f( 

### Ia NOV 13 trt9a.' I Y IN THE COURT OF APPEALS OF THE STATE OF WASHING 1 J,;`

In the Matter ofthe Estate of MARIE J. REESE,
BEVERLY JO GESSEL,

v. DIVISION II

Deceased.
Appellant,

MARILYN SANGER, as Personal Representative ofthe estate of MARIE J. REESE, deceased, Respondent. No. 45405 -0 -II

UNPUBLISHED OPINION

MAXA, J. — 

### Beverly Gessel, a beneficiary ofher mother' s will, appeals the probate 

### court's order approving the final accounting ofthe estate following a hearing on the personal representative' s final report and petition for decree of distribution. Gessel argues that the trial 

### court erred in (1) proceeding withthe hearing when she did not receive proper special notice as required in RCW 11. 28. 240( 1); ( 

### 2) closing the estate without continuing the hearing to allow her to obtain evidence regarding estate property valuation and hearing additional valuation testimony from both parties; (

### 3) interpreting the will as including thevalue ofall hertestamentary gifts in an equalization provision, ratherthan excluding from the equalization calculation her gift of liquid assets; and (4) approving ( and not disgorging) the attorney fees paid to the personal45405 - 0 -I1 

### representative' s attorney because the personal representative failed to give advance notice of intentto paythe attorney fees. We reject Gessel' s arguments and affirm. But we denythe personal representative' s request for an award ofreasonable attorney fees on appeal. FACTS Marie Reese died on June 23, 2012. Reese' s last will and testament was admitted to probate. The will named Reese' s three daughters, Gessel, Marilyn Franz, and Janice Sanger, as beneficiaries of her estate. Consistent with the will, Franz was appointed personal representative . with non -

intervention powers. 

### On July 27, 2012, Franz mailed notice ofher appointment as personal representative and 

### pendency ofprobate proceedings to the othertwo beneficiaries, Gessel, and Sanger. On August 2, Gessel requested special notice ofall matters in the administration ofthe estate, including the 

### filing ofthe inventory and intentto pay attorney fees, to be served on her attorney at 1048 West James Street, Suite 102 in Kent. 

### On December 26, 2012, Franz filed an inventory ofthe estate, which included the appraised values ofthe estate' s real property. Franz served a copy ofthe inventory on Gessel' s 

### attorney consistentwith the request for special notice. Franz incurred attorney fees in her 

### capacity as personal representative, and she paid the majority ofthose fees asthey came due monthly without giving advance notice to Gessel. Over seven months later, Franz sought to close the estate under RCW 11. 76.050, which authorizes the court to consider objections to the final report and petition for distribution. On 

### July 30, 2013, Franz filed the final report and petition for decree ofdistribution with the probate
245405 - 0 -II 

### court. She sought an order approving the final report (including fees and expenses incurred), 

### distributing all property, discharging the personal representative, and closing the estate. Franz noted the hearing on the petition for August 30, 2013. 

### On August 1, Franz mailed Gessel' s attorney notice ofthe hearing, final report and petition for decree ofdistribution, affidavit ofattorney fees, and proposed order approving the final report. However, Franz used the address on Gessel' s attorney' s letterhead —1122 West James Street, Suite 102 in Kent — rather than the address provided in the request for special 

### notice, which was 1048 West James Street, Suite 102.1 Franz also mailed notice ofthe hearing 

### and a copy ofthe final reportto each ofthewill beneficiaries, including Gessel. The day beforethe hearing, Gessel filed an objection to the final accounting, alleging that 1) she did not receive proper notice ofthe proceeding; (2) Franz failed to maintain the estate property, causing a decrease in value of the estate; ( 3) an improper method was used to value
certain estate property; (

### 4) the amount ofGessel' s equalizing lien was improperly calculated and 

### not timely paid; and (5) Franz failed to provide advance notice ofcompensation paid to the 

### attorney representing herin her capacity as personal representative. Gessel requested thatthe probate court deny the petition for decree ofdistribution, continue the hearing and setthe matter 

### foran evidentiary hearing onthe value ofthe estate property,and disgorge all fees received by the attorney.



### 1 The incorrect address was apparently on the letterhead ofGessel' s most recent correspondence to Franz. In addition, one of Gessel' s letters to this court includes the incorrect address.
345405 -0 -II The probate court denied Gessel' s request to continue the hearing and to consider 

### testimony on the valuation issue. Instead,thetrial court approved the final report, authorized the attorneyfees, and orderedthe distribution ofthe estate despite Gessel' s objections. Gessel appeals. ANALYSIS A. FAILURE TO COMPLY WITH REQUEST FOR SPECIAL NOTICE Gessel requested special notice under RCW 11. 28.240( 1) early in the probate action. 

