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Anderson v. Dussault

Court of Appeals of Washington, Division 2

October 1, 2013

Rachel Marguerite Anderson, Appellant,
William L.E. Dussault et al., Respondents

Oral Argument June 25, 2013.

Reconsideration denied November 27, 2013.

Appeal from Clallam Superior Court. Docket No: 11-2-00741-6. Date filed: 03/02/2012. Judge signing: Honorable Jay Bryan Roof.

Carl L. Gay (of Greenaway Gay & Tulloch ), for appellant.

Sam B. Franklin and William L. Cameron (of Lee Smart PS ); Steven Goldstein and Shawna M. Lydon (of Betts Patterson & Mines PS ); and James R. Hennessey and Julia K. Doyle (of Smith & Hennessey PLLC ), for respondents.

Authored by Christine Quinn-Brintnall. Concurring: Jeanette Marie Dalton, J.P.T., and Jill M Johanson, A.C.J.


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Quinn-Brintnall, J.

[177 Wn.App. 81] ¶ 1 Shortly before her 21st birthday, Rachel Anderson brought suit against a host of defendants she believed mismanaged the " special needs" trust established for her when she was injured as a minor.[1] In her complaint, Anderson alleged tat the two members of the " trust advisory committee" --her mother, Andrea Davey,[2] and attorney Richard McMenamin--and the trustee, Wells Fargo Bank, NA, breached their fiduciary duties by approving trust disbursements contrary to the spirit of the trust. Anderson also alleged that William Dussault, the attorney hired by Wells Fargo to submit annual reports for court approval, committed legal malpractice.

¶ 2 McMenamin, Dussault, and Wells Fargo all moved for summary judgment, arguing, inter alia, that Anderson's claims were barred by the " Trustees' Accounting Act," ch. 11.106 RCW, res judicata, or judicial estoppel. Alternatively, each defendant argued that the trust's express language allowed for the disbursements in question and Anderson's claims failed, as a matter of law, to establish breach of fiduciary or legal duties. Without explaining its rationale, [177 Wn.App. 82] the

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trial court granted summary judgment to McMenamin, Dussault, and Wells Fargo. Anderson now appeals, arguing that (1) the Trustees' Accounting Act does not apply to her trust and does not bar her claims, (2) neither res judicata nor judicial estoppel bar her claims, (3) the terms of the trust do not bar her claims, and (4) she presented enough evidence concerning the disbursements in question to warrant surviving summary judgment in light of disputed material facts.[3] Because the Trustees' Accounting Act bars Anderson's claims, we affirm.



¶ 3 In November 1996, shortly after her sixth birthday, Anderson (formerly " Rachel M. Rodgers" ) was kicked in the face by a horse. Anderson " sustained major skull and facial damage" from the injury, required extensive surgery, and suffered substantial " psychological and emotional impact." 3 Clerk's Papers (CP) at 477. Anderson's family hired attorney McMenamin to settle her case and to that end, McMenamin retained attorney Dussault to prepare a trust in which to place the settlement proceeds. The trust was designed to " supplement all other financial and service benefits to which [Anderson] might be eligible as a result of her disability." 3 CP at 478.

¶ 4 On August 25, 1997, Clallam County Superior Court approved the settlement agreement and the parties' creation [177 Wn.App. 83] of the " Rachel Marguerite Rodgers Trust." [4] The trust agreement made Wells Fargo the trustee and established a trust advisory committee (TAC) consisting of McMenamin and Davey. The agreement gave the TAC " absolute and unfettered discretion to determine when and if [Anderson] needs regular and extra supportive services." 3 CP at 482.

¶ 5 The explicit language of the trust agreement explained that the trust was designed to

provide extra and supplemental medical, health, and nursing care, dental care, developmental services, support, maintenance, education, rehabilitation, therapies, devices, recreation, social opportunities, assistive devices, advocacy, legal services, respite care, personal attendant care, income and other tax liabilities, and consultant services for [Anderson]. To this end, the [TAC] may provide such resources and experiences as will contribute to and make the beneficiary's life as pleasant, comfortable and happy as feasible. Nothing herein shall preclude the [TAC] from purchasing those services and items which promote the beneficiary's happiness, welfare and development, including but not limited to vacation and recreation trips away from places of residence, expenses for a traveling companion if requested or necessary, entertainment expenses, and transportation costs.

