No. 34210-3-II.The Court of Appeals of Washington, Division Two.
July 25, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-4-01442-6, Ronald E. Culpepper and Thomas Felnagle, JJ., entered November 18, 2005.
Dismissed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Hunt, JJ.
QUINN-BRINTNALL, J.
Jerome Bearden appeals the trial court order removing him as the personal representative (PR) of his mother’s, Doris Lane Bearden, estate, arguing that the trial court removed him on invalid grounds. Because the trial court has since reinstated Jerome[1] as PR of the estate, this case is moot and we decline to reach this issue. Additionally, because Jerome’s request for costs and fees under RCW 11.96A.150(1) would be better resolved by the trial court, we also decline to grant his request for attorney fees and costs on appeal.
FACTS
Doris Bearden died on August 24, 2005, leaving two sons, Jerome and Garland Bearden. On September 30, Jerome filed a petition for letters of administration, asserting that Doris had died intestate and asking that the trial court appoint him as PR of the estate with nonintervention powers. On October 21, after Jerome posted bond, the trial court granted Jerome letters of administration. Because Jerome was not a resident of Washington, he designated Tommie Frazier, a resident of Washington, as his residential agent.
On October 27, Garland filed several pro se documents asking the trial court to revoke the letters of administration and remove Jerome as PR. Garland alleged that the trial court should remove Jerome as PR because he (1) had failed to provide him with notice of the appointment; (2) was “not qualified” to serve because he was not familiar with the requirements of acting as a PR; (3) was “unfit” to serve as PR because he resided in California and was therefore not present to administer the estate; and (4) had filed the petition for letters of administration based on the absence of a will even though he knew a valid will existed. Garland also appeared to allege that he had obtained a restraining order against Tommie Frazier and suggested that Jerome was somehow involved in illegally cutting off his mother’s telephone service when she was still alive.[2] In addition, Garland appeared to allege that Jerome and anyone from the Frazier family were not neutral parties, that Jerome had threatened others regarding the estate, and that Jerome had committed or had been charged with identity theft and domestic violence.
On November 2, Jerome filed a purported will witnessed by two people and signed by Doris on December 28, 2000. Apart from a small bequest to another person, this will provided that Jerome and Garland would divide the estate equally. The will also nominated Mary Frazier as PR and Jerome as alternate PR. Mary Frazier declined to serve as PR.
The same day he filed the will, Jerome petitioned for probate of the will, letters testamentary, and nonintervention powers. The trial court admitted the will to probate, appointed Jerome as PR, and issued him letters testamentary.
The next day, November 3, Garland filed a letter with the trial court, renewing his request to remove Jerome as PR. In addition to reasserting many of his claims from his prior petition, Garland appeared to assert that Jerome had “fraudulently applied for this position,” after he and his resident agent, Tommie Frazier, had somehow conspired to cut off his power. Clerk’s Papers (CP) at 29. He also appeared to assert that Jerome and Tommie Frazier were both aware of the existence of a will as early as August 24, and that Jerome had failed to file information he was required to file as PR of the estate.
That same day, Garland also filed what he claimed was a handwritten will signed by his mother and notarized by Vicki S. Eastburn on January 24, 2005, leaving the entire estate to Garland. Garland filed this will under a different cause number. He also filed a letter signed by Mildred J. Horn, Doris’s hairdresser, stating Doris told her that she was changing her will and that she intended to leave nothing to Jerome. Eastburn notarized this letter on October 12, 2005.
On November 4, the trial court consolidated Garland’s case to the original action and set a November 18, 2005 hearing date. It also denied Gerald’s motion to revoke. But on November 10, Garland filed yet another petition to revoke the letters testamentary and to remove Jerome as PR, renewing most of the allegations he had made in his prior petitions.
On November 18, the trial court heard argument on Garland’s November 10 petition. At the hearing, Jerome appeared pro se, Garland had counsel. Garland’s counsel reiterated most of Garland’s prior arguments. He further noted that a neutral PR would be more appropriate because Garland and Jerome were “warring.” Report of Proceedings (RP) at 7.
