author: Leach, J.

text:
    Steven J. VILLEGAS, Appellant, v. NATIONSTAR MORTGAGE, LLC; Aurora Bank, FSB; Northwest Trustee Services, Inc.; U.S. Bank, N.A. as Trustee for Lehman Mortgage Trust Mortgage Pass-Through Certificates, Series 2007-2, Respondent.
    No. 77163-9-I
    Court of Appeals of Washington, Division 1.
    FILED: March 11, 2019 June 20, 2019
    Melissa Ann Huelsman, Law Offices of Melissa A Huelsman, 705 2nd Ave. Ste. 601, Seattle, WA, 98104-1726, for Appellant.
    Christopher G. Varallo, Witherspoon Kelley, 422 W Riverside Ave. Ste. 1100, Spokane, WA, 99201-0300, for Respondent.
    Northwest Trustee Services, Inc. (Appearing Pro Se), C/o General Counsel, 13555 S.e. 36th St., Ste. 100, Bellevue, WA, 98006, for Other Parties.
    PUBLISHED OPINION
   Leach, J.

¶1 Steven Villegas appeals the summary judgment dismissal of his claims against Nationstar Mortgage LLC, Aurora Bank FSB, Northwest Trustee Services Inc. (NWTS), and U.S. Bank N.A. for violations of the Consumer Protection Act (CPA). Villegas also appeals the trial court's findings of fact and conclusions of law entered in favor of Nationstar on two remaining CPA claims dismissed after a bench trial. We affirm.

FACTS

¶2 In 2006, Americahomekey Inc. loaned Villegas $552,000 to refinance his home. Villegas signed a promissory note. It states that if he did "not pay the full amount of each monthly payment on the date that it is due," he would be in default. Americahomekey endorsed the note to Lehman Brothers Bank FSB. It later endorsed the note to Lehman Brothers Holdings Inc., which in turn endorsed the note in blank.

¶3 Villegas also signed a deed of trust pledging his home as security for the note. The deed of trust identified Americahomekey as the lender, Talon Group as the trustee, and Mortgage Electronic Registration Systems Inc. (MERS) as "nominee for Lender and Lender's successors and assigns" as the beneficiary.

¶4 In February 2007, Lehman Brothers sold Villegas's note to a securitized trust called Lehman Mortgage Trust Mortgage Pass-Through Certificates Series 2007-2. A custodial agreement for the Trust established Aurora Loan Services LLC as the loan servicer and U.S. Bank as the custodian in possession of loan documents, including the original notes. The custodial agreement provided that the custodian would release any loan documents to the servicer upon request. Aurora Loan Services sent Villegas a letter telling him that it was the new loan servicer. Aurora Loan Services later notified Villegas that it had transferred the servicing rights to its parent company, Aurora Bank.

¶5 Undisputed evidence shows that Villegas stopped making note payments in January 2012.

¶6 On June 9, 2012, Aurora Bank instructed NWTS to start a nonjudicial foreclosure of Villegas's home. On June 25, 2012, Aurora Bank furnished NWTS with a beneficiary declaration. It stated that Aurora was the holder of the note. The beneficiary declaration, signed by Regina Lashley, states,

DECLARATION OF BENEFICIARY
PURSUANT TO RCW 61.24.030
(SB 5810)
Date: APRIL 4, 2012
Loan Number: 5227
Borrower Name: STEVEN J. VILLEGAS
....
I am employed as Senior Vice President for Aurora Bank FSB. I am duly authorized to make this declaration on behalf of Aurora Bank FSB.
Aurora Bank FSB is the holder of the Promissory Note evidencing the above-referenced loan.
I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

¶7 On June 12, 2012, Nationstar acquired the servicing rights to Villegas's loan from Aurora. This included the right to obtain the original note from U.S. Bank, the document custodian. Aurora sent Villegas a letter informing him that Nationstar would become his loan servicer effective July 1, 2012.

¶8 On June 28, 2012, NWTS, acting as "duly authorized agent" for Aurora Bank, posted a notice of default at Villegas's home.

¶9 On July 4, 2012, Nationstar instructed NWTS to proceed with the nonjudicial foreclosure as agent for Nationstar.

On July 23, 2013, Nationstar signed an appointment of NWTS as successor trustee.

¶10 On August 24, 2012, NWTS scheduled a trustee's sale of Villegas's home for November 30, 2012.

¶11 In September 2012, Villegas requested mediation under the Foreclosure Fairness Act (FFA). Nationstar placed the foreclosure of Villegas's home on hold.

¶12 On December 13, 2012, Villegas, his attorney, and a representative from Nationstar met with the mediator. The parties discussed a loan modification. Nationstar analyzed Villegas's financial information and determined that he qualified for a federal Home Affordable Mortgage Program loan modification.

¶13 On May 20, 2013, Nationstar sent Villegas a trial payment plan (TPP) offer. The TPP required that Villegas make three monthly payments of $3,117.86. Nationstar also identified an "escrow shortage" of $112.29. This required an additional monthly payment of $9.36.

¶14 Villegas satisfied the requirements of the TPP. On September 23, 2013, Nationstar sent Villegas a permanent loan modification offer. Nationstar recalculated the monthly payment to $2,471.85. But Nationstar also now identified an escrow shortage of $3,918.96. Nationstar told Villegas that the new monthly escrow payment would be $866.44, bringing his total monthly payment to $3,358.29. Villegas asked for an explanation for the much higher escrow amount. Nationstar did not provide one. Villegas did not accept the offer.

¶15 On January 13, 2014, the mediator closed the mediation process. He issued a certificate finding that Nationstar had not negotiated in good faith:

The payment amount on the final modification ($3,358.29) was significantly higher than the trial payments ($3,117.86). The initial idea that the discrepancy would be explained by escrow analysis was incorrect. Attorneys for the beneficiary made great effort to escalate the matter with Nationstar and get an explanation for the increase. None has been forthcoming. I would be willing to consider amending the certification if the loan amount agreed to by the parties in mediation is honored.

¶16 On June 10, 2015, Nationstar sued Villegas, seeking to judicially foreclose the deed of trust. Villegas asserted counterclaims against Nationstar and crossclaims against Aurora Bank, NWTS, and U.S. Bank for violations of the CPA and intentional and negligent misrepresentation. For his CPA

claims, Villegas alleged that (1) Aurora Bank, Nationstar, and NWTS started nonjudicial foreclosure proceedings in violation of the deeds of trust act (DTA) and (2) Nationstar failed to adequately review him for a loan modification or provide accurate information about the loan modification terms.

¶17 In October 2015, Villegas sold his home. After he paid the note in full, Nationstar voluntarily dismissed its complaint. The trial court then realigned the parties, designating Villegas as the plaintiff and Nationstar, Aurora Bank, NWTS, and U.S. Bank as the defendants.

¶18 The defendants jointly moved for summary judgment. The defendants relied on the declaration of Lashunda Carter, assistant secretary of Nationstar. It stated that Nationstar took physical possession of the note from U.S. Bank on May 16, 2013. Carter attached to her declaration copies of several documents showing the physical transfer of the note to Nationstar. The defendants also relied on the declaration of Tim Gaynor, vice-president of NWTS. Gaynor stated that NWTS initiated nonjudicial foreclosure proceedings at Aurora Bank's request. In doing so, Gaynor stated, NWTS relied on a beneficiary declaration identifying Aurora Bank as the holder of the note. Gaynor stated that after Nationstar assumed Aurora Bank's servicing obligations, Nationstar instructed NWTS to proceed with the foreclosure as Nationstar's agent.

¶19 On November 10, 2016, the trial court granted summary judgment dismissal of all of Villegas's claims except for "a per se violation of the Consumer Protection Act as it relates to a 'bad faith' certification against Nationstar resulting from statutory mediation." Nationstar filed a second motion for summary judgment to dismiss the remaining CPA claims. The trial court denied this motion, ruling that "the public interest element of the CPA claim is per se satisfied due to a bad faith certification based upon RCW 61.24.163 and RCW 19.86.093."

