Opinion
No. 52404-6-I
Filed: April 11, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 00-4-01360-0. Judgment or order under review. Date filed: 04/28/2003. Judge signing: Hon. Richard J. Thorpe.
Counsel for Appellant(s), Howard Mark Goodfriend, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Roger Seth Kohn, Attorney at Law, 9709 3rd Ave NE Ste 504, Seattle, WA 98115-2027.
Devin T Theriot-Orr, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent(s), Lana M. Floyd, Ellis Li McKinstry PLLC, 601 Union St Ste 4900, Seattle, WA 98101-3906.
Steven T. O'Ban, Ellis Li McKinstry PLLC, 601 Union St Ste 4900, Seattle, WA 98101-3906.
Peter J. Andrus, Jelsing Tri West Andrus PLLC, 2926 Colby Ave, Everett, WA 98201-4011.
Amicus Curiae on behalf of Guardianship Services of Seattle, Inc., Michael L. Olver, Attorney at Law, 9222 Lake City Way NE, Seattle, WA 98115-3268.
Amicus Curiae on behalf of Lifetime Advocacy Plus, Inc., Michael L. Olver, Attorney at Law, 9222 Lake City Way NE, Seattle, WA 98115-3268.
Amicus Curiae on behalf of Partners In Care, Inc., Michael L. Olver, Attorney at Law, 9222 Lake City Way NE, Seattle, WA 98115-3268.
In 2001, 91-year-old Martha Smith was appointed a professional guardian, EthiCare, to make decisions about her welfare and estate. In 2003, EthiCare was removed at the behest of Smith's daughter. The time between appointment and removal was fraught with conflict between Smith's children, as well as litigation surrounding many aspects of Smith's life and property. The removal order included several negative findings about EthiCare's actions. Sanctions were imposed on EthiCare in the form of reduction of its fees and imposition of attorney fees and costs. EthiCare appeals the trial court's removal order, several of its findings and conclusions, as well as the sanctions but not removal itself. Respondent cross-appeals the award of fees to EthiCare. We find that EthiCare has standing to appeal the removal order which imposed sanctions. While we affirm some of the findings and conclusions as substantially supported, we strike others as unsupported. We remand for revision of the sanctions and fee awards consistent with this opinion.
FACTS
Martha Smith was born in 1910 and had four children: Allan Foss (Allan), Audrey Ingraham (Audrey), Fred Smith (Fred), and Duane Smith (Duane). The siblings have fought with each other for years. Smith lived on a fixed income, and her assets consisted of her home, a rental property, cash, and some personal property.
Audrey, in her capacity as limited guardian of Smith's person, is the respondent in this case. Audrey is also a cross-appellant.
The current proceeding appears to be the result of a conflict surrounding Smith's rental income. Duane handled rent collection for Smith until she replaced him with a professional bookkeeper. Letters from Smith's attorney to Fred and to Duane's attorney, in the months before the petition for appointment of a guardian was filed, indicate that there was conflict among the parties as to Duane's control over the rental income. Before this conflict arose, Audrey and Duane had been co-attorneys-in-fact for Smith; on November 3, 2000, however, Smith revoked Duane's power of attorney and designated Audrey as her sole attorney-in-fact.
Further legal action was not long in coming. On November 15, 2000, Duane filed a petition for appointment of a guardian of Smith's estate, alleging Smith was incapacitated due to her inability to manage her financial affairs. In the petition, Duane specifically requested that EthiCare, Inc. (EthiCare), a professional guardian, be appointed. Smith denied that she was incapacitated, and asked that Audrey be appointed guardian of her estate, if one were appointed at all. While this petition was pending, Smith moved in with Audrey, further polarizing the parties. The independent experts supported Duane's theory that Smith was incapacitated. Larry Dolan (Dolan), the court-appointed guardian ad litem for Smith, reviewed documents and conducted interviews of Smith and her family members. On March 29, 2001, Dolan recommended EthiCare be appointed guardian of Smith's estate and person. Dolan also had Kris Kyro (Kyro), a clinical psychologist, evaluate Smith. Kyro recommended that a neutral guardian be appointed for Smith's person and estate, due to her cognitive deficits (mild to moderate dementia) and the conflict within her family. Kyro also recommended that Smith live in a neutral location, such as her own home or an assisted-living facility, as her residence with Audrey was contributing to family conflict. Smith's family physician, Eugene Ocampo, (Ocampo) agreed that Smith had dementia but recommended she stay with Audrey.
Duane later amended his petition to request that EthiCare also be appointed guardian of Smith's person.
