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Cook v. Brateng

Court of Appeals of Washington, Division 2

March 25, 2014

John E. Cook, Respondent,
v.
A. Diane Brateng, Individually and as Successor Sole Trustee, Appellant

Appeal from Pacific County Superior Court. Docket No: 01-2-00330-7. Date filed: 06/08/2012. Judge signing: Honorable Michael J Sullivan.

James D. McBride II (of Julin & McBride PS ), for appellant.

Nicholas R. Franz, for respondent.

AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Thomas R. Bjorgen, J.

OPINION

Page 1256

Worswick, C.J.

[180 Wn.App. 370] ¶ 1 A. Diane Brateng appeals an attorney fees award entered after we remanded this case to [180 Wn.App. 371] the trial court. In Cook v. Brateng,

Page 1257

158 Wn.App. 777, 262 P.3d 1228 (2010),[1] we vacated the trial court's award of attorney fees to John E. Cook and remanded to the trial court for a determination of Brateng's reasonable attorney fees at trial and on appeal. The trial court then awarded to Brateng attorney fees in the amount of $53,910.29 against the subject estate under RCW 11.96A.150, concluding that RCW 11.96A.310(10) did not apply. Because the trial court erred by concluding that RCW 11.96A.310(10) did not apply to its attorney fees determination, we remand to the trial court for a redetermination of Brateng's reasonable attorney fees under that statutory provision.

FACTS

¶ 2 Cook and Brateng are siblings. In 1995, their father, Elmer Cook, executed a living trust that named himself and Brateng as trustees. After Elmer [2] was declared incompetent in 1997, Brateng became the sole trustee of Elmer's estate. Elmer passed away on January 1, 2000. In October 2001, Cook sued Brateng, and the two entered into mediation and arbitration under the Trust and Estate Dispute Resolution Act, chapter 11.96A RCW. Cook appealed the arbitrator's decision and requested a trial de novo before the superior court under RCW 11.96A.310(9)(a).

¶ 3 Following the de novo bench trial, the trial court concluded that Brateng could not compensate herself from Elmer's trust for her caregiving expenses because she had breached her fiduciary duty to inform Cook of her decisions to (1) " claim and defer charges against Elmer's estate for providing Elmer's care" and (2) " not to encumber Elmer's ... house to pay for Elmer's care." Cook, 158 Wn.App. [180 Wn.App. 372] at 784. The trial court awarded Cook all his requested attorney fees and awarded Brateng half of her requested attorney fees.

¶ 4 Brateng appealed, and we reversed the trial court's conclusion that Brateng had breached her fiduciary duties, holding that Brateng had no duty to inform Cook of her decisions to claim and defer her caregiving charges against the estate and not to encumber Elmer's house to pay for his care. We also vacated the trial court's award of attorney fees to Cook and remanded to the trial court " to set reasonable attorney fees to award to [Brateng] for both the trial and the appeal." Cook, 158 Wn.App. at 797. Brateng moved for partial reconsideration of our decision, which motion we denied on December 6, 2010.

¶ 5 On remand, Brateng requested the trial court to award her $54,077 against Elmer's trust for her caregiving expenses, trustee expenses, and out-of-pocket costs, and she requested the trial court to award her $134,000 in reasonable attorney fees against Cook personally, under RCW 11.96A.310(10) and RCW 11.96A.150. The trial court found that the reasonable value of Brateng's caregiving expenses totaled $38,250 and awarded those expenses against Elmer's estate.[3] The trial court found Brateng's reasonable attorney fees were $24,716.34 for the trial, $24,193.95 for the appeal, and $5,000 for the remand proceedings. The trial court concluded that RCW 11.96A.310 did not apply and instead awarded the attorney fees against Elmer's estate under RCW 11.96A.150. In determining that Brateng's attorney fees should be paid from Elmer's estate rather than from Cook personally, the trial court found that Cook was " not personally liable for any of [Brateng's] ...


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