### FILED MAY 12, 2016 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter ofthe Estate of ) ) No. 

### 33315-9-111 RANDALL W. TRAVIS, ) ) Deceased. ) ) CARMEL TRAVIS, ) UNPUBLISHED OPINION ) Appellant, ) v. ) ) LETATRAVIS, ) ) Respondent, ) ) BETTYTRAVIS, ) ) Defendant. ) FEARING, C.J. -LetaTravis incurs more attorney fees by appealing thetrial court'sruling denying her an award ofreasonable attorney fees. We affirm the trial court'sruling and deny eitherparty an award ofattorney fees on appeal.No. 33315-9-111 In re Estate of Travis

FACTS Randall and Betty Travis raised two daughters, Carmel and Leta. In 1982, Randall died and established a testamentary trustwith Betty, Carmel, and Leta as beneficiaries and Betty as trustee. In December 2012, Carmel Travis accused her sister, Leta, ofinfluencing their mother, Betty, in the management ofthe trust to Leta's benefit.and Carmel's detriment. Shortly thereafter, AdultProtective Services (APS) informedLeta ofan accusationthat she exploited and mistreatedher mother. APS later dismissed the allegations as unsubstantiated. Even later APS contacted Leta again regarding a second complaint alleging Leta financially exploited Betty. On March 20, 2013, Betty Travis, Carmel Travis, and Leta Travis recorded, with the Garfield County Superior Court clerk, an agreement under Washington's Trust and Estates Dispute Resolution Act, chapter 11.96ARCW (TEDRA). The agreement directed that Betty Travis remain the primary income beneficiary oftwo ofthe trust assets and assigned each assetto one ofthe sisters upon Betty's death. The TEDRA agreement did not end disputes. PROCEDURE On December 5, 2013, Carmel Travis filed a TEDRApetitionto remove Betty as trustee, to obtain an accounting, to disburse funds, to enforce the earlierTEDRA agreement, and for an award ofattorney fees and costs. Carmel named Betty as the sole 2No. 33315-9-111 In re Estate of Travis respondent in the petition. Thepetition allegedthatBetty lackedthe mental and physical capacity to manage the trust, that Betty exhibited hostility toward Carmel as illustrated by two attempts to procure restraining orders, that Betty refused to communicatewith Carmel, that Betty failed to perform an annual accounting ofthe trust, and thatBetty refused to prepare a trustbudget. In the TEDRApetition, Carmel alleged: 2.10 Leta is the attorney-in-fact for Betty, helps Betty on a daily basis with Betty's financial andpersonal needs, takes Bettyto Betty's attorneys and doctors, is believedto attend.meetings with Betty's attorneys and doctors, is paidto help Betty, exerts substantial influence overBetty's actions adverse to those ofCarmel and, as a result ofher confidential relationship with Betty, which Leta uses to her advantage, Bettyhas a conflict with Carmel overthe administration ofthe Trust. Clerk's Paper's (CP) at 273. In its response to the petition, Betty Travis sought an order from the trial court directing the parties to mediatethe dispute. On September 18, 2014, the trial court signed an agreed order directing APS to produce its records concerning Betty Travis. On September26, Leta Travis, through a stipulated orderwith Betty and Carmel, intervened in Carmel's TEDRApetition action. On November 14, Leta served Carmel interrogatories and requests for production. On December 8, 2014, Carmel voluntarily dismissed the TEDRApetition under CR 4l(a)(l)(B). After dismissal ofCarmel Travis's TEDRApetition, Leta Travis filed a motion for

an award ofattorney fees and costs against Carmel pursuantto RCW l l .96A.150, RCW 4.84.185, and CR 11. Carmel followed with a counter motion for fees against Leta 3No. 33315-9-III In re Estate of Travis pursuantto RCW 11.96A.150. Carmel also defended Leta's demand for fees onthe ground that Carmel needed to file the TEDRApetition to coerce the disclosure of information. Carmel declared that she dismissed the petition when thepetition accomplished its purpose. The trial court denied each sister's requests for reasonable attorney fees and costs. The trial court denied fees to Leta Travis under CR 11 because Carmel'sTEDRApetition

was not a baseless filing. The trial court noted difficulty in declaring a TEDRApetition frivolous whenthe gravamen ofthe petition alleged a failure to provide a trust beneficiary an accounting and other information. The trial court denied Leta fees under RCW4.84.185 because Leta intervened in the suit, did not file a responsive pleading identifying the allegations for which she sought intervention, and did not file an answer alleging that the claims against her were frivolous. When addressing whether eitherparty should recover attorney fees and costs under RCW 11.96A.150, a section ofTEDRA, the court found thatneither sister showed bad faith by the other sister, all parties violated duties in theirtrust dealings, andthe trust did not substantially benefit from either sister's actions. The trial courtnoted difficulty imposing fees on Carmel Travis when she needed to file the petition to gain information regarding trust transactions. The trial court also astutely noted that ordering the trustto pay eachparty's fees led to the same result as requiring eachparty to payher own fees, since the sisters are each beneficiaries under the trust. 4No. 33315-9-111 In re Estate of Travis

