kenneth Washington, the 

revenue agent with DSHS. On July 10, 2019, Schafer, in his opening e-mail, asked 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

21

Washington for the basis of his opinion that the trust, should it terminate, must repay a 

Medicaid lien. Kenneth Washington responded that the State of Washington is the 

beneficiary of a special needs trust under federal and Washington law. He clarified,

however, that, if no special needs trust existed, no law required the Medicaid lien be 

repaid. Nevertheless, if Lisa Lewis, at the time of a court declaration voiding the trust,

possessed resources over the permitted limit, she would become ineligible for any 

Medicaid benefits. 

The superior court granted the motion for reconsideration and ruled that Douglas 

Schafer would pay Carol Rainey’s and Hall & West’s fees under CR 11. The court 

maintained the reduced award of sanctions. Remarkably, the superior court did not 

amend the earlier order to permit trustee Jenifer Mick or her attorneys Jaime Huff and her 

law firm, Richmond & Richmond, recovery against Doug Schafer personally. Mick was 

the only party who filed the motion for reconsideration to impose fees against counsel 

Doug Schafer, but she benefited none by the motion. We assume that the previous 

judgment for $2,000 in favor of Jaime Huff against Lisa Lewis remained valid after the 

reconsideration ruling. 

In her notice of appeal, Lisa Lewis writes:

The names and addresses of counsel for parties in this proceeding 

are: 

Douglas A. Schafer (attorney for Lisa Dawn Lewis) 

Schafer Law Firm

. . . .
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

22

Jamie S. Huff (attorney for Trustee Jenifer Mick)

Richmond & Richmond, Ltd.

. . . .

The following non-party friend of the court lawyers filed 

declarations of facts and memoranda of legal arguments, and in orders 

being appealed were awarded fees by the court for doing so:

Carol Horan Rainey (former attorney for Trustee Jenifer Mick)

. . . .

Lawrence R. Hall (attorney for the administrator of the probate 

estate of Ms. Lewis’ father)

Hall & West, P.S.

. . . .

J. Paul Ferman (attorney for the administrator of the probate estate 

of Ms. Lewis’ father)

Hall & West, P.S.

CP at 290 (some italics added).

Trustee Jenifer Mick filed a notice of cross-appeal. The cross-appeal seeks to 

increase the award of sanctions to pay all attorneys for the full amount of work performed 

in responding to Lisa Lewis’ motion to terminate the trust. Mick’s notice partially reads:

COMES NOW the Trustee, by and through their attorneys, 

RICHMOND & RICHMOND, Ltd., and hereby seeks review of the Ruling 

entered on June 17, 2019, and reconsidered on August 15, 2019.

CP at 299. 

The appeal brief written by Richmond & Richmond, as attorneys for Jenifer Mick, 

lists Mick, Carol Rainey, and Hall & West as respondents. In the body of her brief, 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

23

Jenifer Mick argues that Paul Ferman, an attorney with Hall & West, and Carol Rainey 

were parties for purposes of an award of attorney fees under CR 11. Mick does not argue 

that she was a party, nor does she ask that fees she incurred before the superior court be 

awarded against Douglas Schafer. In Lisa Lewis’ brief, Lewis only argues against fees 

being awarded to Carol Rainey and Hall & West, not in support of a reversal of the award 

of fees for Jaime Huff and Richmond & Richmond, Mick’s current counsel. 

LAW AND ANALYSIS

Lisa Lewis appeals the trial court’s order approving Jenifer Mick’s accounting, the 

order denying the motion to terminate Lewis’ trust, and the order granting CR 11 

sanctions against the trust and Douglas Schafer. She further argues that the trial court 

abused its discretion when it held that Lewis and Douglas Schafer violated CR 11. 

Termination of Trust

In seeking to terminate the trust, Lisa Lewis argues that the superior court lacked 

jurisdiction over her, that she signed the initial trust document under coercion or duress, 

that she should have been afforded counsel before signing the trust instrument, that she 

should have been appointed a guardian ad litem before signing the trust document, and 

that the trust was not needed to shield Lewis’ assets from the government despite Lewis 

receiving government benefits. We address these contentions in such order. 