¶20 The CPA claims against Nationstar involving mediation proceeded to a bench trial on May 3, 2017. Villegas contended that Nationstar violated the CPA by (1) failing to send a representative with the requisite settlement authority to participate in the mediation and (2) failing to adequately explain the calculations in the permanent loan modification offer.

¶21 The trial court considered the testimony of Villegas and Justin Laubscher, a senior default case specialist and Nationstar's corporate representative. The trial court also reviewed 41 exhibits and the CR 30(b)(6) deposition testimony of Aaryn Richardson, a litigation resolution analyst for Nationstar. Following four days of evidence and argument, the trial court issued 14 pages of findings of fact and conclusions of law. On Villegas's first claim, the trial court found that Nationstar "presented undisputed evidence that the individual who was assigned to participate in the mediation had the authority to settle with Villegas." On Villegas's second claim, the trial court agreed that Nationstar failed to mediate in good faith:

The Court finds that Nationstar failed to mediate in good faith in that it failed to provide documentation requested by the mediator to explain how it had computed the escrow shortage in the permanent loan modification offer provided in September 2013. Nationstar conceded that the mediator and Villegas requested this information and that it did not provide an answer to the question raised. Nationstar's escrow shortage computations differed significantly in the February 2013 and May 2013 TPP offers, in the May 2013 escrow statement, and in the September 2013 permanent loan modification. Any reasonable borrower would have been perplexed by these different calculations. Seeking clarification from Nationstar was reasonable; Nationstar's inability or refusal to answer the question was not. For this reason, the Court finds Nationstar violated RCW 61.24.163(10)(b) during the mediation with Villegas.
Under RCW 61.24.135, this violation constitutes an unfair or deceptive act or practice occurring in trade or commerce.

But the trial court also found that Villegas did not prove that Nationstar's violation of RCW 61.24.163 caused him any compensable damages. So the trial court entered a judgment in favor of Nationstar.

¶22 Villegas asked the trial court to reconsider its decision. The trial court denied this request, explaining,

First, there was no evidence presented that the $4,000 Mr. Villegas incurred for mediation could have been avoided had Nationstar explained how it had computed the escrow amounts set out in the loan modification offer. Mr. Villegas would have incurred those expenses whether or not the parties had entered into a loan modification agreement. Thus, the Court does not find the evidence sufficient to find he incurred these mediation expenses as a result of Nationstar's bad faith.
Second, this Court does not find sufficient evidence from which to find on a more probable than not basis that Mr. Villegas would have accepted an offer that had been fully explained to him. Had the past arrears in escrow payments been folded into a new loan balance, the new payment amount would have been much more in line with the first TPP offer extended to Mr. Villegas. That offer would have been monthly payments of $3,117.86 plus the escrow shortage of $139.02 a month, making his total payment around $3,256.88. The total monthly payment Nationstar requested in the permanent loan offer was $3,358.29, just $101 more a month than what the loan payment probably should have been. Yet, Mr. Villegas refused this offer-not only because he was unclear about the alleged escrow shortage-but also because he could not afford even this payment. Based on the evidence presented at trial, the Court reaffirms Mr. Villegas's failure to establish that Nationstar's bad faith caused him any injury.

Villegas appeals.

DISCUSSION

¶23 Washington's CPA provides that "[a]ny person who is injured in his or her business or property" by a violation of the act may bring a civil suit for injunctive relief, duplicative attorney fees and costs, and treble damages. To succeed on a CPA claim, a plaintiff must show "(1) an unfair or deceptive act (2) in trade or commerce (3) that affects the public interest, (4) injury to the plaintiff in his or her business or property, and (5) a causal link between the unfair or deceptive act complained of and the injury suffered." The plaintiff must establish all five elements to prevail. A plaintiff may bring a claim under the CPA for violation of the DTA. We review whether a particular action constitutes a CPA violation as a question of law.

1. Claims Dismissed on Summary Judgment

¶24 We review an order granting summary judgment de novo, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mere allegations or conclusory statements of fact unsupported by evidence are not sufficient to establish a genuine issue of fact.

¶25 First, Villegas claims that neither Aurora Bank nor Nationstar were the holders of the note. So neither had authority to direct the foreclosure or appoint NWTS as the trustee.

¶26 The DTA defines a "beneficiary" as the "holder of the instrument or document evidencing the obligations secured by the deed of trust." Only a lawful beneficiary has the power to appoint a successor to the original trustee named in the deed of trust. Only a properly appointed trustee may proceed with a nonjudicial foreclosure of real property. Thus, if an unlawful beneficiary appoints a successor trustee, that trustee lacks legal authority to carry out the foreclosure.

¶27 A holder is a "person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." Possession may be either actual or constructive. The holder of a note is the party entitled to enforce it. The holder of the note is not necessarily the owner, and a holder does not need to own a note to enforce the note.

¶28 Here, the record shows that both Aurora Bank and Nationstar were the holders of the note at the time that each directed NWTS to proceed with the nonjudicial foreclosure. As the servicer of Villegas's loan, both Aurora Bank and Nationstar had constructive possession of the note because they had the authority to request it from the document custodian at any time. And Nationstar had the note in its physical possession since May 16, 2013. Because the note was endorsed in blank and Nationstar had actual physical possession of the note, it was the holder of the note with the right to enforce it. The trial court properly dismissed Villegas's claims involving the identity of the beneficiary.

¶29 Next, Villegas contends that NWTS violated its duty of good faith under RCW 61.24.010(4) and duty to comply with RCW 61.24.030(7)(a) because it did not adequately ascertain whether Aurora and Nationstar were the holders of the note.

¶30 " RCW 61.24.010(4) imposes a duty of good faith on the trustee toward the borrower, beneficiary, and grantor." A trustee must " 'adequately inform' itself" about "the purported beneficiary's right to foreclose, including, at a minimum, a 'cursory investigation' to adhere to its duty of good faith." A trustee's failure to act impartially between note holders and borrowers can support a claim for damages under the CPA.

¶31 RCW 61.24.030(7)(a) requires that "for residential real property, before the notice of trustee's sale is recorded, transmitted, or served, the trustee shall have proof that the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust." "A declaration by the beneficiary made under the penalty of perjury stating that the beneficiary is the holder of any promissory note or other obligation secured by the deed of trust" satisfies a trustee's obligations under RCW 61.24.030(7)(a). But a trustee may determine the identity of the note holder "in a way other than through the beneficiary declaration."

¶32 Aurora provided NWTS a beneficiary declaration made under penalty of perjury. It unambiguously stated that Aurora was the holder of Villegas's note. NWTS relied on this declaration before initiating the nonjudicial foreclosure process. Thus, Villegas fails to raise a genuine dispute of material fact that NWTS violated its statutory obligations with regard to Aurora.

¶33 NWTS did not receive a beneficiary declaration for Nationstar. But NWTS had other proof that Nationstar had become the new holder of the note. First, NWTS received a notification through a secure messaging platform on June 28, 2012, that Nationstar had assumed Aurora's loan servicing obligations. And on July 4, 2012, Nationstar sent NWTS instructions to proceed with the foreclosure with Nationstar, not Aurora, as the beneficiary. In his declaration, Gaynor stated,

Based on NWTS's experience in the non-judicial foreclosure industry, loan servicers typically advise NWTS when a change in the foreclosing beneficiary occurs. At no time after being informed to proceed with foreclosure in the name of Nationstar did NWTS receive information stating that Nationstar was not the foreclosing beneficiary.

Finally, NWTS knew that the county auditor had recorded an assignment of the deed of trust on July 25, 2012, showing Nationstar as the beneficiary. The record establishes that NWTS satisfied its obligations under RCW 61.24.030(7)(a) regarding the foreclosing beneficiary's identity. Villegas fails to raise a genuine issue of material fact that NWTS violated its statutory duties under the DTA.

2. Villegas's Claims at Trial

¶34 An appellate court limits its review of challenges of a trial court's findings of fact and conclusions of law "to determining whether substantial evidence supports the findings and, if so, whether the findings in turn support the trial court's conclusions of law and judgment." Substantial evidence exists " 'when there is a sufficient quantum of proof to support the trial court's findings of fact.' " An appellate court accepts unchallenged findings of fact as true on appeal.

