No. 18559-1-III, 18769-1-III, 19671-2-III, 19672-1-IIIThe Court of Appeals of Washington, Division Three. Panel Ten.
Filed: December 19, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County, No. 88-4-00074-1, Hon. Donald Schacht, June 9, 1999, Judgment or order under review.
Counsel for Appellant(s), Eugene T. Golden, Williams Golden, P.O. Box M, 85 2nd St. Ste 617, Walla Walla, WA 99362.
Dennis W. Clayton, Attorney At Law, 100 Minnesota Bldg, 423 W 1st Ave, Spokane, WA 99201.
Counsel for Respondent(s), William S. Lowry, 102 West Main St., Ste 200, Walla Walla, WA 99362-2856.
Christopher M. Constantine, Attorney At Law, P.O. Box 7125, Tacoma, WA 98406-0125.
KURTZ, J.
Herman L. Martin died and left a will that established a tax credit trust (the Trust) to benefit his surviving spouse, Penny. Among the assets of the Estate of Herman L. Martin (the Estate) was an interest in a private airfield called Martin Airfield. Penny and Herman’s two sons, Robert and Gregory, undertook years of litigation related to the question of the validity of the Trust in Herman’s will, the administration of Herman’s Estate, and the management and ultimate partition sale of Martin Airfield. During the pendency of that litigation, Penny Martin died. Several appeals resulted. In these consolidated appeals, Robert L. Martin appealed the court’s order that determined that the Trust was properly established and ordered its funding. The Estate of Herman Martin appeals an award of attorney fees to Gregory Martin that related to the partition action. Robert Martin and the Estate of Penny Martin appeal the awards of receiver fees and attorney fees to Gregory Martin. We affirm the trial court’s order regarding the Trust. We reverse Gregory Martin’s award of attorney fees related to the partition action, and we further reverse his award of attorney fees related to the Estate; but, we remand the latter award for a hearing. Finally, we affirm Gregory Martin’s award of receiver fees.
FACTS
Herman L. Martin, a resident of Walla Walla, Washington, died on February 3, 1988. He was survived by his spouse, Penny D. Martin, two sons, Gregory and Robert, and three adult grandchildren, Perrilee, Jeffrey, and Rodney.
Herman’s will was admitted to probate. His will appointed Baker Boyer National Bank to act as personal representative. In May 1988, Penny Martin was appointed personal representative and granted nonintervention powers, and the Estate was determined solvent.
The main dispute between the parties involves the provision of Herman’s will related to a tax credit trust. The will provided:
ARTICLE V. Tax Credit Trust
5.01 If my spouse survives me, I give, devise and bequeath to BAKER BOYER NATIONAL BANK, hereinafter referred to as trustee, IN TRUST, a sum equal to the largest amount that can pass free of federal estate tax under this Article by reason of the unified credit and the state death tax credit allowable to my estate after taking into account the property passing outside of this Will which is includible in my gross estate and does not qualify for the marital or charitable deduction. For the purpose of establishing this sum, the values finally fixed in the federal estate tax proceeding relating to my estate shall be used. I recognize that the sum established by this paragraph may be zero and may be affected by the actions of my personal representative in exercising certain tax elections.
For the purpose of funding this bequest, there shall be allocated thereto, to the extent possible and in the order indicated, any property (i) which would not qualify for the marital deduction allowable in determining the federal estate tax on my estate, or (ii) property that my personal representative, prior to the distribution of my estate, elects not to treat as qualified terminable interest property for purposes of the marital deduction.
5.02 Beneficiaries: This trust is for the benefit of my wife.
5.03 Income and Principal: The trustee shall pay to or apply for the benefit of my wife, during her lifetime, the entire net income of the trust estate, in convenient intervals. (a) If, after taking into consideration other income and assets available to my spouse, the net income is not adequate for the reasonable health, maintenance and support of my spouse, the trustee is authorized to distribute such portions of the principal of the trust estate as, in the discretion of the trustee, are reasonable for such purposes. (b) In making such distributions, it is my desire that my wife continue to live in her accustomed standard within the limitations of funds available.
5.04 Termination: This trust shall continue as long as my spouse shall live. At her death, or at my death, should my spouse not survive me, the trust shall terminate and the entire trust estate, as then constituted, shall be divided into equal shares, with a share for each child and grandchild of mine then surviving, and a share for the surviving lineal descendants by right of representation of any deceased grandchild of mine.