Meanwhile, in an attempt to resolve the issues presented, the parties met for court-ordered mediation on April 4, 2001. The parties signed an agreement under CR 2A that included a visitation schedule between Smith and her other children while she resided with Audrey and a provision that Smith would move to an assisted-living facility within 12 months. Not surprisingly, the parties were unable to implement the agreement: Duane claimed that Audrey did not comply with the agreement, and Audrey claimed that Duane backed away from it because he thought it gave Audrey too much power. Duane filed a motion to enforce the CR 2A agreement, which the court commissioner temporarily granted on May 22, 2001. The matter continued to move toward trial.
However, the continued fighting between the parties necessitated a more structured temporary solution. On June 4, 2001, the court commissioner appointed EthiCare as the temporary guardian of Smith's person and estate, pending trial. The commissioner found that Smith was unable to make financial and personal decisions in her best interest, and that none of Smith's children should be empowered to make those decisions, due to the intense family conflict. However, rather than vesting the power to make decisions about Smith's welfare in one party, the commissioner created a decision-making trio (the Trio) to make financial and personal decisions for Smith, including decisions about her residence. The commissioner appointed three parties to this Trio, all of whom charged for their time: EthiCare, Dolan, and Smith's attorney, Geoffrey Jones (Jones). The commissioner's order gave no guidance as to whether the Trio's decisions had to be made unanimously, or if only a majority was needed.
Smith's residence was an intense point of contention between the parties. Initially, the Trio agreed that an assisted-living facility was the best place for Smith, as the parties were unable to follow the visitation schedule in the agreement. A facility was selected and EthiCare delivered a deposit on Smith's behalf. However, problems arose regarding additional requirements for the move, and EthiCare filed a motion requesting Smith be moved to the facility and Jones be removed from the Trio. EthiCare alleged that Smith was being unduly influenced by Audrey, so Jones was in fact representing Audrey's wishes, not Smith's. On July 20, 2001, Jones filed an affidavit indicating Smith's opposition to moving to an assisted-living facility, and opposing his removal from the Trio. The motion to remove Jones and move Smith was denied and the issue was put off until trial. At the trial in September 2001, the court ruled that Smith was not incompetent, but demonstrated an inability to provide for her health. Audrey was appointed limited guardian of Smith for health care purposes. The court allowed Smith to stay in Audrey's home, approved the visitation schedule for family members that Audrey submitted, but forbade Audrey from preventing visitation from her siblings. The court appointed EthiCare as guardian of Smith's estate, and co-guardian for the purpose of facilitating visitation. This order was modified in January 2002, when Audrey was appointed limited guardian of Smith's person, with EthiCare remaining only as guardian of Smith's estate.
EthiCare claimed that Audrey stated that Smith could not move until a bed and mechanical chair were purchased for the new apartment. However, EthiCare alleged, Audrey would not commit to a time to make these purchases with EthiCare.
Problems persisted. The trial court had approved Audrey's plan for visits with Smith to occur in an `on-site visiting room.' Duane and Fred complained that this `room' was actually a cold, uncomfortable portable shed placed in Audrey's backyard that did not allow visitors to get a glass of water, go to the bathroom, or eat together. Audrey claimed the area was warm, dry and well-lit. Another conflict arose regarding payment to Audrey for her care of Smith, and in September 2003 the court commissioner ordered EthiCare to pay Audrey's 2001 care costs out of Smith's estate.
Smith's personal property presented another opportunity for the parties to disagree. In June 2002 the court gave EthiCare permission to sell some of Smith's personal and real property. EthiCare was also to supervise family members' removal of their personal items from Smith's home. Conflict arose surrounding Smith's personal property. Audrey cites letters Smith faxed to EthiCare requesting that she be able to access her personal property at her home — these letters span the period between March and October 2002.
EthiCare claims that Audrey stated that Smith only wanted Audrey with her when going though her personal items. EthiCare also alleges that when its president, George Marcoe (Marcoe) met with Smith in November 2002, Smith did not complain of how her personal property was being distributed, and in fact stated she had no room or desire for the property. In December 2002, a court commissioner authorized and directed EthiCare to distribute all remaining items of Smith's personal property under its control. The litigation came to a head when Audrey filed a petition to remove EthiCare as guardian of Smith's estate on November 26, 2002. The commissioner denied this request on February 13, 2003. EthiCare filed a petition to have itself removed as guardian of Smith's estate upon several conditions, noting the `strained' relationship between itself and Audrey. One day later Audrey moved for revision of the commissioner's ruling. On April 23, 2003, the trial court revised the commissioner's decision and removed EthiCare as guardian. The trial court entered several written findings on April 28, 2003, including:
3. EthiCare failed to deal with Ms. Smith and her belongings in her best interest when handling her personal property. . . .
4. EthiCare conducted itself in a manner that gave the general impression that it was acting in cahoots with Duane Smith and had been from the beginning of this matter, rather than solely in the best interest of Martha Smith.
5. EthiCare created the impression that it did not care about the interests of Martha Smith. . . .
6. There would be less animosity and litigiousness surrounding this matter if the guardian was truly independent and not suspected of serving the interests of another family member. . . .