¶35 Villegas challenges the trial court's finding that Nationstar did not violate RCW 61.24.163(10) by failing to send a representative with settlement authority to the mediation. But uncontroverted evidence supports the trial court's finding. Laubscher testified that "[e]very default case specialist that attends an FFA mediation also has full settlement authority." Laubscher explained that "full settlement authority" includes "the authority to grant a foreclosure alternative option," including a loan modification. Villegas speculates that Nationstar's representative did not have settlement authority because "[i]f that person had had any authority or knowledge of the file, he could have provided an explanation regarding the change in monthly payment amounts." But the representative's inability to adequately explain the loan modification calculations does not prove that the representative lacked settlement authority.

¶36 Villegas also challenges the trial court's finding and conclusion that he did not prove the injury element of a CPA claim. The CPA limits compensable injuries to " 'injury to [the] plaintiff in his or her business or property.' " A claimant must show that the alleged injury would not have occurred "but for" the defendant's unlawful acts. "Because the CPA addresses 'injuries' rather than 'damages,' quantifiable monetary loss is not required." "Where a more favorable loan modification would have been granted but for bad faith in mediation, the borrower may have suffered an injury to property within the meaning of the CPA." And expenses incurred in extra mediation sessions necessitated by an opposing party's failure to prepare or mediate in good faith can be a compensable injury under the CPA. ¶37 At trial, Villegas and Nationstar stipulated that Villegas incurred $350 for an initial attorney consultation after receiving the notice of trustee's sale and that he paid $4,000 in legal fees in connection with the mediation. But Nationstar's lack of good faith arose only after it offered Villegas a permanent loan modification in September 2013. Villegas did not present any evidence that Nationstar's conduct after September 2013 caused him to incur any of his expenses. Substantial evidence supports the trial court's finding that Villegas did not prove a compensable injury. This finding supports the trial court's conclusion of law.

¶38 Villegas argues, as he did below, that he incurred injuries by paying attorney fees for "representing him in the mediation that ended up being a waste." But, as the trial court correctly reasoned, Villegas would have paid these fees to have an attorney represent him at the mediation no matter what happened at it.

¶39 Villegas argues that the trial court should have found that damage to his credit score constituted an injury under the CPA. But Villegas did not present any evidence of a causal link between Nationstar's bad faith and the alleged damage to his credit score. And Villegas testified that he did not know what his credit score was, either before he defaulted on the loan or after mediation.

¶40 Finally, citing Frias, Villegas argues that a mediation conducted in bad faith, "irrespective of any out of pocket money damages, constituted an 'injury' under the CPA." But Frias held only that bad faith in mediation may result in injuries, and pleading this misconduct was sufficient to survive a CR 12(b)(6) motion to dismiss. Villegas cites no authority in support of the proposition that a bad faith finding per se satisfies the CPA's injury requirement.

¶41 Affirmed.

WE CONCUR:

Hazelrigg-Hernandez, J.

Dwyer, J.

      Ch. 19.86 RCW.

      The record does not contain the dates of the endorsements.

      Ch. 61.24 RCW.

      The record shows that Nationstar sent Villegas a prior TPP offer on February 8, 2013. Villegas contended that he never received the first offer. The trial court found Villegas's testimony credible.

      Villegas abandoned the intentional and negligent misrepresentation claims at summary judgment.

      Ch. 61.24 RCW.

      RCW 19.86.090.

      Trujillo v. Nw. Tr. Servs., Inc., 183 Wash.2d 820, 834, 355 P.3d 1100 (2015).

      Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wash.2d 59, 74, 170 P.3d 10 (2007).

      Leingang v. Pierce County Med. Bureau, Inc., 131 Wash.2d 133, 150, 930 P.2d 288 (1997).

      Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000).

      Lybbert, 141 Wash.2d at 34, 1 P.3d 1124 ; CR 56(c).

      CR 56(e) ; Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 132, 769 P.2d 298 (1989).

      RCW 61.24.005(2).

      Bavand v. OneWest Bank, FSB, 176 Wash. App. 475, 486, 309 P.3d 636 (2013).

      Bavand, 176 Wash. App. at 486-87, 309 P.3d 636.

      Walker v. Quality Loan Serv. Corp., 176 Wash. App. 294, 306, 308 P.3d 716 (2013).

      RCW 62A.1-201(21)(A).

      See RCW 62A.3-201 U.C.C. cmt. 1, at 307 (a holder may possess a note "directly or through an agent"); Gleeson v. Lichty, 62 Wash. 656, 659, 114 P. 518 (1911) ("But, if we assume that the note was not in [the defendant's] actual possession, it was clearly under his control, and therefore constructively in his possession.").

      RCW 62A.3-301.

      Brown v. Dep't of Commerce, 184 Wash.2d 509, 525, 359 P.3d 771 (2015).

      At trial on the mediation claim, the trial court found that "[i]n July 2012, Nationstar became the servicer on this loan and became the holder of the promissory note." Villegas does not challenge this finding.

      Lyons v. U.S. Bank Nat'l Ass'n, 181 Wash.2d 775, 787, 336 P.3d 1142 (2014).

      Lyons, 181 Wash.2d at 787, 336 P.3d 1142 (internal quotation marks omitted) (quoting Walker, 176 Wash. App. at 309, 308 P.3d 716 ).

      Lyons, 181 Wash.2d at 787, 336 P.3d 1142.

      RCW 61.24.030(7)(a) ; see also Brown, 184 Wash.2d at 514, 359 P.3d 771 ("a party's undisputed declaration submitted under penalty of perjury that the party is the holder of the note satisfies the DTA's proof of beneficiary provisions").

      Lyons, 181 Wash.2d at 791, 336 P.3d 1142.

      The record on appeal contains a beneficiary declaration by Nationstar that references the wrong borrower's name and property address. It is unclear how, if at all, the declaration is relevant to Villegas's case. The declaration was filed several months after the notice of appeal. Because the declaration was not before the trial court and Villegas did not file a motion to supplement the record pursuant to RAP 9.11, we do not consider it further.

      Dickson v. Kates, 132 Wash. App. 724, 730, 133 P.3d 498 (2006) (citing Org. to Pres. Agric. Lands v. Adams County, 128 Wash.2d 869, 882, 913 P.2d 793 (1996) ).

      Dickson, 132 Wash. App. at 730, 133 P.3d 498 (quoting Org. to Pres. Agric. Lands, 128 Wash.2d at 882, 913 P.2d 793 ).

      Dickson, 132 Wash. App. at 730, 133 P.3d 498.

      Frias v. Asset Foreclosure Servs., Inc., 181 Wash.2d 412, 430, 334 P.3d 529 (2014) (alteration in original) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 780, 719 P.2d 531 (1986) ).

      Schnall v. AT&T Wireless Servs., Inc., 171 Wash.2d 260, 278, 259 P.3d 129 (2011) (Quoting Indoor Billboard, 162 Wash.2d at 83-84, 170 P.3d 10 ).

      Frias, 181 Wash.2d at 431, 334 P.3d 529 (citing Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 57, 204 P.3d 885 (2009) ).

      Frias, 181 Wash.2d at 431-32, 334 P.3d 529.

      Frias, 181 Wash.2d at 432, 334 P.3d 529.

      On appeal, Villegas contends that he actually paid $400 in mediation fees. Villegas fails to support this assertion with any citation to the record. In any event, the fees for mediation were not caused by Nationstar's subsequent inability to explain how it calculated the escrow shortage in Villegas's permanent loan modification offer.