3 CP at 481-82. The agreement also provided that the " Trustee shall make an annual statement of transactions and assets concerning all financial and investment activity undertaken on behalf of the Trust" to be delivered to Anderson, any court-appointed representative of Anderson, and the members of the TAC. 3 CP at 493.

¶ 6 The trust was initially funded with settlement proceeds amounting to $187,160.66.[5] Wells Fargo hired Dussault [177 Wn.App. 84] to

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prepare its annual reports for court approval. Dussault filed his first report to the court on January 25, 2000. The first report detailed all investment activities and trust disbursements between the trust's establishment date (August 25, 1997) and August 31, 1999. Among other expenses, the report stated that trust funds were used for " vehicle expenses in the total of $14,159.98," including the " purchase of a 1997 Mercury Tracer." 2 CP at 351. The superior court approved the report in its entirety. Dussault submitted the second report on February 12, 2001, which covered " all financial activity" from September 1, 1999 through August 31, 2000. 2 CP at 356. This report stated that " [d]isbursements from the Trust were in the total amount of $41,461.86" and included the " purchase of real estate." 2 CP at 356. The superior court also approved this report in its entirety.

¶ 7 On August 27, 2001, attorney Carl Gay (who represents Anderson in the current matter) sent a letter to Davey, Dussault, Wells Fargo, and McMenamin. The letter stated, in part,

This letter will advise that I represent Ken Chace III and Janet Gesualdi, respectively the biological father and maternal grandmother of [Anderson]. At their request, I have recently had the opportunity to review the court file in the referenced matter. Based upon a review of recent accountings filed with the court, my clients are concerned that [Anderson]'s trust funds have not been fully and properly invested and it would appear numerous disbursements of trust funds have been made in violation of the letter and spirit of the trust agreement. Improper distributions include use of trust funds to purchase real estate which purportedly is not held in the name of the trust, purchase of a vehicle (and payment of related expenses), and use of trust monies to discharge certain parental financial obligations which are the responsibility of [Anderson]'s mother.

[177 Wn.App. 85] 2 CP at 360. The letter further stated that " [i]n the event these issues are not resolved to the satisfaction of my clients, they are prepared to file a petition to intervene in this matter and seek a more focused judicial scrutiny of the trustees' actions." 2 CP at 361.

¶ 8 Dussault responded to Gay's letter on September 6. He told Gay that the trust was " currently resolving" the issue of the " purchase of an interest in a residence" and that he would " provide you and your clients with additional information concerning the trust's interest in the real property in the near future." [6] 2 CP at 362. Dussault also pointed out that " [o]ther expense[s] were incurred for travel expenses specifically for [Anderson]'s doctors' appointments and for purchase of a computer and software for her." 2 CP at 362. Gay did not respond to this letter.

¶ 9 On February 7, 2002, Dussault again wrote Gay, explaining that he was " ready to present for approval the September 1, 2000 through August 31, 2001 Annual Report" to the superior court. 2 CP at 364. Dussault included a copy of the proposed report for Gay to examine. Gay responded five days later expressing concerns over (1) the purchase of real property; (2) reimbursement of " funds for expenses which would otherwise be considered the financial support obligation of the custodial parent," including computer costs, vehicle costs, and funds related to birthday presents; (3) certain attorney fees; and (4) trustees' fees. 2 CP at 366. Dussault delayed presenting the report for court approval while he " attempted to address Mr. Gay's concerns." 2 CP at 347. In July 2002, McMenamin resigned from his voluntary position as a member of the TAC " when it became apparent that there were ongoing problems with the disgruntled non-custodian parent ([Anderson's] father)." 2 CP at 288.