Lisa Lewis argues that the superior court lacked personal jurisdiction over her 

when the court purportedly ordered, on April 27, 2018, that her inheritance from her 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

24

father’s estate would fund her special needs trust. Lewis contends that this superior court 

ruling directed the trustee, Jenifer Mick, to convert her property into the trust. Lewis 

highlights that she received no service of a summons, citation, or other judicial process

which would provide the superior court the power to exercise personal jurisdiction over 

her in April 2018. Lewis does not contend that the superior court lacked personal 

jurisdiction over her when the court approved the special needs trust in August 2017. 

We reject Lisa Lewis’ contention because her argument assumes that that the April 

27, 2018 order directed that the inheritance funds be placed in the trust. The order does 

not so read. The April 27 order approved the appointment of a successor trustee and a 

restatement of the trust. The order did not mention how to fund the already created 

special needs trust. 

On April 27, 2018, the superior court also signed the restatement of trust, but the 

trust reads that the grantor, Lisa Lewis, holds the prerogative to assign property to the 

trust and allows third parties, with the consent of the trustee, to transfer property to the 

trust. The restatement references the inheritance in a Schedule A, but does not compel 

the funds to be placed in the special needs trust. 

Lisa Lewis contends that, although no express order funded the trust, the trial

court’s approval of the restated trust document, with its appended and completed 

Schedule A, should be interpreted as such an order. She also argues that trustee Jenifer 

Mick and her attorney, Carol Rainey, surreptitiously and fraudulently changed the 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

25

language of the trust by inserting, on Schedule A, the inheritance due from Larry Low’s 

estate. In a declaration, she avers that she never signed a document that assigned the trust 

her inheritance rights. 

Based on the language of the initial trust, we reject Lisa Lewis’ argument. The 

trust instrument declared that “[t]his Trust is being established to receive proceeds that 

LISA would otherwise receive directly by gift, inheritance, or other source.” CP at 7 

(Emphasis added). The only inheritance anticipated then by Lewis was the money from 

her father’s estate. The primary, if sole, purpose of the special needs trust was to manage 

the inheritance and protect the funds from creditors. Lewis signed the trust document. 

Therefore, she consented to her inheritance being placed in the trust. The later restated 

trust and the attached Schedule A are irrelevant. Court approval of the placement of the 

inheritance funds into the trust was unnecessary. Service of any pleadings in April 2018 

was also unnecessary, since Lisa Lewis already granted the trustee authority to accept the 

inheritance as a trust asset. 

Lisa Lewis next contends that she was under duress at the time she signed the 

initial trust document. She argues that attorney Larry Hall coerced her into signing the 

trust document, and she underscores that she lacked her own legal counsel at the time of 

signing. Lewis emphasizes her declaration testimony, in which she states that “Mr. Hall 

told me that I needed to have a trust and to pick a trustee or else I would not get anything 

from the estate.” CP at 113 (boldface and italics omitted). 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

26

Many facts contradict Lisa Lewis’ assertion of coercion and duress. Lewis insists 

that she has full legal capacity and no cognitive impairment. Lana Prinz does not recall 

that an attorney, during the initial meeting between the sisters with Larry Hall and Paul 

Ferman, told Lewis that she must have a trust. Hall also denies stating that Lewis must 

have a trust. Even assuming Larry Hall told Lisa Lewis that she needed a trust in order to 

gain her inheritance, Hall could have been worried that the government might intercept 

the entirety or part of the inheritance if Lewis did not create a trust such that Lewis would 

not otherwise inherit the funds. 

Going further, the interaction with Larry Hall took place on June 2, 2017, two 

months before the signing of the trust document. Lewis does not claim that the estate 

attorneys were present at John Tracy’s office when, on July 25, 2017, Lewis, with her 

chosen trustee, Michael Torell, met Tracy to discuss the creation of a special needs trust. 

Lewis did not complain to Tracy that she acted under duress. Lewis signed the trust 

document on August 2, 2017. 

Lisa Lewis also contends that, at her meeting with John Tracy, she did not 

carefully read the trust document. Further, Lewis states that she signed the document 

because she felt she could trust Michael Torell, her appointed trustee and good friend. 