### Franztechnically violated RCW 11.28.240(1) when she mailedthe notice ofherpetition for 

### decree ofdistribution tothe wrong address. Gessel arguesthatbecause this noticewas defective, the probate court erred in holding the hearing on the final report and petition for distribution. We hold that the probate court did not err in proceeding with the hearing because ( 1) Franz mailed notice to Gessel at her personal address as required in RCW 11. 76.040, (2) there is no evidence. that Gessel and her attorney did not receive actual statutory notice, (3) Gessel and her attorney 

### did receive actual notice ofthe hearing, and (4) Gessel filed objections on the merits and participated in the hearing.

1. Effect of Defective Notice 

### RCW 11. 28.240( 1) allows any person interested in the estate as an heir, devisee, distributee, legatee, or creditor to serve on the personal representative (or his/her attorney) a written request for special notice ofvarious actions in the administration ofthe estate. The request for special notice must designate the address where notice must be sent. RCW 11. 28. 240( 1). Once a request for special notice is served, the personal representative must mail 

### notice to the designated address at least 10 days before a hearing on one ofthe listed actions or
445405 -0 -II

provide personal service. RCW 11. 28. 240( 1). One ofthe actions listed in RCW 11. 28.240( 1) 

### forwhich special notice is required is the filing ofa request for distribution. Here Franz did file proofofmailing ofnotice to Gessel. The problem was thatthe mailing was " defective" —notice was sent to an address other than the one listed in the request for special notice. RCW 11. 28.240(1) does not address the effect ofdefective notice. However, the purpose ofnotice statutes is to ensure due process for a nonmoving party and to allow that 

### partyto respond intelligently. See Nisqually DeltaAss 'n v. City ofDuPont, 103 Wn.2d 720, 727, 696 P. 2d 1222 ( 1985). Under the facts ofthis case, Gessel received due process and was not 

## prejudiced bythe defective notice foranumber ofreasons.2 First, Franz did mail notice to Gessel at her personal address, as required in RCW 

### 11. 76.040. There is nothing in the factual record indicating that Gessel did not receive this notice.3 IfGessel received actual notice more than 10 days before the hearing, the violation of 

### RCW 11. 28.240(1) would not have prejudiced her.4

2 Franz argues thatthe probate court could proceed with the hearing because she complied with the service requirements of CR 5( b)( 1). However, she provides no argument or authority why this court rule trumps the requirements of RCW 11. 28. 240( 1). Therefore, we do not consider this argument. 3 At oral argument in the probate court, Gessel' s counsel represented that the notice sentto his client went to her neighbor' s address, so she did not receive it either. Gessel makes the same argument on appeal. However, neither Gessel nor her counsel' s declarations (filed with Gessel' s objections) state that the notice sent to Gessel' s personal address was incorrectly addressed. 

### 4 In addition, RCW 11.76.050 provides thatthe probate court may proceed with a hearing on a petition for distribution ifthe court is satisfied that notice ofthe hearing "has been given as provided herein," i.e., under RCW 11 .76.040. 545405 - 0 -II 

### Second, Franz' s attorney represented that notice was sent to the address that was on 

### Gessel's attorney's letterheadjust seven months earlier,which happened to be different than the address identified in the request for special notice. The probate court found that mailing notice
to this address was reasonable. 

### Third, neither Gessel nor her attorney submitted sworn statements thatthey did not receive actual notice at least 10 days before the hearing. Because Gessel obviously received notice and filed objections, the probate court did not have to assume that she did not receive actual notice consistent with the special notice requirement. Fourth, even if Gessel did not receive actual notice more than 10 days before the hearing, she did receive notice in time to submit objections and she was able to appear and present her 

### arguments atthe hearing. Gessel did not arguethatthe defective notice prevented herfrom fully and fairly asserting her objections to Franz' s proposed distribution. Gessel argues that the improper notice damaged her because the court penalized her for 

### being unable to presentvaluation evidence on short notice. Butthe probate court's refusal to grant a continuance to allow Gessel to collect additional valuation information or to hold an 

### evidentiary hearing is a separate issue (discussed below) from whether Gessel received adequate notice ofthe hearing in orderfor the court to proceed to the merits ofthe petition. 