EthiCare was ordered to pay Audrey's reasonable attorney fees associated with the motion for removal. EthiCare appealed. Smith's real property was also not immune from family conflict. Prior to its removal, EthiCare had Smith's real property appraised, and the court commissioner approved EthiCare's plan to sell the property as-is. EthiCare received competing bids on the property from Smith's family members, and recommended to the court that the property be sold to Duane, not Audrey. However, EthiCare was removed before it received court approval for the sale to Duane. After the removal, Duane withdrew his offer and the successor guardian sold the property to Audrey for a lower price. After EthiCare's removal, a court commissioner made some additional findings on September 11, 2003, regarding the propriety and benefit to Smith's estate of some of EthiCare's actions. Based on his own findings and the April 2003 findings of the trial court, the commissioner also awarded Audrey's reasonable attorney fees and EthiCare's guardianship and attorney fees. On January 30, 2004, the trial court confirmed the commissioner's order regarding fees. Audrey appealed, requesting additional attorney fees and a reduction in EthiCare's fees. EthiCare also appealed. EthiCare assigned error to 15 of the trial court's and commissioner's findings and conclusions. Audrey cross-appealed, assigning error to four of the commissioner's findings and conclusions.
ANALYSIS I. EthiCare's Standing
Audrey argues that under Guardianship of Lasky, 54 Wn. App. 841, 850, 776 P.2d 695 (1989), EthiCare lacks standing to challenge its removal as guardian. Audrey further argues that EthiCare therefore lacks standing to challenge the findings of fact that formed the basis for EthiCare's removal.
EthiCare does not challenge its removal, but argues it has standing to challenge the findings of fact contained in the removal order because those findings formed the basis for the order on fees and sanctions. Further, under GR 23 adopted after Lasky, EthiCare claims a right based on its certification as a professional guardian. Because the rules adopted by the Certified Professional Guardian Board permit the denial of certification based on removal as a guardian by a court, or a finding by a court that the guardian has violated its duties, EthiCare argues it has standing to challenge the order that could threaten those rights.
EthiCare and the Amicus Curiae Guardianship Services of Seattle, Lifetime Advocacy Plus and Partners in Care (Certified Professional Guardians) the Certified Professional Guardians urge the court to declare guardianship certification a property right and to hold that a professional guardian has standing per se to challenge a removal, due to the potential jeopardy of that right under the certification rules. The Certified Professional Guardians argue that the court should overturn or modify Lasky. However, we need not decide if guardianship certification is a property right, as any potential deprivation of that right in this case is too remote to confer standing.
Only a party who is aggrieved may seek appellate review. RAP 3.1. A party is aggrieved if his or her proprietary, pecuniary, or personal rights are substantially affected. Cooper v. City of Tacoma, 47 Wn. App. 315, 316, 734 P.2d 541 (1987). In order for a party to be aggrieved by an order, `the right invaded must be immediate, not merely some possible, remote consequence.' Sheets v. B.P.O.K., 34 Wn.2d 851, 855, 210 P.2d 690 (1949) (quoting 4 C.J.S. 356 section 183 b.(1)). A reduction in fees and an order to pay another party's attorney fees substantially affects a party's pecuniary rights. Lasky, 54 Wn. App. at 850.
In Lasky, the removed guardian was contesting two separate orders: one that denied him attorney fees and imposed CR 11 sanctions on him, and one that removed him as guardian and dismissed the trust action. Lasky, 54 Wn. App. at 848. The court noted that the removed guardian has no interest in the guardianship or trust estate other than for compensation due him. Therefore, he may appeal the order denying fees and imposing sanctions, but not the order dismissing the trust action and removing him as guardian.
. . .
The June 12, 1987, findings, conclusions and orders did not affect any right of Steinberg's.
Lasky, 54 Wn. App. at 850. Since the order removing the guardian and dismissing the action did not affect any of the guardian's rights, the court held that he was not an aggrieved party with respect to that order. Lasky, 54 Wn. App. at 850.
However, Lasky does not preclude appeal of the order in this case. Here, the order removing EthiCare did affect EthiCare's pecuniary rights because it contained findings and conclusions that were relied upon not only for removal, but also in later orders to deny fees and impose sanctions. In his September 2003 order, the commissioner ordered that EthiCare was not to be paid for its time spent dealing with Smith's personal property issues, noting that `[the trial judge] has found the Guardian's actions to be inappropriate and cause for removal. It is inappropriate to compensate the Guardian from the Estate for this time.' The April 2003 order affected EthiCare's rights, thus giving EthiCare standing to contest the findings and conclusions in the order that affected those rights.