Clerk’s Papers (CPB) at 2-3.[1]
The will also provided that the residue of the Estate was to be given to Penny D. Martin:
7.01 All the rest and residue of my estate, both real and personal, wherever situate and whenever acquired, I give, devise and bequeath unto my spouse. Should my spouse fail to survive me, then I direct that the residue of my estate be divided equally to such of my children and grandchildren as survive me, share and share alike . . . .
CPB at 4-5.
Herman’s Estate consisted of community property including the couple’s residence, rental properties, securities, and an interest in real property in Walla Walla County that included an airfield known as Martin Airfield. Martin Airfield consisted of a main hangar, small aircraft storage facilities, aviation tools, machinery, and repair facilities. This property also included two rental dwellings.
The parties and their interests in Martin Airfield were: Estate of Herman Martin 26.93 percent; Penny Martin 26.93 percent; Gregory C. Martin 26.35 percent; and Robert L. Martin 19.79 percent. An appraisal of the airfield submitted in August 1990 placed the value of the airfield and related assets at $417,000. The airfield had been contaminated over the years with fuel oil and related petrochemicals. Eventually, in November 1995, the court entered an order approving the clean up of the property. After her appointment as personal representative of Herman’s Estate, Penny hired attorney John Reese and public accountant Ken Larson to assist her. Mr. Larson prepared a rough draft inventory of the Estate. He provided a copy of the rough draft to Penny, Gregory, and Robert. A final inventory was not filed at that time. Shortly after Herman died, problems arose. Penny, at that time age 83, lived with Robert, who had been unemployed for a substantial period of time. The relationship between Penny and Gregory deteriorated. Gregory became concerned about the delay in filing Herman’s Estate’s inventory. He also believed that his mother was commingling her assets with the Estate’s assets, and that she was subject to Robert’s influence. Additionally, Gregory believed that Penny was required to establish a tax credit trust under the terms of Herman’s will. Gregory filed a creditor’s claim against Herman’s Estate in September 1988. He demanded that his mother provide financial documents for inspection, and sought her removal as personal representative of Herman’s Estate. Gregory also filed a partition action, seeking the partition or sale of Martin Airfield. The partition action was consolidated with the Herman Martin probate. Linn Buley was appointed special master. Mr. Buley recommended that the property be sold. Throughout the course of the partition action, the parties continued their extensive litigation. For example, Gregory moved that he be appointed receiver, alleging that Robert mismanaged the airfield and diverted rents from the tenants for his own use. Penny also attempted unsuccessfully to be appointed receiver, and requested that Robert be paid $1,500 per month for his upkeep of the airfield. Dennis Wagaman was initially appointed receiver for Martin Airfield, for which he was paid $1,000 per month.
At Gregory’s request, Penny and Robert were restrained from entering Martin Airfield, and Gregory was granted sanctions against them for their failure to answer his interrogatories. After a trial in 1991, the trial court found that Gregory was due $3,018.10 as his share of income collected during the years 1988 through 1990 on Martin Airfield. Eventually, Gregory was successful in his bid to be appointed receiver of Martin Airfield.
The relations between Penny and Gregory continued to deteriorate. Gregory expressed his dissatisfaction with the interim accounting provided in Herman’s Estate and with the responses to discovery. He continued his efforts to have his mother removed as personal representative of Herman’s Estate. Penny filed a final account and petition for distribution on October 12, 1990, which included the inventory and accounting. The petition for distribution requested that Herman’s Estate go to Penny Martin, without the establishment of a tax credit trust. Gregory Martin objected to the final accounting and petition for distribution on numerous grounds, including his assertion that the Trust had to be funded.
The trial court heard argument in November 1990. The court orally concluded that it was Herman’s intent that the Trust be funded up to one-half of the Estate, to a maximum of $600,000. The court approved the final report, but left open the issue of how to liquidate Herman’s Estate and distribute the proceeds. Nearly five years later, in September 1995, the court finally entered an order requiring that the Trust be funded.
In February 1992, Gregory Martin again moved to remove his mother as personal representative of Herman’s Estate. Penny’s former caregiver filed an affidavit in which she testified that Penny was unable to handle her own financial affairs, exhibited memory loss, and was unable to pay her own bills. This time Gregory was successful, and Merlin Giles, a CPA, was appointed as personal representative of the Estate. Two years later, Mr. Giles commenced a guardianship for the estate of Penny Martin. Daniel Tompkins was appointed guardian of Penny’s estate, and Robert Martin was appointed Penny’s guardian.
In November 1993, Mr. Giles filed an accounting in Herman’s Estate. The following month, Gregory filed a memorandum objecting to all the expenses claimed in the accounting, except for approximately $16,000. The trial court confirmed the accounting.
