### FILED 

### MAY 02, 2013 In the Office ofthe Clerk ofCourt W A State CourtofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Estate of: ) No. 30799-9-III RICHARD OBERDORFER, ) ) Deceased. ) ) UNPUBLISHD OPINION ) ) ) KORSMO, C.J.

- Robin Merrill appeals a summaryjudgmentrulingthat denied his claim for a share ofan estate and imposed attorney fees against him. Wereject his argumentthat attorney fees can onlybe imposedunderTEDRA1 for bad faith litigation, affirm the trial court'srulings, and award the estate its attorney fees on appeal. FACTS Mr. Merrill was married to ElizabethMerrill, who died February 19,2009. Her will included a provisionreferencing an inheritance from her father, Richard Oberdorfer. He, however, did not die until August 17,2009, some sixmonths afterhis daughter.

1Trust and Estate DisputeResolutionAct, chapter 11.96A RCW. See RCW 11.96A.900.No. 30799·9-III In re Estate ofOberdorfer
Mr. Oberdorfer's death triggered distribution ofatrust2he had created with his second wife, Winifred, who died in 2002. 3 Elizabeth Merrill had been entitled to a 25 percent share ofthe trust. The trustprovided, inter alia, that distribution would be made to the living beneficiaries upon the death ofthe last member ofthe couple. Upon receiving a copy ofthe Oberdorferwill, counsel for Mr. Merrill believed that he still might have a claim for his late wife's share ofthe trust. He communicated that beliefto counsel for the trust. Counsel for the trust, however, interpreted the language to mean that a beneficiary had tobe alive at the time ofdistribution. Since Elizabeth had predeceased her father, her claim as a beneficiary had lapsed. Counsel for Mr. Merrill demanded 25 percent ofthe trustproceeds as Elizabeth's share and threatened to bring a TEDRA action; he also toldthe trustee not to distribute Elizabeth's share ofthe trust at the risk ofbeing sued for violation offiduciary duties. The estate declined a request to mediate. Mr. Merrill alleges that he learned ofa "nocontest" clause atthis point and declined to pursue the matter further. However, he did not communicatethatpositionto the trust.

2There were two trusts created in the same document, but they will be treated as one for purposes ofthis opinion. 3 Winifred was Elizabeth Merrill's stepmother. 

### 2No. 30799-9-III In re Estate ofOberdorfer
The trust filed a TEDRA petition in superior court to determine the beneficiaries. Mr. Merrill, individually and as administrator ofElizabeth's estate (hereafter Mr. Merrill), answered the petition and sought Elizabeth's share ofthe trust. Eventually, both parties moved for summaryjudgmentbased ontheir respective interpretations ofthe trust's provisions. The trial court denied Mr. Merrill's motion and granted the trust's motion. The trial court also granted the trust its attorney fees. Afterhis motion for reconsideration was denied, Mr. Merrill appealed to this court. ANALYSIS The issues in this appeal involve the attorney fees award; there is no challenge to the trial court's determination that Elizabeth Merrill's interest in the trust lapsed due to her death. Mr. Merrill contendsprimarily that attorney fees can only be awarded under TEDRA when a party litigates in bad faith. He also challenges the trial court's failure to enter findings in support ofthe fees award. Bothparties ask for attorney fees in this action. The matters will be addressed in the stated order. TEDRA andBadFaith Relying upon language in an opinion from Division Two ofthis court, Mr. Merrill argues that attorney fees can only be awarded under TEDRA for bad faith litigation. We do not agree with his interpretation ofthat case. 3No. 30799-9-III In re Estate ofOberdorfer
RCW 11.96A.150(I) provides in partthat [t]he 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 