II. Trial Court's April 2003 Findings and Conclusions
EthiCare assigns error to several of the trial court's April 2003 findings and conclusions, arguing they are not substantially supported in the record. The standard of review for a trial court's findings of fact and conclusions of law is two-pronged. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). First, the findings of fact must be supported by substantial evidence in the record; if so, then the appellate court must decide whether the findings support the trial court's conclusions of law. Landmark, 138 Wn.2d at 573. `Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.' Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978).
A. Finding of Fact 3
In its April 28, 2003 order, the trial court found the following: 3. EthiCare failed to deal with Ms. Smith and her belongings in her best interest when handling her personal property. EthiCare engaged in behavior of doubting Ms. Smith's competence and resisting her expressed wishes to look at and remove her belongings from her former residence; an act which was unconscionable.
EthiCare challenges this finding as not substantially supported by the evidence. We agree.
EthiCare's refusal to grant Smith's request for unfettered access to the residence was not unconscionable, given the duties EthiCare owed as guardian of Smith's estate and the determinations made by the court relating to Smith's competency existing at the time of those actions. EthiCare was appointed temporary guardian of Smith's person and estate on June 4, 2001. Jones sent letters to EthiCare dated August 8, 2001, and October 9, 2001, requesting that Smith be given keys to her residence so that she could retrieve personal items. Jones suggested that EthiCare's supervision was unnecessary, as Smith's personal items had already been inventoried. However, a guardian has a duty to account for items of the estate and to protect and preserve the estate. RCW 11.92.040. The record does not show that EthiCare refused all access, only unsupervised access. Further, the record does not suggest that EthiCare was relieved of its duty to protect Smith's personal property by a court order. Nor does it suggest a means other than supervision of removal of items for preserving an accurate inventory or disposition of items removed, especially significant given the high level of distrust between Smith's children. If EthiCare had allowed Smith unsupervised access to her residence, it could have breached its duty to account for all the items of the estate, had any gone missing. Thus, EthiCare's adherence to its statutory fiduciary obligations cannot be characterized as unconscionable.
EthiCare's refusal to allow Smith to take all of her personal property from her residence was similarly not unconscionable, given EthiCare's duties. Smith faxed Marcoe several letters requesting that she be given all of her personal property at her residence. However, EthiCare was obligated to account for and preserve the items in the estate. If EthiCare had allowed Smith to take all of her personal property, EthiCare would have essentially discharged itself from its obligation to protect and preserve that property. Neither the order appointing EthiCare nor RCW 11.92.040 grant EthiCare that authority. Thus, EthiCare actions in refusing to allow Smith to take all of her property absent court approval cannot be characterized as unconscionable.
In addition, EthiCare's actions complied with the court's orders. In response to Smith's requests for her personal property, EthiCare sought court approval, and the court issued an order on June 25, 2002. This order specifically rejected EthiCare's proposed language to allow Smith to handle all of her remaining personal property without EthiCare's intervention. Instead, the order stated that remaining items were to be removed with EthiCare's administration. Smith subsequently requested all of her personal property. In his August 12, 2002, letter replying to Smith, Marcoe stated that he did not object to Smith having all of her property. However, he stated that he felt he needed the court's permission to let Smith take everything. This position is consistent with the language that EthiCare proposed and the court rejected in June 2002. Thus, EthiCare was acting in accordance with the order and could not have been acting unconscionably.
EthiCare's actions of `doubting' Smith's competence likewise cannot be characterized as unconscionable. EthiCare had been appointed guardian of Smith's estate because the commissioner had found that Smith was unable to handle financial matters. Smith's incompetence with respect to her estate had thus been established. Therefore, any actions that EthiCare took that appeared to doubt Smith's competence were in keeping with the commissioner's prior finding. The evidence thus does not establish unconscionability.
The finding that EthiCare was not acting in Smith's best interests is also unsupported in the record. The evidence indicates that EthiCare was acting in accordance with its duties and was not acting unconscionably with respect to Smith's personal property. As the commissioner had previously determined, Smith was unable to manage her financial affairs, and so it was in her best interest for a guardian to be appointed to look after her estate. By acting in compliance with its duties as guardian while handling Smith's personal property, EthiCare could not have been acting contrary to Smith's best interests. Thus, Finding of fact 3 is unsupported and is stricken.
B. Finding of Fact 4
EthiCare also assigns error to the April 2003 finding that stated: 4. EthiCare conducted itself in a manner that gave the general impression that it was acting in cahoots with Duane Smith and had been from the beginning of this matter, rather than solely in the best interest of Martha Smith.
EthiCare argues that there is no basis in the record for this finding. We disagree.
A court's oral ruling may be used to interpret its written findings if the oral ruling is consistent with those findings. Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963). Here, the trial court stated in its oral ruling on April 23, 2003, that its chief criticisms of EthiCare `are their dealing with Ms. Smith and her belongings and conducting themselves in such a way as to give Audrey and the Court the impression that they were in cahoots with Duane.' Thus, we can interpret Finding 4 to mean that EthiCare gave Audrey and the trial court the impression that it was in cahoots with Duane.
