In re Carey, No. 40344-1-III (2026)

Case details
Full caption
In the Matter of the Estate of CAROL M. CAREY
Country
United States
Jurisdiction
Washington (WA)
Court
Washington Supreme Court
Decided
2026
Disposition
Affirmed
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 586674Only the Westlaw citation is currently available.NOTE: UNPUBLISHED OPINION,SEE WA R GEN GR 14.1UNPUBLISHED OPINIONCourt of Appeals of Washington, Division 3.In the Matter of the Estate ofCAROL M. CAREY, Deceased.TODD J. CAREY, Appellant,v.JILL M. WHITMAN; NATHAN MAY, Respondents.No. 40344-1-III|MARCH 3, 2026Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.OpinionCooney, J.*1 Todd Carey1 is one of the late Carol Carey's fivechildren. After Carol passed away, Todd and three of hissiblings had a dispute about the distribution of the assetsof the Estate of Carol Carey (Estate) with their sister,Jill Whitman. The dispute was settled when the siblingsreached an agreement through the Trust Estate DisputeResolution Act (TEDRA), the provisions of which wereultimately satisfied under the filed “Non-Judicial DisputeResolution Agreement” (Agreement). Clerk's Papers (CP) at598 (some capitalization omitted). Ms. Whitman, as personalrepresentative (PR) of the Estate, later filed a “Declarationof Completion of Probate.” CP at 668. Thereafter, Todd filedthree petitions with the superior court, two of which requesteda report of affairs from Ms. Whitman and Nathan May, aformer successor PR of the Estate. Ms. Whitman and Mr. Maymoved for summary judgment dismissal of the petitions. Toddconsented to the superior court entering summary judgmentin favor of Ms. Whitman and Mr. May.Todd appeals, arguing that (1) he was wrongly removed asthe PR in an earlier proceeding, violating his right to dueprocess; (2) he was afforded ineffective assistance of counsel;(3) the Agreement should be invalidated because he signed itunder duress; (4) the court's order on summary judgment wasimproper; and (5) he should be awarded attorney fees. Ms.Whitman responds2 that (1) Todd's removal as PR and thevalidity of the Agreement are not properly before this court;(2) Todd had no right to effective counsel; and (3) we shoulddecline review of the order on summary judgment becauseTodd consented to the court entering the order. We agree withMs. Whitman and Mr. May and affirm.Both Ms. Whitman and Mr. May request their attorney feeson appeal. We grant their requests. Moreover, Ms. Whitmanrequests sanctions be imposed against Todd for filing thisfrivolous appeal, his noncompliance with the RAPs, and hisrepeated citations to fabricated or inapplicable case law. Weagree this appeal is frivolous and sanction Todd. Finally, wegrant Ms. Whitman's pending motions to strike two of Todd'simproper RAP 10.8 filings but decline her request to imposesanctions for these violations or for Todd's fabricated legalcitations.BACKGROUNDCarol passed away in 2019 and was survived by her fivechildren: Bryan Carey, Paul Carey, Todd Carey, CynthiaWarner, and Jill Whitman. In 2008, Carol executed her lastwill and testament that bequeathed her Estate to her fivechildren in equal shares and named Ms. Whitman as thePR of the Estate. In 2014, Carol executed a codicil to her2008 will. The codicil devised a residence, apartments, anda commercial building to Ms. Whitman. The remainder ofthe Estate was to be divided among Bryan, Paul, Todd, Ms.Warner, and Ms. Whitman “in equal shares, share and sharealike.” CP at 6.*2 In November 2019, after Carol's passing, Ms.Whitman filed a “Petition for Letters Testamentary; WaivingBond; Adjudicating Estate to be Solvent; and DirectingAdministration Without Court Intervention.” CP at 10. Carol'swill and codicil were admitted to probate. Bryan, Paul, Todd,and Ms. Warner objected to the ex parte order admitting thewill and codicil to probate and obtained an order vacatingit. The order vacated the entire order that admitted the willand codicil to probate, including the portion of the order that