### We hold that even though Franz technicallyviolated RCW 11.28.240( 1) in mailing notice 

### ofthe hearing, underthe circumstances Gessel received due process andthe probate court did not

err in proceeding with the hearing.45405 - 0 -II
B. CHALLENGE TO VALUATION OF ESTATE PROPERTY 

### Gessel argues thatthe trial court erred in (1) denying her request to continue the hearing 

### to allow herto investigate Franz's estate propertyvaluation, and (2) determining that the estate 

### was readyto be closed without requiring Franzto presenttestimony and allowing Gessel to present testimony regarding propertyvaluation. We disagree.

1. Standard of Review 

### RCW 11. 76.050 governs the taking oftestimony in support ofa final report and petition for distribution. It provides: 

### Any person interested may file objections to the said report and petition for distribution, or may appear at the time and place fixed forthe hearing thereofand present his or her objections thereto. 

### The court may take such testimony as to it 

### appears proper or necessary to determine whether the estate is ready to be settled, and whether the transactions ofthe personal representative should be approved. RCW 11. 76.050. Gessel argues that RCW 11. 76.050 required the probate court to take valuation 

### testimonyto determine whetherthe estate was readyto be settled. We disagree. The statute states that the probate court "may" take testimony, and directs that the court may take "testimony as to it appears proper or necessary." RCW 11. 76. 050 ( emphasis added). These provisions clearly 

### provide thatthe probate court has discretion to take testimony, and do not require such testimony. 

### Accordingly,we reviewthe probate court' s denial ofGessel' s request to take testimony on
valuation under an abuse of discretion standard. " ` A trial court abuses its discretion by issuing 

### manifestly unreasonable rulings or rulings based on untenable grounds, such as a ruling contrary to law.' ", In re Estate of Toland, 180 Wn.2d 836, 851, 329 P. 3d 878 ( 2014) ( quoting Lakey v. Puget Sound Energy, Inc., 176 Wn.2nd 909, 919, 269 P. 3d 860 (2013)).

745405 -0 -II
2. Denial ofRequest forTestimony 

### The probate court denied Gessel' s request for a 30 - day continuance to allow her time to conduct further investigation and acquire expert testimony regarding valuations of estate 

### property. The probate courtthen determined thatthe evidence provided in Gessel' s and her 

### attorney' s declarations did not demonstrate the need foran evidentiary hearing on the valuations ofestate property. Satisfied bythe personal representative' s valuations, the probate court rejected Gessel' s objection and approved the final report. We hold thatthe probate court did not abuse its discretion in making these rulings. 

### Gessel first argues that her request for a continuance was timely and that she asserted her objection to the valuation issues at herfirst opportunity. But Gessel misunderstands the probate court' s concern. The probate court refused the continuance to allow for further investigation because Gessel' s objection to valuation was without any evidentiary support, even though she 

### had been aware ofthe potential valuation issue since the personal representative filed the estate inventory —

including property values — eight months before the hearing. Because Gessel had eight months to gather evidence for the anticipated valuation dispute, the probate court ruled that 

### there was not good cause for delaying the proceedings for further investigation. Under these circumstances, the probate court did not abuse its discretion in refusing to continue the hearing. Second, Gessel argues that the probate court should have taken testimony to establish the 

### challenged property values. IfGessel had provided some competent evidence that Franz' s 

### propertyvalues were inaccurate,the probate court may have had an obligation to consider further testimony. But Gessel provided nothing to showthe probate court that additional evidence was 

### necessary. Gessel was not qualified to offer credible testimony on the value ofthe real property
845405 - 0 -I1 

### and trust property at issue, and she did not offer any other evidence orwitnesses available to raise a credible challenge to Franz' s valuation. Moreover, the probate court is permitted to rely 

### on the values provided by the personal representative in the inventory and final report. See In re Estate ofShaner, 41 Wn.2d 236, 242, 248 P.2d 560 ( 1952) ( party challenging the estate inventory has the burden of proof because the inventory is presumed to be correct). Under these 

### circumstances, the probate court did not abuse its discretion in declining to consider.further evidence from either Franz or Gessel. Third, Gessel argues that her allegations of serious valuation irregularities should have 

### prompted the probate courtto continue the hearing forfurther investigation and to take testimony to establish the values. But again Gessel' s unqualified and unsupported assertions were not enough to require the probate court to take such action. The probate court did not abuse its discretion in this respect. 