She lacks a similar trust of successor trustee, Jenifer Mick. These additional arguments 

do not vitiate her signature on the trust. Lewis cites no law that suggests one can avoid 

the effects of a legal document by failing to read the document before signing. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

27

We conclude, after a review of the pleadings, that Lisa Lewis did not sign the trust 

document under duress or coercion. By signing the agreement, Lisa Lewis consented to 

the transfer of her inheritance to the trust. We note that Lisa Lewis does not contend her 

pleadings raised a question of fact as to her signing freely and voluntarily. She does not 

argue that the superior court should have conducted an evidentiary hearing. 

Lisa Lewis, based on In re Marriage of Matson, 107 Wn.2d 479, 730 P.2d 668 

(1986) next suggests that Washington case law requires that a party retain independent 

counsel when signing a property agreement, before the court will enforce the agreement. 

In re Marriage of Matson concerned a prenuptial agreement, an agreement that demands 

extra protection for the parties because of the advantages that one party can take under 

the close marital relationship. A party to such an antenuptial agreement must know the 

full extent of the other party’s assets and have the opportunity to obtain independent 

advice of his or her rights. The court’s focus in such a case is on procedural fairness such 

that a spouse has the “opportunity, freely and intelligently, to waive [his or] her rights to 

a just and equitable division of property.” In re Marriage of Matson, 107 Wn.2d at 487. 

Marriage of Matson lacks relevance to Lisa Lewis’ dispute. Lewis’ request to 

terminate her trust involves no prenuptial agreement or a fair division of property. The 

property transferred to the trust was Lewis’ inheritance. Lewis’ only allegation relevant 

to the trust corpus is that she did not know the trust would receive the funds from her 

father’s estate. The document, however, specifically reads that the trust would receive 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

28

proceeds from Lewis’ inheritance. Lewis does not allege that John Tracy, the drafter of 

the trust instrument, acted in the best interest of trustee Michael Torell rather than Lewis. 

Tracy declared that he explained the nature of a special needs trust to both Torell and 

Lewis. He also informed Lewis that he represented former trustee Torell rather than 

Lewis. Lewis expressed her desire to have a special needs trust. 

In her reply brief, Lisa Lewis suggests that the attorneys who wished for her to 

benefit from a trust should have afforded her the same protections afforded an alleged 

incompetent person before signing the initial trust document. For instance, a guardian ad 

litem should have been appointed her. Lewis emphasizes testimony of Hall that Lewis 

straddled the border of competency. Nevertheless, no court has declared Lewis to be 

incompetent. She insists that she is competent. 

Both parties devote pages to contending whether Lisa Lewis’ receipt of her 

inheritance outside of a trust would disqualify her for government benefits and whether, 

if the trust terminated, the government could seize former trust assets to reimburse itself 

for expenditures on behalf of Lewis. Lewis contends that neither is true, and, therefore, 

the reason behind creating the trust fails. Since that reason fails, the trust fails, according 

to Lewis. 

We agree with Lisa Lewis that the principal purpose behind the trust was to shield 

her SSDI benefits and any Medicaid benefits she might receive. Nevertheless, the trust 

does not read that protecting receipt of government benefits is the sole objective behind 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

29

the trust. The facts show that others took advantage of Lewis and Lewis needed 

protection from creditors. The trust was needed regardless of whether the trust shielded 

the inheritance from the government. Those administering the estate of Larry Low and 

Lisa Lewis’ sisters justifiably wanted to protect Lewis’ inheritance from waste. 

Therefore, we decline to enter the confusing realm of government benefits law. 

Trustee Accounting

Lisa Lewis next contends that the superior court erred in approving the 

trustee’s report and accounting when granting the trustee’s requested fees. Lewis 

submits four sentences of argument contending that Jenifer Mick failed to protect 

Lewis’ interests when she wrongfully took control of Lewis’ inheritance. Lewis 

argues that Mick failed to conduct an investigation as to whether Lewis received any 

needs-based benefits or whether she was entitled to such benefits. She argues that 

Mick maintained an unfounded belief that paying for Lewis’ food or shelter would 

disqualify Lewis from receiving significant benefits. Therefore, Mick, when relying 

on this belief, failed to pay for needs not covered by governmental agencies as 

permitted by the trust document. 