      Frias, 181 Wash.2d at 431-32, 334 P.3d 529.


source: Caselaw Access Project

author: Schindler, J.

license: Public Domain

text:
    In the MATTER OF the ESTATE OF Constance Elaine LITTLE, Deceased.
    Roxanne L. Trees, Individually and as the Personal Representative of the Estate of Constance Little, Respondent, v. Renae K. Roberson, Appellant.
    No. 78082-4-I
    Court of Appeals of Washington, Division 1.
    FILED: June 24, 2019
    Renae Roberson (Appearing Pro Se), P.o. Box 222, Milton, WA, 98354, Counsel for Appellant.
    Bruce Reed Moen, Attorney at Law, Sarah Lisa Moen, Moen Law Offices PS, 1325 4th Ave. Ste. 1025, Seattle, WA, 98101-1198, Adrienne McEntee, Terrell Marshall Law Group PLLC, 936 N. 34th St. Ste. 300, Seattle, WA, 98103-8869, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N., Seattle, WA, 98109-3007, Counsel for Respondent.
    PUBLISHED OPINION
   Schindler, J.

¶ 1 A separate document in existence at the time a will is executed may qualify both for incorporation by reference under RCW 11.12.255 as to distribution of the estate and as a "gift list" for tangible personal property under RCW 11.12.260. The terms of the will of Constance Elaine Little and the undisputed record establish the intent of Little to incorporate by reference a separate document that directs distribution of the estate and tangible personal property. We affirm the superior court order.

The Last Will and Testament of Constance E. Little

¶ 2 The facts are undisputed. Renae Roberson and Roxanne Trees are the adult daughters of Constance Elaine Little and Royal Little. Royal Little died in 2008.

¶ 3 On July 20, 2011, Constance executed her will that incorporated by reference a separate gift list. The July 20, 2011 "Last Will and Testament of Constance E. Little" states, in pertinent part:

KNOW ALL MEN BY THESE PRESENTS: That I, CONSTANCE E. LITTLE, a/k/a CONNIE E. LITTLE, a resident of the State of Washington, of legal age, declare this to be my last Will and hereby revoke all former Wills and Codicils by me made.
FIRST: I declare that I am a widow and that I have two children, namely; ROXANNE LAREE TREES, whose birth date is September 6, 1945, and RENAE KAY ROBERSON, whose birth date is November 30, 1946.
SECOND: I do hereby state that it is my intent to prepare a gift list separate from this Will for the purpose of disposition of tangible personal property, mementos and family heirlooms pursuant to RCW 11.12.260....
THIRD: Except as provided in the list described in Paragraph SECOND above ..., after the payment of all just claims against my Estate, I make the following special bequests:
A. Unto my sister, JUDITH LAREE FJELLMAN, born June 26, 1943, I hereby give, devise and bequeath ONE PERCENT (1%) of the residue of my estate....
B. All of the rest, residue and remainder of my property I give, devise and bequeath equally unto my children, ROXANNE LAREE TREES and RENAE KAY ROBERSON, share and share alike....
FOURTH: I hereby nominate and appoint my daughter, ROXANNE L. TREES, as Personal Representative of my Estate, to serve without bond and I direct that this Will be probated as a nonintervention Will. I further authorize and direct said Personal Representative to sell, mortgage, lease or convey or otherwise deal with the property of my Estate in the same manner as I could do were I then living and whether or not it be necessary to do so in order to pay claims against my Estate or expenses of administration.

¶ 4 Little also executed the "Gift List" on July 20, 2011. Little's handwritten note on the Gift List states, "Attach to my will at Yakima County Court House." The Gift List expressly provides, "I do hereby state that this is a separate gift list that accompanies my last will and testament dated July 20, 2011." Little unequivocally directs "my Executor, Roxanne Trees," to "first reduce Renae Kay Roberson's half of my estate using the bolded amount values listed below and for the reasons provided in I, II, III, and thence to distribute the remaining items in the order listed." Sections I, II, and III of the Gift List state:

I. Since Renae Roberson has already received or taken these items, I wish to acknowledge the following reduction from her ½ portion designated in my estate, and add it to Roxanne Trees Portion, in the following amounts:
1. My husband, Royal's Diamond Ring - Renae received in Spring 2011 - ($ 6000 - Deduct ½ value @ $ 3000)
2. My husband, Royal's Chevy vehicle signed over to Renae in Fall 2008, then sold by her ($ 27,000 - Deduct ½ value @ $ 13,500)
II. Renae Roberson has taken charge of these items without complete permission by me and/or through documentation to me of their current whereabouts and dispensation, as of this date. I wish to acknowledge the following reductions from her ½ portion of my estate and accountability measures of re-instatement. Within (15) fifteen business days after the reading of this will, if Renae Roberson has not satisfactorily acknowledged return, replacement, the whereabouts, or accountability of these items of my estate that she handled, prior to my death, I direct my executor to reduce Renae's portion of my estate proportionally and accordingly, using the itemized reductions.... Bolded reductions include the following items and transactions:
1. My husband, Royal Little's gun collection given to Renae for safekeeping 2005-2008, and not accounted for since then ($ 6000 ).
2. Government Bonds for Royal Little/Constance E. Little totaling (up to $ 60,000 ) which were misplaced or lost by me and recovery actions were instituted and taken by Renae in July 2011 per the managers at the Yakima Valley Credit Union, Yakima, WA where I cashed other bonds.
3. My personal collection of coins in blue/green collection folders, including: (i.e. pennies, dimes, nickels, or quarters) which Renae took without permission or for safekeeping, and were noted as missing in early September 2011 ($ 5000 ).
III. Renae acquired these documented funds from me for her own purposes over time, and I wish to acknowledge these as reductions from her portion of my estate.
Personal funds and loans made to Renae by me include: $ 3000 (in 2010) and $ 12,000 @ $ 500 per month (during 2010-2011) to pay off Renae's personal loan of $ 55,000 to Margie Buchholz. (Total: $ 15,000 ).[ ]

¶ 5 The Gift List also states that "$ 10,000 shall be deducted first, and provided to each of my grandchildren, Ryan Trees and Stacey Fataua," and "$ 500 each to the Meridian School Foundation (Bellingham, WA); YCTV,[ ] and Parker Youth Foundation, (Yakima, WA)." The Gift List directs distribution of "tangible personal property, mementos and family heirlooms pursuant to RCW 11.12.260" as follows:

Identified Historical items to the Yakima Valley Agriculture Museum, Union Gap, WA; to Perry Institute, Yakima, WA; to the Yakima Valley Museum, Yakima, WA[.]
Identified Historical items to the Meridian School Foundation, Bellingham, WA[.]
Renae Roberson, my camera equipment and videos, her paintings and items given by her will be returned to her.
Roxanne Trees, all books, costumes, jewelry and coin collections, Indian items and items given by her will be returned to her.
Ryan Trees, his Grandfather Royal's car tools and Great Grandfather Merrel's tools and the red trailer or its equal value.
All mementos and items of family history (Little, Fjellman families) and all those I possess, including all photos, videos, documents, family movies, scrapbooks, letters and genealogy items will all be returned to Roxanne Trees for safekeeping.[ ]

¶ 6 On August 4, 2011, Little executed a new will. The August 4, 2011 will directs distribution of $ 10,000 to each of her two grandchildren and $ 104,000 to Trees, "all to be her sole and separate estate per stirpes." The will states the "residue and remainder" of the estate is bequeathed 1 percent to her sister and 48.5 percent to each of her two daughters, Roxanne Trees and Renae Roberson.

¶ 7 On September 16, 2011, Little revoked the August 4, 2011 will and reinstated the July 20, 2011 will:

Re: LAST WILL AND TESTAMENT
To whom it may concern:
I Constance E. Little have revoked and withdrawn this will and any attached codicils.
I intend that my only valid last will and testament dated July 20, 2011 is to be effective immediately upon my death and be in place from this day forward. It was prepared and reviewed with me by my own personal attorney, Kevin Kirkevold, Yakima, WA and was properly witnessed, notarized, and filed in Yakima County on July 20, 2011.

Little executed another "Gift List" on September 16, 2011. Except for the absence of the handwritten note, the Gift List is identical to the one she signed on July 20, 2011.

