Rachel M. Anderson v. William L.e. Dussault, Et Ux

r ILED F COOIRT Or APPr'_- S A . M4 D[ IS! IT V

2013 OCT -I AM 9= 09 STATE Or WASHiNGTM

BY UT` s

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

RACHEL MARGUERITE ANDERSON No. 43280 3 II - -

formerly RACHEL M.RODGERS),

Appellant,

ME

WILLIAM L. .DUSSAULT and JANE DOE E PUBLISHED OPINION DUSSAULT, husband and wife, and the marital community composed thereof, BARBARA J. BYRAM and JOHN DOE BYRAM, wife and husband, and the marital community composed thereof; YEVGENY JACK BERNER and JANE DOE BERNER, husband and wife, and the marital community composed thereof, WILLIAM L. .E DUSSAULT, PS, a Washington professional service corporation; the DUSSAULT LAW GROUP, a Washington corporation; RICHARD MICHAEL McMENAMIN and SHARI L.McMENAMIN, husband and wife, and the marital community composed thereof; McMENAMIN & McMENAMIN PS, a Washington professional service corporation; and WELLS FARGO BANK,N. ., foreign Aa corporation,

Respondents,

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ANDREA DAVEY (ka ANDREA f RODGERS) and JOHN DOE DAVEY, husband and wife, and the marital community composed thereof,

Defendants.

BRINTNALL, J. QUINN- -- Shortly before her 21 st birthday, Rachel Anderson brought suit

against a host of defendants she believed mismanaged the "special needs" trust established for her when she was injured as a minor.' In her complaint, Anderson alleged that the two members

of the " trust advisory committee" — mother Andrea Davey, and attorney Richard her McMenamin and the trustee, Wells Fargo Bank, N. ., — A breached their fiduciary duties by

approving trust disbursements contrary to the spirit of the trust. Anderson also alleged that William Dussault, the attorney hired by Wells Fargo to submit annual reports for court approval, committed legal malpractice.

McMenamin, Dussault, and Wells Fargo all moved for summary judgment, arguing, inter

alia, that Anderson's claims were barred by the Trustees' Accounting Act, ch. 11. 06 RCW, res 1

judicata, or judicial estoppel. Alternatively, each defendant argued that the trust's express language allowed for the disbursements in question and Anderson's claims failed, as a matter of

42 U. . C. S 4)(allows for the creation of " 1396p( § d)( A) special needs" trusts for disabled individuals under the age of 65. Payments made from such a trust are not considered income and the trust corpus is not considered a resource available to the trust beneficiary (for purposes of taxation or social services eligibility) so long as "the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan."42 C. U. . S 4)(Here, because 1396p( § d)( A). both parties refer to the trust as a "special needs" trust, we do not analyze whether this trust in fact satisfies the stringent requirements of 42 U. . 1396p( C. 4)( S § d)( A). 2 As explained more fully below, Davey (formerly "Andrea Rodgers ") is not a parry to this appeal.

0)

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law, to establish breach of fiduciary or legal duties. Without explaining its rationale, the trial court granted summary judgment to McMenamin, Dussault, and Wells Fargo. Anderson now

appeals, arguing that (1) Trustees' Accounting Act does not apply to her trust and does not the

bar her claims, 2) ( neither res judicata nor judicial estoppel bar her claims, 3) terms of the ( the

trust do not bar her claims, and (4) presented enough evidence concerning the disbursements she

in question to warrant surviving summary judgment in light of disputed material facts. Because the Trustees' Accounting Act bars Anderson's claims, we affirm.

FACTS

BACKGROUND

In November 1996, shortly after her sixth birthday, Anderson (formerly "Rachel M. Rodgers ") was kicked in the face by a horse. Anderson "sustained major skull and facial damage"from the injury, required extensive surgery, and suffered substantial "psychological and emotional impact." 3 Clerk's Papers ( CP) at 477. Anderson's family hired attorney McMenamin to settle her case and to that end, McMenamin retained attorney Dussault to prepare a trust in which to place the settlement proceeds. The trust was designed to "supplement all other financial and service benefits to which [Anderson] might be eligible as a result of her disability."3 CP at 478.