There is ample evidence to support the finding that Audrey had the impression, based on EthiCare's actions, that EthiCare was in cahoots with Duane. Duane had first nominated EthiCare as guardian. EthiCare filed numerous documents in which it portrayed Duane in a positive light and gave credence to his concerns about Audrey. EthiCare also painted Audrey with a negative brush, portraying her as controlling and suspicious. That Audrey had the impression that EthiCare and Duane were in cahoots is supported by documents she filed accusing EthiCare and Duane of teaming up `to trick Mom'. The trial court was free to form a similar impression from the evidence. Thus, the finding that EthiCare gave the trial court and Audrey the impression that it was in cahoots with Duane is substantially supported. This finding is not that EthiCare and Duane were actually in cahoots or did not act in Smith's best interests, only that they had created the impression that they were. Such a finding would not be supported by the record.
C. Finding of Fact 5
5. EthiCare created the impression that it did not care about the interests of Martha Smith and was not solely devoted to the welfare of Martha Smith or the integrity of her estate. There was nothing Audrey Ingraham could have done to persuade them to act otherwise.
EthiCare claims that this finding is not substantially supported in the record. We disagree.
There is ample evidence that EthiCare gave Audrey the impression that it did not care about Smith's interests. As indicated above, EthiCare gave Audrey and the trial court the impression that it was in cahoots with Duane, thus implicitly creating the impression that it was not solely devoted to Smith. That Audrey had this impression is supported by documents she filed indicating her beliefs that EthiCare was contributing to the reduction in value of Smith's estate, that EthiCare had unreasonably refused Smith unfettered access to her personal property; that EthiCare was poorly handling Smith's rental property, and that EthiCare disregarded Smith's wishes about visitation. Thus, the finding that EthiCare gave Audrey the impression that it `did not care about the interests of Martha Smith and was not solely devoted to the welfare of Martha Smith or the integrity of her estate' is substantially supported. However, this is not a finding that EthiCare did not in fact care about Smith or her estate. The finding that there was nothing Audrey could have done to persuade EthiCare to act otherwise is irrelevant to Audrey's impression of EthiCare and is unsupported by the evidence.
D. Finding of Fact 6
The trial court also found on April 28, 2003, that:
6. There would be less animosity and litigiousness surrounding this matter if the guardian was truly independent and not suspected of serving the interests of another family member.
EthiCare assigns error to this finding; however, the numerous prior petitions and declarations regarding EthiCare's actions amply support it, including: Audrey's November 14, 2002 declaration accusing EthiCare and Duane of needlessly delaying approval of her care services contract. Allan's January 10, 2003 accusation that Marcoe has been `buddy buddy' with Duane and his lawyer from the beginning; Audrey's January 10, 2003 declaration that EthiCare did not allow verification of the inventory of Smith's personal property, but allowed Fred and Duane access to Smith's home; Audrey's January 12, 2003 accusation that Marcoe and Duane `teamed up;' and Audrey's husband's January 12, 2003, accusation that the conflict is good for EthiCare and its lawyers' business. Regardless of whether EthiCare actually was serving Duane's interest, ample evidence existed to support the finding that the impression that EthiCare was doing so was contributing to animosity and litigation. However, this is not a finding that EthiCare was not actually independent or was breaching its professional duties. It is a finding that, given that EthiCare's positions aligned more with Duane's positions, and that the positions of Audrey and Duane are very antagonistic, EthiCare's continued involvement would create more litigation. Finding 6 is therefore supported by substantial evidence.
E. Finding of Fact 7
In its April 28, 2003, order, the trial court also found that:
7. It is not in the best interest of Martha Smith for EthiCare to continue serving as the guardian of her estate because of the expense of continued litigation.
EthiCare argues that this finding is not substantially supported in the record. We disagree.
It is undisputed that Smith had limited assets. It is also clear that the expenses surrounding the case were high. Audrey's attorney Lana Floyd billed $4,043.00 for work and costs associated with the November 2002 petition for removal of EthiCare and approval of care costs. EthiCare's first attorney, Andrea Nicolaisen, billed approximately $19,724 for work done on the case between May 11, 2001 and October 10, 2002. EthiCare's later attorney, Roger Kohn billed fees for services between October 2002 and August 2003 in the amount of $20,104.56. This evidence, coupled with the evidence supporting Finding 6 that there would be less litigiousness with a non-suspect guardian, supports the finding that because of high litigation costs, Smith's best interests would not be served by EthiCare continuing as guardian. Again, this is not a finding that EthiCare has not acted in Smith's best interest. Nor is it a finding that EthiCare is solely at fault for this expense. Such a finding would not be sustainable on this record. Nevertheless, given the conflict with Audrey and the expenses flowing from that conflict, Finding 7 is supported by substantial evidence.
