IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of

No. 78411-1-I

GENEIVA TATE.

DIVISION ONE

MONICA TATE,

UNPUBLISHED OPINION

Appellant,

V.

PARTNERS IN CARE, LLC,

FILED: September 30, 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 any of these 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

their first name for clarity.
No. 78411-1-1/2

and Louisiana. Many of the properties were in dilapidated or uninhabitable

condition. Still, all four of the heirs opposed sale of any of the real property based

on their parents’ wishes.

The court originally appointed Monica’s sister Azani 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

court supervision.

Settlement of Briar 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 Box developed plans for

the property and incurred costs for engineering and permitting. When the parties

did not complete the sale, Briar Box sued Geneiva and Eddie for specific

performance and damages. The lawsuit was still pending when PlC became the

administrator.

PlC met with all four heirs. They expressed that “the Estate should direct

its efforts to retaining the property as a meaningful part of the legacy left to 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

-2-
No. 78411-1-1/3

$295,000 in damages. The Estate also would receive the right to all plans and

designs created by Briar Box for its planned development of the property.

On April 29, 2016, PlC asked the court to approve the settlement. PlC

justified the settlement as follows:

14. The Estate’s heirs have repeatedly expressed 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 for specific performance, a loss at trial would not only lose

the property but cause a judgment for damages and attorney fees,

probably well in excess of $300,000. Given the assets of the

Estate, this would almost certainly necessitate sale of one or more

other properties, in addition to the loss of the 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 amount to compensate the Plaintiff for damages 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

that substantially increases the magnitude of a loss at trial.

16. Finally, the Estate will receive the benefit of the

development work 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 of the 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 development work had no value to the Estate because it “lacks

the money, the sophistication, the time and the authority to develop the subject

-3-
No. 78411-1-1/4

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

settlement.

Distribution of Property and Burnett’s Attorney Fees

On January 24, 2017, Plc asked the court for approval of its annual report

dated December 20, 2016. The report included a list of the 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 51st Avenue South, with an estimated market value of $875,000; (2) a

property on 64th Avenue South, with an estimated market value 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 until the 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, nor did she challenge the court’s order or the distribution schedule. PlC

distributed property to the other three 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

-4-
No. 78411-1-115

hearing on its request on October 5, 2017. PlC agreed to Monica’s request to

continue the hearing to November 30, 2017.

On September 28, 2017, Monica responded to PlC’s request. She did not

object to the valuation or distribution of the 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

Monica Tate should be sent directly to her counsel of record, Jason W. Burnett of

Reed Longyear Malnati & Ahrens.”

Soon afterward, Monica fired Burnett. On October 25, 2017, Burnett filed a

notice of withdrawal and a lien for attorney fees in the amount of $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 the work he performed and the rate charged. Burnett stated that Monica

never objected to any statement. But, aside from an initial deposit, Monica had

not paid Burnett in over two years.

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 monthly statements. She identified some billing entries she found

confusing. The court explained them to her. Monica requested a continuance to

obtain new counsel 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

-5-
No. 78411-1-1/6

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 out of Monica’s share of the 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

or distribution of the property. Instead, she asked for a continuance so she could

assert a creditor’s claim against the Estate for various 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 request and entered an order approving PlC’s final report.

Monica sought revision of both the court’s November 27 and November 30

orders. In her revision requests, Monica challenged PlC’s valuation of the 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 be valued no higher than $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 of the 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 requests for revision. Monica appeals.

STANDARD OF REVIEW

A court’s decision about the reasonableness of a settlement agreement

involves a factual determination that we review for abuse of discretion.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

review the superior court’s decision for abuse of discretion. 6 Abuse of discretion

occurs “when the trial court’s decision rests on untenable grounds or untenable

reasons.”7

ANALYSIS

Monica first challenges the court’s approval of the Briar Box settlement.8

She argues that the settlement did not protect the assets of the 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

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

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

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

6 Williams, 156 Wn. App. at 27.

~ In re Estate of Peterson, 102 Wn. 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 consider this argument

because PlC did not raise it below. See RAP 2.5(a).

~ Because Monica did not designate the transcript of the hearing on the

motion to approve the settlement, our review is limited to the pleadings.

-7-
No. 78411-1-I/S

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 of the

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 must consider

(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 delay necessarily attending it; (d) the paramount

interest of the creditors and a proper deference 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] prior to

the mediation” and all four siblings “unanimously desired that the property be

kept, not just for its economic value but also because it represents a part of their

parents’ legacy, and it honors their parents’ repeatedly expressed desires never

to sell any of the land they had accumulated.” Given the siblings’ unified refusal

to consider selling the property, it was reasonable for the court to approve a

settlement addressing damages.

Moreover, the Estate had been involved in the Briar Box litigation for over

three years. As PlC noted, the risks of an adverse outcome at trial were high.

10 RCW 11.48.010.

~ RCW 11.48.130; Snyder v. Tompkins, 20 Wn. App. 167, 171, 579 P.2d

994 (1978).

12 In re A & 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 of the property in addition to a judgment 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

approving the settlement.

Monica next challenges the court’s denial of a continuance of the 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 review the 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 may deny a motion for a continuance when

“(1) the requesting party does not offer a good reason for the delay

in obtaining the desired evidence; (2) the requesting party does not

state what evidence would be established through the additional

discovery; or (3) the desired evidence will 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

not specifically identify any erroneous or unreasonable charges. And Monica had

the billing statements in her possession for years. She could have asked Burnett

14 Trummel v. Mitchell, 156 Wn.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 Turner v. 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

merely to seek information already provided by a declaration, the trial court does

not err by denying such a request.”17

On appeal, Monica cites discrepancies between the fees claimed in

Burnett’s declaration and the amount of the 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 for the first time on appeal, we decline to address it.18

Citing Aiken, St. Louis & Siljeg, PS v. Linth,19 Monica argues that the court

should have conducted an evidentiary hearing on the amount of fees. But Aiken

stands only for the proposition that a court did not abuse its discretion in finding

that the total amount of fees was a contested factual issue requiring a hearing for

determination.20 A court has considerable discretion to determine whether factual

and credibility issues require an evidentiary hearing.21 And the court did conduct

an evidentiary hearing at which it reviewed and considered Burnett’s billing

statements. Monica fails to show that the court abused 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

$875,000 when in fact the property was worth much less.

17 In re Estate of Fitzgerald, 172 Wn. App. 437, 448, 294 P.3d 720 (2012).

18 RAP 2.5(a).

19195 Wn. App. 10, 21, 380 P.3d 565 (2016).

20Aiken, 195 Wn.App. at2l.

21 City of Blame v. Feldstein, 129 Wn. App. 73, 76, 117 P.3d 1169 (2005).

-10-
No. 78411-1-i/Il

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 of the 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 reassess the credibility of witnesses.24

PlC asks this court to award it attorney fees 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

whether the litigation benefits the estate or trust involved.” Because the 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

Estate as the prevailing party pursuant to RAP 14.2.25

22 In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982).

23 Monica’s motion for revision references a letter from a contractor.

However, Monica acknowledges that the letter is absent from the record.

24 State v. Camarillo, 115 Wn.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 is granted.

—11—
No. 78411-1-1/12

Affirmed.

WE CONCUR:

%Q_Q A\~QO

/1 K

-12-