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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

In re Estate of Wilma Rodman,                                    No.  41095-8-II

                                                           UNPUBLISHED OPINION

       Hunt, J.  --  Darrell  R.  Rodman appeals the superior court's  (1)  order approving his 

mother's estate's personal representative's final accounting and report; (2) refusal to schedule a 

special hearing to consider his objections to that final accounting and report; and (3) refusal to 

consider his objections, in part, because he did not file them in a timely fashion.  These arguments 

fail.

                                            FACTS

       Wilma Rodman passed away in October 1993.  Her will was admitted to probate in 

December.  Her two sons, Jack A. Rodman and Darrell R. Rodman,1 survived her.  The will 

appointed Darrell Rodman  as personal representative; but the court removed  him  from that 

position less than a year later.  In August 1995, the estate filed an action against Rodman for 

alleged malfeasance during his time as personal representative.

       Wilma's  estate  included 25 acres of land and  a real estate contract, known as the 

1 To avoid confusion, we refer to Wilma and Jack Rodman by their first names.  We intend no 
disrespect. 

No. 41095-8-II

"Schnitzer contract."  Clerk's  Papers (CP) at 14.  The will provided for certain bequests to 

Wilma's grandchildren and to religious organizations.  The will further stated:

              I hereby direct that reasonable repairs and maintenance, including
       insulation and maintenance of a well for water supply, as well as real estate and/or 
       property taxes, and including payment of homeowner's insurance, on the residence 
       located on the original family homestead . . . shall be paid from the income interest, 
       or proceeds earned from the [Schnitzer contract].

CP at 224.  The will devised the remainder of the estate to Jack2 and Darrell.

       In January 1997, Rodman and other members of Wilma's family signed a settlement 

agreement providing that (1) Rodman would receive the family homestead mentioned in Wilma's 

will; (2) the "funds from the Schnitzer contract shall be used as specified in [Wilma's] will"; (3) 

the  estate's  personal representative "shall determine what are reasonable expenses"; and (4) 

"[a]fter these expenses are paid, the income is to be paid to the beneficiaries as outlined in the 

will." CP at 16-17.  The settlement agreement also outlined a process for resolving disputes 

about the "reasonable expenses" provisions:

              If there is a dispute regarding the expenses to be paid on the Schnitzer 
       contract . . . then the matter shall be submitted, in writing, to Judge Donald 
       Thompson of Gordon Thomas.  No oral argument shall be had on the matter 
       unless requested by Judge Thompson.  . . .  Judge Thompson's decision shall be 
       final.  There shall be no appeal rights from Judge Thompson's decision.[3]

CP at 17.  Despite this settlement agreement, the parties engaged in further litigation concerning 

Wilma's estate.  Attorney David Bastian was appointed the estate's personal representative.

2 Jack subsequently passed away, leaving Donna Rodman as his sole heir.

3 Judge Thompson later discovered that he had a conflict with the estate litigation.  The Pierce 
County Superior Court appointed Judge Waldo Stone of Burgess Fitzer to replace Judge 
Thompson.

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       In May 2010, Rodman requested a formal accounting and "determination by the court of 

the reasonableness" of Bastian's fees.  CP at 4.  Bastian filed a "Final Report and Accounting of 

the Personal Representative"4 dated June 17, 2010, which asked the court (1) to approve the 

accounting  report as well as the "actions of the Personal Representative"5; (2) to approve 

$20,301.00 in fees that the estate had already paid Bastian; (3) to order the payment of 

$18,019.00 in additional fees to Bastian; (4) to authorize the distribution of "the remaining funds 

held by the Estate as set forth" in the accounting report;6 and (5) to discharge Bastian "from any 

further duties of the Estate."  CP at 12.  Bastian's accounting report also explained that (1) 

Rodman had submitted many "unclear"7 and hand-written reimbursement requests from 1993 to 

2004 for repairs and maintenance of the homestead property; (2) from 2003 to 2006, Rodman had 

asked Judge Stone to review many of Bastian's decisions about the reasonableness of Rodman's 

1993-2004  reimbursement requests;  and  (3)  Judge Stone never reversed or modified any of 

Bastian's decisions.

       Over a period of years, Bastian reimbursed Rodman $33,529.91 for various claimed 

expenses.  Bastian apparently stopped granting Rodman's reimbursement requests in September 

2004, by which time the Schnitzer contract had been satisfied and the estate was no longer 

receiving income from it.  See CP at 92.  Bastian's accounting report noted that Rodman "has 

4 CP at 5.

5 CP at 12.

6 These remaining funds consisted of $74,245.88 that Rodman was to receive.  He had previously 
received $28,879.17 in disbursements.