### itdeems to berelevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved. The statute squarely recognizes that trialjudgeshave discretion in their authority to act equitably. Accordingly, the appellate courts consistently have reviewed TEDRA attorney fee awards under the abuse ofdiscretion standard. See, e.g., In re Guardianship of Lamb, 173 Wn.2d 173, 198,265 P.3d 876 (2011) (noting that "[t]he express language ofRCW 11.96A.150 leaves attorney fee awards in cases resolving guardianship disputes to the court's discretion. The statute allows a court considering a fee awardto consider any relevant factor"); In re Estate of Black, 153 Wn.2d 152, 173, 102 P.3d 796 (2004); In
re Wash. Builders Benefit Trust, Wn. App. _,293 P.3d 1206, 1232 (2013); In re Estate of Fitzgerald, 172 Wn. App. 437, 453-54, 294 P.3d 720 (2012); In re Guardianship of Matthews, 156 Wn. App. 201, 212, 232 P.3d 1140 (2010); Gillespie v. Seattle-FirstNat 

### 'IBank, 70 Wn. App. 150,178,855 P.2d 680 (1993) (predecessor statute). Mr. Merrill bases his argument upon language from In re Guardianship of McKean, 136 Wn. App. 906,151 P.3d 223 (2007). There a guardian was appointed to protect the assets oftwo minor daughters during a dissolution proceeding after it was 

### 4No.30799-9-III In re Estate ofOberdorfer
discovered that the father, mother, and the trustee ofa trust for the daughters had transferred assets for the father and mother's benefit, and the father had prevented recovery ofassets. After the guardian identified and marshaled the daughters' assets, the trial court ordered the father to pay the guardian's attorney fees of$14,382.34. Id. at 919. The father appealed this award on the basis that the trial courthad abused its discretion. Division Two initially notedthat the trial courthad authority to apportion fees and costs to the father as a partyto theproceedings. Id. at 919-20. The courtthen went onto state: Although [the father's] deceptive manipulation ofhis children's assets would support an order requiring him topay some orall ofthe fees and costs, the court did notenter such a finding. See RCW 11.96A.150(1) (the court may order fees and costs "in such manner as the court determines to be equitable"). Instead, the court apparently ordered [the father] to pay because the guardianship could not. Butthe simple ability to pay does not provide an equitable basis for the award. Rather, equity requires some finding offaultthat infairness requires aparty topay. Here, the trial court should have considered allocating fees amongst those who created the need for the guardianship. See, e.g., In re Estate of Jones, 152 Wn.2d 1,20-21, 93 P.3d 147 (2004) (personal representative/beneficiary ofa will ordered to pay otherbeneficiaries' attorney fees personally "because the litigation was necessitated by his mUltiple breaches offiduciary duty" to those beneficiaries); see also Gillespie v. Seattle-FirstNat 

### 'IBank, 70 Wn. App. 150, 177-78, 855 P.2d 680 (1993) (even absentbad faith or self-dealing, attorney fees equitably assessed againstthe trustee where, but for its breach offiduciary duty, the beneficiaries would not have needed to incur the fees). And the record amply demonstrates that [the father, mother, and trustee] created the need for the guardianships.

5No.30799-9-III In re Estate ofOberdorfer 

### Id. at 920 (emphasis added). The court vacated the attorney fee award and ordered remand for the trial court to considerhow the guardian and attorney fees should be apportioned among those whose conduct created the need for the guardianships. 

### Id. at 921. Although

### McKean appears to require a finding offault before equitable attorney fees may be assessed underRCW 11.96A.l50, we believe Mr. Merrill overstates the reach ofthat opinion. First, no other Washington case has recognized such a rule as a threshold requirement for awarding fees under TEDRA. As notedpreviously, the statute recognizes trial court discretion in this area and all other appellate cases simply apply an abuse ofdiscretion standard ofreview without imposing requirements on the trial court's
use ofits statutory discretion. Second, the cases cited in 

### McKean that recognize fault plays a role in supporting an attorney fees award do not themselves require a finding of fault before making an award. 

### Jones, 152 Wn.2d at 20-21 (noting abuse offiduciary duties); 

### Gillespie, 70 Wn. App. at 178 (bad faith or self-dealing not required for award of attorney fees under former RCW 11.96.140, the forerunner ofcurrent RCW 11.96A.150, but breach offiduciary duty was tenable basis for attorney fee award). 