Probate

¶ 8 Little died on February 4, 2013. On February 15, Trees filed a "Notice of Appointment and Pendency of Probate Proceedings." Trees filed a petition for an order to admit the will to probate and appoint her as the personal representative. Trees submitted the original July 20, 2011 Last Will and Testament of Constance E. Little; the affidavits of witnesses to the execution of the will;

the August 4, 2011 will; and the September 16, 2011 revocation of the August 4, 2011 will. The court admitted the July 20, 2011 will to probate and entered an order of solvency.

¶ 9 On February 15, 2013, the court appointed Trees as the personal representative of the estate of Constance Elaine Little (the Estate) with nonintervention powers and without bond.

¶ 10 On August 19, 2015, Trees filed the "First Interim Report and Accounting" for February 4, 2013 through December 31, 2014 and a petition for "[r]eimbursement" of "[a]dvances by PR" to the Estate. Trees submitted copies of the Gift List that Little executed on July 20, 2011 and on September 16, 2011 as "Exhibits E and F." Trees provided an "Attorney-in-Fact Accounting" of all the transactions made by Trees and Little from September 2011 until Little's death in February 2013. Trees requested the court order Roberson to file an accounting. Trees asserts that absent an accounting from Roberson, "it is premature to order any reductions" to her share of the Estate.

The July 20, 2011 separate writing was executed contemporaneously with the Will dated July 20, 2011 and is incorporated by reference in the Will per RCW 11.12.255. However, it is premature to order any reductions to the distributive share of Renae Roberson because the issue of "reduction" may be addressed in her accounting.
... Renae Roberson and Roxanne Trees both served as agents under separate powers of attorney for their mother, Constance Little. Both Renae Roberson and Roxanne Trees should file accountings. Furthermore, the "Gift Lists" contain a provision that Renae Roberson should account for her activities. See Exhibits E and F.

¶ 11 The First Interim Report states that as of December 31, 2014, the balance of the Estate bank account was $ 70,281.52, the Estate owned a two-thirds interest in the residential property in Yakima, and the Federal Way property had been sold by court order. The First Interim Report states the sale of the Federal Way property resulted in net proceeds of $ 132,825.61. Trees sought court approval to sell the two-thirds interest in the Yakima property. Trees notes she owns the other one-third interest and is "readying the property for sale." Trees requested approval of the Attorney-in-Fact Accounting and issuance of an order requiring Roberson to "account for her activities while serving as Agent and also for any other activities undertaken with respect to assets held by Constance E. Little."

¶ 12 The court scheduled a hearing for October 28, 2015. The court ordered Roberson to appear and show cause why she had not prepared an accounting.

¶ 13 Roberson represented herself pro se. In response, Roberson filed an objection to the First Interim Report. At the hearing on October 28, 2015, the superior court commissioner approved the First Interim Report but reserved ruling on the request to order Roberson to file an accounting.

¶ 14 Approximately two years later on November 30, 2017, Trees filed the "Final Report, Accounting, and Petitions for Distribution of Assets and for Decree of Distribution" (Final Report). The Final Report states Roberson filed three creditor claims against the Estate: (1) A claim for funeral expenses, (2) a claim for house repairs in the amount of $ 51,659.99, and (3) a claim for "services" in the amount of $ 7,500.00. The report states Trees reimbursed Roberson for the funeral expenses but made only "a partial payment" to Roberson of $ 20,000.00 for the house repairs because the "Estate lacked liquidity," and rejected the claim for "services."

¶ 15 The Final Report identifies $ 133,478.29 in the Estate bank account and $ 163,498.98 from the court-approved sale of the Yakima property. The Final Report states Trees followed the directive for "reductions to the distributive share of Renae Roberson and cash gifts to Ryan Trees, Stacey Fataua, Meridian School Foundation, YCTV, and Parker Youth Foundation" and "disposition of certain tangible personal property."

¶ 16 Roberson contested the Final Report. Roberson asserted the Gift List did not meet the statutory requirements for incorporation by reference under RCW 11.12.255 because it was not in existence "when the will [was] executed" and the will did not identify the writing or "manifest the intent to incorporate the writing" into the will. Roberson argued the Gift List was invalid because it "was never admitted to probate with the Will" and the "monetary gifts are all void as a matter of law" because the monetary gifts are not tangible personal property under RCW 11.12.260.

¶ 17 At the conclusion of the hearing on the Final Report and petition for decree of distribution, a superior court commissioner entered the "Decree of Distribution." The Decree of Distribution states the actions of the personal representative "during this accounting period were reasonable, necessary, and furthered the administration of the Estate." The commissioner concluded, "Said actions should be ratified, confirmed, and approved." The Decree of Distribution approves the Final Report and authorizes the proposed distribution:

1. The Final Report is approved.
2. The Cash Accounting for the period from January 1, 2015 through September 8, 2017 is approved.
3. The actions of the PR during this accounting period are ratified, confirmed, and approved.
4. The PR shall distribute the remaining net assets of the Estate as provided for in the formula outlined in the Proposed Distribution Worksheet of Cash attached as Exhibit D to the underlying Final Report.
5. Any personal property that is not picked up by Renae Roberson within 30 days of the entry of this Decree of Distribution shall be deemed to have been abandoned by Renae Roberson.

¶ 18 The commissioner entered findings of fact and conclusions of law. The Decree of Distribution states the "total amount of the reductions to the distributive share of Renae Roberson provide[d] for in the Gift List is $ 122,000." The findings of fact state the "Gift List is specifically referenced and described at Articles Second and Third of the Will." The commissioner concluded the "Gift List is incorporated by reference in the Will under RCW 11.12.255"; the "provisions of the Gift List detail the testator's reasons for the reductions to Renae Roberson's distributive share at Items I, II, and III"; and the "Gift List manifests the testator's inten[t] to equalize the advancements made to Renae Roberson during the testator's lifetime." The commissioner concluded the Gift List also "disposes of tangible personal property" under RCW 11.12.260.

Motion for Revision

¶ 19 Roberson filed a motion to revise the commissioner order approving the Decree of Distribution. Roberson argued the Gift List was unenforceable because it was not filed with the probate petition and did not meet the requirements of RCW 11.12.255 or RCW 11.12.260.

¶ 20 The superior court denied the motion for revision and affirmed the decision of the commissioner to approve the Decree of Distribution. The court found there is "no evidence of undue influence or wrongdoing." The court concluded there is "no requirement that the gift list be filed" with the will and Roberson had the will "or access to it ... for a few years and had an opportunity to address the issues in the gift list." The court entered the following findings:

The court agrees with the Commissioner that RCW 11.12.255 is the controlling statute.
The will referenced the gift list.
The gift list existed at the time the Will was signed.
The gift list was redated and mentioned again three months later.
It is clearly referenced in the Will.

Appeal of Superior Court Order

¶ 21 Roberson appeals the superior court order denying the motion to revise the decision of the superior court commissioner to approve the Decree of Distribution.

¶ 22 The decision of a court commissioner is subject to revision by the superior court. RCW 2.24.050. RCW 2.24.050 states, in pertinent part:

All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner.

¶ 23 On revision, the superior court reviews de novo the findings of fact and conclusions of law of the commissioner based upon the evidence and issues presented to the commissioner. State v. Ramer. 151 Wash.2d 106, 113, 86 P.3d 132 (2004). The superior court can adopt the decision of the commissioner "either expressly or by clear implication from the record." In re Dependency of B.S.S., 56 Wash. App. 169, 170, 782 P.2d 1100 (1989).

¶ 24 We review the superior court decision on appeal. Ramer, 151 Wash.2d at 113, 86 P.3d 132. Unchallenged findings of fact are verities on appeal. In re Estate of Jones, 152 Wash.2d 1, 8, 93 P.3d 147 (2004). "An appellate court will uphold challenged findings of fact and treat the findings as verities on appeal if the findings are supported by substantial evidence." Jones, 152 Wash.2d at 8, 93 P.3d 147. Substantial evidence is "evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding." Jones, 152 Wash.2d at 8, 93 P.3d 147. An appellate court reviews conclusions of law de novo. Jones, 152 Wash.2d at 8-9, 93 P.3d 147.