In response, Jerome asserted that he did not know about his mother’s “real will,” apparently referring to the will he filed on November 2, until after he filed his September 30, 2005 petition and obtained his bond. He also contested Garland’s counsel’s characterization of the situation; explained that he had turned off his brother’s telephone because Garland already had a large phone bill and the phone service included several additional lines that were “registered” to a person that did not live in the house; and asserted that Garland had refused to allow him to enter his mother’s house to determine what was is in the estate, had purchased a Rottweiler to keep him out of the house, “ke[pt] coming up with frivolous restraining orders,”[3] believed the house belonged to him although he had made no payments on the house, and was a criminal who had stolen their mother’s money. RP at 13.
Despite Jerome’s repeated assertion that he and his brother were not “warring,” the trial court ultimately removed Jerome as PR after finding that the animosity between the brothers prevented Jerome from performing his duties as PR. The trial court was careful to note that it was not removing Jerome for any impropriety. It then entered a written order that removed Jerome as PR; revoked the letters testamentary; and appointed Robin Balsam as PR, subject to her acceptance.
On December 19, Jerome filed a notice for discretionary review of the November 18, 2005 order removing him as PR. On January 6, 2006, a second trial court denied Jerome’s motion to revise the November 18, 2005 order.[4] That same day, the second trial court appointed Mike Smith, another local attorney, to serve as alternate personal representative because Balsam had declined the appointment. On March 3, we granted discretionary review after the commissioner concluded Jerome had shown the trial court had committed probable error in removing Jerome as PR due to his problems dealing with Garland because RCW 11.28.250[5] did “not appear to provide for removing a [PR] simply because of such animosity.”[6] Ruling Granting Review at 7.
On June 23, 2006, Smith resigned as PR, and the trial court appointed Mack D. Lievense as PR. A short time later, Lievense declined the appointment after learning “additional facts concerning the reasonableness and violent tendencies of one of the parties.” CP at 60. In his notice of declination, Lievense asserted that the party he referred to “is intimately involved in the actions apparently necessary to resolve the marshalling of the assets of the estate and the distribution of those assets,” and stated, “[a]s an observation, it appears that the person appointed in the decedent’s will as the [PR] may be a good choice.” CP at 60-61. On July 14, the trial court reappointed Jerome as PR.
Jerome filed his opening appellate brief with this court on August 28, 2006, more than a month after his reappointment. Although Garland’s counsel had responded to Jerome’s motion for discretionary review, Garland’s counsel withdrew after he filed this response and Garland never filed a response to Jerome’s opening brief.[7]
DISCUSSION
Jerome argues that the trial court erred when it removed him as PR because RCW 11.28.250 and In re Estate of Jones, 152 Wn.2d 1, 11, 93 P.3d 147 (2004), establish that the animosity between him and Garland was not a sufficient ground for removal. Because the second trial court has since reappointed Jerome as PR, the first issue we must address is whether the July 14, 2006 reappointment rendered this appeal moot. We conclude that it has. Standards An issue is moot if the matter is “`purely academic.'” State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658
(1983) (quoting Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 73, 442 P.2d 967 (1968)). An issue is not moot, however, if we can provide any effective relief. Turner, 98 Wn.2d at 733 (citing Pentagram Corp. v. City of Seattle, 28 Wn. App. 219, 223, 622 P.2d 892
(1981)). But we can still review a moot case if it presents an issue of continuing and substantial public interest. In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (citing Westerman v. Cary, 125 Wn.2d 277, 286, 892 P.2d 1067 (1994)). Continuing and Substantial Public Interest Jerome argues that the issue here, “on what grounds a trial court may remove a decedent’s designated personal representative,”[8] is of continuing and substantial public interest. Br. of Appellant at 14. To determine whether the case involves an issue of continuing and substantial public interest, we examine three core factors: “`(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.'” Horner, 151 Wn.2d at 891-92 (quoting Westerman, 125 Wn.2d at 286-87). We may also consider (4) “`the “level of genuine adverseness and the quality of advocacy of the issues,”`” and (5) “`the likelihood that the issue will escape review because the facts of the controversy are short-lived.'”Horner, 151 Wn.2d at 892 (quoting Westerman, 125 Wn.2d at 286-87).