The court ultimately ordered the environmental cleanup and sale of Martin Airfield. The court ordered each party to deposit a specific sum into the registry of the court to fund the cleanup. Martin Airfield was eventually sold on January 16, 1998.
Penny Martin died on August 18, 1994. Penny’s will named Robert as personal representative of her estate. In the will, Penny provided only $10 to Gregory `because of his attitude and conduct in connection with the handling of the HERMAN L. MARTIN estate,’ and she provided the same amount to Gregory’s daughter Perrilee. CPB at 825. She left $1,000 each to her grandsons Jeffrey and Rodney Martin. The residue was left to Robert L. Martin. Penny’s will was admitted to probate. Predictably, Gregory filed an objection to the appointment of Robert as personal representative. Robert was disqualified and Daniel J. Tompkins was appointed personal representative. Between 1994 and 1999, the assets of the estates of Herman and Penny Martin were liquidated and the proceeds were assembled by their respective personal representatives. The liquidation of the assets was a source of continuing litigation between the brothers. Beginning in 1990, Gregory Martin petitioned the court for awards for attorney and receiver fees. In 1999, Gregory again petitioned for fees, requesting $59,625 ($750 per month times 79.5 months) in receiver fees. He described his duties at Martin Airfield from his appointment in June 1991 until the sale of Martin Airfield in January 1998, including collecting rent, performing all maintenance on the property and buildings, mowing lawns, repairing roofs, weed control on the runway and taxiway, paying county taxes, and paying insurance. Gregory also sought attorney fees for time spent in the partition and probate actions. Robert objected to the fees and requested a hearing to inquire into the reasonableness and value of Gregory’s receiver fees. The Estate of Herman Martin also objected. On June 9, 1999, the trial court entered findings of fact and orders regarding attorney fees and receiver fees. The trial court found that Gregory’s actions protected the interests of the remaindermen of the Trust established in Herman’s will. The court awarded Gregory attorney fees, receiver fees, and prejudgment interest on both. On June 30, 1999, Herman’s Estate filed a notice of appeal from the court’s June 9, 1999 order awarding attorney fees and receiver fees. On September 3, 1999, the court issued amended findings of fact and orders regarding attorney fees and receiver fees upon the motions for reconsideration of the Estate of Penny D. Martin, the Estate of Herman L. Martin, and Robert L. Martin. The amended order, among other things, reduced Gregory’s award of receiver fees by his proportionate obligation as owner of Martin Airfield. Robert Martin filed a notice of appeal from this order. Gregory sought reconsideration of the court’s amended order of September 3, 1999. He argued that in making his claim for receiver fees at the rate of $750 per month, he had already deducted his proportionate share of that obligation from the $1,000 per month that was paid to the previous receiver, Dennis Wagaman.
In response, the court again amended its findings related to the receiver fees on January 26, 2000 in an amended findings of fact and order regarding attorney fees and receiver fees upon the motion for reconsideration of Gregory C. Martin.
The court ordered:
1. The Estate of Herman L. Martin shall forthwith pay to Gregory C. Martin $62,643 said amount representing $41,234 awarded to Gregory C. Martin pursuant to RCW 11.96.140 for protecting the interests of the remaindermen of the Herman L. Martin trust for the period January 6, 1990 through July 15, 1992 and $21,409 representing the Estate of Herman L. Martin’s percentage of receiver’s fees for Martin Field. Additionally, the Estate of Herman L. Martin shall forthwith pay to Gregory C. Martin:
(a) $13.55 per day from June 1, 1999 as interest on the aforementioned attorney fee award of $41,234.62; and
(b) $7.03 per day from May 10, 1999 as interest on the aforementioned receiver’s fee of $21,409.
2. The Estate of Penny D. Martin shall forthwith pay to Gregory C. Martin the sum of $37,142 representing:
(a) $21,409 regarding the Estate of Penny D. Martin’s share of Gregory C. Martin’s receiver’s fees; and
(b) $15,733 representing Robert L. Martin’s share of Gregory C. Martin’s receiver’s fees.
3. Additionally, the Estate of Penny D. Martin shall forthwith pay to Gregory C. Martin $12.20 per day ($7.03 + $5.17) from May 10, 1999 as interest on said $37,142.
CPA at 29-30.
On January 21, 2000, the representative of Penny’s estate filed a petition for distribution and settlement of estates. Penny’s personal representative maintained that approximately $70,000 was needed to fund the Trust in Herman’s will. In October 2000, the trial court ordered the personal representative of Penny’s estate to pay $71,179 to Herman’s Estate.