7 CP at 7.

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No. 41095-8-II

been represented by many attorneys," several of whom had filed attorneys' liens against Rodman's 

remaining unpaid distribution.  CP at 9.  On July 15, 2010, Rodman filed objections to Bastian's 

accounting report.  Rodman asserted that Bastian's fee request was "unreasonable and excessive,"

that Bastian "charge[d] the same rate for legal services as he does for the administrative duties as 

personal representative," and that Bastian improperly refused to grant his reimbursement requests.  

CP at 229.

       During a motion calendar hearing on July 16, Rodman's counsel stated, "I have a 

suggestion, Your Honor.  We have issues between the two of us that are going to require longer 

than a motion calendar hearing.  What I would like to do is get a special set hearing, half a day."  

Verbatim Transcript of Proceedings (VTP) at 3.  Bastian responded that Rodman "want[ed] to 

dredge up"8 Bastian's denials of Rodman's reimbursement requests, all of which Judge Stone 

approved over four years earlier.  Bastian further explained,

       That's why [Rodman] want[s] to have additional time to resolve this.  [Rodman] 
       want[s] to go through all of the issues all over again, another bite at the apple.  It's 
       done.  It's been done for years.  There's no reason to challenge that at all.

VTP at 6.  Bastian also stated that "Since 2006 and the conclusion of Judge Stone's involvement 

in [the estate litigation], I have not made any decisions on reasonable maintenance and repair."  

VTP at 6.

       When the superior court advised Rodman's counsel, "I didn't get any papers from you,"9

counsel conceded that he had not filed his objections until 4:00 p.m. the day before the hearing.  

8 VTP at 6.
9 VTP at 6.

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No. 41095-8-II

The superior court responded that  Rodman's objections were not  "timely filed."   VTP  at  7.  

Bastian, however, asked the superior court's permission to address these objections, which the 

superior court allowed.  After Bastian's argument, the superior court stated:

              I guess I don't understand why there's a need for a hearing at this point.10
       [. . .]
       We're not going to go back.  The Court is not going to go back.  You have a 
       settlement agreement in place.  There was a mechanism for doing that.  We're not 
       going to go back and revisit old decisions.  That's not going to happen.
              So the only issue that's left is the attorney's fees. . . .  I believe that the 
       fees are reasonable.  Mr. Bastian hasn't been paid since 2003.  I think it's time that 
       he got paid and your client got his distribution.  I don't see a basis for holding any 
       more court time or holding up the estate.
       [. . .]
       The Court is going to rule.  I am going to approve the final report and accounting.  
       I'm not going to allow any further hearing on this.

VTP at 14-15.  After the hearing, the superior court issued an order approving Bastian's final 

accounting report.

       Rodman now appeals this final accounting report order, the superior court's denial of his 

objections to Bastian's final accounting report, and the superior court's denial of his request for a 

special hearing.

10 VTP at 12.

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No. 41095-8-II

                                          ANALYSIS

                                       I.  Special Hearing

       Rodman first argues that the superior court "wrongly refused to hold a hearing to consider 

evidence that would support [his] objections to closing the estate[.]" Br. of Appellant at 6. This 

argument fails.

       We review courtroom management decisions for an abuse of discretion.  In re Marriage 

of Zigler and Sidwell, 154 Wn. App. 803, 815, 226 P.3d 202, review denied, 169 Wn.2d 1015 

(2010).  A court abuses its discretion if the superior court bases its decision on untenable grounds 

or reasons or if the decision was manifestly unreasonable.  Yousoufian v. Office of Ron Sims, 168 

Wn.2d 444, 458, 229 P.3d 735 (2010).  A decision is manifestly unreasonable if the superior

court, "'despite applying the correct legal standard to the supported facts, adopts a view that no 

reasonable person would take.'"  Yousoufian, 168 Wn.2d at 459 (quoting Mayer v. Sto Indus., 

Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006) (internal quotation marks omitted)).

       The superior court did not abuse its discretion here.  The transcript of the estate-closing 

hearing is nearly 20 pages long.  The superior court questioned each party about the case and 

entertained oral argument from both sides.  The superior court also asked Rodman's counsel at 

least three times why it should schedule a special hearing to consider Rodman's objections to 

Bastian's final accounting and report.  Rodman's counsel's answers were not persuasive.

       Rodman argues that the superior court based its refusal to schedule a special hearing, in 

part, on his  failure to file timely objections to Bastian's final accounting report.  Rodman

concedes that his filing was not timely under a local court rule; but he contends that this local rule 

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No. 41095-8-II

conflicts with CR 6(d), which permits a party to file affidavits opposing a motion one day before a 

hearing.  Because Rodman did not file any affidavits in opposition, this CR 6(d) one-day rule did

not apply.  On the contrary, his objection to Bastian's final report and accounting was more in the 

nature of a written motion, which Rodman should have filed no later than five days before the 

hearing under CR 6(d).  Thus, the superior court did not abuse its discretion in refusing to set a 

special hearing, in part, because Rodman failed to file his objections in a timely fashion.