### Without credible evidence contradicting the inventory valuations, the probate court was 

### under no obligation to take additional testimony before approving the final report. Therefore, we hold that the probate court did not abuse its discretion in approving the final report without taking testimony on the contested valuations ofcertain estate property. C. CALCULATION OF EQUALIZING LIEN 

### Gessel argues thatthe probate court erred in interpreting the will's equalizing lien provision to equalize Franz' s and Gessel' s total distributions under the will rather than 

### equalizing only Franz's gift ofReese' s primary residence and Gessel' s gift ofthe trust interest. Under Gessel' s proposed interpretation, the equalizing lien would not take into account Gessel' s45405 -0 -II

substantial gift of the estate' s liquid funds (amounting to $ 152, 943. 81), which would result in a larger share ofthe estate to Gessel. We hold that the probate court' s interpretation was correct.

1. Standard of Review 

### RCW 11. 76.050 provides that courts hearing apetition for distribution have authorityto make partition, distribution and settlement ofall estates in any manner which to the court seems right and proper." 

### A court' s primary duty when construing awill is to give effect to the testator' s intent. In re Estate ofBergau, 103 Wn.2d 431, 435, 693 P.2d 703 ( 1985). If possible, the court should determine this intent from the four corners ofthe will and the will must be

considered in its entirety. In re Estate ofMell, 105 Wn.2d 518, 524, 716 P. 2d 836 ( 1986). Only ifthe testator' s intent,is ambiguous will extrinsic evidence be admitted to explain and resolve the ambiguity. Mell, 105 Wn.2d at 524. 

### We review a probate court' s distribution orderto ensure that it is in accord with the 

### testator's will and the applicable law. In re Estate ofWegley, 65 Wn.2d 689, 695, 399 P.2d 326 1965). Where the facts are not in dispute, the interpretation of a will is a question of law, which 

### we reviewde novo.5 In re Estate ofCurry,98 Wn.App. 107, 112 -13, 988 P.2d 505 ( 1999). Where there is a question of law that turns on disputed facts, the issue is reviewed as a mixed question of law and fact. See Adams v. GreatAm. Ins. Co., 

### 87 Wn.App. 883, 886 -87, 942 P.2d 1087 ( 1997).

5 Franz cites In re Estate ofElmer, 91 Wn. App 785, 790, 959 P. 2d 701 ( 1998), in which Division Three ofthis court reviewed for abuse of discretion the trial court' s decision that under the language ofthe will the testator' s predeceased child' s daughter was entitled to receive her father' s share ofthe estate. We do not follow Elmer because the authority it cites to support the abuse of discretion standard of review is not on point. 1045405 - 0 -II Here, the probate court heard argument only. Neither party provided extrinsic evidence ofthe testator' s intent, nor did the probate court make any factual findings related to the testator' s intent. On appeal, neither Franz nor Gessel argue that the will is ambiguous or rely on 

### extrinsic evidence to support their respective interpretations. Accordingly, because the facts are
not in dispute, we review the probate court' s interpretation of the will de novo. 

### Curry, 98 Wn. App. at 112 -13.

2. Interpretation ofWill Language The material provisions of Reese' s will stated: 5. 2 I give, devise and bequeath one - third of my estate consisting of the real property, cabin and storage building ... and the adjoining undeveloped lot ... to 

### my daughter, JANICE MARIE SANGER, subject to one -half interest in the Well reservedformy residence, and subjectfurtherto an access easementalong the north margin ofthe property devise to Janice Marie Sanger alongthe existing access road. 5. 3 I give, devise and bequeath the real property, and primary residence ... to 

### my daughter, MARILYN ANN FRANZ. 5.4 I give, devise and bequeath my total share ofthe Jennie H. Rowe Property 

### Trust pursuantto mypower ofappointment setforth in mydeceased Mother's Last Will and Testament ( Jennie H. Rowe) dated March 30, 1980 ... 