F. Conclusions of Law 11 and 12
On April 28, 2003, the trial court made the following rulings:
11. All guardian fees and costs and all of the guardian's attorneys' fees and costs associated with this motion for revision and with the motion for removal and replacement of EthiCare as guardian of the estate are the responsibility of EthiCare, not Martha Smith or the Guardianship Estate.
12. Pursuant to RCW 11.88.120 and 11.96A.150, all reasonable attorneys' fees and costs incurred by Audrey Ingraham in pursuit of the motion for revision and motion for removal and replacement of the guardian of the estate shall be paid by EthiCare in an amount to be determined. Such award shall be reduced to judgment.
EthiCare assigns error to these conclusions, arguing that they are based on factual findings that lack substantial support in the record. We disagree. In this case, Audrey asked EthiCare if it would voluntarily resign in November 2002. EthiCare responded that it would be willing to resign under `appropriate circumstances.' Audrey then petitioned the court for removal of EthiCare on November 25, 2002. EthiCare initially opposed its removal, seeking to continue the guardianship of Smith's estate for another year. The court commissioner denied Audrey's request for removal. EthiCare filed a petition seeking to resign as guardian of Smith's estate. One day later Audrey filed a motion for revision of the commissioner's decision. On April 28, 2003, the trial court granted Audrey's request for revision of the commissioner's decision, and removed EthiCare as guardian.
In determining the appropriateness of an award of attorney fees, we must determine whether the relevant statute provides for an award of fees; this is a question of law and is reviewed de novo. Mehlenbacher v. DeMont, 103 Wn. App. 240, 244, 11 P.3d 871 (2000). We review the factual findings and determine whether they support the trial court's decision to award fees. Tradewell Group, Inc. v. Mavis, 71 Wn. App. 120, 127, 857 P.2d 1053 (1993). The relevant statutes here give the trial court wide discretion in awarding fees. In a hearing to modify a guardianship or replace a guardian, RCW 11.88.120 allows the trial court to `grant such relief as it deems just and in the best interest of the incapacitated person.' RCW 11.96A.150 further states that:
[e]ither the superior court or the court on appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings; (b) from the assets of the estate or trust involved in the proceedings; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs to be paid in such amount and in such manner as the court determines to be equitable.
Here, the statutes allow for an award of attorney fees, and they give the trial court a large amount of discretion in determining the award. We have stricken the trial court's finding that EthiCare acted unconscionably and not in Smith's best interests. However, even though none of the remaining findings establish explicit wrongdoing by EthiCare, we cannot say that the trial court abused its discretion in awarding Audrey fees in connection with the motion for revision and the motion for removal. This is because the statutes do not require a finding of wrongdoing in order to award attorney fees. Thus, the April 2003 conclusions 11 and 12 regarding fee apportionment are not inconsistent with the statutes and are not an abuse of discretion.
III. Commissioner's September 2003 Finding and Conclusions
Subsequent to EthiCare's removal, Audrey petitioned the court for her care costs and other relief. On September 11, 2003, the court commissioner issued an order establishing the fees to be paid by the various parties. EthiCare and Audrey assign error to some of the commissioner's findings and conclusions in this order regarding guardian and attorney fees. As indicated above, we first review the relevant statute and findings and determine whether they support the trial court's decision to award fees. Tradewell, 71 Wn. App. at 126. Once we have established that a legal basis exists for the award, we then review the amount of the award under the abuse of discretion standard. Tradewell, 71 Wn. App. at 126. An appellate court will not overturn an award of attorney fees absent a manifest abuse of discretion; discretion is abused when the award is manifestly unreasonable, based on untenable grounds, or given for untenable reasons. Estate of Black, 116 Wn. App. 476, 489, 66 P.3d 670 (2003). An attorney fees award must be supported by findings and conclusions sufficient to establish a record adequate for review. Eagle Point Condo. Owners Ass'n v. Coy, 102 Wn. App. 697, 715, 9 P.3d 898 (2000).
The relevant law in this case allows the trial court wide discretion in awarding fees. However, it also places some limits. Case law suggests that `it is inappropriate to assess fees against an estate when the litigation could result in no substantial benefit to the estate.' Estate of Niehenke, 117 Wn.2d 631, 648, 818 P.2d 1324 (1991). Thus, the trial court must make its awards with this principle in mind.
A. EthiCare's Guardian Fees
The commissioner made several findings regarding the time spent by EthiCare on various issues, and the resulting benefit to Smith's estate. The commissioner concluded that not all of the time spent by EthiCare would be compensated. He then concluded that an appropriate guardian fee for EthiCare was $4,000. EthiCare argues that these findings and conclusions are in error because they lack substantial support in the record. Audrey argues that the amount awarded is in error because EthiCare is not entitled to fees spent resisting its removal or acting in breach of its duty as guardian. We have stricken the trial court's April 2003 finding that EthiCare acted unconscionably. Accordingly, we find that these September 2003 findings and conclusions regarding EthiCare's guardian fees are not substantially supported. We remand for reconsideration.