On October 23, 2000, in Herman’s Estate, the court eventually entered an order directing the distribution of the assets. The court ordered distribution as follows:
`That the remainder of the funds on hand could be distributed to the heirs entitled thereto under the trust provision of Herman L. Martin’s Last Will and Testament, namely: Gregory C. Martin, Robert L. Martin, Perrilee Martin, Jeffrey D. Martin and Rodney L. Martin in equal shares.’
CPB at 789.
Penny’s estate filed a notice of appeal, appealing the (1) October 23, 2000 order directing delivery of funds from Penny’s estate to Herman’s Estate of $71,179; (2) the October 23, 2000 order granting a motion to determine how distribution should be made; and (3) the September 25, 1995 order establishing Herman’s Trust. Robert Martin joins these appeals. The Estate of Herman Martin appeals an award of attorney fees to Gregory Martin that related to the partition action. The appeals are consolidated for review.
Validity of the Trust. The interpretation of a will or trust instrument is a question of law, which this court reviews de novo. In re Estate of Curry, 98 Wn. App. 107, 112-13, 988 P.2d 505 (1999), review denied, 140 Wn.2d 1016 (2000). Our primary duty when interpreting a will or trust instrument is to determine the intent of the testator. Id. at 113 (citing In re Estate of Niehenke, 117 Wn.2d 631, 639, 818 P.2d 1324 (1991)). If possible, we will determine the testator’s intent at the time of the will’s execution from the language of the will itself. In re Estate of Price, 73 Wn. App. 745, 754, 871 P.2d 1079 (1994) (citing In re Estate of Bergau, 103 Wn.2d 431, 435-36, 693 P.2d 703 (1985)). In determining the intent of the testator, we should consider the will in its entirety, and give effect to every part. Price, 73 Wn. App. at 754
(citing Bergau, 103 Wn.2d at 435).
Before a trust will be found to exist, there must be a clear manifestation of an intent to create a trust. Hoffman v. Tieton View Community Methodist Episcopal Church, 33 Wn.2d 716, 726, 207 P.2d 699
(1949); In re Estate of Brooks, 20 Wn. App. 311, 313, 579 P.2d 1351
(1978).
A testamentary trust will not be declared, unless such a trust is clearly intended by the testator. In re Estate of King, 144 Wn. 281, 257 P. 848 (1927). It has generally been held that an imperative command to dispose of the property for the benefit of another is required to create a testamentary trust. In re Estate of Morton, 188 Wn. 206, 61 P.2d 1309 (1936). To establish an express trust, the evidence must be clear and satisfactory. See Kinney v. McCall, 57 Wn. 545, 107 P. 385
(1910).
Curiously, all parties to this litigation agree that Herman’s will unambiguously states the testator’s intent. The parties simply disagree as to what Herman’s will unambiguously provides. Robert L. Martin contends the sole purpose of Article V — Tax Credit Trust — was to avoid estate taxes.
In other words, Herman believed that when he died, he would leave a sizeable estate and that either his estate or his wife’s estate would be required to pay substantial estate taxes. However, due to the actual size of Herman’s Estate, the tax credit trust proved unnecessary. Robert emphasizes the language of the will that ‘[t]his trust is for the benefit of my wife.’ CPB at 2. And, he argues, his father would not have intended to burden his wife with an unnecessary and expensive trust.
Moreover, Robert argues that in the absence of tax consequences, the specific language of Article V does not work. For instance, Article V values the property to be placed in the Trust by reference to the federal estate tax proceeding. But, given the size of the Estate, there was no federal estate tax proceeding. Additionally, Article V identifies the sources from which the Trust should be funded. These sources specifically included properties that would not qualify for the marital deduction and, consequently, would be subject to federal estate taxes. Because all of Herman’s assets qualified for the marital deduction, the specified sources for funding the Trust failed to come into existence. Finally, Robert notes that Herman acknowledged in Article V that the funding amount for the Trust could be zero. If Herman intended to establish the Trust for any reason other than avoiding estate taxes, Robert asks, how could Herman provide for a zero funding amount based upon tax consequences?
Gregory Martin and the Estate of Herman Martin assert that the will unambiguously provides for the creation of a trust in the amount of $600,000. They concede that one of the motivations for the establishment of the Trust was legal tax avoidance and, accordingly, Article V states that property which would otherwise be taxable should be used as a source of funding for the Trust. But, tax avoidance, they argue, was not the only motivation for the Trust. Herman intended to make a bequest to his children and grandchildren. For that reason, the language of Article V does not limit the property that may be used to fund the Trust.