### to my daughter, BEVERLY JO GESSEL. 

### The total combinedvalue ofmybequest and / ordevise to both Beverly Jo Gessel 

### and MarilynAnn Franz shall be divided bytwo and that amount shall be subtracted fromthe total value ofMarilyn's interest in my estate, which amount shall be a lien 

### infavorofBeverlyJo Gessel against myformerprimary residence with no interest, payable in full within six (6) months ofmy demise.
5. 6 

### I bequeath the remainder of my liquid funds to my daughter, BEVERLY JO GESSEL. 

### 5. 7 I bequeath the remainder ofmy estateto my surviving children to be divided equally between them... . Clerk' s Papers ( CP) at 4 - 5.45405 -0 -II Underthese provisions, Sanger received a cabin and an adjoining lot,which Reese described as " one third of my estate." CP at 4. Franz received Reese' s primary residence and Gessel received Reese' s interest in a trust and the estate' s liquid assets, which Reese apparently believed together represented the other two - thirds ofher estate. In order to divide that two - thirds 

### equally between Gessel and Franz, Reese included aprovision for an equalizing lien in Gessel' s favor against Franz' s gifted property. Finally, Reese provided that any remainder ofthe estate 

### would be divided equally among the children. Although the language is inartful,these 

### provisions demonstrate that Reese's intentwasto divide her estate equally among herchildren.6 If Gessel' s gift ofthe estate' s liquid assets is included in the equalization calculation, the three children will receive equal gifts. For example, assume that the primary residence gifted to 

### Franz was worth $500,000, the trust property gifted to Gessel was worth $200,000, and the liquid assets gifted to Gessel totaled $150,000. The total ofall these gifts would be $850,000, and half ofthatwould be $425,000. Under paragraph 5.4, that $425,000 would be subtracted from 

### Franz' s gift, resulting in an equalizing lien in the amount of $ 75,000. This calculation would leave Franz with a total of $ 425, 000 and leave Gessel with a total of $ 425, 000: $ 350,000 in gifts 

### plus the $75,000 lien. And assuming Reese correctly valued the cabin gifted to Sanger at one - third ofthe total estate, Sanger also would be left with $425, 000 in value. This result would reflect Reese' s intent.

6 Gessel points out that there was no attempt to equalize Sanger' s share ofthe estate and therefore, the testator did not intend to divide her estate between her three daughters. But this ignores the fact that the will left Sanger one - third ofthe estate rather than a fixed amount. 1245405 - 0 -II On the other hand, if Gessel' s gift ofthe estate' s liquid assets is not included in the 

### equalization calculation, Gessel' s total gifts will be greaterthan Franz' s gifts. Using the example 

### in the previous paragraph, without including the estate' s liquid assets the total ofall gifts subject to equalization would be $700,000. Halfofthat amount would be $350,000, which would be 

### subtracted from Franz' s giftto create an equalizing lien in the amount of $150,000. This calculation would leave Franz with $350,000 and leave Gessel with a total of $ 500,000: 350, 000 in gifts plus the $ 

### 150,000 lien. And again assuming that Sanger' s cabin was worth

one - third of the total estate, Sanger would be left with $ 425, 000 in value — more than Franz but less than Gessel. This result would defeat Reese' s intent. 

### As these examples demonstrate, equalizing the value ofthe total distributions to Gessel and Franz serves Reese' s overall objective to divide her estate equally among her three daughters. Paragraph 5. 2 describes Sanger' s gift as one - third ofthe estate. Reese' s three 

### daughters were the only beneficiaries ofthe will. IfReese intendedto gift one - third ofher estate to Sanger, and Gessel and Franz received an equal division, then the three daughters would each
receive one -

third of the estate —an equal share. But if Gessel' s gift of liquid funds is excluded from the equalization, Gessel will receive more than one - third ofthe estate and Franz will receive less than one-third. 

### Not only does including Gessel' s liquid assets gift in the equalizing calculation serve Reese' s intent, the plain language ofparagraph 5.4 supports this interpretation. Paragraph 5.4

uses a broad, unqualified description of the gifts subject to equalization, "[ t]he total combined

value of my bequest and / or devise to both ... Gessel and ... Franz." CP at 4. ( Emphasis

1345405 -0 -II

added.) 