3 On May 4, 2012, the trial court entered an order decreeing that Anderson's claims are " dismissed in their entirety with prejudice." Clerk's Papers (CP) at 512. Although Anderson characterizes the dismissal of claims against the defendants other than McMenamin, Dussault, and Wells Fargo— especially the dismissal of her claims against Daveyas an error potentially — " needing to be corrected nunc pro tunc," dismissal order itself appears clear on its face. Reply the Br. of Appellant at 32. The order distinguishes "[ t] defendants defending separately, hose Dussault, Wells Fargo and McMenamin" and awards them attorney fees; moreover, the order's caption states that it is a "Judgment for All Defendants."CP at 512. Anderson has not appealed the dismissal order. I

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On August 25, 1997, Clallam County Superior Court approved the settlement agreement

and the parties' creation of the " Rachel Marguerite Rodgers Trust. " The trust agreement made

Wells Fargo the trustee and established a trust advisory TAC "), consisting committee ( " of

McMenamin and Davey. The agreement gave the TAC "absolute and unfettered discretion to

determine when and if Anderson] needs regular and extra supportive services."3 CP at 482. [

The explicit language of the trust agreement explained that the trust was designed to

provide extra and supplemental medical, health, and nursing care, dental care, developmental services, support, maintenance, education, rehabilitation, therapies, devices, recreation, social opportunities, assistive devices, advocacy, legal services, respite care, personal attendant care, income and other tax liabilities, and consultant services for [Anderson]. To this end, the [TAC] may provide such resources and experiences as will contribute to and make the beneficiary's life as pleasant, comfortable and happy as feasible. Nothing herein shall preclude the TAC] from purchasing those services and items which promote the beneficiary's happiness, welfare and development, including but not limited to vacation and recreation trips away from places of residence, expenses for a traveling companion if requested or necessary, entertainment expenses, and transportation costs.

3 CP at 481 82. The agreement also provided that the "Trustee shall make an annual statement -

of transactions and assets concerning all financial and investment activity undertaken on behalf

of the Trust"to be delivered to Anderson, any court- appointed representative of Anderson, and

the members of the TAC. 3 CP at 493.

4 Special Proceedings Rule (SPR) 98. 6W normally governs approval of settlements involving 1 minors. Anderson does not argue that the parties failed to follow the procedures of SPR 98. 6W 1 and, accordingly, we do not further address this issue.

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The trust was initially funded with settlement proceeds amounting to $187, 60. 66.1 Wells Fargo hired Dussault to prepare its annual reports for court approval. Dussault filed his

first report to the court on January 25, 2000. The first report detailed all investment activities and trust disbursements between the trust's establishment date (August 25, 1997)and August 31,

1999. Among other expenses, the report stated that trust funds were used for " ehicle expenses v

in the total of $ 4, 59. including the "purchase of a 1997 Mercury Tracer." 2 CP at 351. 98" 1 1

The superior court approved the report in its entirety. Dussault submitted the second report on February 12, 2001, which covered "all financial activity" from September 1, 1999 through

August 31, 2000. 2 CP at 356. This report stated that "[ d] isbursements from the Trust were in

the total amount of 41, 61.and included the "purchase of real estate." 2 CP at 356. The 86" $ 4

superior court also approved this report in its entirety.

On August 27, 2001, attorney Carl Gay (who represents Anderson in the current matter) sent a letter to Davey, Dussault, Wells Fargo, and McMenamin. The letter stated, in part,

This letter will advise that I represent Ken Chace III and Janet Gesualdi, respectively the biological father and maternal grandmother Anderson]. At of [ their request, I have recently had the opportunity to review the court file in the referenced matter. Based upon a review of recent accountings filed with the court, my clients are concerned that [Anderson]' s trust funds have not been fully and properly invested and it would appear numerous disbursements of trust funds have been made in violation of the letter and spirit of the trust agreement. Improper distributions include use of trust funds to purchase real estate which purportedly is not held in the name of the trust, purchase of a vehicle (and payment of related expenses), and use of trust monies to discharge certain parental financial obligations which are the responsibility of Anderson]' [ s mother.