The language of Article V of Herman’s will is difficult, but not unclear. By its express terms, the will creates a trust. The trial court properly found that Herman’s intent in creating the Trust was both to avoid taxes and to benefit all of the named beneficiaries of the Trust. While Herman undoubtedly believed that the Trust would be funded from property that would otherwise be subject to federal estate taxes, his will does not expressly limit the funding of the Trust to only that class of property.
Therefore, the trial court correctly found that Herman’s intent was that the Trust be funded out of Herman’s one-half of the Estate up to a maximum of $600,000.
Other purported inconsistencies between Herman’s expressed intent and the language of Article V are readily explained by reference to the applicable federal estate and federal tax laws. For instance, Herman could have reduced the amount of the Trust from `the largest amount that can pass free of federal estate tax . . . by reason of the unified credit and the state death tax credit,’[2] $600,000 at the time of his death, even to zero, by making gifts to his family during his lifetime. But, such a provision is not inconsistent with the creation of a trust and does not negate Herman’s clear statement of intent to create a trust. The judgment of the trial court regarding the establishment and funding of the Trust is affirmed.
Award of Attorney Fees to Gregory Martin. Robert contends that the court abused its discretion in awarding all the requested attorney fees to Gregory, on the basis that much of the work undertaken by Gregory’s attorney was devoted to allegations of wrongdoing by Robert and Penny Martin, and this work did not benefit the Estate.
The order indicates that the basis of the award is former RCW 11.96.140 (1994).[3] However, this statute was superceded on January 1, 2000, and the order was signed January 26, 2000. Gregory argues that the award is supported by the new provision, RCW 11.96A.150, which authorizes the court to award attorney fees from estate assets.
RCW 11.96A.150(1) provides:
[e]ither 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.
Similarly, former RCW 11.96.140[4] grants the court discretion to award attorney fees and costs `as justice may require.’ In re Estate of Tolson, 89 Wn. App. 21, 38, 947 P.2d 1242 (1997). A trial court’s decision to award or deny fees under former RCW 11.96.140 will not be overturned except on a clear showing of abuse of discretion. In re Korry Marital Deduction Trust, 56 Wn. App. 749, 755, 785 P.2d 484 (1990) (citing In re Estate of Eubank, 50 Wn. App. 611, 621, 749 P.2d 691
(1988)).
RCW 11.76.070 authorizes the award of attorney fees to a party who is reasonably required to employ legal counsel and successfully compels a probate accounting, or successfully resists an erroneous accounting. Attorney fees are generally awarded under RCW 11.76.070 when the action benefits the estate. In re Estate of Larson, 103 Wn.2d 517, 533-34, 694 P.2d 1051 (1985) (directing the trial court on remand to award fees to objectors who brought the accounting action and to tie the award of fees under RCW 11.76.070 to the benefit received by the estate). However, this is not a firm rule, and courts recognize that situations exist in which it is just to assess fees against the estate. Estate of Kvande v. Olsen, 74 Wn. App. 65, 71, 871 P.2d 669 (1994).
In Estate of Larson, 103 Wn.2d at 534, this court held that the litigating parties are entitled to reasonable attorney fees if they can demonstrate an overall benefit to the estate. Applying the same reasoning in In re Estate of Riemcke, 80 Wn.2d 722, 736, 497 P.2d 1319 (1972), this court concluded that the respondent’s action resulted in an increase of estate assets and thus the trial court properly exercised its discretion in awarding attorney fees. This court affirmed a similar ruling by the trial court in In re Estate of Hamilton, 73 Wn.2d 865, 869, 441 P.2d 768
(1968), in which the court awarded attorney fees for legal services which benefited the entire estate and not merely individual beneficiaries.
The first step in calculating attorney fees in an accounting is to determine what actions materially benefited the estate. In re Guardianship of Hallauer, 44 Wn. App. 795, 799, 723 P.2d 1161
(1986). In Hallauer, the court held that fees for dismissed claims or administrative matters were not recoverable as part of the accounting and were correctly excluded by the trial court. `Once the relevant claims or issues have been determined and fees requested for them alone, the court must determine whether the fees for those claims are reasonable.’ Id.
In this case, Gregory was granted a general award of fees. As discussed in the following section, Gregory’s award of fees included amounts chargeable to the partition action. Additionally, Gregory has failed to prove that all his requested attorney fees were related to actions that materially benefited the Estate. For example, Gregory incurred attorney fees seeking to recover income due him as part owner of Martin Airfield. The record before us does not establish which fees were incurred for the benefit of Gregory and which fees were incurred for the benefit of the Estate. Gregory should be awarded the fees that were incurred and that resulted in a material benefit to the Estate. We reverse and remand for a determination of those fees.