Although the legal issue here, whether a trial court can remove a “designated” PR when the PR is a beneficiary of the will and the PR and another beneficiary have an antagonistic relationship that may interfere with the PR’s ability to administer the estate, is likely to reoccur and some direction on this issue might be helpful for future guidance, the facts of this specific case are intimately intertwined with this legal issue. Furthermore, even though Jerome is represented by counsel on appeal, Garland’s counsel withdrew after filing his January 10, 2006 response to Jerome’s motion for discretionary review; Garland has never responded to Jerome’s opening brief; significant events, including Jerome’s reappointment, have transpired since Garland’s response to the motion for discretionary review; and the record related to the later events is, to say the least, sparse. Thus, the briefing and record in this matter is not ideal for review. And, finally, this does not appear to be an issue that will escape review because the facts of the controversy are short-lived.[9] Overall, Jerome has failed to show that we should address this issue despite the issue being moot in light of his reappointment. Possible Relief Still Available Jerome further contends that this appeal is not truly moot because we can still provide some relief. Again, we disagree.
Jerome first asserts that Garland and his counsel violated CR 11(a)[10]
by failing to confirm that their position was well grounded in fact and warranted by existing law or a good faith argument for extension, modification, or reversal of existing law and that CR 11 sanctions and costs, including reasonable attorney fees, are, therefore, appropriate. But Jerome’s CR 11 argument fails to demonstrate this appeal is not moot as there is nothing in the record showing that Jerome ever asserted a CR 11 claim below and he, rather than Garland, brought this appeal. See In re Marriage of Kastanas, 78 Wn. App. 193, 202, 896 P.2d 726 (1995) (CR 11 claim directed an initial filing below, but not raised below, is not preserved for appellate review).
Jerome next contends that review is appropriate because we must still resolve whether he is entitled to costs and attorney fees under RCW 11.96A.150(1), which provides:
Either the superior court or the 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; or (c) from any nonprobate asset that is the subject of the proceedings. The court may order the costs to be paid in such amount and in such manner as the court determines to be equitable.
(Emphasis added.) Citing Devine v. Dep’t of Licensing, 126 Wn. App. 941, 110 P.3d 237 (2005), and Morrison v. Basin Asphalt Co., 131 Wn. App. 158, 127 P.3d 1 (2005), review denied, 145 P.3d 1214 (2006), he argues that:
Cases hold that the correction of a legal wrong before an appellate court’s adjudication of a challenged action does not render the challenge moot if the appellate court’s decision upon review impacts a challenging party’s recovery of attorney fees and costs or the imposition of a sanction against the other party.
Br. of Appellant at 13. These cases are inapposite.
In Devine, the Department of Licensing (DOL) failed to provide Devine a hearing before revoking his driver’s license even though he had timely requested a hearing. 126 Wn. App. at 944. Devine asked the trial court to stay the revocation and “to issue a writ prohibiting the department from suspending his driving privilege.” Devine, 126 Wn. App. at 947. More than four months after the revocation took effect, DOL offered Devine a hearing; the trial court then determined that DOL had provided an adequate remedy at law and denied the writ. Devine, 126 Wn. App. at 948. At the belated hearing, Devine eventually prevailed and DOL dismissed the revocation. Devine, 126 Wn. App. at 948. When Devine appealed the trial court’s denial of his writ, DOL moved to dismiss the appeal as moot, asserting that there was no longer any need for a writ because Devine had successfully contested his license revocation. Devine, 126 Wn. App. at 948.
Division One of this court held that the case was not moot because it involved an issue that was likely to recur, the issue was of continuing public interest, the parties were genuinely adverse, the level of advocacy was high, and the issue was likely to evade review because such controversies are generally short lived. Devine, 126 Wn. App. at 948-49. It then stated that review of the issue was also necessary because Devine’s entitlement to attorney fees under the equal access to justice act, RCW 4.84.340-.360,[11] required the court to determine whether Devine was a “prevailing party” on judicial review of the agency action Devine, 126 Wn. App. at 956. After determining that Devine’s argument had merit and that he was therefore a prevailing party, Division One remanded the case to the trial court for that court to determine “reasonable attorneys’ fees under RCW 4.84.350(1).” Devine, 126 Wn. App. at 956.
But the attorney fees statute at issue in Devine allowed the court to award attorney fees and other expenses only to the prevailing party. RCW 4.84.350(1). Thus, whether Devine was entitled to attorney fees and other costs was dependent on whether his appeal was successful. Here, in contrast, RCW 11.96A.150(1), by its plain language, does not require that a party be a prevailing party in order to be entitled to attorney fees and other costs. See also In re Estate of Burmeister, 70 Wn. App. 532, 854 P.2d 653 (1993), rev’d on other grounds, 124 Wn.2d 282 (1994).[12]
Instead, the statute gives the court the discretion to award costs and reasonable attorney fees to any party as equity demands.
