In re Estate of Benson

• Decision Date: 28 February 2011
• Docket Number: 63734-7-1
• Court: Washington Court of Appeals
• Parties: In the Matter of the Estate of RODGER W. BENSON JR. v. JOAN BENSON, as Personal Representative of the Estate of RODGER W. BENSON JR., Deceased. Respondent. RODGER W. BENSON III, Appellant,

In the Matter of the Estate of RODGER W. BENSON JR.

RODGER W. BENSON III, Appellant, v. JOAN BENSON, as Personal Representative of the Estate of RODGER W. BENSON JR., Deceased. Respondent.

No. 63734-7-1

Court of Appeals of Washington, Division 1

February 28, 2011

UNPUBLISHED OPINION

Leach A.C.J.

Appellant Rodger Benson III sued Joan Benson in her capacity as personal representative of the estate of his late father Rodger Benson Jr.^[1] Benson III claimed Mr. Benson's Charles Schwab accounts belonged to a partnership called "Benson Ventures" that he and his father formed in 1997. After a 10-day bench trial, the court dismissed Benson III's claims. Benson III appeals from the trial court's findings of fact and conclusions of law. He argues the court erred in concluding no partnership existed the court improperly made a community property determination as that issue was nonjusticiable, and the court abused its discretion by excluding certain evidence based on an erroneous application of the dead man's statute, RCW 5.60.030, and the hearsay rules. We affirm.

FACTS

Mr Benson and Joan married in 1974. At the time of their union Mr. Benson had four children from two previous marriages, including Benson III. From 1974 until 1986, Mr. Benson and Joan lived in the home that Joan inherited from her first husband. In 1986, Mr. Benson moved into a Belltown condominium that the Bensons jointly owned. The Bensons maintained separate residences until Mr. Benson's death. Although living apart, they filed joint income tax returns, jointly insured their vehicles, and maintained at least one joint account through 2003. In 2006, Joan initiated dissolution proceedings. Mr. Benson died before the divorce was final.

Mr. Benson began investing in natural resource and mining securities in the early to mid-1990s. In 1997, he opened a securities account at Wedbush Morgan. In March 1997, Benson III, an executive at Turner Construction, left his job after 18 years. He wrote in his resignation letter, "My father has offered me a position in his company that affords my family and I [sic] the opportunity for substantial financial growth in a business that is extremely interesting and challenging."

Between March 1997 and July 1998, Benson III worked with Mr. Benson. Mr. Benson taught Benson III about the natural resources industry. Benson III assisted his father and set up a Yahoo web page to monitor his stocks. U.S. Bank opened a joint account titled to Benson III, Mr. Benson, and Benson Ventures in 1997. The last account activity occurred in July 1998, and the account closed before 2001.^[2] In July 1998, Benson III resumed full-time employment.

The value of Mr. Benson's Wedbush Morgan account dropped from $350, 000 to $44, 000 between 1997 and 2000, reflective of the significant decline in the value of natural resources securities in 1998 and 1999. Between 2000 and 2006, he made large contributions to the account. In 2001, Mr. Benson opened a second account with Wedbush Morgan, which held other securities. Mr. Benson merged these accounts in 2002 and in 2006 transferred the account to Charles Schwab.

Mr. Benson died on April 26, 2007, at the age of 83. He owned a stock portfolio account and a money market account at Charles Schwab valued at approximately $2.3 million and $157, 000, respectively. The court admitted Mr. Benson's will into probate on July 24, 2007. The will named Joan as sole beneficiary and personal representative. Benson III filed a contradiction of inventory, arguing that Benson Ventures, as a partnership, was not an asset of the estate and asking to remove Joan as personal representative of the estate's interest in Benson Ventures. Joan responded 10 days later, denying Benson III's claims and counterclaiming that she owned an undivided one-half community property interest in Mr. Benson's assets, including any interest he had in Benson Ventures.

At trial, Benson III's case largely rested on the existence of the U.S. Bank account and several checks written to Wedbush Morgan from that account. Also, Benson III introduced Mr. Benson's and Benson III's business cards. Although Benson III prepared the cards, neither card identified the holder as a partner or Benson Ventures as a partnership. Benson III offered other items that the court determined were of limited probative value, including bank checks, statements, checkbook register, letterhead, fax sheet letterhead, a binder titled Benson Ventures, and a magazine label. Mr. Benson and Benson III did not execute a written partnership agreement. Nor was there a written partnership agreement for any entity called "Benson Ventures."