Award of Partition Attorney Fees. The Estate contends the trial court erred by awarding attorney fees to Gregory Martin incurred in the partition action. Gregory responds that the fees were proper because the action benefited the Estate, and because his partition action was required due to Penny Martin’s refusal to fulfill her statutory obligations as the Estate’s personal representative.
Appeal from an Interlocutory Order. As an initial matter, Gregory contends that this court has no jurisdiction to hear the case because the Estate filed an appeal from an interlocutory order. The order from which the Estate appealed was dated June 9, 1999, and is entitled, `Findings of Fact and Orders Re: 1) Attorney’s Fees; 2) Receiver’s Fees.’ CPA at 1-4. This order was subject to reconsideration, and the amount of fees awarded was subsequently changed.
However, in correspondence with this court, the Estate admitted that the notice of appeal was premature. To remedy the situation, and to avoid filing the appeals related to this case in piecemeal fashion, all the parties, including Gregory, executed a `Stipulation for Stay of Proceedings’ in January 2000. See Correspondence Spindle. The parties stipulated that `all appeals’ in this matter `be stayed until a final ruling has been made in the Superior Court on all appealable issues.’ See Correspondence Spindle.
Thus, it appears Gregory acknowledged the prematurity of the notice of appeal related to the specific order, and seemingly waived his argument by signing the stipulation. Moreover, on reconsideration, the court merely adjusted the amount of attorney and receiver fees. The purpose of a notice of appeal is to notify the adverse party that an appeal is intended. Hiner v. Bridgestone/Firestone, Inc., 138 Wn.2d 248, 263, 978 P.2d 505 (1999) (citing State v. Olson, 74 Wn. App. 126, 128, 872 P.2d 64 (1994), aff’d, 126 Wn.2d 315, 893 P.2d 629 (1995)). RAP 1.2(a) states ‘[t]hese rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits.’
In light of Gregory’s agreement to the stay `until a final ruling . . . on all appealable issues,’[5] and in light of the communication between the parties as to the issues intended to be appealed, it should be concluded that the notice of appeal adequately informed Gregory that an appeal was intended. As such, his argument that the issues should not be addressed on the merits due to a premature notice of appeal should be dismissed.
Failure to Assign Error to the Findings and Conclusions. Next, Gregory argues that because the Estate failed to assign error to the trial court’s findings of fact related to attorney fees, and also failed to cite to the record, the court should not consider this issue.
Admittedly, the Estate failed to set out the findings of fact claimed to be in error. `However, where a trial court’s conclusion of law is being challenged, it is not necessary to set it out verbatim in the brief.’ Lampson Equip. Rental Sales, Inc. v. West Pasco Water Sys., Inc., 68 Wn.2d 172, 174, 412 P.2d 106 (1966). Where, as in this case, it is clear that the appellant is challenging the court’s construction of a statute or application of common law, and not a factual matter, the court may consider the matter on the merits, despite the failure to assign error to any findings. Id.; Fain v. Nelson, 57 Wn.2d 217, 219, 356 P.2d 302
(1960).
The ultimate order from which the Estate appeals is entitled `Amended Findings of Fact and Orders Re: 1) Attorney’s Fees; 2) Receiver’s Fees upon the Motion for Reconsideration of Gregory C. Martin.’ CPA at 27-30. The order contains no designated conclusions of law. Rather, the order merely sets forth under its `findings’ that Gregory’s actions protected the interests of the remaindermen of the Trust, and that the attorney fees and costs as well as the receiver fees and costs are reasonable and approved. Given the structure of the order, the `findings of fact’ are mixed findings of fact along with conclusions of law. It is clear from the Estate’s brief that it intended to challenge the conclusion that Gregory was entitled to an award of fees. As such, the court should review this issue on the merits.
‘This court reviews findings of fact to determine whether they are supported by substantial evidence and, if so, whether the findings support the conclusions of law.’ Inland Foundry Co., Inc. v. Dep’t of Labor Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001). `A trial court’s conclusions of law are reviewed de novo.’ Id. (citing City of Seattle v. Megrey, 93 Wn. App. 391, 393, 968 P.2d 900 (1998)).
Award of Attorney Fees to Gregory Martin in Partition Action. In this case, the challenged conclusion of law is the court’s determination that Gregory was entitled to an award of attorney fees for his legal `actions’ from the period of January 6, 1990 through July 15, 1992. CPA at 28. The Estate contends that Gregory was not entitled to an award of attorney fees for his efforts in the partition action.
