Mitchell v. Larson (In re Larson)

• Decision Date: 12 October 2021
• Docket Number: 36220-5-III
• Court: Washington Court of Appeals
• Parties: In the Matter of the Estate of CLARA V. LARSON, Deceased. CONNIE M. MITCHELL, Respondent, v. NORMAN D. LARSON, Personal Representative of the Estate of Clara V. Larson, and Successor Trustee of Gordon E. Larson Testamentary Trust, Appellant.

In the Matter of the Estate of CLARA V. LARSON, Deceased.

CONNIE M. MITCHELL, Respondent, v. NORMAN D. LARSON, Personal Representative of the Estate of Clara V. Larson, and Successor Trustee of Gordon E. Larson Testamentary Trust, Appellant.

No. 36220-5-III

Court of Appeals of Washington, Division 3

October 12, 2021

UNPUBLISHED OPINION

SIDDOWAY, J.

This is a second appeal of a property dispute over which we retained jurisdiction. The first appeal was decided in In re Estate of Larson, No. 36220-5-III (Wash.Ct.App. Dec. 17 2019) (unpublished).^[1]

Norman Larson and Connie Mitchell are brother and sister and beneficiaries under a trust created under the will of their father, Gordon Larson.^[2] Gordon predeceased Clara Larson, his wife and Norman's and Connie's mother. Upon Clara's death, Norman became the personal representative of Clara's estate and successor trustee of Gordon's trust. Gordon's trust assets included 240 acres of land in Spokane County. Much of the acreage was adjacent to land that Clara left to Norman in her will.

Disputes over division of the 240 acres were resolved by a bench trial of consolidated probate and TEDRA^[3] proceedings. Among other findings, the trial court found that Norman's actions as personal representative and successor trustee fell below the standard of care. It arrived at a division of the trust property and ordered it distributed.

Norman appealed the outcome of the bench trial and in our unpublished opinion we affirmed the trial court on all but one ground. The trial court had partitioned the trust's real property in a manner different from that proposed by either party and without making findings as to its value. We found it impossible to review Norman's challenge to the division without more specific findings. We remanded for the entry of additional findings, retaining jurisdiction in order to expedite review in the event of a further appeal.

On remand, the trial court reviewed submissions, heard argument from the parties, and made supplemental findings that identifed how it valued the property and reasons for the manner in which it distributed it. In our prior opinion, we illustrated property issues using a rough depiction of the tax parcels at issue, and we return to that depiction, adding the values found by the trial court. Norman was awarded the shaded property and Connie was awarded the unshaded property based on the values indicated. The parcels are identified by the last four digits of their tax parcel numbers:

(Image Omitted)

Thus distributed, the total value of land distributed to Norman was $228, 333 and the total value of land distributed to Connie was $251, 667. The trial court's findings and conclusions state that in addition to arriving at a division that it found to be just and equitable, the court sought to promote clear boundaries.

Norman appeals.

ANALYSIS

Norman assigns error to six of the trial court's findings of fact and one of its conclusions of law. He characterizes the trial court's supplemental finding of fact 54 as a mislabeled conclusion of law. He also assigns error to the trial court's alleged failure to comply with our instructions.

We can address this last alleged error summarily. In explaining why we were remanding, we observed that not only were there no findings regarding the value of the property distributed, but the trial court also distributed the property in a manner different from the parties' proposals without "explaining the variations, and whether, and to what extent, those variations were viewed by the trial court as benefitting one or the other party." Larson, slip op. at 25. We did not say that findings explaining variation from the parties' proposals are required, and they are not; such findings would have served as a substitute for values. By identifying values used and adjustments made the trial court's findings and conclusions on remand comply with our remand for additional findings adequate for review.

We address Norman's first five challenges to findings of fact before turning to his challenges to the sixth finding of fact and the conclusion of law.

I. Substantial evidence supports the trial court's challenged findings of FACT

Norman contends the trial court's supplemental findings of fact 42, 44, 45, 46, and 48 are arbitrary and capricious. Whether a finding is arbitrary and capricious is not the standard of review.^[4] Rather,

[F]ollowing a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law. State v. Stevenson, 128 Wn.App 179, 193, 114 P.3d 699 (2005). "Substantial evidence" is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise. Id. We treat unchallenged findings of fact and findings of fact supported by substantial evidence as verities on appeal. Schmidt v. CornerstoneInvs Inc., 115 Wn.2d 148, 169, 795 P.2d 1143 (1990). We review challenges to a trial court's conclusions of law de novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).