RCW 11.12.255 and RCW 11.12.260

¶ 25 Roberson contends the court erred in denying the motion to revise the commissioner decision to approve the Decree of Distribution. Roberson asserts the Gift List does not meet the requirements of either RCW 11.12.255 or RCW 11.12.260 and is unenforceable.

¶ 26 We review a decree of distribution to ensure it is in accord with the intent of the testator's will and applicable law. In re Estate of Wegley, 65 Wash.2d 689, 695, 399 P.2d 326 (1965). The interpretation of a will is a question of law that we review de novo, In re Estate of Curry, 98 Wash. App. 107, 112-13, 988 P.2d 505 (1999). The paramount duty of the court is to give effect to the testator's intent when the will was executed. In re Estate of Bergau, 103 Wash.2d 431, 435, 693 P.2d 703 (1985) ; In re Estate of Price, 73 Wash. App. 745, 754, 871 P.2d 1079 (1994). If possible, the court must determine the testator's intent from the language of the will as a whole. Bergau, 103 Wash.2d at 435, 693 P.2d 703. Specific provisions must be construed in the context of the entire will. In re Estate of Riemcke, 80 Wash.2d 722, 728, 497 P.2d 1319 (1972) ; Curry, 98 Wash. App. at 113, 988 P.2d 505. The court must consider the will in its entirety. In re Estate of Mell, 105 Wash.2d 518, 524, 716 P.2d 836 (1986).

¶ 27 Statutory interpretation is a question of law that we review de novo. Jones, 152 Wash.2d at 8-9, 93 P.3d 147 ; Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). We look to the plain meaning of the statute as the expression of legislative intent. Bostain v. Food Express, Inc., 159 Wash.2d 700, 708, 153 P.3d 846 (2007). We discern plain meaning from the plain language of the statute, "considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole." Columbia Riverkeeper v. Port of Vancouver USA, 188 Wash.2d 421, 432, 395 P.3d 1031 (2017). If the plain language of the statute is subject to only one interpretation, the inquiry ends. Lake v. Woodcreek Homeowners Ass'n, 169 Wash.2d 516, 526, 243 P.3d 1283 (2010). Statutes relating to the same subject are construed together and in ascertaining legislative intent, the court harmonizes and reads the statutes together as constituting a unified whole. In re Estate of Black, 153 Wash.2d 152, 164, 102 P.3d 796 (2004).

¶ 28 RCW 11.12.255 states a will may incorporate by reference a writing that is in existence when the will is executed. RCW 11.12.255 states:

A will may incorporate by reference any writing in existence when the will is executed if the will manifests the testator's intent to incorporate the writing and describes the writing sufficiently to permit its identification. In the case of any inconsistency between the writing and the will, the will controls.

¶ 29 Roberson argues the Gift List was not in existence when Little executed the will and the will does not manifest Little's intent to incorporate the Gift List by reference. The record does not support her argument. The undisputed record establishes the Gift List was in existence when Little executed the will on July 20, 2011 and reinstated the will on September 16, 2011. The uncontroverted record establishes Little executed the same Gift List when she executed her will first on July 20, 2011 and again on September 16, 2011 when she revoked the August 4, 2011 will and reinstated the July 20, 2011 will.

¶ 30 Roberson contends the will does not manifest an intent to incorporate the Gift List because the will does not "mention cash gifts" or reductions to Roberson's "share of the estate."

¶ 31 The plain and unambiguous language of RCW 11.12.255 unequivocally states, "A will may incorporate by reference any writing in existence when the will is executed if the will itself manifests the testator's intent to incorporate the writing." "Washington courts have consistently interpreted the word 'any' to mean 'every' and 'all.' " Stahl v. Delicor of Puget Sound, Inc., 148 Wash.2d 876, 884-85, 64 P.3d 10 (2003). The Gift List is a writing that the will incorporates by reference.

¶ 32 The language of the will unambiguously manifests the intent of Little to incorporate the Gift List by reference and direct distribution of the Estate and monetary gifts. The will expressly references the Gift List in "Paragraph Second." Paragraph Second states Little intends to prepare the Gift List "separate from this Will for the purpose of disposition of tangible personal property, mementos and family heirlooms pursuant to RCW 11.12.260." In "Paragraph Third," the will states, "Except as provided in the list described in Paragraph SECOND above," Little directs the executor to make the deductions and distribute the money gifts and personal property "as provided in the list" before distributing the remainder of the Estate. See Woodard v. Gramlow, 123 Wash. App. 522, 526-29, 95 P.3d 1244 (2004) (a separate writing directing the proceeds from a life insurance policy into a testamentary trust was incorporated under RCW 11.12.255 ).

¶ 33 Baarslag v. Hawkins, 12 Wash. App. 756, 531 P.2d 1283 (1975), is distinguishable. In Baarslag, the will stated the testator gives " 'the bulk of my property' " to "seven named 'devisees-trustees' in an 'unlimited trust' " to be "used 'for certain purposes which are dear to my heart, and which are known to my Executor and the devisees-trustees hereinafter named, in accordance with oral and written directions that I have given to them' " as " '[g]uidelines.' " Baarslag, 12 Wash. App. at 757-58, 531 P.2d 1283. Because the will did "not refer to the handwritten guidelines by name" or date, we concluded the will did not sufficiently identify the handwritten guidelines as "a writing intended by the testator to be incorporated by reference into his will" under RCW 11.12.255. Baarslag, 12 Wash. App. at 762-63, 531 P.2d 1283. We held the vague reference in the will to " 'written and oral instructions' " was "insufficient to incorporate by reference the handwritten guidelines." Baarslag, 12 Wash. App. at 762, 531 P.2d 1283. " '[T]he will must refer to the instrument to be incorporated and must describe it with sufficient certainty that it may be identified and distinguished from other similar documents.' " Baarslag, 12 Wash. App. at 761-62, 531 P.2d 1283 (quoting 2 PAGE ON WILLS: THE LAW OF WILLS § 19.23 (3d ed. 1960)). " 'The description in the will must be in language which is so clear and unambiguous that the identity of the documents is readily established.' " Baarslag, 12 Wash. App. at 761-62, 531 P.2d 1283 (quoting 2 PAGE ON WILLS § 19.23). Here, unlike in Baarslag, the will clearly and unambiguously identifies and incorporates by reference the Gift List that specifically directs distribution of the Estate, monetary gifts, and tangible personal property.

¶ 34 Roberson asserts the Gift List is not incorporated by reference under RCW 11.12.255 because the will cites only RCW 11.12.260 and RCW 11.12.260(4) prohibits the "monetary gifts and the reduction scheme."

¶ 35 RCW 11.12.260 governs the requirements for a separate writing that directs the disposition of "tangible personal property." RCW 11.12.260(1) states:

A will or a trust of which the decedent is a grantor and which by its terms becomes irrevocable upon or before the grantor's death may refer to a writing that directs disposition of tangible personal property not otherwise specifically disposed of by the will or trust other than property used primarily in trade or business. Such a writing shall not be effective unless: (a) An unrevoked will or trust refers to the writing, (b) the writing is either in the handwriting of, or signed by, the testator or grantor, and (c) the writing describes the items and the recipients of the property with reasonable certainty.

¶ 36 Unlike the requirements of RCW 11.12.255, under RCW 11.12.260(2), "The writing may be written or signed before or after the execution of the will or trust and need not have significance apart from its effect upon the dispositions of property made by the will or trust." RCW 11.12.260(2) states that a "writing that meets the requirements of this section shall be given effect as if it were actually contained in the will."

¶ 37 RCW 11.12.260(4) defines "tangible personal property" as "articles of personal or household use or ornament," such as "furniture, furnishings, automobiles, boats, airplanes, and jewelry, as well as precious metals in any tangible form, for example, bullion or coins." RCW 11.12.260(4) states that tangible personal property excludes "intangible property," including "money that is a normal currency or normal legal tender."

¶ 38 Under these particular facts, the conclusion that the Gift List meets the requirements of RCW 11.12.255 and controls distribution of the Estate and money does not conflict with the disposition of tangible personal property under RCW 11.12.260.