       Next, Rodman asserts that the superior court should have set a special hearing because 

Bastian addressed the merits of Rodman's objections, even though the superior court had ruled 

that these objections were untimely.  But Rodman cites no authority supporting this proposition,

as required by RAP 10.3(a)(6); therefore, we do not further consider it.11   McCoy v. Kent 

Nursery, Inc., 163 Wn. App. 744, 771-72, 260 P.3d 967 (2011).  We hold that the superior court 

did not abuse its discretion by refusing to set a special hearing.

                                       II.  Attorney Fees

                                            A.  Trial

       Rodman next argues that the superior court abused its discretion by granting Bastian's 

request for $18,019.00 in attorney fees as the estate's personal representative.  This argument 

also fails.

       "Generally, [we] will not interfere with an allowance of attorney fees in probate matters 

11 Rodman also assigns error to the superior court's approving Bastian's "final accounting and 
closing of the Estate of Wilma Rodman." Br. of Appellant at ii.  Again, Rodman does not provide 
argument in his brief to support this assigned error; thus, we do not further consider it.  Cowiche 
Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992); RAP 10.3(a)(6).

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No. 41095-8-II

unless there are facts and circumstances clearly showing an abuse of the trial court's discretion."  

In re Estate of Larson,  103 Wn.2d 517, 521, 694 P.2d 1051 (1985). In determining the 

reasonableness of attorney fees in probate proceedings, we review the record that was before the 

superior court12 and consider the following criteria:  (1) the amount and nature of the services 

rendered; (2) the time required in performing them; (3) the diligence with which they have been 

executed; (4) the value of the estate; (5) the novelty and difficulty of the legal questions involved; 

(6) the skill and training required in handling them; (7) the good faith in which the various legal 

steps in connection with the administration were taken; and (8) all other matters that would aid 

the court in arriving at a fair and just allowance.  In re Larson, 103 Wn.2d at 522 (quoting In re 

Estate of Peterson, 12 Wn.2d 686, 728, 123 P.2d 733 (1942)).

       Rodman asserts that the superior court awarded attorney fees to the estate based on 

Bastian's hourly rate of $200 per hour, even though the superior court "did not attempt to 

determine if the time spent by [Bastian] was for legal work, or for clerical, administrative, or other 

non-legal work."  Br. of Appellant at 12.  Rodman is correct that a lawyer performing probate 

work is not necessarily entitled to compensation at legal rates for nonlegal work.  See In re Estate 

of Mathwig, 68 Wn. App. 472, 476-79, 843 P.2d 1112 (1993).  But an examination of Bastian's 

invoices for the $18,019.00 in requested fees reveals that a substantial amount of his work was 

legal work, such as attending show cause hearings and preparing and filing motions with courts.  

Bastian also engaged in other work, such as telephone conversations with Rodman and other 

attorneys, that, although not obviously legal in nature, possibly "require[d] the exercise of legal 

12 In re Larson, 103 Wn.2d at 521.

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No. 41095-8-II

skill and judgment," thereby entitling Bastian to a legal hourly rate.  In re Mathwig, 68 Wn. App. 

at 476.

       The burden was on Rodman, however, to offer facts "clearly showing" that the challenged

work was nonlegal and that the trial court, therefore, abused its discretion in awarding fees to 

Bastian.  In re Larson, 103 Wn.2d at 521.  Rodman has failed to meet his burden.  Accordingly, 

we decline to disturb the fee award below, and we affirm the superior court.

                                         B.  On Appeal

       Bastian  asks us to award  the estate attorney fees  and costs on appeal under RCW 

11.96A.150(1).  We grant this request and order Rodman to pay all reasonable attorney fees and 

costs the estate incurred in responding to Rodman's appeal.

       RCW 11.96A.150(1) provides:

       Either the superior court or any 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. . . .  The court may order the costs, including reasonable 
       attorney's 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.

In making this award, we deem the following factors relevant and appropriate:  Rodman's appeal 

lacks merit because (1) he had the opportunity to challenge Bastian's final accounting and report 

below, but he failed to file his objections in a timely manner; and (2) his meritless appeal not only 

does not "benefit[ ] the estate," but rather would drain further resources from the estate if we did 

not award attorney fees and costs to his mother's estate.  RCW 11.96A.150(1).  Thus, we order 

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No. 41095-8-II

Darrell to pay to his mother's estate all costs, including reasonable attorney fees, associated with 

this appeal in an amount to be determined by our commissioner.13

       We affirm the superior court and award the estate 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 in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Hunt, J.
We concur:

Armstrong, P.J.

Johanson, J.

13 Because we award attorney fees and costs under RCW 11.96A.150(1), we do not address the 
estate's alternative request for sanctions under  RAP 18.9.

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