The trial court held (1) the preponderance of the evidence did not establish a partnership between Benson III and Mr. Benson; (2) Mr. Benson's Charles Schwab accounts were not partnership property; (3) even if there were a partnership, Benson III's claim would be time barred because Benson III ceased to be associated with the alleged partnership in 1998; and (4) Mr. Benson's assets were community property.

Benson III appeals.

STANDARD OF REVIEW

Where findings of fact and conclusions of law are challenged, this court limits its review to determining whether substantial evidence supports the trial court's findings and whether those findings support its legal conclusions.^[3]"Substantial evidence exists if a rational, fair-minded person would be convinced by it."^[4] Though the trier-of-fact is free to believe or disbelieve any evidence presented at trial, "[a]ppellate courts do not hear or weigh evidence, find facts, or substitute their opinions for those of the trier-of-fact."^[5]

ANALYSIS

Findings of Fact

Benson III assigns error to the trial court's findings of fact 7, 13, 15, 21, 22, 27, 29, 35, 39, and 40. We hold that substantial evidence supports these findings and reject Benson III's challenge to them.

Finding of fact 7 states, "None of Decedent's assets were traced to separate (non-community) assets or funds." Mr Benson and Joan were married in 1974 and remained married until Mr. Benson died. Joan testified that Mr.

Benson brought no assets into the marriage. No other evidence contradicted this testimony. Thus, the trial court could reasonably find that all of the assets owned by Mr. Benson at the time of his death were acquired during his marriage to Joan, creating a presumption that they were community property.^[6] Benson III could only overcome this presumption with clear, cogent, and convincing evidence.^[7] His self-serving testimony that he had funds to contribute to the purchase of these assets and did contribute to their purchase is not sufficient to meet this burden.^[8]

Finding of fact 13 states,

The two Wedbush Morgan accounts were titled to Decedent in his individual capacity, not as partner. Petitioner never appeared on the title of these accounts. He was not identified on account applications or account statements as a joint owner. Petitioner's name does not appear on any of the Wedbush Morgan documents admitted in evidence.

Substantial evidence supports this finding. Only the names of Mr. Benson and his stockbroker, Brian Decker, appear on the application documents for the Wedbush Morgan account. On the "Customer Account Information" form for the account, Mr. Benson identified it as "individual" by checking the appropriate box, even though the form included a box for a "partnership." Only Mr. Benson and Mr. Decker signed the forms. The forms indicate that each joint customer must sign for a joint account. But on Mr Benson's forms, the joint customer signature line is blank. Finally, all account statements identify Mr. Benson as the sole account holder, and all stock certificates were titled individually to Mr. Benson.

Finding of fact 15 states,

The Charles Schwab accounts were titled solely to Decedent in his individual capacity, not as partner. Petitioner never appeared on the title of these accounts. He was not identified on account applications or account statements as a joint owner. Petitioner's name does not appear on any of the Charles Schwab documents admitted in evidence.

Substantial evidence also supports this finding. The Charles Schwab account application and all account statements identify Mr. Benson as the sole owner. None of these documents mention Benson III or Benson Ventures. All income and gains from the Charles Schwab accounts were reported under Mr. Benson's social security number. The documents transferring individual stocks to the Schwab account identify Mr. Benson as the sole owner. None of the correspondence relating to the transfer of the stocks from Wedbush Morgan to Charles Schwab refers to Benson III or Benson Ventures.

Finding of fact 21 states,

Petitioner's expert witness, Michael Gillespie, also testified that the Wedbush Morgan account statements and the Charles Schwab account statements do not contain independent data that would support the conclusion that Petitioner and Decedent had a partnership. Mr. Gillespie[, ] Petitioner's expert witness[, ] also testified that Decedent's tax records, the Wedbush Morgan account statements and the Charles Schwab account statements do not contain any data that would support the conclusion that Petitioner and Decedent were equal partners. Mr. Gillespie was unable to attribute contributions to petitioner. The expert witness further testified that Decedent's tax records, the Wedbush Morgan account statements and the Charles Schwab account statements do not contain data that would support the conclusion that the Charles Schwab accounts owned by Decedent on his date of death were partnership property.

Mr. Gillespie's testified as described by the court. Substantial evidence in the record supports this finding.

Finding of fact 22 states,

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