5 The negotiated settlement was for $ 00, 00. The funded amount constituted the remainder of 3 0 the settlement after court- approved "costs, liens, subrogations, parents' claims, and attorney's fees."3 CP at 476. According to the chart of Anderson's own expert, as of August 2007, before the trust started paying for Anderson's post secondary education," trust had a market value " the of 197, 45. 1 CP at 26. 28. $ 0

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2 CP at 360. The letter further stated that "[ n the event these issues are not resolved to the i]

satisfaction of my clients, they are prepared to file a petition to intervene in this matter and seek a more focused judicial scrutiny of the trustees' actions."2 CP at 361.

Dussault responded to Gay's letter on September 6. He told Gay that the trust was currently resolving" the issue of the "purchase of an interest in a residence" and that he would

provide you and your clients with additional information concerning the trust's interest in the real property in the near future. " 2 CP at 362. Dussault also pointed out that "[ ] other

expense[s] incurred for travel expenses specifically for [Anderson]' were s doctors' appointments

and for purchase of a computer and software for her." CP at 362. Gay did not respond to this 2 letter.

On' February 7, 2002, Dussault again wrote Gay explaining that he was "ready to present for approval the September 1, 2000 through August 31, 2001 Annual Report" to the superior court. 2 CP at 364. Dussault included a copy of the proposed report for Gay to examine. Gay

responded five days later expressing concerns over (1)the purchase of real property; (2) reimbursement of "funds for expenses which would otherwise be considered the financial

support obligation of the custodial parent," including computer costs, vehicle costs, and funds related to 3)certain attorney fees; birthday presents; ( and (4)trustees' fees. 2 CP at 366.

Dussault delayed presenting the report for court approval while he "attempted to address Mr. Gay's concerns." 2 CP at 347. In July of 2002, McMenamin resigned from his voluntary

6 The trust later established its 31 percent interest in the real estate in question by statutory warranty deed. The home was sold in 2005 and, at that time, the Trust received $ 135, a net 49, profit after closing costs of 26 percent.

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position as a member of the TAC "when it became apparent that there were ongoing problems

with the disgruntled non -custodian parent ([ Anderson's] father)." CP at 288. 2

On December 6, 2002, Dussault submitted a two year report for approval by the superior -

court. The report covered all financial activity undertaken by the trust between September 2000 and August 2002. The report noted that the "members of the TAC wish to dissolve the TAC and have the trustee assume all the functions designated to [the] TAC pursuant to the terms of the Trust."2 CP at 372. The parties, including Gay, were notified that the trial court would hold a

hearing related to the trustee report on July 11, 2003. Neither Gay nor his clients, Anderson's father and grandmother, appeared at the hearing. At the hearing, after "having heard the

presentation of counsel, and] having considered the files and records"related to the report, the [

superior court approved Dussault's report. 2 CP at 375. Additionally, the superior court dissolved the TAC and assigned Wells Fargo as the trustee "to carry out all of the duties of the TAC under the terms of the Trust Agreement." 2 CP at 375. The trial court's approval of the report was not appealed.

From December 23, 2003 to December 4, 2009, the trial court approved four additional reports, none of which were objected to by any interested party. The last such report was approved by the superior court on December 4, 2009, when Anderson was 19 years old. The superior court requested that the next report be filed toward the end of 2011.