Trustee Jenifer Mick responds that Lisa Lewis fails to cite to legal authority or

a factual basis for her claims. Further, Mick argues that the record supports that 

Lewis received needs-based benefits. She contends that Lewis fails to show what, if 

any, duty Mick violated as a fiduciary. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

30

A party violates RAP 10.3(a)(6) when he or she fails to provide citation to 

legal authority in support of her argument. Collins v. Clark County Fire District 

Number 5, 155 Wn. App. 48, 95-96, 231 P.3d 1211 (2010). We need not consider 

arguments that are not developed in the briefs and for which a party has not cited 

authority. Bercier v. Kiga, 127 Wn. App. 809, 824, 103 P.3d 232 (2004). 

We agree with Jenifer Mick that Lisa Lewis fails to cite legal authority in her 

argument. Lewis also fails to identify the legal duty Mick purportedly violated. 

Therefore, we reject this assignment of error. 

CR 11 Sanctions

Lisa Lewis forwards numerous contentions in support of her challenge and her 

counsel’s challenge to the imposition of CR 11 sanctions in the form of reasonable 

attorney fees and costs granted to at least two of the three attorneys or law firms. Lewis 

contends that she did not submit a baseless motion to terminate the trust. She argues that 

neither opposing counsel nor the trial court provided notice that the motion to terminate 

would be subject to CR 11 sanctions. Finally, she posits that a trial court may grant a 

sanctions award under CR 11 to a party only, and, therefore, the trial court erred in 

awarding sanctions to Carol Rainey and the law firm Hall & West. We hold that, under 

CR 11, the superior court may not award fees to a nonparty witness, even one who is an 

attorney. Therefore, we do not address Lisa Lewis’ other contentions. 

Jenifer Mick appeals the superior court’s denial of the full amount of fees incurred 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

31

by her and Hall & West. Because we otherwise hold that Mick and Hall & West are not 

entitled to any award of fees, we do not address Mick’s cross-appeal. 

CR 11(a) provides in relevant part:

Every pleading, motion, and legal memorandum of a party 

represented by an attorney shall be dated and signed by at least one attorney 

of record in the attorney’s individual name. . . . The signature of a party or 

of an attorney constitutes a certificate by the party or attorney that the party 

or attorney has read the pleading, motion, or legal memorandum, and that 

to the best of the party’s or attorney’s knowledge, information, and belief, 

formed after an inquiry reasonable under the circumstances:

 (1) it is well grounded in fact;

 (2) it is warranted by existing law or a good faith argument for the 

extension, modification, or reversal of existing law or the establishment of 

new law;

 (3) it is not interposed for any improper purpose, such as to harass or 

to cause unnecessary delay or needless increase in the cost of litigation.

. . . .

. . . If a pleading, motion, or legal memorandum is signed in 

violation of this rule, the court, upon motion or upon its own initiative, may 

impose upon the person who signed it, a represented party, or both, an 

appropriate sanction, which may include an order to pay to the other party 

or parties the amount of the reasonable expenses incurred because of the 

filing of the pleading, motion, or legal memorandum, including a 

reasonable attorney fee.

We observe that CR 11 does not expressly authorize an award of reasonable expenses 

incurred by a witness, let alone an attorney witness. The rule only mentions awarding a 

“party” reasonable attorney fees and costs incurred in responding to frivolous pleadings. 

Nevertheless, the rule does not limit itself to an award of reasonable attorney fees to 

parties, but authorizes the court to impose any “appropriate sanction.” We must decide 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

32

whether an “appropriate sanction” includes the hourly fees charged by an attorney, when 

the attorney files a declaration and memorandum as a witness, not as counsel for a party. 

No Washington case law directly answers the pending question. We could 

reasonably read CR 11 to support each of the conflicting positions presented on appeal. 

We base our decision on the prevailing, if not universal, view that a nonparty to a suit 

cannot recover costs or attorney fees in the pending litigation. 

Three Washington decisions focus on the issue of awarding fees to a nonparty. In 

W.J. Lake & Co. v. King County, 4 Wn.2d 651, 104 P.2d 599 (1940), amicus curiae 

sought costs incurred for the printing of his brief, for his appearance fee paid in this court,

and for the statutory attorney fee. The Washington Supreme Court denied the request. 