Leta Travis appeals the denial ofcosts and fees. LAWANDANALYSIS Leta Travis sought an award ofreasonable attorney fees and costs, before the trial court, against her sister, Carmel, on three grounds: CR 11, RCW4.84.185, and RCW 1 l.96A.150. The latter statute is a provision in TEDRA. Leta asks this courtto reverse the denial offees under all three grounds. We address togetherthe claim for fees and costs under CR 11 and RCW4.84.185. The courtrule and the statute both address frivolous litigation. CR 11 and RCW4.84.185 Leta Travis contends the trial court erred in refusingto award herreasonable attorney fees under CR 11 and RCW4.84.185 because Carmel's allegations against Leta in the TEDRApetition were baseless and were intended to harass. Carmel Travis responds thatthe trial court correctly exercised its discretion in denying fees because Carmel's allegations againstLetawere not frivolous. She maintains that she made a reasonable inquiry into the allegations before filing thepetition, she reasonably believed the allegations were grounded in fact, and she did not file thepetition for an improper purpose. This courtreviews a trial court's denial ofa motion for attorney fees under CR 11 for abuse ofdiscretion. Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707 (2004). CR 1l(a)proscribes, in part: 5No. 33315-9-111 In re Estate of Travis

...The signature ofa party or ofan 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 ofthe party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable underthe circumstances: (1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argument for the extension, modification, orreversal ofexisting law or the establishment of new law; (3) it is not interposed for any improperpurpose, such as to harass or to cause unnecessary delay orneedless increase in the cost oflitigation. CR 11 omits any direction to the courts to impose sanctions for its violation. Nevertheless, ifaparty violates CR 11, the court may impose an appropriate sanction, which may include reasonable attorney fees and expenses. JustDirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 417, 157 P.3d 431 (2007). The fact that a party's action fails on the merits is by no means dispositive ofthe question ofCR 11 sanctions. Bryantv. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992); Eller v. E. Sprague Motors & R. V. 's, Inc., 159 Wn. App. 180, 190, 244 P.3d 447 (2010). Because CR 11 sanctions have a potential chilling effect, the trial court should impose sanctions only when it is patently clearthat a claim has absolutely no chance ofsuccess. Lee v. Jasman, 183 Wn. App. 27, 71, 332 P.3d 1106 (2014), aff'd, Grant CountyProsecuting Attorneyv. Jasmin, 183 Wn.2d 633, 354 P.3d 846 (2015). The frivolous lawsuit statute, RCW 4.84.185, was enacted to discourage abuse of the legal system by providing for an award ofexpenses and legal fees to any party forced to defend itselfagainst meritless claims asserted for harassment, delay, nuisance or spite. 

### 6No. 33315-9-111 In re Estate of Travis
Suarez v. Newquist, 70 Wn. App. 827, 832-33, 855 P.2d 1200 (1993). RCW4.84.185 provides: [T]he courthavingjurisdictionmay, upon written findings bythe judgethat the action

...was frivolous and advanced without reasonable cause, require the nonprevailingpartyto pay the prevailingparty the reasonable expenses, including fees ofattorneys . . . . This determination shall be made upon motion by the prevailingparty after a voluntary or involuntary order ofdismissal, order on summaryjudgment, finaljudgment after trial, or other final orderterminating the action as to the prevailing party. This court reviews a trial court's denial ofa motion for attorney fees underRCW 4.84.185 for abuse ofdiscretion. Skimming v. Boxer, 119 Wn. App. at 757. In forwarding her claim for fees, LetaTravis emphasizes that, regardless ofthe merits ofany claim against the sisters' mother, Betty, Carmel's allegations againstLeta ofundue influence were baseless. Nevertheless, Carmel Travis posited circumstantial evidencethat suggested Leta's undue influence. Betty afforded Letapreferential treatment over Carmel. Betty and Leta spenttime together to the exclusion ofCarmel. Betty shirked herresponsibilities to provide an accounting. Additionally, Leta cannot claimthat Carmel failed to adequately investigate her allegations when a core allegation ofthe petition was inadequate communication from Betty. We hold that the trial court did not abuse its discretion in denying Leta Travis an award ofreasonable attorney fees and costs under either CR 11 or RCW4.84.185.

