IN RE SAVADKIN, 158 Wn. App. 1001 (2010)

No. 64224-3-I.The Court of Appeals of Washington, Division One.
October 4, 2010. UNPUBLISHED OPINION

Appeal from a judgment of the Superior Court for Snohomish County, No. 07-4-01243-1, Jacalyn D. Brudvik, J. Pro Tem., entered September 22, 2009.

Remanded by un-published opinion per Schindler, J., concurred in by Grosse and Becker, JJ.

SCHINDLER, J.

In this guardianship action, the former guardian, Ian Lane, seeks review of an order requiring him to pay approximately $40,000 in attorney fees and guardian ad litem (GAL) fees. Lane argues that the award of attorney fees is unreasonable because it includes fees that were duplicative, unnecessary, and unrelated to the motion to compel compliance with court orders. Lane also challenges the portion of the order requiring him to pay GAL fees arguing that the services performed by the GAL were duplicative and unnecessary, and that he should not be required to pay for routine GAL services. Because the court did not enter findings of fact and conclusions of law in support of the order awarding attorney fees and requiring payment of GAL fees, we remand.

FACTS
Lawrence Savadkin and his spouse Christine created a revocable trust in 1991. In 2006, Lawrence revoked the 1991 trust and created the Savadkin Family 2006 Trust. Lawrence appointed his nephew Ian Lane as trustee and made him the sole remainder beneficiary. In the event Ian is unable or unwilling to serve, the 2006 trust states that Lawrence Savadkin’s sister Barbara Lane shall serve as trustee. When Lawrence died on April 1, 2007, Christine became the sole income beneficiary of the trust.

In October 2007, Ian Lane filed a petition to establish a full guardianship of Christine and to be appointed as her guardian. Christine’s sister Bernice Zacher and her niece Karen Laubacher contested the appointment and challenged the validity of the 2006 trust. The court appointed a GAL for Christine.

On May 29, 2008, a Snohomish County Superior Court commissioner appointed Ian Lane as the guardian of Christine and appointed Frontier Bank as guardian of her estate. The court ordered Lane to transfer all trust assets to Frontier Bank and provide a full accounting of all financial activity that he undertook as trustee to the Bank. The commissioner declined to rule on the validity of the 2006 trust, but directed the guardians to “investigate the validity” of the trust and to make recommendations to the court. The commissioner also specifically ordered the GAL “to assist in the transition of assets to the Guardian of the estate and to review the accounts of Ian Lane.” Lane filed a motion to revise the part of the order requiring him to turn over assets to the Bank. The court denied the motion to revise.

Lane transferred one bank account to the Bank but refused to release the other trust assets or provide an accounting. In March 2009, Zacher and Laubacher filed a “Petition for: (1) Order to Require Compliance with Order to Provide Accounting; and (2) Order Granting Fees to Petitioner for Actions to Protect Estate.” A few days later, Frontier Bank filed a “Motion to Compel and to Approve Payment of Attorneys’ Fees” seeking an order compelling Lane to comply with the May 29, 2008 order. In April 2009, Lane filed a “preliminary accounting.” The court postponed the hearing on the motion to compel to allow the parties to review the accounting and file a response.

In May 2009, following a hearing on the motion to compel, the commissioner ordered Lane to provide an “appropriate accounting” and to transfer trust assets to Frontier Bank within 15 days. The commissioner set a review hearing for June 25. The commissioner also removed Lane from his position as the guardian of Christine and appointed Zacher as interim guardian. The court reserved ruling on the issue of the “allocation of fees incurred by the parties in preparing and presenting the motions to compel accounting.”

Lane filed a motion to revise, seeking reversal of that portion of the order requiring him to turn over assets. Frontier Bank, Zacher and Laubacher, and the GAL each filed a response in opposition to Lane’s motion. The court denied the motion to revise.

Before the June 25 review hearing, Frontier Bank submitted billing records and requested the court order Lane to pay $9,213 for “services rendered and costs incurred in connection with Ian Lane’s failure to abide by the May 29, 2008 Order.” Zacher and Laubacher also submitted a request for an award of attorney fees “in connection with Ian Lane’s two Motions for Revision and our efforts to deal with his failure to abide by the May 29, 2008 Orders.” Zacher and Laubacher submitted billing records and requested an award of $24,580, consisting of $23,845 in attorney fees and $735 for expenses such as long distance telephone charges, court fees, postage and photocopying charges. The GAL asked the court to order Lane to pay the fees for all GAL services performed between March and May 2009 due to Lane’s delay and refusal to comply with court orders.[1]

Lane did not object to the fees requested by Frontier Bank, but objected to the fees requested by Zacher, Laubacher, and the GAL. Because the court order only required Lane to turn over assets and to provide an accounting to Frontier Bank, Lane argued that Zacher, Laubacher and the GAL unnecessarily incurred fees in seeking to compel his compliance. Lane additionally asserted that some of the requested fees were unrelated to the motions to compel.

The day before the review hearing, Lane filed a declaration stating that he had resigned as trustee and completed the paperwork to transfer the trust assets to his mother Barbara Lane. At the hearing on June 25, the commissioner suspended Lane’s resignation and the transfer of assets, and ordered Lane to turn over trust assets to Frontier Bank. The court appointed Laubacher as guardian of Christine and ordered Lane to pay attorney fees of $24,580 incurred by Zacher and Laubacher, $9,213 incurred by Frontier Bank, and GAL fees of $6,314, for a total of approximately $40,000. Lane appeals from the judgment for attorney fees.