No statute expressly authorized amicus to recover costs or fees. 

In Roberts v. Bechtel, 74 Wn. App. 685, 875 P.2d 14 (1994), the plaintiff in an 

earlier tort lawsuit brought a second action against the defendant in the first suit for filing 

a frivolous counterclaim in the first lawsuit. This court denied an award of attorney fees, 

under the frivolous litigation statute, RCW 4.84.185, because the plaintiff’s insurance 

carrier paid the bills of the attorney who represented the plaintiff on the counterclaim. 

The insurance company was not a party to the second litigation.

In G.W. Equipment Leasing, Inc. v. Mt. McKinley Fence Co., 97 Wn. App. 191, 

982 P.2d 114 (1999), an attorney represented his spouse, himself, and a party not named 

in the litigation. He successfully defended the claim against his marital community. He 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

33

then sought an award of reasonable attorney fees under RCW 4.84.330, which mandates 

an award of reasonable attorney fees to the prevailing party when a contract or agreement 

so provides. Unfortunately for the attorney, however, he only requested fees as the 

attorney for the nonparty. The court noted that the attorney should have requested fees 

on his own behalf as the representative of his marital community. The court denied the 

request. 

Ohio and Iowa courts follow the rule that costs are generally not recoverable by a 

person not a party to the litigation. Rerat Law Firm v. Iowa District Court for 

Pottawattamie County, 375 N.W.2d 226, 228 (Iowa 1985); Dickinson v. Hot Mixed 

Bituminous Industry of Ohio, 58 N.E.2d 78, 81 (Ohio Ct. App.1943). The court adopted 

the rule because persons cannot have the privilege of taking costs without having placed 

themselves in a position to be liable for their payment in case of a failure to succeed.

Rerat Law Firm v. Iowa District Court for Pottawattamie County, 375 N.W.2d at 228; 

Dickinson v. Hot Mixed Bituminous Industry of Ohio, 58 N.E.2d at 81. The Iowa 

decision cited W.J. Lake & Co. v. King County in support of denying a nonparty costs. 

In Reeves v. Upson Regional Medical Center, 315 Ga. App. 582, 726 S.E.2d 544

(2012), the court reviewed the Georgia statute that permitted the trial court to award 

reasonable attorney fees and costs in the event a lawyer or a party engages in frivolous 

litigation or misconduct. A party, who was served a subpoena for production of records,

sought recovery of its fees under the statute. The Georgia court denied any award 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

34

because the party was not a party to the lawsuit. The statute did not expressly authorize 

an award to a nonparty, nor did it explicitly forbid it. 

In Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 256, 245 P.3d 992 

(2010), the Idaho high court reversed an award of attorney fees to an attorney for time 

worked after being disqualified as an attorney because of his being a witness. In Eskind 

v. Harvey, 20 Ga. App. 412, 93 S.E. 39 (1917), the court reversed the trial court’s award 

of costs to a nonparty. In Brentlinger v. Funk, 26 Ky. 656 (1830), the court held that 

costs are not properly taxable against a person not a party to the record. 

In a footnote, Jenifer Mick also contends RCW 11.96A.150, a section of the Trust 

and Estate Dispute Resolution Act, authorizes the superior court to award witnesses 

reasonable attorney fees and costs. The statute declares in part:

(1) 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; or (c) from any nonprobate 

asset that is the subject of the 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.

(2) This section applies to all proceedings governed by this title, 

including but not limited to proceedings involving trusts. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

35

(Emphasis added.) Mick argues that the omission of the phrase “to the proceedings” 

following the first reference to “party” in the statute indicates a legislative intent to 

permit an award of fees to one not a party to the TEDRA proceeding. 

We question whether we should address an important argument raised by a party 

only in a footnote. Nevertheless, we decline to entertain Jenifer Mick’s request to affirm 

the superior court’s award of fees to her under RCW 11.96A.150, because Mick never 

sought an award under the statute before the trial court. This court may refuse to base a 

decision on a new theory advanced by a party on appeal. Bernal v. American Honda 

Motor Co., 87 Wn.2d 406, 414, 553 P.2d 107 (1976). 