In awarding Gregory his fees, the trial court found ‘[t]he actions of Gregory C. Martin for the period of January 6, 1990 through July 15, 1992 protected the interests of the remainderman [sic] of the trust.’ CPA at 28. Gregory filed the partition action in March 1990. Prior to that date, Gregory filed several motions related to Herman’s Estate. In his request for attorney fees, his attorney stated that `there were two basic actions that required Greg Martin to incur attorney’s fees to protect the interests of the estate of Herman L. Martin.’ CPB at 429.
First, Gregory sought removal of Penny Martin as the personal representative of the Estate, and the related issues of her failure to file an inventory and accounting, as well as her failure to establish the Trust indicated in Herman’s will. Second, Gregory sought the partition of Martin Airfield because he contended that Penny and Robert were engaging in acts that were wasting the assets of Martin Airfield.
The request for attorney fees failed to separate out the fees incurred in connection with the partition action, and those incurred related to the Estate’s accounting, inventory, and personal representative. As a result, Gregory was awarded fees, in part, for his efforts relating to the partition action.
The order indicates that the basis of the award is former RCW 11.96.140. As previously noted, this statute was superceded on January 1, 2000, and the order was signed January 26, 2000. Gregory argues that the award is supported by the new provision, RCW 11.96A.150. Similar to former RCW 11.96.140, under the provisions of RCW 11.96A.150, the trial court may award attorney fees from estate assets. The new statute states this section applies to all proceedings governed by this title, including but not limited to proceedings involving trusts, decedent’s estates and properties, and guardianship matters. This section shall not be construed as being limited by any other specific statutory provision providing for the payment of costs, including RCW 11.68.070 and 11.24.050, unless such statute specifically provides otherwise.
RCW 11.96A.150(2).
The statute related to the apportionment of costs for partition actions provides:
The cost of partition, including fees of referees and other disbursements including reasonable attorney fees to be fixed by the court and in case the land is ordered sold, costs of an abstract of title, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree. In that case there shall be a lien on the several shares, and the decree may be enforced by execution against the parties separately. When, however, a litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.
RCW 7.52.480.
This statute was interpreted in Hamilton v. Huggins, 70 Wn. App. 842, 855 P.2d 1216 (1993). In Hamilton, a residuary trust was created to provide income to a surviving spouse. The trust owned one-half of an industrial property building. The remaining one-half of the property was owned by three adult children who held undivided interests. One of the children, Rosalind Huggins, became dissatisfied with the manner in which the trust was managing the building, and eventually the trustees and other two children commenced a partition action.
The building was sold, and at the request of the trustees, attorney fees and costs were awarded against Ms. Huggins. Ms. Huggins appealed on this issue. The court noted that `the common benefit rule’ is followed in most partition cases. ‘[I]t has been widely held or recognized, in practically all of the cases in fact, that counsel fees should be allowed as part of the costs, or that such an allowance may be made, in partition suits where all of the parties have actually benefited therefrom, at least where, and to the extent that, the proceedings have been amicable or friendly[.]’
Hamilton, 70 Wn. App. at 850 (quoting Annotation, Allowance and Apportionment of Counsel Fees in Suit for Partition, 73 A.L.R. 16, 21 (1931)). However, a common law exception to this rule exists when the partition proceedings are adversarial, in which case there will be no allowance of attorney fees at all. Id.
The Hamilton court noted that the dispute `was anything but amicable or friendly’ and thus the common benefit rule was inapplicable. Hamilton, 70 Wn. App. at 851. After analyzing the provisions of RCW 7.52.480, the court held that it is not a prevailing party statute, and instead `does no more than codify the common benefit rule.’ Hamilton, 70 Wn. App. at 852. Thus, the court reversed the award of fees against Ms. Huggins.
Gregory dismisses Hamilton as neither controlling nor persuasive authority because that case did not address an award of fees on the basis provided in this case, former RCW 11.96.140. He fails to provide authority or argument for his assertion.
Gregory argues that the award of fees is supported by RCW 11.96A.150(2), which authorizes the award of fees for `all proceedings governed by this title.’ However, a partition action is governed not by Title 11, but by chapter 7.52 RCW.
A specific statute will supersede a general one when both apply. In re Estate of Kerr, 134 Wn.2d 328, 337, 949 P.2d 810 (1998).
Under RCW 7.52.480, the court may award fees incurred in a partition action under the common benefit rule. However, the common benefit rule is not applicable where the proceedings are adversarial, and therefore the court should not award attorney fees. See Hamilton, 70 Wn. App. at 850.
In this case, Gregory’s partition action was adversarial and, therefore, under Hamilton, he was not entitled to an award of those fees related to the partition. We reverse the award of attorney fees related to the partition action.