Because this statute does not require a prevailing party determination and the trial court is better able to determine what equity demands in this instance, there is no reason for us to resolve the otherwise moot legal issue.
In Morrison, the “case involved two issues: (1) whether the employees were entitled to the prevailing wage for delivery and load time and (2) whether they were entitled to damages under RCW 49.52.050 and RCW 49.52.070.” 131 Wn. App. at 162. The first issue was resolved when the employers admitted that the employees were entitled to the prevailing wage, but the employers’ admissions did not resolve the damages issue because the employees were only entitled to damages if the employers’ failure to pay wages was willful. Morrison, 131 Wn. App. at 162. To make this additional determination, the court needed to reach the issue of whether there was a bona fide dispute between the employer and employee regarding wages, which, in turn, required the court of appeals to examine the merits of the employees’ otherwise moot claim. Morrison, 131 Wn. App. at 163-66. Here, unlike in Morrison, whether Jerome is ultimately entitled to attorney fees and costs is not dependent on the merits of his legal argument. Instead, as noted above, the award of costs and fees is discretionary and based in equity.
Additionally, before the equitable aspects of the case can be resolved, the trial court will need to address several additional factual issues, such as which purported will is valid and whether Jerome’s legal actions have benefited the estate. See In re Estate of Kerr, 134 Wn.2d 328, 341, 949 P.2d 810 (1998).[13] Thus an award of attorney fees and costs under RCW 11.96A.150(1) is not appropriate at this time. See In re Estate of Stevens, 94 Wn. App. 20, 971 P.2d 58 (1999)[14] (issues of attorney fees “`must await final resolution of the issue.'”) (quoting In re Estate of Stockman, 59 Wn. App. 711, 715, 800 P.2d 1141 (1990)).
Accordingly, Jerome does not show that there are any remaining issues that depend on the merits of his now moot appeal, and we decline to address Jerome’s argument. Additionally, for these same reasons, we decline to award attorney fees or costs on appeal to any party at this time.[15] Because this appeal is moot, we dismiss and decline to grant attorney fees and costs on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur: BRIDGEWATER, P.J., HUNT, J.
Jerome Bearden’s motion is denied because (1) [the first trial court judge] ruled on this issue and it is not appropriate for this court to revise [its] ruling at this time (2) even if the court felt it [was] appropriate to modify the ruling it would not reappoint him due to his failure to fulfill his duties as PR while appointed and because the animosity [between] brothers makes it difficult for Jerome Bearden to focus on his duties as PR.
CP at 57.
Whenever the court has reason to believe that any personal representative has wasted, embezzled, or mismanaged, or is about to waste, or embezzle the property of the estate committed to his charge, or has committed, or is about to commit a fraud upon the estate, or is incompetent to act, or is permanently removed from the state, or has wrongfully neglected the estate, or has neglected to perform any acts as such personal representative, or for any other cause or reason which to the court appears necessary, it shall have power and authority, after notice and hearing to revoke such letters. The manner of the notice and of the service of the same and of thetime of hearing shall be wholly in the discretion of the court, and if the court for any such reasons revokes such letters the powers of such personal representative shall at once cease, and it shall be the duty of the court to immediately appoint some other personal representative, as in this title provided.
. . . .
. . . Let me add, while I’m making observations, that the purported will in Garland Bearden’s handwriting seems to me to be questionable; however, you do appear to have, at least on the face, a valid will of Doris Bearden which divides it equally. Now, maybe that was generous of your mother. You say your brother is a criminal, but it’s your mother’s property and we have to honor her wishes.
What appears to me at this point anyway — at this point only; I don’t have any of the details — is a facially valid will splitting the estate. Maybe she should have done something different, but she gets to decide. And it’s clear to me that having you be — are you qualified to be the personal representative? Yes, you’re qualified; you seem to be a bright guy, trying to do what’s right. But it’s clear to me that this will not work. You and your brother have some serious disputes. Your brother has these restraining orders interfering with your ability to be the PR. You live in California.
I think at this time it makes no sense for you to remain as PR. As a practical [matter], some neutral party should be appointed.
RP at 13-14.
The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party’s or attorney’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. . . . If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.
Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys’ fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. A qualified party shall be considered to have prevailed if the qualified party obtained relief on a significant issue that achieves somebenefit that the qualified party sought.
(Emphasis added.)