### IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON

In the Matterofthe Estate of No. 78411-1-I GENEIVATATE. DIVISION ONE MONICATATE, UNPUBLISHED OPINION

Appellant, V. PARTNERS IN CARE, LLC, FILED: September30, 2019

Respondent.
LEACH, J.

— In this probate action, Monica Tate challenges superior court orders approving a settlement, authorizing the distribution of real property, and determining the amount and reasonableness of attorney fees she owed to her former lawyer. Because she does not show the court abused its discretion with regard to anyofthese orders, we affirm. FACTS Geneiva Tate died intestate on April 19, 2015, predeceased by her husband, Eddie Tate. Four children survived her, including Monica.1 At the time of her death, Geneiva owned about 15 parcels of real property in Washington

1 Because many parties share the same last name, we refer to them by theirfirst nameforclarity.No. 78411-1-1/2

and Louisiana. Many of the properties were in dilapidated or uninhabitable condition. Still, all fourofthe heirs opposed sale ofanyofthe real property based
on theirparents’wishes. The court originally appointed Monica’s sisterAzani Tate as administrator of Geneiva’s estate (“the Estate”). Monica retained attorney Jason Burnett and sought to remove Azani as the administrator. On October 16, 2015, the court appointed Partners in Care (PlC) as the successor administrator. The court revoked nonintervention powers at PlC’s request, and probate proceeded under courtsupervision. SettlementofBriar Box Litigation In October 2012, Geneiva and Eddie agreed to sell one of the parcels, located on East Howell Street, to Briar Box II, LLC. Briar Boxdeveloped plansfor the property and incurred costs forengineering and permitting. When the parties did not complete the sale, Briar Box sued Geneiva and Eddie for specific performance and damages. The lawsuitwas still pending when PlC became the administrator. PlC metwith all four heirs. They expressed that “the Estate should direct its efforts to retaining the property as a meaningful part ofthe legacy leftto them by their parents.” In April of 2016, PlC and Briar Box settled the lawsuit, contingent upon court approval in the probate action. The settlement provided that the Estate would keep the East Howell Street property and pay Briar Box

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$295,000 in damages. The Estate also would receive the right to all plans and designs created by Briar Boxforits planned developmentofthe property. On April 29, 2016, PlC asked the court to approve the settlement. PlC justified the settlementasfollows:

14. The Estate’s heirs have repeatedlyexpressed to the PR [personal representative] their overriding concern for retaining the subject property (and all the properties belonging to the parents). While the Estate believes its defenses are very strong against any demand forspecific performance, a loss attrial would not only lose the property but cause ajudgment for damages and attorneyfees, probably well in excess of $300,000. Given the assets of the Estate, this would almost certainly necessitate sale ofone or more otherproperties, in addition tothe loss ofthe subject property in the lawsuit. As the PR’s primary duty is to settle an estate “as rapidly and quickly as possible, without sacrifice,” RCW 11.48.010, the definite risk of such a substantial loss is better avoided by paying an amountto compensatethe Plaintifffordamages and fees. 15. This particularly is true given the second portion of Plaintiff’s claim, for damages, which would not be automatically defeated even if specific performance were denied. Plaintiff’s damages also include a potential for interest on liquidated amounts thatsubstantially increasesthe magnitude ofa loss attrial. 16. Finally, the Estate will receive the benefit of the developmentwork done by Plaintiff. While this is not essential, it is at least some compensatory value to offset the amount of the settlement payment. Monica objected to the settlement, arguing that PlC should have sought specific performance ofthe contract. Noting that the property was appraised at approximately $366,000. Monica complained that the Estate was in essence paying $295,000 to preserve only $71,000 in value. And Monica contended that the planning and developmentwork had no value to the Estate because it “lacks the money, the sophistication, the time and the authority to develop the subject

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property in any fashion.” On May 16, 2017, the superior 

### court approved the settlement. Distribution of Propertyand Burnett’sAttorney Fees On January24, 2017, Plc asked the courtforapproval ofits annual report dated December20, 2016. The report included a list ofthe Estate’s real property and each parcel’s current market value. The report also included a distribution schedule dividing the assets into four shares of real property and cash, each valued at $1,019,516.81. Monica’s share consisted of (1) the house in which she lived, on 51stAvenue South, with an estimated marketvalue of$875,000; (2) a propertyon 64th Avenue South, with an estimated marketvalue of$125,000; and (3) a cash distribution of$19,516.81. 