### The phrase " total combined value" unambiguously refers to all gifts to Gessel and 

### Franz, including Gessel' s gift ofliquid funds. CP at 4. Gessel argues that the gift of liquid funds to her in paragraph 5. 6 should not be included in the equalization because ( 1) the equalization provision is contained in paragraph 5.4, which deals only with a gift oftrust property to Gessel; ( 2) paragraph 5. 4 does not mention the gift of liquid funds in paragraph 5. 6; and (3) paragraph 5. 6 does not mention the equalization provision. These arguments are unpersuasive. 

### The fact that paragraph 5.4 only includes Gessel' s gift oftrust property is immaterial because paragraph 5.4 is not a self - contained provision. It obviously requires reference to paragraph 5. 3, which describes Franz' s gift. And the fact that paragraph 5.4 makes no reference 

### to paragraph 5.6 and vice versa also supports the alternate argument. For example, it might make sense to refer to specific provisions or gifts for a partial equalization (such as an
equalization of real property or heirlooms, etc.), but where the testator intended to equalize the total distributions ofthe beneficiaries, no references would be required. The organization ofthe will is awkward in that the equalization lien is provided for in the middle ofthe various disposition provisions rather than at the end, as one might expect. 

### However, based on Reese' s intent to divide her estate equally and the plain language ofthe 

### equalizing lien in paragraph 5.4, we hold thatthe value ofall Gessel' s gifts must be included in calculating the equalization lien. Accordingly,we affirm the probate court's interpretation ofthe
will.

1445405 -0 -I1

D. AUTHORIZATION OF ATTORNEY FEES 

### Gessel argues that the trial court erred in retroactively authorizing attorney fees paid in violation ofher request for advance notice. She further argues that the probate court should have 

### disgorged the fees paid to counsel as a remedy for failing to give the required advance notice. We disagree.

Franz incurred $

### 12,074.64 in attorney fees in her capacity as personal representative of 

### the estate. Using estate assets, Franz paid $7,867. 14 ofthat amount asthe fees came due, which left a remaining balance of $ 4,207.50 atthe time ofthe final report. Despite Gessel' s requestfor advance notice of intent to pay attorney fees in her request for special notice under RCW 11. 28.240, Franz paid the $7,867. 14 in fees without providing advance notice to Gessel. In the final report and petition for decree ofdistribution, Franz requested that the court find that the 

### total amount ofattorney fees was reasonable and approve payment ofthe fees. The trial court approved the prior payment. Gessel contends that the personal representative violated a statutory duty and court rule 

### by failing to provide advance notice ofher intentto pay attorney fees. Assuming without deciding that Gessel is correct,the trial court did not error in approving the fees and refusing to disgorge them. The purpose ofadvance notice is to give an interested person the opportunity to challenge the reasonableness ofthe fees before the estate is out the money. Here, there is no allegation of unreasonable fees. The probate court provided Gessel an opportunity to review the 

### paid and proposed attorneyfees. After reviewing the invoices, Gessel agreedthatthe fees were
reasonable.

1545405 -0 -II Where the alleged procedural violation caused no harm to the estate or to Gessel, 

### disgorgement would be an unreasonable remedy. Gessel argues that without the threat of disgorgement forthe procedural violation, a personal representative or attorney can ignore the 

### advance notice requirement with impunity. Butthe estate is adequately protected from 

### unreasonable fees paid to the attorneybecause the attorneywill be required to reimburse fees found to be unreasonable and the personal representative will be secondarily liable to the estate if 

### the attorneyfails to make reimbursement. In re Estate ofPeterson, 12 Wn.2d 686, 732, 123 P.2d 733 ( 1942). 

### We affirm the probate court's attorney fee ruling. E. ATTORNEY FEES ON APPEAL 

### Franz, in her capacity as personal representative ofthe estate, requests an attorney fee 

### award on appeal. We may, in our discretion, award reasonable attorney fees to any partyto be paid by any other partyto the proceedings orfrom the estate assets. RCW 11. 96A.150. We may order attorney fees to be paid in such amountand in such manner as we determine to be equitable. RCW 11. 96A. 150. 

### Here, Gessel' s notice argumentwas not completelywithout merit and Franz did violate the RCW 11. 28.240( 1) notice requirement. Further, interpretation ofthe will presented a debatable issue because ofthe somewhat awkward language. Therefore, in the exercise of 

### discretion we deny Franz' s request for reasonable attorney fees.

1645405 -0 -II



### We affirm, and deny Franz' s request for reasonable attorneyfees. 

### A majority ofthe panel having determinedthatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040, it is so ordered.

We concur:

17