¶ 10 On December 6, 2002, Dussault submitted a two-year report for approval by the superior court. The report [177 Wn.App. 86] covered all financial

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activity undertaken by the trust between September 2000 and August 2002. The report noted that the " members of the TAC wish to dissolve the TAC and have the trustee assume all the functions designated to [the] TAC pursuant to the terms of the Trust." 2 CP at 372. The parties, including Gay, were notified that the trial court would hold a hearing related to the trustee report on July 11, 2003. Neither Gay nor his clients, Anderson's father and grandmother, appeared at the hearing. At the hearing, after " having heard the presentation of counsel, [and] having considered the files and records" related to the report, the superior court approved Dussault's report. 2 CP at 375. Additionally, the superior court dissolved the TAC and assigned Wells Fargo as the trustee " to carry out all of the duties of the TAC under the terms of the Trust Agreement." 2 CP at 375. The trial court's approval of the report was not appealed.

¶ 11 From December 23, 2003 to December 4, 2009, the trial court approved four additional reports, none of which were objected to by any interested party. The last such report was approved by the superior court on December 4, 2009, when Anderson was 19 years old. The superior court requested that the next report be filed toward the end of 2011.


¶ 12 On July 22, 2011, a few days before her 21st birthday, Gay (now acting on Anderson's behalf) filed a complaint against Davey, McMenamin, Dussault, Wells Fargo, and others, alleging " [t]he defendants, and each of them, failed to discharge their fiduciary and other legal duties to [Anderson] as the beneficiary of the trust." 3 CP at 474. Gay attached a letter from R. Duane Wolfe, a certified public accountant, to the complaint. Wolfe's letter stated that in his opinion, Anderson's trust should be reimbursed for (1) the cost of a vehicle purchased by the trust and used by Davey to drive Anderson to doctor's appointments, (2) costs [177 Wn.App. 87] associated with computer related expenses, (3) lost rental income from a house the trust purchased a partial interest in (where Anderson and Davey resided at one point), (4) $1,500 in reimbursements paid to Davey, and (5) certain trustee and legal fees. With interest, Wolfe estimated that $56,873 should be restored to the trust.

¶ 13 McMenamin, Dussault, and Wells Fargo all brought motions for summary judgment. McMenamin argued that Anderson's claims were barred by the Trustees' Accounting Act,[7] res judicata, judicial estoppel, and the doctrine of judicial immunity. McMenamin also argued that if Anderson's claims were not barred, he acted in accord with the trust's express terms and, accordingly, Anderson could not establish breach of legal or fiduciary duties. Dussault argued that as the attorney hired by Wells Fargo solely to prepare annual reports for court approval, he had no legal or fiduciary duties to Anderson. Alternatively, Dussault argued that the Trustees' Accounting Act, res judicata, and judicial estoppel barred Anderson's claims. Wells Fargo argued that Anderson could not establish breach of fiduciary duties because it acted in accord with the trust's express terms. Wells Fargo also argued that the Trustees' Accounting Act and res judicata barred Anderson's claims.

¶ 14 In response to the summary judgment motions, Gay submitted declarations from Anderson, her father, and her maternal grandmother, all alleging that Davey periodically committed fraud in obtaining reimbursements from the trust.[8] Gay also submitted a declaration from an attorney opining on the standard of care owed by an " attorney representing [177 Wn.App. 88] a trustee for a minor beneficiary." 1 CP at 141. In addition, Gay argued in his reply brief that

[t]his case presents factual disputes whether disbursements from [Anderson]'s trust

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fund benefitted [her], not [Davey] or others, in accordance with the trust agreement. There are factual disputes whether [Davey] and Mr. McMenamin fulfilled their fiduciary roles, as members of the [TAC], in ensuring [Anderson]'s trust funds were disbursed in accordance with the trust agreement or whether they were negligent in allowing those expenditures. There are factual disputes whether Wells Fargo Bank and its legal counsel fulfilled their fiduciary and legal duties, as trustee and lawyers, in ensuring [Anderson]'s trust funds were disbursed in accordance with the trust agreement. There are factual disputes whether [Anderson] has suffered a financial loss as a consequence of those duties being breached.

1 CP at 88. Gay also argued that the Trustees' Accounting Act did not apply to the trust, and that res judicata and judicial estoppel did not bar the claims.