1. Smith's Real Property
In the September 2003 order, the commissioner made several findings and conclusions, including:
1.5 There was significant time spent relating to the real property of the IP [Smith]. Although a reasonable amount of time was appropriate to explore the options, this Court finds that much of the time so spent was misdirected and inefficient. There was no benefit to the Estate from much of the time spent. Rather, the Guardian became caught in the conflict between the children. The guardian should have made a decision early on, implemented this decision as cheaply and expeditiously as possible, without regard to the rivalry of the siblings.
. . .
2.4 The time spent by the Guardian dealing with the real property was, in large part, wasted. It did not result in any benefit to the IP. Much of the time spent was negotiating between the IP's children. It is only appropriate to compensate for a portion of this time.
EthiCare claims that these findings and conclusions are not substantially supported. We agree.
EthiCare's actions had the effect of driving up the price for Smith's property. Smith's duplex and land were appraised at an `as-is' value of approximately $368,000. Before posting Smith's real property on the multiple listing service, EthiCare received a series of competing bids from Smith's family members. On April 12, 2003, Marcoe submitted the sale for court approval, including a declaration, attaching the proposed purchase and sale agreement for Smith's real property from Duane, which Marcoe recommended, as it was non-contingent. Duane's offered purchase price was $410,000. Marcoe also attached the proposed purchase and sale agreement from Audrey's LLC, OCO Properties. Audrey's offered purchase price was $414,500; however, it had contingencies. Neither of these deals went through. EthiCare was removed as guardian before it received court approval for Duane's purchase and sale agreement. After EthiCare was removed, Duane did not renew his offer to purchase the property. The successor guardian sold the property to Audrey for $385,500, a lower price than Audrey had originally offered.
The above evidence does not substantially support the commissioner's findings and conclusions. The evidence shows that the time spent negotiating between Audrey and Duane drove up the price of Smith's property. If EthiCare had not been removed and the purchase and sale agreement with Duane had been approved, the property would have sold for $42,000 over its appraised value. However, even after EthiCare's removal, the property sold to Audrey for a higher price than the property's appraised value. Thus, the finding that much of the time spent by EthiCare in dealing with Smith's real property was wasted and did not benefit Smith is not substantially supported. Accordingly, the conclusion that only a portion of this time is to be compensated is unsupported.
2. Smith's Personal Property
The commissioner also made the following findings and conclusions: 2.3 The time spent by the Guardian in dealing with personal property issues will not be compensated. Judge Thorpe has found the Guardian's actions to be inappropriate and cause for removal. It is inappropriate to compensate the Guardian from the Estate for this time.
EthiCare claims that the statement is in error and is not substantially supported. As we have stricken Judge Thorpe's finding regarding Smith's personal property as not substantially supported, we agree with EthiCare. Disallowance of all the claimed fees was error.
3. Award of Guardianship Fees to EthiCare
In the order, the commissioner concluded the following: 2.5 The reasonable Guardian fee from the period for April 2002 to April 2003 is a total of $4,000.
EthiCare and Audrey both assign error to this conclusion. As we have stricken the factual findings regarding real and personal property upon which the commissioner based this award, we must remand to the commissioner to determine an appropriate amount in light of this opinion.
The commissioner must also enter additional findings to support the award amount. A determination and award of guardianship fees is within the discretion of the trial court. In re Spiecker, 69 Wn.2d 32, 34-35, 416 P.2d 465 (1966). However, as with attorney fees, the trial court must provide an adequate record upon which to review the fee award. Estrada v. McNulty, 98 Wn. App. 717, 723-24, 988 P.2d 492 (1999). The award must also provide findings on the reasonable number of hours and the reasonableness of the hourly fee allowed.
B. Nicolaisen's Attorney Fees
The commissioner also made the following findings and conclusions: 3.2 Many of the fees charged by [Nicolaisen], though at the direction and behest of the Guardian, are, nonetheless, not properly charged against the Estate. Similar issues and findings relate to these charges as are identified and related above. Some of the charges did not benefit [Smith] to be appropriately charged to her Estate, as were some of the charges of the Guardian.
3.3 I find that additional fees to be paid by the Estate to this attorney [Nicolaisen] after September 2001 are in the total sum of $4,000. This is not a finding that the time charged is unreasonable, only that it is not to be paid by Martha Smith.
Essentially, the commissioner found that the time spent by Nicolaisen on personal and real property issues was largely wasted. EthiCare assigns error to these findings and conclusions, arguing they are not substantially supported in the record. Audrey argues that the activities Nicolaisen billed are not properly payable by Smith's estate, and so the estate should pay Nicolaisen nothing. As we have stricken the factual findings upon which the commissioner based this award, we must remand to determine an appropriate amount in light of our opinion.