State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). Since the trial judge has the witnesses before it and can evaluate, first hand, the weight and credibility of testimony, we will not substitute our judgment on these matters even when we might have resolved a factual dispute differently. State v. Russell, 73 Wn.2d 903, 910, 442 P.2d 988 (1968); Brown v. Super. Underwriters, 30 Wn.App. 303, 305-06, 632 P.2d 887 (1980). In determining whether substantial evidence supports the trial court's findings, we view all reasonable inferences from the evidence in the light most favorable to the prevailing party. Korst v. McMahon, 136 Wn.App. 202, 206, 148 P.3d 1081 (2006) (citing Sunderland Fam. Treatment Servs. v. City of Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995)).

Partition is an equitable action. Kelsey v. Kelsey, 179 Wn.App. 360, 365, 317 P.3d 1096 (2014) (citing Leinweberv. Leinweber, 63 Wn.2d 54, 56, 385 P.2d 556 (1963)). "The trial court has 'great flexibility' in fashioning equitable relief for the parties." Id. (quoting Cummings v. Anderson, 94 Wn.2d 135, 143, 614 P.2d 1283 (1980)). The trial court's discretion extends to its valuation of property in a partition action. Id. (citing Yeats v. Estate of Yeats, 90 Wn.2d 201, 206, 580 P.2d 617 (1978)). Its discretion in valuing property includes reimbursing a cotenant for improvements she or he has made to property, including "by the sweat of [their] brow," and discounting the value of the property for, e.g., encumbrances. Id. at 365-66. A court abuses its discretion if its decision is based on untenable grounds or untenable reasons. Id. at 365.

We address the challenged supplemental findings of fact in turn.

Finding of fact 42. Supplemental finding of fact 42 states:

Tax Parcel [ ]. 9009 is contiguous to parcels owned by/farmed for Norman D. Larson and creates a large tract (approximately 320 acres), increasing the value of this Tax Parcel ownership and the value of the other, previously owned Tax Parcels ([ ]. 9007, [ ]. 9008, and [ ]. 9006).

Clerk's Papers (CP) at 551-52 (emphasis added). Norman does not dispute that land he inherited from Clara wraps around parcel .9009, creating a large, rectangular, 320 acre tract of farm ground. He challenges finding 42 on the sole basis that "there was no testimony that the value of [parcel ].9009 is increased merely because it is located adjacent to [parcels ].9007 and [ ].9008 and [ ].9006." Suppl. Appellant's Br. at 4 (emphasis added). He argues that testimony by Stephen Barrett, a real estate broker he called as a witness on issues of value, "was only that the value of that parcel was $140, 000." Id.

In fact, Connie testified that "[t]here is a value related to having a contiguous piece of property, versus having a patchwork division." Report of Proceedings (RP) (Trial) at 88-89. And both common sense and the fact that Norman asked that he be awarded parcel .9009 support the inference that there was some enhanced value to having contiguous farm ground. Notably, the trial court still relied on Mr. Barrett's value of $140, 000 in making the property division. Substantial evidence supports the finding.

Finding of fact 44. Supplemental finding of fact 44 states:

Valuation of Tax Parcel [ ].9006 by Stephen L. Barrett failed to consider that some portion of the parcel's worth was the preservation of the home on said Tax Parcel over the years by Connie M. Mitchell with the knowledge of Clara Larson.

CP at 552 (emphasis added).

As recounted in our earlier opinion,

Connie testified that she had lived in what the parties agreed was a 100-year-old house on parcel .9006 off and on since 1992. She testified she had improved the parcel by building two barns and remodeling the house. She had also almost finished drilling a well on the parcel and, as of the time of trial, had spent about $30, 000 on that improvement. She testified that the house was in poor condition following a partial collapse of the foundation that had prevented her from using the furnace for heat since January. She had received an estimate from a contractor that it would cost $20, 000 to repair the foundation.

Larson, slip op. at 9-10. Connie testified that all told, she put over $70, 000 in materials into the house, and did much of the labor herself. She had asked the trial court to award her parcel .9006, and it did.

Mr Barrett had valued 40-acre parcel .9006, together with .9008, the 40 acres south of it, at $265, 000. As illustrated above, the trial court assigned those two parcels a combined value of $230, 000, valuing parcel .9006, with its home, at only $100, 000. Finding 44 reflects the trial court's reasoning that it was...