¶ 39 Chapter 11.12 RCW governs execution and interpretation of a will. The undisputed record establishes the Gift list complies with RCW 11.12.255. The Gift List was in existence at the time Little executed the will and the will clearly identifies the Gift List, and the will manifests Little's intent to incorporate the writing and direct distribution of the Estate and money. The Gift List also meets the requirements of RCW 11.12.260. RCW 11.12.260 states a will "may direct disposition of tangible personal property" in a separate writing "written or signed before or after the execution of the will or trust." The Gift List is a separate writing that directs disposition of tangible personal property. The court did not err in concluding RCW 11.12.255 controls disposition of the Estate and money and meets the requirements of RCW 11.12.260 for purposes of disposition of tangible personal property.

¶ 40 Roberson also claims the Gift List is inconsistent with the will because the Gift List reduces her share from "approximately $ 98,000 to $ 7,000." The reductions in the Gift List are not inconsistent with the will. The will explicitly directs the executor to implement the directions in the Gift List before distributing the remainder of Little's Estate.

Probate Petition

¶ 41 Roberson contends Washington law required the personal representative to file the Gift List with the petition to admit the will to probate. We review questions of law de novo. Jones, 152 Wash.2d at 8-9, 93 P.3d 147.

¶ 42 Roberson cites RCW 11.28.237(1) to argue the Gift List "should have been given to the heirs with the Will as part of the Will." RCW 11.28.237(1) does not support her argument. RCW 11.28.237(1) provides that "[w]ithin twenty days after appointment, the personal representative of the estate of a decedent shall cause written notice of his or her appointment and the pendency of said probate proceedings."

¶ 43 RCW 11.20.010 governs admission of a will to probate. RCW 11.20.010 provides, in pertinent part, "Any person having the custody or control of any will shall, within thirty days after he or she shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor." Here, the personal representative complied with the statute by filing a petition to admit Little's will to probate eleven days after Little died. The court did not err in concluding Washington law does not require the personal representative to file a separate writing when the will is admitted to probate.

Due Process

¶ 44 Roberson contends admission of the Gift List violated her right to due process because she was not able to "contest the separate writing as part of the Will." The record does not support her argument.

¶ 45 As a general rule, the probate of a will is a "non-adversary proceeding, and a hostile party waits until the will is admitted to probate to contest the will under RCW 11.24.010." Black, 153 Wash.2d at 170, 102 P.3d 796. But where, as here, a party challenges the will and disposition of the estate, the court can address the contest. Black, 153 Wash.2d at 170, 102 P.3d 796. The failure to give due notice to heirs is a denial of procedural due process. In re Estate of Little, 127 Wash. App. 915, 921, 113 P.3d 505 (2005). " 'The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.' " Aiken v. Aiken, 187 Wash.2d 491, 501, 387 P.3d 680 (2017) (quoting Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L.Ed. 2d 18 (1976) ).

¶ 46 The record shows Roberson knew about and challenged the Gift List and distribution of the Estate. Roberson received actual notice of the Gift List when Trees filed the First Interim Report and Accounting on August 19, 2015. In opposition to the Final Report and petition for decree of distribution, Roberson argued the Gift List did not meet the requirements of RCW 11.12.255 or RCW 11.12.260 and was unenforceable. Roberson challenged the Gift List at the show cause hearing in October 2015, at the hearing on the Final Report and petition for decree of distribution in December 2017, and at the hearing on the motion for revision.

Attorney Fees

¶ 47 The Estate seeks reasonable attorney fees under the Trust and Estate Dispute Resolution Act, chapter 11.96A

RCW. Under RCW 11.96A. 150(1), an appellate court may, in its discretion, order attorney fees to be awarded to any party from any other party "in such amount and in such manner as the court determines to be equitable." We decline the request for fees on appeal.

¶ 48 We affirm the superior court order denying the motion to revise the commissioner order approving the Decree of Distribution for the Estate of Little.

WE CONCUR:

Verellen, J.

Leach, J.

      Emphasis in original; boldface in original.

      Yakima Community Television.

      The record does not show whether Little filed the Gift List at the Yakima County Courthouse.

      Personal representative.

      We hold a pro se litigant to the same standard as an attorney. In re Marriage of Olson, 69 Wash. App. 621, 626, 850 P.2d 527 (1993). An appellant must provide "argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record." RAP 10.3(a)(6) : Holland v. City of Tacoma, 90 Wash. App. 533, 538, 954 P.2d 290 (1998). "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Holland, 90 Wash. App. at 538, 954 P.2d 290.

      See also Wash. Const. art. IV, § 23.

      Emphasis omitted.

      Roberson does not dispute the distribution of tangible personal property under the Gift List.

      Internal quotation marks omitted.


author: Hazelrigg-Hernandez, J.

text:
    Candace NOLL, Individually and as Personal Representative of the Estate of Donald Noll, Deceased, Appellant, v. SPECIAL ELECTRIC COMPANY, INC., Respondent, and American Biltrite, Inc.; AMETEK Inc.; Bird Incorporated; BorgWarner Morse TEC Inc. as successor-by-merger to Borg-Warner Corporation; CBS Corporation, a Delaware Corporation, f/k/a Viacom Inc., successor by merger to CBS Corporation, a Pennsylvania Corporation, f/k/a Westinghouse Electric Corporation; CertainTeed Corporation; Conwed Corporation; Domco Products Texas Inc. ; Ford Motor Company; General Electric Company; Georgia-Pacific LLC; Hercules Incorporated; Honewell International Inc.; Industrial Holdings Corporation f/k/a The Carborundum Company; Ingersoll-Rand Company; J-M Manufacturing Company Inc.; Kaiser Gypsum Company Inc. ; Kelly Moore Paint Company Inc., Defendants.
    No. 77888-9-I
    Court of Appeals of Washington, Division 1.
    FILED: July 1, 2019
    Brian D. Weinstein, Alexandra Brett Caggiano, Weinstein Caggiano PLLC, 601 Union St. Ste. 2420, Seattle, WA, 98101-1362, Ryan J. Kiwala, Simmons Hanly Conroy, One Court Street, Alton, IL, 62002, William A. Kohlburn, Simmons Hanly Conroy, 231 Bemiston Avenue, Suite 525, St. Louis, MO, 63105, for Appellant.
    Melissa Kay Roeder, Foley & Mansfield, 999 3rd Ave. Ste. 3760, Seattle, WA, 98104-4009, Michael Barr King, Rory Drew Cosgrove, Carney Badley Spellman PS, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, for Respondent.
    PUBLISHED OPINION
   Hazelrigg-Hernandez, J.

¶1 When a trial court ruling fails to disclose the court's understanding of the law and the facts, a reviewing court may remand the case for additional findings of fact. Candace Noll sought to establish specific jurisdiction over Special Electric Company, Inc. (corporately known as Special Electric), based on her deceased husband's exposure to asbestos sold by the company. Because we cannot discern the reasoning or underlying facts supporting the decision to deny personal jurisdiction against Special Electric, we remand this case for findings of fact.

FACTS

¶2 Donald Noll was diagnosed with mesothelioma on January 11, 2013. In the late 1970's, Noll worked with asbestos-cement pipe manufactured by the CertainTeed Corporation. Special Electric provided large quantities of asbestos to CertainTeed's Santa Clara plant in the 1970's, including a five year requirements contract for crocidolite asbestos. CertainTeed sold significant quantities of asbestos-cement pipe to businesses in Washington during the late 1970's. Noll worked with these pipes on construction sites in Washington. He sued a number of companies that exposed him to asbestos, including Special Electric. Noll passed away on September 28, 2013 and his wife, Candace Noll, carried on with the suit as his personal representative and surviving spouse.

¶3 Special Electric moved to dismiss for lack of personal jurisdiction. After reconsideration, the trial court dismissed the suit without prejudice. Noll appealed, and the case was remanded by the Supreme Court for reconsideration in light of the court's decision in State v. LG Electronics, Inc., 186 Wash.2d 169, 375 P.3d 1035 (2016) cert. denied --- U.S. ----, 137 S. Ct. 648, 196 L. Ed. 2d 522 (2017). Noll v. Am. Biltrite Inc., 188 Wash.2d 402, 416, 395 P.3d 1021 (2017).

