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Wilks v. Batten

February 13, 1997

KERRI L. WILKS AND TERRY WRENN, RESPONDENTS,
v.
RAYMOND M. BATTEN JR. AND CAROL BATTEN, HUSBAND AND WIFE; AND RAYMOND BATTEN JR. TRUSTEE OF THE LIVING TRUST OF ROY T. WILKS, APPELLANTS, ERNEST WILKS AND JANE DOE DOE WILKS, HUSBAND AND WIFE; KEITH HOLLENBECK, AS TRUSTEE OF THE LIVING TRUST OF ROY T. WILKS, DEFENDANTS. COREY L. WILKS, AS EXECUTOR OF THE ESTATE OF ERNEST L. WILKS, RESPONDENT, V. RAYMOND M. BATTEN AND JANE DOE BATTEN, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY COMPOSED THEREOF, APPELLANTS, KEITH HOLLENBECK AND JANE DOE HOLLENBECK, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY COMPOSED THEREOF; RESPONDENT, MOREINE JOHNSON, DEFENDANT.



Appeal from Superior Court of Spokane County. Docket No: 91-2-03142-2. Date filed: 12/29/93. Judge signing: Hon. Robert H. Whaley.

Petition for Review Denied October 7, 1997,

Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Ray E. Munson.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. This consolidated appeal involves the last will and testament of Roy T. Wilks admitted to probate in Spokane County. *fn1 Raymond M. Batten argued the will was revoked by the "Living Trust of Roy T. Wilks." The trial court held the living trust was void because Mr. Wilks' signature was not genuine. It upheld the validity of the will. On appeal, Mr. Batten contends certain of the trial court's findings are not supported by substantial evidence. He further asserts the court erred in (1) not admitting a certified copy of the living trust, (2) denying his motion for a new trial; and (3) consolidating the actions for trial. We affirm.

FACTUAL BACKGROUND

Roy Wilks died on April 3, 1991. Under the terms of his last will and testament published on October 24, 1989, Kerri L. Wilks, his granddaughter, was to receive approximately one-half of the residuary estate. The other half was to go to his girlfriend, Terry Wrenn. Mr. Wilks also provided for the care of one of his sisters. The will was admitted to probate.

At or about that time, Mr. Batten alleged he had prepared several documents that Mr. Wilks signed in 1990 and 1991. These documents included a living trust agreement naming Mr. Batten as trustee. *fn2 Mr. Batten notarized Mr. Wilks' signature. Mr. Batten's wife witnessed the signature. The other documents allegedly signed by Mr. Wilks include two quitclaim deeds transferring certain Whitman and Spokane County properties to Mr. Batten, as trustee; a limited power of attorney; an assignment of contract transferring Mr. Wilks' financial interest in a real estate contract; a general power of attorney authorizing Mr. Wilks' brother, Ernest, to fund the living trust; and a letter transferring Mr. Wilks' real and personal property to the trust.

Extensive litigation followed. In 1991, Ms. Wilks filed a complaint for declaratory judgment, injunctive relief, and damages against Mr. Batten. She alleged that the living trust was void because Mr. Batten had a disqualifying interest and engaged in the unauthorized practice of law and self-dealing. Her complaint also alleged undue influence, fraudulent inducement, conspiracy to defraud, forgery, incompetent witnesses, and Consumer Protection Act violations.

Ernest Wilks *fn3 filed a complaint against Mr. Batten for conversion and to set aside certain transactions. He alleged that Mr. Batten had converted personal property from the estate. In a second cause of action, Ernest Wilks alleged Mr. Batten breached his fiduciary duty by causing him to sign a $200,000 promissory note in 1991, secured by an assignment of his beneficial interest under the living trust.

Mr. Batten responded that he held the property under the authority of the trust agreement. By counterclaim, he sought damages against Ernest Wilks for abuse of process and malicious prosecution. By cross-claim, he sought damages against Mr. Hollenbeck for conspiracy. He also alleged that Corey L. Wilks (as the executor of the estate of Ernest Wilks) was indebted to him in the amount of $200,000 under the promissory note.

The trial court consolidated the probate of the estate and the actions brought by Ms. Wilks and Ernest Wilks. It ruled that the living trust did not revoke Mr. Wilks' will. And it determined the living trust, assignment of contract, general power of attorney, and two quitclaim deeds were void because Mr. Wilks' signature was not genuine. By stipulation, the claim for conversion of property and the action on the promissory note were dismissed. The court also dismissed, with prejudice, Mr. Batten's counterclaim for abuse of process and malicious prosecution and Mr. Batten's cross-claim against Mr. Hollenbeck. This appeal follows.

Discussion

Substantial Evidence to Support Findings. Mr. Batten first argues that several of the court's findings are not supported by substantial evidence. Preliminarily, we note that our review of the record is hampered by the fact that Mr. Batten has not filed a verbatim report of proceedings. *fn4 A narrative report of proceedings and an objection to the narrative report of proceedings have been filed.

We determine whether the challenged findings of fact are supported by substantial evidence and, if so, whether the findings in turn support the Conclusions of law. Willener v. Sweeting, 107 Wash. 2d 388, 393, 730 P.2d 45 (1986). Findings of fact supported by substantial evidence will not be disturbed on appeal. In re Marriage of Mathews, 70 Wash. App. 116, 122, 853 P.2d 462, review denied, 122 Wash. 2d 1021, 863 P.2d 1353 (1993). Substantial evidence is evidence of a sufficient quantum to persuade a fair-minded, rational person of the truth of the declared premise. In re Welfare of Snyder, 85 Wash. 2d 182, 185-86, 532 P.2d 278 (1975). We do not substitute our findings for those of the trial court. Thorndike v. Hesperian Orchards, Inc., 54 Wash. 2d 570, 575, 343 P.2d 183 (1959).

Mr. Batten assigns error to the following findings of fact entered by the trial court:

6) The authenticity of the signature of ROY T. WILKS, deceased, . . . has been ...


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