7No. 33315-9-111 In re Estate of Travis

We note an ambiguity in Washington law as to whether one defendant may
recoverreasonable attorney fees and costs whenthe claims againsther are frivolous, but claims against other defendants possess some merit. One decision suggests the entire lawsuit mustbe frivolous. Alexanderv. Sanford, 181 Wn. App. 135, 184, 325 P.3d 341, (2014), reviewgranted, 339 P.3d 634 (2014). Other cases suggest one party may recover fees despite claims against otherparties being meritful. Eller v. E. Sprague Motors & R. V's, Inc., 159 Wn. App. at 184 (2010); John Doe v. Spokane & InlandEmpire Blood Bank, 55 Wn. App. 106, 111-12, 780 P.2d 853 (1989). We need notresolve this ambiguity since the trial court did not abuse its discretion in concluding claims solely against Leta Travis were not frivolous. Leta Travis contends that the trial court erred when basing its decision to deny an award offees onher failure to file a responsive pleading and failure toprovide a warning that she sought fees. She also argues that the trial court erred when considering that she voluntarily intervened into the litigation. We need not address these assignments of error, since we canresolve the appeal onthe ground that the suitwas not frivolous. We may affirm the trial court on any basis supported by the briefing and record below. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989); Huffv. Wyman, 184 Wn.2d 643, 647-48, 361 P.3d 727 (2015).

8No. 33315-9-111 In re Estate of Travis

TEDRA The Trust and Estates Dispute Resolution Act empowers the superior courtwith authority to administer and settle all matters concerningthe estates and assets of incapacitated, missing, and deceased persons, including matters involving nonprobate assets, such as trusts. RCW ll.96A.020(1). The act imbuedthe courtwith the "full power and authority to proceed with such administration and settlement in any manner and way that to the court seems right and proper." RCW l l.96A.020(2). Carmel Travis filed herpetition under TEDRA. TEDRA allows superior or appellate courts in Washingtonto order: costs, including reasonable attorneys' fees

...to any party: (a) From any party to the proceedings.

. . . The court may orderthe 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 underthis section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may butneed not include whether the litigation benefits the estate ortrust involved. RCW ll.96A.150(1). This court reviews a trial court's decision denying fees under TEDRA for abuse ofdiscretion. Bale v. Allison, 173 Wn. App. 435, 461, 294 P.3d 789 (2013); In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004). RCW 11.96A.l 50(1) bestows the trial court almost unlimited discretion. Forthe'same reasons that we hold the trial court did not abuse its discretion in denying an award offees under CR 11 and RCW 4.84.185, we hold the trial court did not

9No. 33315-9-III In re Estate of Travis
abuse its discretion in denying Leta Travis reasonable attorney fees and costs under TEDRA. Appellate Fees Leta Travis requests an award offees incurred in this appeal in accordance with RAP 18.1. Under RAP 18.1, a party may recover fees on appeal "[i]fapplicable law grants to aparty the right to recoverreasonable fees." Leta is not entitledto fees under CR 11, RCW 4.84.185, orRCW 11.96A.150. Thus we deny her fees under RAP 18.1. Carmel Travis seeks an award ofattorney fees incurred on appeal pursuantto RAP 18.9(a) and RCW 11.96A.150. RAP 18.9(a) provides, in relevantpart: The appellate court on its own initiative or on motion ofa party may order aparty or counsel

...who

... files a frivolous appeal, or fails to comply withthese rules to pay terms or compensatory damages to any other party who has been harmedby the delay or the failure to comply. This court abides by the following considerations when determining whether an appeal is frivolous: (1) A civil appellant has aright to appeal underRAP 2.2; (2) all doubts as to whetherthe 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 ifthere are no debatable issues upon which reasonable minds might differ, and it is so totally devoid ofmerit that there was no reasonable possibility ofreversal. Griffin v. Draper, 32 Wn. App. 611, 616, 649 P.2d 123 (1982) (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980)).

10No. 33315-9-111 In re Estate of Travis
The question ofwhetherLeta Travis' appeal is frivolous is a close call, so we resolve the question in her favor. Leta's argumentthat her intervention did not barher from recovery offees belowhas limited merit, since no Washington case has addressed this issue. Carmel Travis' dismissal ofthe TEDRApetition afterbeing served discovery requests could have led a trier offact to question the merits ofCarmel's TEDRA suit. We also deny Carmel Travis an award offees under the TEDRA statute, RCW 11.96A.150. The statute grants us wide discretion, and we exercise the discretion in Leta's favor because she forwarded some arguments on appeal thatheld merit. CONCLUSION We affirm the trial court's denial to Leta Travis ofan award ofreasonable attorney fees and costs against her sister, Carmel. We deny each sister fees and costs on appeal. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:



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# K~I Lawrence-Berrey, 

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