¶4 On remand, Noll presented a new motion to establish specific jurisdiction with additional evidence. Without disclosing its reasoning or findings of fact, the trial court held that Noll's evidence was insufficient to establish purposeful availment for specific jurisdiction. Noll appealed.

DISCUSSION

I. Conclusions following a preliminary hearing are reviewed de novo, while underlying factual findings are reviewed for substantial evidence.

¶5 CR 12(d) permits courts to conduct preliminary hearings to resolve certain defenses before trial. Here, Special Electric requested the trial court to conduct such a preliminary hearing to resolve whether the court had personal jurisdiction over Special Electric. While Noll ostensibly filed a motion to establish jurisdiction under CR 7(b), the parties agreed that the substance of the proceeding was to determine whether Noll had met the burden of proof to establish jurisdiction. In other words, it was a preliminary hearing under CR 12(d). We consider procedures based on their substance, rather than the way parties characterize them. See State v. Adams, 107 Wash.2d 611, 620, 732 P.2d 149 (1987) (pleadings considered on their facts, not their name); Colorado Nat. Bank of Denver v. Merlino, 35 Wash. App. 610, 614, 668 P.2d 1304 (1983) (motions measured by their content, not technical form or language).

¶6 The parties disagree over which standard of review applies to CR 12(d) hearings. Our case law does not provide clear guidance. When interpreting our court rules, we may look to the federal courts' interpretation of parallel rules for guidance. Outsource Ser. Mgmt. LLC v. Nooksack Bus. Corp., 172 Wash. App. 799, 806, 292 P.3d 147 (2013) (citing Bryant v. Joseph Tree., Inc., 119 Wash.2d 210, 218-19, 829 P.2d 1099 (1992) ). After a preliminary hearing under the parallel federal rule, FRCP 12(i), the circuit courts review the conclusion de novo and the findings of fact for clear error. See, e.g., Bruce v. U.S., 759 F.2d 755, 758 (9th Cir. 1985). Clear error review mirrors Washington's substantial evidence review. See State v. Ramirez, 191 Wash.2d 732, 740, n.4, 426 P.3d 714 (2018), see also State v. Jeannotte, 133 Wash.2d 847, 856, 947 P.2d 1192 (1997). These are the usual standards of review in Washington for conclusions of law and findings of fact. In re Disciplinary Proceeding Against Pfefer, 182 Wash.2d 716, 724, 344 P.3d 1200 (2015). We therefore hold it appropriate to apply them in this case.

¶7 Noll argues that we should apply de novo review to the case in its entirety, because all of the evidence is documentary, and Special Electric submitted no evidence on its own behalf. We note that both parties continue to debate the meaning of the various items of evidence in this court. A long line of cases permit Washington courts to review documentary evidence de novo. See, e.g. In re Marriage of Langham and Kolde, 153 Wash.2d 553, 559, 106 P.3d 212 (2005). But in Dolan v. King County, our Supreme Court deferred to the trial court's findings because of the complexity and volume of evidence. 172 Wash.2d 299, 310-311, 258 P.3d 20 (2011). While the evidence here is not so voluminous, it involves a number of complex questions, including the meanings of corporate documents, abbreviations, figures, and percentages. Rather than act as initial fact-finders, we hold it appropriate to defer to 'the trial court as to the facts in these circumstances.

II. Despite involuntarily dismissing Noll's complaint after the presentation of evidence, the trial court articulated no findings of fact.

¶8 After examining the evidence, the trial court failed to articulate its findings of fact or reasoning in its ruling. CR 52(a)(1) requires courts to find facts specially, and state conclusions of law separately. CR 52(a)(5)(B) permits courts to decide motions under CR 12 without providing findings of fact. While most motions under CR 12 are resolved on summary judgment, a hearing under CR 12(d) is not a motion, and requires written findings and conclusions.

¶9 At summary judgment, findings of fact are unnecessary because the nonmoving party's allegations are considered proven and all reasonable inferences are drawn in that party's favor. Failla v. FixtureOne Corp., 181 Wash.2d 642, 649, 336 P.3d 1112 (2014) (quoting Lewis v. Bours, 119 Wash.2d 667, 669, 835 P.2d 221 (1992) ). However, the purpose of a preliminary hearing under CR 12(d) is to resolve factual disputes prior to trial. At a preliminary hearing, the plaintiff must prove the relevant part of his or her case by a preponderance of the evidence. Data Disc. Inc. v. Sys. Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). A preliminary hearing is therefore an action tried upon the facts, requiring specific findings of fact under CR 52(a)(1), rather than a motion exempt from findings of fact under CR 52(a)(5)(B). Most importantly, the procedural posture of this case warrants findings of fact to allow meaningful review.

¶10 Generally, a failure to state separate findings of fact is not fatal to an order if the reviewing court can determine the questions the trial court decided and the reasons for the decision. Backlund v. Univ. of Wash., 137 Wash.2d 651, 656 n. 1, 975 P.2d 950 (1999) (citing Knudsen v. Patton, 26 Wash.App. 134, 135 n. 1, 611 P.2d 1354, review denied, 94 Wash.2d 1008 (1980) ). The reviewing court can consider the trial court's oral ruling to aid its determination. Backlund, 137 Wash.2d at 656 n.1, 975 P.2d 950 (citing In re Marriage of Booth, 114 Wash.2d 772, 777, 791 P.2d 519 (1990) ). When the reviewing court is unable to determine the trial court's understanding, the appropriate remedy is to remand the case for findings of fact. Garcia v. Henley, 190 Wash.2d 539, 544, 415 P.3d 241 (2018) (citing Old Windmill Ranch v. Smotherman, 69 Wash.2d 383, 390, 418 P.2d 720 (1966) ).

¶11 Here, Noll was required to prove personal jurisdiction by a preponderance of the evidence. Special Electric implores us to rely on implied findings of fact based on the trial court's decision. But it is the responsibility of the prevailing party to procure findings of fact. Backlund, 137 Wash.2d at 656 n. 1, 975 P.2d 950 (citing Peoples Nat'l Bank v. Birney's Enters., Inc., 54 Wash. App. 668, 670, 775 P.2d 466 (1989) ). The record indicates that the parties and trial court agreed that the prevailing party should prepare a formal order. Nothing in the record suggests Special Electric prepared a formal order or requested findings of fact.

¶12 We are not inclined to speculate on findings beneficial to the party that failed to procure them. Additionally, the subject of specific jurisdiction is not well-settled law. Decisions from the highest courts in the land contain significant disagreement as to how courts should test evidence of personal jurisdiction. See LG Elec., 186 Wash.2d at 190-91, 375 P.3d 1035, cf. 186 Wash.2d at 202-04, 375 P.3d 1035 (Gordon McCloud, J., dissenting). Given the record, we can only speculate as to what test the trial court decided to apply. We will not infer facts based on speculation. No oral ruling exists to help us make those determinations. Because we have no reliable indication of the facts as the trial court understood them, we remand this case for separate findings of fact.

¶13 On remand, we direct the trial court to make findings on the following issues in order to answer the questions presented in LG Electronics and Noll, as well as any other findings of fact that support its decision:

1. Did Special Electric control a significant share of the United States market for asbestos?
2. Did Special Electric intend for its asbestos to be incorporated into products sold across the United States and in Washington?
3. Was a substantial volume of CertainTeed asbestos-cement pipe containing Special Electric's asbestos sold in Washington as part of the regular flow of commerce?
4. Did Special Electric know that CertainTeed sold asbestos-cement pipe in Washington?
5. Should Special Electric have known that CertainTeed sold asbestos-cement pipe in Washington?

¶14 This court will retain jurisdiction over the appeal. Upon entry of appropriate findings, they shall be transmitted to the clerk of this court within 90 days. The panel will determine whether additional briefing is necessary, but will remain open to a request from either party to file a supplemental brief concerning the findings of fact.

¶15 Remanded.

WE CONCUR:

Andrus, J.

Verellen, J.