The superior court granted Jenifer Mick, Carol Rainey, and Hall & West attorney 

fees. Presumably Jaime Huff and Richmond & Richmond, the current attorneys for 

Mick, are the beneficiaries of the fees awarded Jenifer Mick. No party on appeal 

discusses whether any of the three were parties below or are parties on appeal. 

We conclude that the lawyers Carol Rainey and Hall & West were not parties 

below nor are parties on appeal. Also of importance, neither Rainey nor Hall & West 

filed an appeal brief. Thus, neither contends that they are parties for purposes of an 

award of reasonable attorney fees and costs. 

We recognize that Hall & West presented a legal memorandum to the superior 

court, but they primarily functioned as witnesses. We question whether an attorney 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

36

witness should also be appearing as a lawyer in a case. We reverse the awards in favor of 

Carol Rainey and Hall & West. 

Jenifer Mick argued, during the first hearing on the motion to terminate the trust, 

she was not a party to the dispute as to termination. She thereafter acted as a party and 

may be considered a party since she represents Lisa Lewis’ special needs trust. On 

appeal, she acts as a party. In Lisa Lewis’ appeal brief, Lewis lists Mick as a party. 

Regardless of whether Jenifer Mick is a party to this legal proceeding, the superior 

court never awarded her or her current attorneys, Richmond & Richmond, fees against 

Douglas Schafer. The superior court awarded Jaime Huff, of Richmond & Richmond, 

$2,000 in fees against the trust. Lewis does not argue in her brief for a reversal of the 

fees in favor of Huff against her trust. Nevertheless, Richmond & Richmond agreed to 

waive any fees if this court reversed the award of sanctions. We take the law firm at its 

word and vacate the award against the trust. 

Attorney Fees on Appeal

Both parties seek an award of reasonable attorney fees and costs on appeal. Lisa 

Lewis requests fees under RCW 11.96.150, a section of the Trust and Estate Dispute

Resolution Act, which grants this court discretion in awarding attorney fees. We 

previously quoted this statute. We deny Lewis’ request because she loses on her request 

to terminate the trust and because we affirm Jenifer Mick’s accounting. 
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

37

Jenifer Mick argues that she is entitled to fees under CR 11 because Lisa Lewis 

has brought a frivolous appeal. RAP 18.1 allows this court to grant a party fees because 

of a frivolous appeal. Mick asks that any award of sanctions be entered against Douglas 

Schafer rather than the special needs trust. She contends that, as counsel for Lewis, 

Schafer had the duty to look to the applicable law and determine whether his client’s 

requested remedy would benefit the client. She contends that Schafer’s actions harmed 

Lewis. 

In determining whether an appeal is frivolous, justifying the imposition of terms, 

we are guided by the following considerations: (1) a civil appellant has a right to appeal 

under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in 

favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that 

is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is 

frivolous if there are no debatable issues upon which reasonable minds might differ, and 

it is so totally devoid of merit that there was no reasonable possibility of reversal. Tiffany 

Family Trust Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005), abrogated 

in part by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019). In assessing the 

frivolity of an appeal, we must determine the appeal to be frivolous as a whole, not 

whether one issue or assignment of error is frivolous. In re Marriage of Lee, 176 Wn. 

App. 678, 693, 310 P.3d 845 (2013).
No. 37972-8-III

In re Trust of: Lisa Dawn Lewis

38

We agree with Lisa Lewis’ argument that witnesses cannot be awarded sanctions 

under CR 11. Therefore, the appeal is not frivolous. We award no fees on appeal against 

Douglas Schafer. 

Alternatively, Jennifer Mick asks for an award of fees under RCW 11.96A.150. 

We would have awarded Mick fees from the trust estate, but her counsel agreed to waive 

any fees if this court reversed the award of sanctions. 

CONCLUSIONS

We affirm the superior court’s denial of Lisa Lewis’ motion to terminate her 

special needs trust and the court’s approval of trustee Jenifer Mick’s accounting. We 

reverse all awards of fees in favor of Jaime Huff and Richmond & Richmond, Hall & 

West, and Carol Rainey. We deny all parties an award of fees and costs on appeal. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

______________________________ _________________________________

Siddoway, A.C.J. Lawrence-Berrey, J.