PROCEDURE

On July 22, 2011, a few days before her 21st birthday, Gay (now acting on Anderson's behalf)filed a complaint against Davey, McMenamin, Dussault, Wells Fargo, and others alleging

t] defendants, and each of them, failed to discharge their fiduciary and other legal duties to he

Anderson] as the beneficiary of the trust."3 CP at 474. Gay attached a letter from R. Duane

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Wolfe, a certified public accountant, to the complaint. Wolfe's letter stated that in his opinion, Anderson's trust should be reimbursed for (1)the cost of a vehicle purchased by the trust and

used by Davey to drive Anderson to doctor's appointments, 2) ( costs associated with computer

related expenses, ( )lost rental income from a house the trust purchased a partial interest in 3

where Anderson and Davey resided at one point), ( 1, in reimbursements paid to Davey, 4) $00 5 and (5)certain trustee and legal fees. With interest, Wolfe estimated that $ 873 should be 56,

restored to the trust.

McMenamin, Dussault, and Wells Fargo all brought motions for summary judgment.

McMenamin argued that Anderson's claims were barred by the Trustees' Accounting Act,res judicata,judicial estoppel, and the doctrine of judicial immunity. McMenamin also argued that

if Anderson's claims were not barred, he acted in accord with the trust's express terms and, accordingly, Anderson could not establish breach of legal or fiduciary duties. Dussault argued that as the attorney hired by Wells Fargo solely to prepare annual reports for court approval, he had no legal or fiduciary duties to Anderson. Alternatively, Dussault argued that the Trustees' Accounting Act, res judicata, and judicial estoppel barred Anderson's claims. Wells Fargo argued that Anderson could not establish breach of fiduciary duties because it acted in accord with the trust's express terms. Wells Fargo also argued that the Trustees' Accounting Act and res judicata barred Anderson's claims.

7 The Trustees' Accounting Act, discussed more fully below, requires that after a court has either approved or disapproved of a submitted trust accounting, that decree is subject only to a right of appeal and when the time to appeal expires, the accounting becomes "` inal, conclusive, and f binding' on all interested parties, even `incompetent, unborn, and unascertained beneficiaries."' Barovic v. Pemberton, 128 Wn. App. 196, 201, 114 P. d 1230 ( 2005) quoting RCW 3 ( 080)). 11. 06. 1

N.

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In response to the summary judgment motions, Gay submitted declarations from Anderson, her father, and her maternal grandmother, all alleging that Davey periodically committed fraud in obtaining reimbursements from the trust. Gay also submitted a declaration

from an attorney opining on the standard of care owed by an " ttorney representing a trustee for a

a minor beneficiary."1 CP at 141. In addition, Gay argued in his reply brief that

t] case presents factual disputes whether disbursements from [Anderson]' his s trust fund benefitted [her], [Davey] or others, in accordance with the trust not agreement. There are factual disputes whether [Davey] and Mr. McMenamin fulfilled their fiduciary roles, as members of the [TAC], ensuring [Anderson]' in s trust funds were disbursed in accordance with the trust agreement or whether they were negligent in allowing those expenditures. There are factual disputes whether Wells Fargo Bank and its legal counsel fulfilled their fiduciary and legal duties, as trustee and lawyers, in ensuring [ Anderson]' s trust funds were disbursed in accordance with the trust agreement. There are factual disputes whether Anderson] has suffered a financial loss as a consequence of those duties being breached.

1 CP at 88. Gay also argued that the Trustees' Accounting Act did not apply to the trust, and that res judicata and judicial estoppel did not bar the claims.

On March 1, 2012, after considering the parties' briefing, declarations, other evidence, and oral argument, the trial court granted summary judgment to Wells Fargo, McMenamin, and Dussault. Anderson appeals the order granting summary judgment.

DISCUSSION

STANDARD OF REVIEW

We review a trial court's summary judgments de novo. Torgerson v. One Lincoln Tower,

LLC, 166 Wn. d 510, 517, 210 P. d 318 (2009).Summary judgment is appropriate only if the 2 3

pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine

8 Anderson never amended her complaint to allege fraud as required by CR 9( ). b

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issues of material fact, and the moving party is entitled to judgment as a matter of law. CR

56( ). material fact is one on which the outcome of the litigation depends in whole or in part. c A

Atherton Condo. Apartment-Owners Assn Bd. ofDirs. v. Blume Dev. Co.,115 Wn. d 506, 516, 2