Receiver Fees. Robert Martin contends that the court erred by awarding Gregory receiver fees because as a party, Gregory was precluded from acting as receiver under RCW 7.60.020(6). Gregory responds that neither Robert nor Penny objected to his appointment and therefore waived the argument. He also argues that Penny attempted to have herself appointed receiver, and therefore is estopped from making this argument.
RCW 7.60.010 defines a receiver as a person appointed by the court to take charge of property during the pendency of a civil action or proceeding, and at the court’s direction, to manage or dispose of the property. RCW 7.60.020(6) provides that the court may appoint a receiver where it may be necessary to secure justice to the parties, `PROVIDED, That no party or attorney or other person interested in an action shall be appointed receiver therein.’
In Laube v. Seattle Taxicab Co., 132 Wn. 32, 231 P. 11 (1924), the court held it was error to appoint a trustee in bankruptcy as receiver of one of the companies owned by the bankrupt corporation. The court noted:
In addition to the statute, the general rule seems to be that a person should not be appointed as a receiver who by such appointment would be placed in a dual position, as there may and often do arise conflicts between his personal interest and his duty as receiver and whose duty it may be at some time to call the receiver to account. A receiver should be one who will guard equally and impartially the rights of all.
Id. at 36. Thus, applied to this case, the court erred in appointing Gregory Martin as receiver of Martin Airfield because he held an interest in the property.
However, when a party fails to appeal from the appointment of a receiver and subsequently acquiesces in the acts of the receiver, the party will be estopped from asserting improper appointment as a defense in a later action. In Ganoung v. Chinto Mining Co., 26 Wn.2d 566, 174 P.2d 759
(1946), the appellant complained that the appointment of a receiver was made without proper notice, and thus all of the receiver’s acts were void, including the ultimate sale of the property. The court held that this challenge should have been raised directly on appeal from the order appointing the receiver, and the attempt to raise this issue as a defense constituted a collateral attack, which would not be considered. Id. at 572.
In Davenport Nat’l Bank v. Ditmar, 134 Wn. 439, 235 P. 955 (1925), a receiver was appointed. Subsequently, after the sale of the farm property, the former owner challenged the court’s authority to appoint a receiver.
The court held that the former owner’s acts in relation to the receiver, such as providing the receiver the means to operate the farm, her continued residence on the farm, and her acceptance of payments for her services on the farm, constituted acquiescence and therefore she was estopped from denying the validity of the receivership. Id. at 441. The court quoted High on Receivers (4th ed.) sec. 37:
`Where parties to the action are before the court upon the appointment of a receiver, and have a right to object to the order of the court, or to appeal therefrom, but submit to the order without objection and without subsequently appealing, their submission will be deemed an acquiescence in the order, so far as to render it the law of the case with respect to the right to a receiver.’
Davenport Nat’l Bank, 134 Wash. at 442-43.
The trial court erred by appointing Gregory as a receiver to Martin Airfield because he held an interest in the property. However, because Robert failed to timely appeal Gregory’s appointment, he is deemed to have acquiesced in the appointment and subsequent acts, and thus is now estopped from advancing his argument.
Moreover, while Robert takes issue with the number of hours Gregory spent as receiver, and with the fees awarded him, Robert does not argue that Gregory failed to perform the duties of a receiver. Nor does Robert argue that Gregory committed waste or violated his duties while acting as receiver. The record indicates that Gregory acted as receiver for several months and, in that capacity, he expended a significant number of hours at Martin Airfield.
‘A partition action is both a right and a flexible equitable remedy subject to judicial discretion.’ Friend v. Friend, 92 Wn. App. 799, 803, 964 P.2d 1219 (1998). `The trial court is accorded great flexibility in fashioning relief under its equitable powers.’ Id. Generally, the award of fees to a receiver is `a matter peculiarly within the knowledge of the trial court [and] will not be reversed by a reviewing court except on clear proof of error or a showing of abuse of discretion.’ Ginsberg v. Katz, 27 Wn. App. 593, 598, 619 P.2d 995
(1980).
The record contains evidence that Dennis Wagaman received $1,000 per month while he was the receiver, and that Penny thought Robert’s charge of $1,500 per month was reasonable. As such, the record contains evidence to support the trial court’s finding that a reasonable fee to pay Gregory for his services as receiver was $1,000 per month, less his proportionate obligation as owner of the airfield. As such, the court’s award of fees to Gregory for acting as receiver was not an abuse of discretion. We affirm the court’s award of receiver fees to Gregory.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and KATO, JJ., concur.