¶ 15 On March 1, 2012, after considering the parties' briefing, declarations, other evidence, and oral argument, the trial court granted summary judgment to Wells Fargo, McMenamin, and Dussault. Anderson appeals the order granting summary judgment.


Standard of Review

¶ 16 We review a trial court's summary judgments de novo. Torgerson v. One Lincoln Tower, LLC, 166 Wn.2d 510, 517, 210 P.3d 318 (2009). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). A material fact is one on which the outcome of the litigation depends in whole or in part. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990).

[177 Wn.App. 89] ¶ 17 In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. See, e.g., LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299 (1975). " If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff 'fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,' then the trial court should grant the motion." Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989) (footnote omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party may not rest upon mere allegations or denials during this burden shifting process. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. In addition, we interpret statutes de novo. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 587, 90 P.3d 659 (2004).

Trustees' Accounting Act

¶ 18 Wells Fargo, Dussault, and McMenamin all argue that Washington's Trustees' Accounting Act bars Anderson's claims and, accordingly, the trial court's summary judgment should be affirmed. Because the Trustees' Accounting Act applies to Anderson's " special needs" trust, we agree. Moreover, because this issue is dispositive, we do not address Anderson's remaining arguments.

¶ 19 Under ch. 11.106 RCW, Washington's Trustees' Accounting Act, a trustee like Wells Fargo may file in the superior court of the county in which the trustees or one of the trustees resides an intermediate account under oath showing:

(1) The period covered by the account; [177 Wn.App. 90]
(2) The total principal with which the trustee is chargeable according to the last preceding account or the inventory if there is no preceding account;
(3) An itemized statement of all principal funds received and disbursed during such period;

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(4) An itemized statement of all income received and disbursed during such period, unless waived;
(5) The balance of such principal and income remaining at the close of such period and how invested;
(6) The names and addresses of all living beneficiaries, including contingent beneficiaries, of the trust, and a statement as to any such beneficiary known to be under legal disability;
(7) A description of any possible unborn or unascertained beneficiary and his or her interest in the trust fund.
After the time for termination of the trust has arrived, the trustee or trustees may also file a final account in similar manner.

RCW 11.106.030.

¶ 20 If a trustee has filed such an intermediate accounting, the act requires the superior court to determine the validity and accuracy of the accounting:

Upon the return date or at some later date fixed by the court if so requested by one or more of the parties, the court without the intervention of a jury and after hearing all the evidence submitted shall determine the correctness of the account and the validity and propriety of all actions of the trustee or trustees set forth in the account including the purchase, retention, and disposition of any of the property and funds of the trust, and shall render its decree either approving or disapproving the account or any part of it, and surcharging the trustee or trustees for all losses, if any, caused by negligent or wilful breaches of trust.

RCW 11.106.070.

¶ 21 And if the superior court enters such a decree, it " shall be deemed final, conclusive, and binding upon all the [177 Wn.App. 91] parties interested including all incompetent, unborn, and unascertained beneficiaries of the trust." RCW 11.106.080 (emphasis added). As this court stated in Barovic v. Pemberton, 128 Wn.App. 196, 201, 114 P.3d 1230 (2005), " the statutory language is unambiguous." The trial court " must either approve or disapprove the accounting" and must surcharge the trustee for losses caused by negligence or willful breach. Barovic, 128 Wn.App. at 201. However, after the trial court's decree is final and the time to appeal expires, a complaining party in interest relinquishes his or her right to recover losses, even losses from willful or negligent breaches of trust.[9] Barovic, 128 Wn.App. at 201-02.

¶ 22 Here, Anderson admits that the court-approved report from December 23, 2003--a report filed and approved more than seven years before Anderson brought this lawsuit--involves " the final year of accounting for which [she] now presents a challenge." Reply Br. of Appellant at 12 n.3. She fails to explain why the applicable statutes of limitations should have tolled during the years of her incompetency.[10] Instead, she argues

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that the Trustees' [177 Wn.App. 92] Accounting Act does not apply to her trust or, alternatively, that " a trial court's approval of a trustees' report is not binding on a minor beneficiary for which a guardian ad litem ('GAL') was not appointed." Reply Br. of Appellant at 14. Anderson misinterprets the act in both instances.