ANALYSIS
Lane challenges the award of attorney fees to Zacher and Laubacher and the requirement to pay the GAL fees.[2] Lane contends the court abused its discretion in awarding attorney fees for unnecessary and duplicative services and in requiring him to pay the fees requested by the GAL. Lane asserts that the court should have deducted fees requested for the performance of routine GAL services and should have excluded fees requested by Zacher and Laubacher that were duplicative, unnecessary, and unrelated to the motion to compel.

This court reviews the reasonableness of a trial court’s award of attorney fees for an abuse of discretion. Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998); Boeing Co. v. Heidy, 147 Wn.2d 78, 90, 51 P.3d 793 (2002). An abuse of discretion occurs when the court’s decision is manifestly unreasonable or based on untenable grounds. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

In a guardianship proceeding, the court has discretion under RCW 11.96A.150 to order fees and costs to be paid by any party to the proceedings or from the assets of the estate. In re Estate of Black, 116 Wn. App. 476, 66 P.3d 670 (2003) aff’d on other grounds, 153 Wn.2d 152, 102 P.3d 796
(2004).

RCW 11.96A.150 provides, in pertinent part:

Either the superior court or any court on an 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, including reasonable attorneys’ fees, 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 factors may but need not include whether the litigation benefits the estate or trust involved.

RCW 11.96A.150 also applies “to matters involving guardians and guardians ad litem.” RCW 11.96A.150(2). RCW 11.88.090(10) allows the payment of GAL fees in a guardianship proceeding and provides that the court shall determine the GAL fees and may “charge such fee to the petitioner, the alleged incapacitated person, or any person who has appeared in the action; or may allocate the fee, as it deems just.” Thus, both RCW 11.96A.150
and RCW 11.88.090(10) give the court broad discretion to award attorney fees and costs and also to designate payment of GAL fees in a guardianship matter in such manner as it deems equitable. See In re Guardianship of Deming, 192 Wash. 190, 198, 73 P.2d 764 (1937) (courts in guardianship proceedings may grant special relief as circumstances require).

Lane does not dispute the court’s authority to award fees.[3]
Lane also does not object to the attorney fees awarded to Frontier Bank. Lane challenges the attorney fees awarded to Zacher and Laubacher because their motion to compel was unnecessary and duplicative. Lane also points out that some of the billing entries show that the award included attorney fees unrelated to the motion to compel.[4] In addition, Lane argues that the award of attorney fees to Zacher and Laubacher erroneously includes costs that are not recoverable under the statute authorizing an award of costs to a prevailing party, RCW 4.84.010.

With respect to the portion of the order requiring him to pay GAL fees, Lane contends the court abused its discretion because the services performed by the GAL were duplicative of Frontier Bank’s efforts to compel him to transfer the trust assets and provide an accounting. Lane also claims the commissioner abused its discretion by failing to deduct fees for “basic duties as GAL” that were not related to his conduct.

While the court has discretion under RCW 11.96A.150 to award attorney fees and costs, such an award must be “reasonable.” Washington courts calculate fees using the lodestar amount which is arrived at by first determining the number of hours reasonably expended in the litigation. Mahler, 135 Wn.2d at 434. The court should discount any wasteful, duplicative, or otherwise unproductive efforts. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 151, 859 P.2d 1210 (1993). The court must also determine the reasonableness of the hourly rate that the attorney actually billed the client. Mahler, 135 Wn.2d at 434. We must have an adequate record in order to determine whether the court exercised its discretion on articulable grounds. Mahler, 135 Wn.2d at 435. Accordingly, the court must enter findings of fact and conclusions of law in support of an award of attorney fees Mahler, 135 Wn.2d at 435.

Here, because the commissioner did not enter findings of fact and conclusions of law in support of the fee award, the record does not indicate whether the commissioner took into account either the reasonableness of the fees or whether the requested fees included any duplicative, unnecessary, or unrelated services. See Mahler, 135 Wn.2d at 435.

However, we note that contrary to Lane’s argument, the commissioner did not award costs pursuant to RCW 4.84.010. Instead, the commissioner awarded fees and costs under RCW 11.96A.150. There is nothing in the guardianship statute indicating that recovery of “costs, including reasonable attorneys’ fees” limits recoverable costs to those enumerated in the statutory costs provision, RCW 4.84.010. See Panorama Vill. Condo. Owners Ass’n Bd. of Dirs. v. Allstate Ins. Co., 144 Wn.2d 130, 142, 26 P.3d 910 (2001) (“The phrase `reasonable attorney fees’ in and of itself supports an award not limited by `costs’ as described by RCW 4.84.010.”).

With respect to the requirement that Lane pay GAL fees, RCW 11.88.090(10) allows the court to charge the GAL fees to any party “as it deems just” and to “allocate” the GAL fees to any party. Nonetheless, it appears from the record that the commissioner intended to order Lane to pay GAL fees only to the extent that Lane’s noncompliance resulted in additional GAL fees.[5]

Because we are unable to review the judgment awarding fees, we remand for entry of findings of fact and conclusions of law.[6]

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