799 P. d 250 ( 2 1990).

In a summary judgment motion, the moving party bears the initial burden of showing the

absence of an issue of material fact. See, e. ., g LaPlante v. State, 85 Wn. d 154, 158, 531 P. d 2 2

299 (1975).If the moving party is a defendant and meets this initial showing, then the inquiry "

shifts to the party with the burden of proof at trial, the plaintiff. If, at this point, the plaintiff fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,'then the trial court

should grant the motion."Young v. Key Pharm.,Inc., Wn.2d 216, 225, 770 P. d 182 (1989) 112 2 footnote omitted) quoting Celotex Corp. v. Catrett, 477 U. . 317, 322, 106 S. Ct. 2548, 91 L. ( S

Ed. 2d 265 (1986)). nonmoving party may not rest upon mere allegations or denials during The

this burden shifting process. Hiatt v. Walker Chevrolet Co.,120 Wn. d 57, 66, 837 P. d 618 2 2

1992).A] "[ complete failure of proof concerning an essential element of the nonmoving party's

case necessarily renders all other facts immaterial." Celotex, 477 U. . at 323. In addition, we S

interpret statutes de novo. Port of Seattle v. Pollution Control Hearings Bd.,151 Wn. d 568, 2

587, 90 P. d 659 (2004). 3

TRUSTEES' ACCOUNTING ACT

Wells Fargo, Dussault, and McMenamin all argue that Washington's Trustees' Accounting Act bars Anderson's claims and, accordingly, the trial court's summary judgment

should be affirmed. Because the Trustees' Accounting Act applies to Anderson's special "

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needs" trust, we agree. Moreover, because this issue is dispositive, we do not address Anderson's remaining arguments.

Under ch. 11. 06 RCW, Washington's Trustees' Accounting Act, a trustee like Wells 1

Fargo may

file in the superior court of the county in which the trustees or one of the trustees resides an intermediate account under oath showing: 1) period covered by the account; The 2)The total principal with which the trustee is chargeable according to the last preceding account or the inventory if there is no preceding account; 3)An itemized statement of all principal funds received and disbursed during such period; 4)An itemized statement of all income received and disbursed during such period, unless waived; 5)The balance of such principal and income remaining at the close of such period and how invested; 6) The names and addresses of all living beneficiaries, including contingent beneficiaries, of the trust, and a statement as to any such beneficiary known to be under legal disability; 7) description of any possible unborn or unascertained beneficiary and A his or her interest in the trust fund. After the time for termination of the trust has arrived, the trustee or trustees may also file a final account in similar manner.

RCW 11. 06. 030. 1

If a trustee has filed such an intermediate accounting, the Act requires the superior court to determine the validity and accuracy of the accounting:

Upon the return date or at some later date fixed by the court if so requested by one or more of the parties, the court without the intervention of a jury and after hearing all the evidence submitted shall determine the correctness of the account and the validity and propriety of all actions of the trustee or trustees set forth in the account including the purchase, retention, and disposition of any of the property and funds of the trust, and shall render its decree either approving or disapproving the account or any part of it,and surcharging the trustee or trustees for all losses, if any, caused by negligent or wilful breaches of trust.

RCW 11. 06. 070. 1

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And if the superior court enters such a decree, it " hall be deemed final, conclusive, and s

binding upon all the parties interested including all incompetent, unborn, and unascertained

beneficiaries of the trust. ".RCW 080 ( 11. 06. emphasis added). As this court stated in Barovic 1

v. Pemberton, 128 Wn. App. 196, 201, 114 P. d 1230 (2005),the statutory language is 3 "

unambiguous." The trial court "must either approve or disapprove the accounting" and must surcharge the trustee for losses caused by negligence or willful breach. Barovic, 128 Wn. App. at 201. However, after the trial court's decree is final and the time to appeal expires, a complaining party in interest relinquishes his or her right to recover losses, even losses from

willful or negligent breaches of trust. Barovic, 128 Wn. App. at 201 02. - Here, Anderson admits that the court- approved report from December 23, 2003 a report —

filed and approved more than seven years before Anderson brought this lawsuit —involves "the final year of accounting for which [she] now presents a challenge."Reply Br. of Appellant at 12

n. . She fails to explain why the applicable statutes of limitations should have tolled during the 3

years of her incompetency. Instead, she argues that the Trustees' Accounting Act does not