## ~ic requested authority to distribute the Estate’s property. Because the Seattle Police Department was investigating allegations that Monica had neglected and financially abused Eddie before his death, PlC asked to withhold Monica’s share untilthe investigation was complete. On February 14, 2017, a superior court commissioner granted PlC’s requests and approved the distribution schedule. Monica did not appear at the hearing, nordid she challengethe court’s orderorthe distribution schedule. PlC distributed propertytothe otherthree heirs. On September 12, 2017, PlC asked the court to approve its final report dated August 23, 2017. The final report repeated the distribution schedule and market values stated in the prior annual report. PlC asked the court to hold a

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hearing on its request on October 5, 2017. PlC agreed to Monica’s request to continuethe hearing to November30, 2017. On September28, 2017, Monica responded to PlC’s request. She did not objecttothevaluation ordistribution ofthe property. Monica’s response provided only that “[amy deed of distribution to Monica Tate should be recorded by the Personal Representative at estate expense” and “[amy funds distributed to MonicaTate should be sentdirectlyto hercounsel ofrecord, Jason W. Burnettof Reed Longyear Malnati &Ahrens.” Soon afterward, Monicafired Burnett. On October25, 2017, Burnettfiled a noticeofwithdrawal and a lien forattorneyfees in the amountof$17,477.27. On November 13, 2017, Burnett asked the court to find his attorney fee request reasonable. Burnett explained that he sent Monica monthly statements detailing thework he performed and the rate charged. Burnettstated that Monica
never objected to any statement. But, aside from an initial deposit, Monica had not paid Burnett in overtwoyears. On November 22, 2017, a superior court commissioner heard argument
on Burnett’s fee request. For the first time, Monica asserted she did not understand the monthlystatements. She identified some billing entries shefound confusing. The court explained them to her. Monica requested a continuance to obtain newcounsel and have them review Burnett’s billing statements. The court denied this request, stating, “I find the bill to be very detailed, very comprehensible, and quite reasonable in light of what went on during this

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probate.” On November 27, 2017, the court entered an order finding that Burnett’s attorney fees were reasonable and ordering PlC to pay Burnett $18,793.45 outofMonica’s share ofthe estate. On November 30, 2017, the commissioner heard argument on PlC’s request about the final distribution. Again, Monica did not object to the valuation
ordistribution ofthe property. Instead, she asked fora continuance so she could assert a creditor’s claim against the Estate forvarious repairs she claimed that she had made to Estate property. Referring to RCW 11.40.051, the court noted that the period for filing creditor’s claims had ended. The court denied the continuance requestand entered an orderapproving PlC’sfinal report. Monica sought revision ofboth the court’s November27 and November30 orders. In her revision requests, Monica challenged PlC’s valuation ofthe 51st Avenue South property. She contended that it was based on a “desktop appraisal” that did not adequately consider the property’s dilapidated interior.2 Monica asserted that the property needed between $250,000 and $300,000 of repairs and should bevalued no higherthan $575,000. On January 17, 2018, a superior court judge heard argument on the revision requests. Monica hired attorney Darcie Byrd to ask for a continuance. Byrd told the court that Monica retained her the previous evening, and she

2 A desktop appraisal is based on records rather than an in-person inspection ofthe property. -6-No. 78411-1-1/7

needed additional to “review the voluminous record in this matter.” The court denied the continuance and denied both requestsfor revision. Monica appeals. STANDARD OF REVIEW A court’s decision about the reasonableness of a settlement agreement involves afactual determination thatwe reviewforabuse ofdiscretion.3 We also review a trial court’s fee decision in a probate case for abuse of discretion.4 When a party appeals an order denying revision of a court commissioner’s decision, we review the superior court’s decision, not the commissioner’s.5 We reviewthe superiorcourt’s decision forabuse ofdiscretion. 6 Abuse ofdiscretion
occurs “when the trial court’s decision rests on untenable grounds or untenable reasons.”7 ANALYSIS Monica first challenges the court’s approval ofthe Briar Box settlement.8 She arguesthatthe settlementdid not protectthe assets ofthe Estate.9 The administrator of an estate has a duty to settle the estate “as rapidly and as quickly as possible, without sacrifice to the probate or nonprobate

~Werlingerv. Warner, 126Wn. App. 342, 349, 109 P.3d 22 (2005).

~ In re Estate ofLarson, 103Wn.2d 517, 521, 694 P.2d 1051 (1985).

~ In re Marriage ofWilliams, 156Wn. App. 22, 27, 232 P.3d 573 (2010). 6Williams, 156Wn. App. at27.

~ In re Estate of Peterson, 102Wn. App. 456, 462, 9 P.3d 845 (2000). 8 PlC argues that Monica was estopped from challenging the approval of the settlement or PlC’s property valuation because she had prior opportunity to do so in the hearing on the interim report. We decline to considerthis argument because PlC did not raise it below. See RAP 2.5(a).

~ Because Monica did not designate the transcript ofthe hearing on the motion to approvethe settlement, our review is limited tothe pleadings.
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estate.”1° A court may authorize an administrator to settle any claim owing the estate, with the aim of protecting the assets of the estate for the benefit ofthe beneficiaries.11 A settlement agreement must be “fair and equitable.”12 In determining the fairness, reasonableness, and adequacy of a proposed settlement agreement, the court mustconsider (a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delaynecessarilyattending it; (d) the paramount interest ofthe creditors and a properdeference to their reasonable views in the premisesJ13] Here, Monica does not show that the settlement was unreasonable. Monica does not dispute that “she attended the family meeting with [PlC] priorto the mediation” and all four siblings “unanimously desired that the property be kept, notjustfor its economicvalue butalso because it represents a part oftheir parents’ legacy, and it honors their parents’ repeatedly expressed desires never to sell any ofthe land they had accumulated.” Given the siblings’ unified refusal to consider selling the property, it was reasonable for the court to approve a settlementaddressing damages. Moreover, the Estate had been involved in the Briar Box litigation forover three years. As PlC noted, the risks of an adverse outcome at trial were high.