¶ 23 At the time the superior court adjudicated Anderson's claim, the first section of the act stated, in part, " This chapter does not apply to resulting trusts, constructive trusts [or] trusts created by judgment or decree of a federal court or of the superior court when not sitting in probate." [11] Former RCW 11.106.010 (1985). As the Washington Supreme Court explained nearly 90 years ago,

[W]here a trust arises by an express contract or agreement between the parties it is an express trust; and under practically all authorities implied, constructive, and resulting trusts are those which do not arise out of a contract between the parties providing for the trust, but arise by operation of law.

In re Estate of Weir, 134 Wash. 560, 566, 236 P. 285 (1925).

¶ 24 According to Anderson, the act does not apply to her trust because her trust was created by " judgment or decree" of a superior court when not sitting in probate and, accordingly, is a resulting or constructive trust that has arisen by operation of law. We disagree. This assertion mischaracterizes the record. The superior court here did not " create" Anderson's trust by judgment or decree. Instead, it merely approved an express trust intentionally created by [177 Wn.App. 93] agreement of the parties to Anderson's original lawsuit.[12] And while no Washington court has previously addressed whether an express " special needs" trust falls within the scope of the Trustees' Accounting Act, Anderson provides no cogent argument for why the act should not apply to such a trust. We hold that the act applies.

¶ 25 Alternatively, Anderson argues that because the superior court failed to appoint a guardian ad litem to represent her interests, the court's final decrees approving each report are not binding on her. We disagree; nothing in the act requires appointment of a guardian ad litem.

¶ 26 RCW 11.106.060 states that when a trustee seeks court approval of an intermediate accounting, " [t]he court shall appoint guardians ad litem as provided in RCW 11.96A.160." Anderson argues that this statute imparts to the trial court a mandatory duty to appoint a guardian ad litem based on the word " shall" in the opening clause of the statute. " We construe the meaning of a statute by reading it in its entirety." Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 765, 261 P.3d 145 (2011). A reasonable interpretation of a statute " must, at a minimum, account for all the words in [the] statute." Five Corners Family Farmers v. State, 173 Wn.2d 296, 312, 268 P.3d 892 (2011). Accordingly, a reasonable interpretation of RCW 11.106.060 requires determining what RCW 11.96A.160 provides. And contrary to Anderson's assertions of a mandatory duty, RCW 11.96A.160(1) states that

[t]he court, upon its own motion or upon request of one or more of the parties, at any stage of a judicial proceeding or at any [177 Wn.App. 94]

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time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, incapacitated, unborn, or unascertained person, person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.

(Emphasis added.) Under the plain language of the statute, the trial court has the discretion to appoint a guardian ad litem--nothing in the statute (or the Trustees' Accounting Act) makes such an appointment mandatory.

¶ 27 Anderson fails to show how the trial court's final decrees approving each trust report should not be binding on her. Nor has Anderson explained how the judicial oversight of each intermediate accounting submitted to, and approved by, the superior court provided her inadequate notice or protection when she was incompetent to assess the performance of her own trust. We hold that the Trustees' Accounting Act bars Anderson's claims and the trial court properly granted Dussault, Wells Fargo, and McMenamin summary judgment. Moreover, because this issue is dispositive, we do not address the parties' other claims. We affirm the trial court.

Attorney Fees

¶ 28 Dussault and Wells Fargo both request reasonable costs and attorney fees pursuant to RAP 18.1 and the Washington Trust and Estate Dispute Resolution Act (TEDRA), ch. 11.96A RCW. TEDRA provides,

Either the superior court or any 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 ... 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 it deems to be relevant and appropriate, which [177 Wn.App. 95] factors may but need not include whether the litigation benefits the estate or trust involved.

RCW 11.96A.150(1).

¶ 29 As Anderson's claims against Dussault and Wells Fargo lack merit, we grant their request for costs and attorney fees in an amount to be determined by our commissioner. RAP 18.1(f).

Johanson, A.C.J., and Dalton, J. Pro Tem., concur.

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