9 The Act states that "any party in interest may appeal" the decree rendered under RCW 070 " 11. 06. as in civil actions to the supreme court or the court of appeals of the state of 1 Washington."RCW 11. 06. 090. 1 10 Indeed, under the plain language of the statute, the statute of limitations would not toll for an incompetent trust beneficiary like Anderson. Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n, Wn. d 621, 629, 869 P. d 1034 (1994) ( "[ here a statute is unambiguous, we 123 2 2 W] will determine the Legislature's intent from the language of the statute alone. "). Anderson

argues that her "underlying claims against the respondents for breach of legal and fiduciary duties were being quietly tolled under the applicable statutes of limitations"when discussing the doctrine of res judicata. Reply Br. of Appellant at 18. But she provides no citation to authority for this proposition and fails to explain which statutes of limitations are applicable to her claims. The statutes of limitation for breach of fiduciary duty or legal malpractice claims are both three years. See RCW 11. 6A.Huff v. Roach, 125 Wn. App. 724, 729, 106 P. d 268 a); 070( 1)( 9 3 citing RCW 4.6.review denied, 080( 3 1 )), 155 Wn. d 1023 ( 2005). Anderson 2 appears to be arguing that a claim for breach of fiduciary duty or legal malpractice may be brought outside the

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apply to her trust or, alternatively, that " trial court's approval of a trustees' report is not binding a

on a minor beneficiary for which a guardian ad litem (` GAL') not appointed."Reply Br. of was

Appellant at 14. Anderson misinterprets the Act in both instances.

At the time the superior court adjudicated Anderson's claim, the first section of the Act

stated, in part, This chapter does not apply to resulting trusts, constructive trusts [or] trusts "

created by judgment or decree of a federal court or of the superior court when not sitting in

probate. " Former RCW 11. 06. 1985). As 010 ( 1 the Washington Supreme Court explained

nearly 90 years ago,

W]ere a trust arises by an express contract or agreement between the parties, it h is an express trust, and under practically all authorities implied, constructive, and resulting trusts are those which do not arise out of a contract between the parties providing for the trust, but arise by operation of law.

In Re Weir's Estate, 134 Wash. 560, 566, 236 P. 285 (1925).

According to Anderson, the Act does not apply to her trust because her trust was created by "judgment or decree" of a superior court when not sitting in probate and, accordingly, is a resulting or constructive trust that has arisen by operation of law. We disagree. This assertion

framework of the Trustees' Accounting In her reply brief she argues that her "current Act.

lawsuit is not an action seeking to undo the court's serial approvals of Wells Fargo's annual statements prior to [ Anderson] becoming an adult." Reply Br. of Appellant at 18. But this

contention runs contrary to the purpose of the Act itself. establishing the finality of intermediate, approved trust court- accountings. Anderson has provided no authority for this unpersuasive argument. 11 During the pendency of this appeal, the legislature removed the phrase "trusts created by judgment or decree of a federal court or of the superior court when not sitting in probate"from RCW 11. 06. LAWS 010. 1 of 2013, ch. 272, § 25. Pursuant to section 28( )of the same 2 * legislation, the amended version of RCW 11. 06. applies only to "judicial proceedings 010 1 concerning trusts commenced on or after January 1, 2013."LAWS of 2013, ch. 272, § 28( ). 2 As the superior court decided this case on March 1, 2012, the amended version of the statute is inapplicable to this case and we address the merits of Anderson's claim based on the former version of RCW 11. 06. 010. 1

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mischaracterizes the record. The superior court here did not "create" Anderson's trust by

judgment or decree. Instead, it merely approved an express trust intentionally created by 12 agreement of the parties to Anderson's original lawsuit. And while no Washington court has

previously addressed whether an express "special needs" trust falls within the scope of the Trustees' Accounting Act, Anderson provides no cogent argument for why the Act should not apply to such a trust. We hold that the Act applies.

