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Estate of Sough v. Christine Calderbank

Court of Appeals of Washington, Division 1

December 20, 2013

Estate of Yolanda "Lani" Sough, Deceased,


Cox, J.

Robert Slough appeals the summary dismissal of his claims on appeal from decisions of an arbitrator who was appointed after the commencement of this Trust and Estate Dispute Resolution Act (TEDRA) proceeding. Because the superior court had the authority to review all of these decisions, we hold that the court erroneously granted the motion to dismiss Slough's timely appeal and request for a trial de novo. We also hold that there are genuine issues of material fact for trial. Accordingly, we reverse and remand for further proceedings.

This case has a somewhat convoluted procedural history. But the events leading up to the commencement of this litigation are less complicated.

Pre-Litigation Events

Yolanda "Lani" Slough died on October 27, 2005. Her widower is Robert Slough. Her daughters, Carolynne Mary DeNike and Christine Ann Calderbank, are the beneficiaries under Lani Slough's will ("the beneficiaries"). The principal asset of the estate is the house Lani Slough acquired before marriage.

Lani Slough appointed her grandson, Adam Kane, as executor. For reasons not relevant to this appeal, he was later removed. Robert Slough was then appointed to be the estate's administrator in March 2009.

At oral argument for this case on appeal, counsel for Slough represented to this court that Slough filed an inventory in which he asserted his interest in an equitable community property lien against the house. It is undisputed that Slough never filed a creditor's claim in the estate of Lani Slough. It is also undisputed that he lived in her house during the time he was the administrator but never paid rent to the estate.

TEDRA Proceedings

In March 2010, the beneficiaries commenced this TEDRA proceeding, claiming that Slough had not distributed the estate, including the house. The petition alleged that the house was Lani Slough's separate property, bought before her marriage to Slough. The beneficiaries asked the court for a declaration that the home was separate property, that the estate was entitled to rent from Slough for living in the home, and that any alleged community lien in his favor was time-barred for failure to file a creditor's claim within 24 months of Lani Slough's death pursuant to RCW 11.40.051.

A court commissioner determined that the house was Lani Slough's separate property.[1] The court also ordered the parties to TEDRA mediation, enumerating further issues: "(a) rent due to the estate from Mr. Slough to the estate; (b) whether there is any equitable lien in favor of the community; (c) whether such lien would be barred by RCW 11.40.051 ."[2]

In the Stipulation and Order to Compel Arbitration, the parties stipulated that "arbitration would more efficiently and effectively resolve [the issues previously identified in the order to mediate]."[3] They also stipulated to arbitrate before a mutually agreed upon arbitrator.[4] The order provides that this arbitrator would resolve the issues previously enumerated in the order to mediate.[5]

We note that this stipulation and order in the record before us does not contain the signature of either a judge or court commissioner. At oral argument, counsel for Slough represented that the stipulation and order was signed by a judicial officer. Counsel for the beneficiaries did not contest this representation. Accordingly, we assume for purposes of our analysis that arbitration of the enumerated issues was both agreed and ordered.

The parties proceeded to arbitration, and the enumerated issues were resolved in several hearings.

At the first hearing, the arbitrator considered whether RCW 11.40.051, a creditor's claim statute, applied to bar Slough's claim to an equitable lien against the house. The arbitrator determined that any equitable lien that Slough had was barred because he failed to timely file a creditor's claim. Accordingly, he granted the beneficiaries' motion for summary judgment as to this claim.

Following this hearing, the beneficiaries moved in the superior court for a decree of partial distribution ordering Slough to distribute the house to them. The court granted this motion. In an order entered several months later, the court reiterated that "[t]he house shall not be returned to the estate" and that "[the beneficiaries] own the house free and clear. . . ."[6]

At the second hearing, the arbitrator considered a collateral issue— whether the arbitrator had the authority to award attorney fees and costs to the beneficiaries for the first hearing. The arbitrator concluded: "While the Court originally required a TEDRA mediation, the parties themselves bypassed the mediation step and contractually agreed to an arbitration, enumerating the issues to be resolved. The Stipulation did not expand on the enumerated issues nor did it make the proceeding a TEDRA arbitration."[7] Accordingly, he concluded that he did not have the authority to award fees and costs, but he stated that "[t]he TEDRA matter still exists and both parties are free to seek an award of attorney's fees from the court. . . ."[8]

At the third hearing, the arbitrator considered the issue of rent due to the estate from Slough. Following this hearing, the arbitrator issued an interim award against Slough on November 29, 2010. A few months later, the arbitrator determined the amount of prejudgment interest. On February 16, 2011, the arbitrator entered a final award against Slough, determining that Slough owed $37, 400 for rent and $4, 612 for prejudgment interest.

Because the arbitrator previously determined that he did not have the authority to award attorney fees, the beneficiaries moved in the superior court to compel arbitration and grant the arbitrator authority to determine an award of attorney fees pursuant to the TEDRA statute. The court ordered another arbitration hearing "[p]ursuant to [the TEDRA arbitration statute]" on the issue of attorney fees and costs incurred in the arbitration hearings on the enumerated issues.[9]

This fourth arbitration hearing was expressly conducted pursuant to the TEDRA statute. The arbitrator determined that the amounts stated in the billing statements were reasonable. He granted the beneficiaries' request for attorney fees and entered an award against Slough on July 26, 2011.

Appeal to Superior Court

On March 15, 2011, 28 days after the entry of the final award, Slough appealed the final decision of the arbitrator and requested a trial de novo on all issues of law and fact. Additionally, after the fourth hearing related to attorney fees, Slough renewed his appeal of the final decision dated February 16, 2011 and also appealed the subsequent decision dated July 26, 2011, requesting a trial de novo on all issues of law and fact.

In November 2011, the beneficiaries moved to dismiss for lack of subject matter jurisdiction on appeal. Additionally, they moved to dismiss because there were allegedly "no remaining triable issues."[10] The beneficiaries also moved, in the alternative, for summary judgment on the rent and prejudgment interest issues as well as the attorney fees issue. Finally, they requested attorney fees incurred in the superior court appeal of the arbitrator's award of attorney fees.

The court granted both motions in its order granting defendants' motion for summary judgment dated December 2, 2011.

This appeal followed.


Slough argues that the trial court erred in dismissing his request for a trial de novo for lack of "subject matter jurisdiction."[11] Because the arbitration hearings were all conducted pursuant to TEDRA and his request for a trial de novo of the arbitrator's final decision was timely, we agree.

When reviewing an order of summary judgment, an appellate court engages in the same inquiry as the trial court.[12] The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party.[13] Summary judgment is appropriate only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.[14] The motion should be granted only if reasonable persons could reach but one conclusion.[15]

Authority to Review

In order to determine whether the court had the authority to review Slough's appeal, we are faced with two issues. First, we decide whether the underlying arbitration hearings were conducted pursuant to TEDRA. Second, we decide whether Slough's appeal was timely.

The first issue is whether the underlying hearings were conducted pursuant to TEDRA. Two statutes guide our analysis. The first is RCW 11.96A.270, which discusses the intent of TEDRA. The second is RCW 11.96A.310, which sets forth the strict TEDRA arbitration procedure.

As RCW 11.96A.270 indicates, the intended progression under the TEDRA statutory scheme is to start in mediation and then proceed to ...

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