Additional findings and conclusions must support of the amount awarded. When revisiting the fee award to Nicolaisen, findings are required as to a reasonable number of hours, a reasonable rate, or whether any of the services were duplicative or unnecessary, as required by Mahler v. Szucs, 135 Wn.2d 398, 433-35, 957 P.2d 632 (1998). We remand for further findings.
C. Kohn's Attorney Fees
The court commissioner in his September 11, 2003, ruling ordered: 4.1 This attorney [Kohn] entered the case contemporaneously with the Petition to Remove being filed. His fees for defending this Petition are not properly chargeable to the Estate.
4.3 Based upon my review of the pleadings, a reasonable fee related to the accountings is for 30 hours of attorney time. This amounts to $4,350 at this attorney's billing rates. This shall be paid by the Estate.
EthiCare assigns error to the findings and conclusions reducing the amount of Kohn's fee payable by the estate, arguing they are unsubstantiated in the record. Audrey assigns error to the conclusion as to the amount of compensation due Kohn, arguing that most of his activities did not benefit Smith's estate. We affirm all of the findings and conclusions on this issue.
The finding that Kohn entered the case at the same time that the removal petition was filed is supported in the record — the two events occurred within a month of each other. The conclusion that Kohn is not to be compensated for time spent defending the removal is supported, as is the trial court's finding that EthiCare was to be responsible for its own attorney fees incurred in defending its removal.
The commissioner found that Kohn's fees for resisting the removal would not be charged to Smith's estate, but that fees for defending the challenge to EthiCare's accounting would be charged to Smith's estate. He noted that distinguishing between these two charges was impossible. The commissioner then found that 30 hours was a reasonable time, which was $4,350 at Kohn's billing rate ($145 per hour), and charged that amount to Smith's estate. Based on review of Kohn's billings, 30 hours appears to be a reasonable estimate of the time Kohn spent with respect to EthiCare's accounting. The court commissioner did not abuse his discretion in ordering Smith's estate to pay $4,350 of Kohn's attorney fees.
D. Floyd's Attorney Fees
The commissioner also made the following findings and conclusions: 5.1 The fees for this attorney [Floyd] in the Petition for Removal have been reserved. I interpret Judge Thorpe's order to reserve the amount. It is appropriate that Ethi[C]are pay a reasonable sum, based upon the improprieties found by Judge Thorpe.
5.3 Based upon my review of the files and pleading, I find that it is appropriate that 60 hours of time was spent on this issue. At her billing rate of $160, this amounts to $9,600. This sum shall be entered as a judgment. The Estate for this charge will instead pay the $4,000 sum owed to the Guardian.
The commissioner clarified the last sentence of 5.3 on October 8, 2003. He stated that he intended the estate to pay Floyd the $4,000 it otherwise would have paid to EthiCare. He also stated that the estate would not be responsible for the remaining $5,600 — presumably EthiCare was to pay that amount directly.
EthiCare assigns error to these findings and conclusions, arguing that they are not substantially supported. Audrey assigns error to the amount EthiCare was ordered to pay, arguing that EthiCare should have to pay the full amount of Audrey's attorney fees, since they benefited Smith's estate. We reverse this fee award. Although we have upheld the trial court's conclusion that EthiCare must pay Audrey's reasonable attorney fees in pursuit of the motion for revision and the motion for removal, the language of the commissioner's fee award suggests that he may have been relying upon a stricken finding in determining what amount was reasonable. The commissioner found that EthiCare should pay a reasonable sum of Floyd's attorney fees, based on the improprieties found by the trial court. We have stricken the trial court's finding that EthiCare did not act in Smith's best interests and acted unconscionably. It is unclear whether this stricken finding contains the `improprieties' to which the commissioner is referring, or whether the commissioner is referring to other findings made by the trial court that have not been stricken. What might have been reasonable under the stricken findings may or may not be reasonable in their absence. Because we cannot tell whether the commissioner's award is based in part on a finding that has been stricken, we remand for new findings.
IV. Attorney Fees on Appeal
EthiCare claims that Audrey must pay its attorney fees and costs on appeal, pursuant to RCW 11.96A.150 and RAP 18.1. RCW 11.96A.150 gives the appellate court discretion as to whether to award costs and fees, and to whom. As EthiCare has prevailed on several of its more significant assignments of error, we award EthiCare its fees and costs on appeal. Audrey claims that EthiCare must pay her attorney fees and costs on appeal, pursuant to RCW 11.96A.150, RAP 18.1 and RAP 14.2. Since we award fees and costs on appeal to EthiCare, we do not award them to Audrey. Affirmed in part, reversed in part and remanded for reconsideration of the sanctions and fee awards.
SCHINDLER and BECKER, JJ., concur.