Alternatively, Anderson argues that because the superior court failed to appoint a guardian ad litem to represent her interests, the court's final decrees approving each report are not binding on her. We disagree; nothing in the Act requires appointment of a guardian ad litem.

RCW 11. 06. states that when a trustee seeks court approval of an intermediate 060 1

accounting, "[ he court shall appoint guardians ad litem as provided in RCW 11. 6A. t] 160." 9

Anderson argues that this statute imparts to the trial court a mandatory duty to appoint a guardian ad litem based on the word "shall" in the opening clause of the statute. " We construe the

meaning of a statute by reading it in its entirety."Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wn. d 756, 765, 261 P. d 145 ( 2011). A 2 3 reasonable interpretation of a statute "must, at a

minimum, account for all the words in [the] statute."Five Corners Family Farmers v. State, 173

Wn. d 296, 312, 268 P. d 892 ( 2011). 2 3 Accordingly, a reasonable interpretation of RCW

12 Anderson's opening brief characterizes the court's approval of the trust in these same terms: Respondent Richard McMenamin ... was hired by [Anderson's] family to pursue a personal injury claim against the owners of the horse and on August 25, 1997 ... the trial court approved s settlement for [ Anderson] in the amount of $ a minor' 300, 00. CP 286. In conjunction 0 therewith, the court also approved the establishment of a special needs trust."Br. of Appellant at 4 ( emphasis added). Anderson only argues that the superior court "created" rather than ( approved) her "special needs"trust in her reply brief in response to the defendants' claims that the Trustees' Accounting Act bars her claims.

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060 11. 06.requires determining what RCW 11. 6A.provides. And contrary to Anderson's 1 160 9

assertions of a mandatory duty, RCW 11. 6A.states that 160( 1) 9

t] court, upon its own motion or upon request of one or more of the parties, at he any stage of a judicial proceeding or at any time in a nonjudicial resolution procedure, may appoint a guardian ad litem to represent the interests of a minor, incapacitated, unborn, or unascertained person, person whose identity or address is unknown, or a designated class of persons who are not ascertained or are not in being. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.

Emphasis added.) Under the plain language of the statute, the trial court has the discretion to

appoint a guardian ad litem— nothing in the statute (or the Trustees' Accounting Act) makes

such an appointment mandatory.

Anderson fails to show how the trial court's final decrees approving each trust report should not be binding on her. Nor has Anderson explained how the judicial oversight of each intermediate accounting submitted to, and approved by, the superior court provided her

inadequate notice or protection when she was incompetent to assess the performance of her own trust. We hold that the Trustees' Accounting Act bars Anderson's claims and the trial court

properly granted Dussault, Wells Fargo, and McMenamin summary judgment. Moreover,

because this issue is dispositive, we do not address the parties' other claims. We affirm the trial court.

ATTORNEY FEES

Dussault and Wells Fargo both request reasonable costs and attorney fees pursuant to

1 and the RAP 18. Washington Trust and Estate Dispute Resolution Act ( TEDRA "),ch. 11. 6A " 9

RCW. TEDRA provides,

Either the superior court or any court on appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a)From any party to the proceedings; b) ( from the assets of the estate or trust involved in the

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proceedings .. .to be paid in such amount and in such manner as the court determines to be equitable. In exercising its discretion under this section, the court may consider any and all factors that it deems to be relevant and appropriate, which factors may but need not include whether the litigation benefits the estate or trust involved.

RCW 11. 6A. 150( 1). 9

As Anderson's claims against Dussault and Wells Fargo lack merit, we grant their request

for costs and attorney fees in an amount to be determined by our commissioner. RAP 18. ( f). 1

QUINN- BRINTNALL, J. We concur:

Al f f

J. A. . C J014A DALTON, J. . T. P