10 RCW 11.48.010.

~ RCW 11.48.130; Snyderv. Tompkins, 20 Wn. App. 167, 171, 579 P.2d 994 (1978).

12 In reA& C Props., 784 F.2d 1377, 1381 (9th Cir. 1986). 13A& C Props., 784 F.2d at 1381. -8-No. 78411-1-1/9

The Estate faced the loss ofthe property in addition to ajudgment for damages and attorney fees that could exceed $300,000. After considering the evidence and the arguments of the parties, the court properly exercised its discretion in approvingthe settlement. Monica next challenges the court’s denial ofa continuance ofthe hearing
on Burnett’s fees. She contends that the court abused its discretion in determining Burnett’s fees were reasonable without giving her a fair opportunity to reviewthe billing statements. A trial court has broad discretion to grant or deny a continuance.14 This court reviews the denial of a continuance for an abuse of that discretion.15 A court maydenya motion fora continuance when “(1) the requesting party does not offera good reason forthe delay in obtaining the desired evidence; (2) the requesting partydoes not state what evidence would be established through the additional discovery; or (3) the desired evidencewill not raise a genuine issue ofmaterial fact.”~16] Monica did not tell the court what evidence she planned to obtain if it continued the hearing. She stated only that she found the billing statements confusing and wished to have an attorney explain them to her. But Monica did notspecifically identifyanyerroneous or unreasonable charges. And Monica had the billing statements in herpossession foryears. She could have asked Burnett

14Trummel v. Mitchell, 156Wn.2d 653, 670, 131 P.3d 305 (2006). 15 Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d 1325 (1992). 16Tellevik, 120 Wn.2d at 90 (quoting Turnerv. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474 (1989)). -9-No. 78411-1-1110

to explain them to her at any time. “[W]here a party requests a continuance merelyto seek information already provided by a declaration, the trial court does noterrbydenying such a request.”17 On appeal, Monica cites discrepancies between the fees claimed in Burnett’s declaration and the amount ofthe court’s fee award. Because Monica did not raise this argument below, she fails to show that the court abused its discretion on these grounds. And because this court generally will not consider issues raised forthefirsttime on appeal, we declineto address it.18 Citing Aiken, St. Louis & Siljeg, PSv. Linth,19 Monica argues thatthe court should have conducted an evidentiary hearing on the amount offees. ButAiken stands onlyforthe proposition that a court did not abuse its discretion in finding thatthetotal amount offeeswas a contested factual issue requiring a hearing for determination.20Acourt has considerable discretion to determinewhetherfactual and credibility issues require an evidentiary hearing.21 And the courtdid conduct
an evidentiary hearing at which it reviewed and considered Burnett’s billing statements. Monicafailsto showthatthe courtabused its discretion. Finally, Monica argues that the court approved an unequal distribution of property. She contends that PlC overvalued the 51st Avenue South property at $875,000when in factthe propertywasworth much less.

17 In re Estate of Fitzgerald, 172Wn. App. 437, 448, 294 P.3d 720 (2012). 18 RAP 2.5(a). 19195Wn. App. 10, 21, 380 P.3d 565 (2016). 20Aiken, 195Wn.App. at2l. 21 Cityof Blamev. Feldstein, 129Wn. App. 73, 76, 117 P.3d 1169 (2005).
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RCW 11.108.030 provides that when a fiduciary distributes property in kind, the property ‘shall be valued at their respective fair market values on the date or dates of distribution.” But a court does not abuse its discretion if its property valuation is within the range of the evidence.22 PlC provided an appraisal ofthe property’s market value based on the sale of other comparable properties in the neighborhood. Monica provided no evidence showing that the property needed $250,000 to $300,000 worth of repairs or that the needed repairs reduced the property’s market value to $525,000.23 A reviewing court does not reweigh the evidence or reassessthe credibilityofwitnesses.24 PlC asksthis courtto award it attorneyfees and costs on appeal pursuant to RAP 18.1(a). RCW 11.96A.150(1) allows a court to award costs and reasonable attorney fees to any party in an estate dispute; “[un exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whetherthe litigation benefits the estate ortrust involved.” Becausethe Estate is the prevailing party on appeal, we award PlC its reasonable attorney fees conditioned on its compliance with RAP 18.1(d). We also award costs to the Estateasthe prevailing partypursuantto RAP 14.2.25

22 In re Marriage ofSoriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982). 23 Monica’s motion for revision references a letter from a contractor. However, Monica acknowledgesthatthe letteris absentfrom the record. 24 Statev. Camarillo, 115Wn.2d 60, 71, 794 P.2d 850 (1990). 25 Counsel for Monica filed a motion requesting this court disregard two unpublished cases inadvertently cited in the appellant’s opening brief. The motion isgranted. —11—No. 78411-1-1/12

Affirmed.

WE CONCUR: 

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