### Mr. Merrill reads 

### McKean out ofits context. There the courtruled that the trial court abused its discretion by awarding attorney fees on the basis ofability to pay. Instead, noting that fault had been a tenable basis for awarding fees in thepast, and that 6No.30799-9-III In re Estate ofOberdorfer
there was plenty offault in theMcKean record, the court remanded for apportionment of fees in accordance with the fault ofthe parties. 136 Wn. App. at 920. The court simply substituted a tenable basis for awarding fees for an untenable one. Even ifMcKean hadrequired trial courts to apply a fault standard, it would not
save appellanthere. McKean, as with the cases cited therein, considered "fault" as a form ofcausation-Le., would this litigation have been necessary but for the actions ofthe other party. It did not apply the concept offault as solely some type ofmoral wrong or violation ofan obligation, although that behavior was established in McKean. Itwas because the parents caused the need for the guardianship that the costs ofthat action were appropriately assessed against them. Id. Applying that samerationale here, the appellant causedthis litigation by threatening to sue ifthe trust was not distributed in accordance with Mr. Merrill's interpretation ofthe trust language. The trustees were left in a difficult position-itwas time to distribute the res, but the identity ofthe beneficiaries was in doubt and a cloud oflitigation was on the horizon. Mr. Merrill never communicated a change ofheart. Itwas reasonable for the trustees to file this action. Once this action commenced, Mr. Merrill answered and asserted his late wife's claim to a share ofthe proceeds. The matter proceededto mediation andthen summary judgment. Appellant brought aboutthe filing ofthis litigation and then contested his



### 7No. 30799-9-111 In re Estate ofOberdorfer
claims. But for those actions, this matter would haveresolved quietly and with little cost to the trust. The trial court did not abuse its discretion in awarding fees against Mr. Merrill to the trust. MissingFindings Mr. Merrill also argues that the trial court erred by not entering written findings in support ofthe attorney fees award. Although required, the failure to enter findings is of
no consequence in this appeal because appellant does not contest the reasonableness of the fees awarded. A trial court must sufficiently explain the basis for its fee award to permit appellate review. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998). Generally, when a party challenges the calculation or amount ofa fee award, "the absence ofan adequate record upon which to review a fee award will result in a remand ofthe award to thetrial court to develop such a record." Id. Thetrial court must enter findings offact and conclusions oflaw in support ofan award ofattorney fees. Id. The purpose offindings is to alert the appellate court to the basis for the amount of fees awarded bythe trial court. Id. Thatpurpose is satisfied in this case withoutneed to resort towritten findings since Mr. Merrill does not challenge the reasonableness ofthe



### 8No.30799-9-III In re Estate ofOberdorfer

amount offees awarded.4 Inthis circumstance, there is no purpose in remanding for entry ofwritten findings at additional expense to theparties. The record reflects that the trial court considered the appropriate factors and adjusted the request. The amount ofthe award is not at issue and further explanation is unnecessary. The absence ofwritten findings is not fatal to the court's award. AttorneyFees onAppeal Finally, both parties seek attorney fees for this appeal. This courthas discretion to award attorney fees on appeal under TEDRA. RCW 11.96A.l50(1) (first sentence). In light ofour decision, Mr. Merrill is not a prevailing party andwe declineto award him his fees. The estate has prevailed in this action. Although Mr. Merrill pursued this appeal in good faith, we believe it is appropriateto award respondents their fees for their defense ofthis action. Thejudgmentis affirmed. Respondents are entitled to their attorney fees in this action.

4The briefing does not challenge the court's computation orthe reasonableness of the award. Counsel for appellant confirmed at oral argumentthatthe amount awarded is not at issue in this appeal. 9No.30799-9-III In re Estate ofOberdorfer
A majority ofthe panel has determined this opinion will notbe printed inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.
Korsmo, C.J. WE CONCUR:
Brown, 

### J. 

# q

# KUli~r~ .

10