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2appointed Ms. Whitman as PR of the Estate. The parties,however, recognized the order as only vacating the codicil toprobate. Bryan, Paul, Todd, and Ms. Warner filed a motionrequesting Nathan May be appointed as an independent PR ofthe Estate. The court denied the motion.In a separate, but later consolidated, TEDRA action, Bryan,Paul, Todd, and Ms. Warner requested the removal of Ms.Whitman as PR but did not propose a successor PR. Anotherpetition was filed a few months later by Bryan, Paul, Todd,and Ms. Warner requesting the removal of Ms. Whitman asPR and the appointment of Todd as successor PR, or, in thealternative, appointment of an independent PR.At the hearing on the petitions to remove Ms. Whitmanas PR, counsel for Bryan, Paul, Todd, and Ms. Warnerrequested the court appoint an independent PR instead ofTodd. Specifically, their attorney stated, “[Y]ou know, let'sbe clear. At this point, we're not even asking that one ofmy clients be named. We're just saying let's get someoneindependent in there and then—and we'll get some discoverygoing.” Rep. of Proc. (RP) (July 22, 2020) at 56. Theirattorney concluded the argument by stating, “Today we wouldlike Ms. Whitman to be removed as personal representativeand for the appointment of an independent administrator.” RP(July 22, 2020) at 68. About three months later, the courtissued an order removing Ms. Whitman as PR and appointingTodd as the successor PR, subject to the parties agreeing onan independent PR by October 31, 2020.Ms. Whitman moved for reconsideration, arguing, “[C]ounselfor petitioners did specifically state[ ] he was not askingthat one of his clients be appointed as administrator anddid request [an] independent administrator on multiple[occasions]” at the hearing. CP at 1122. No responses to themotion were filed. The court granted Ms. Whitman's motionfor reconsideration, ordered that Todd be removed as PR, andappointed Mr. May as successor PR.In early 2021, Ms. Whitman filed a notice of mediation underRCW 11.96A.300 in the original probate and in the TEDRAaction, requesting mediation of “[a]ll matters pertaining to”the Estate. CP at 450. The probate and the TEDRA actionwere later consolidated, and the case proceeded to mediationin May 2021. All interested parties were represented bycounsel.The mediation resulted in the Agreement that was signed byCarol's five children and Mr. May. The Agreement was laterfiled with the court. The Agreement stated, in relevant part:5. All Parties warrant that they have read this Agreement,fully understand their rights thereunder and are not actingunder any duress, compulsion or misrepresentation by anyperson........6. The Parties agree that upon execution of this AgreementJILL R. WHITMAN shall be re-appointed as PersonalRepresentative of the Estate of Carol M. Carey. The Partiesshall sign a stipulation and order appointing JILL R.WHITMAN as the Personal Representative of the Estatewith nonintervention powers and without bond not laterthan 12:00 p.m. May 7, 2021 ... The Parties waive any rightto a final accounting by NATHAN MAY.....10. Within thirty (30) days of the date of this Agreement,JILL R. WHITMAN as Personal Representative of theEstate of Carol M. Carey shall distribute to BRYANB. CAREY; PAUL L. CAREY; TODD J. CAREY; andCYNTHIA A. WARNER all shares of L.R. Bailey, Inc.held by the Estate or title in the name of Carol M. Carey;*3 ....13. Within one hundred eighty (180) days from the dateof this Agreement, JILL R. WHITMAN as PersonalRepresentative of the Estate of Carol M. Carey shall payto BRYAN B. CAREY; PAUL L. CAREY; TODD J.CAREY; and CYNTHIA A. WARNER the sum of fourhundred sixty thousand dollars ($460,000.00), payable tothe order of Northwest Elder Law Center IOLTA. JILLR. WHITMAN shall be entitled to use Estate funds tomake the payment required by this paragraph. In the eventthat JILL R. WHITMAN is unable to obtain financingto make said payment on time, then and in that eventthe Benton City Rental Properties shall be listed for salewith a commercial real estate broker and sold, and inthat event, the first four hundred sixty thousand dollars($460,000.00) of proceeds, after payment of closing costs,shall be paid to BRYAN B. CAREY; PAUL L. CAREY;TODD J. CAREY; and CYNTHIA A. WARNER ....14. Upon payment to BRYAN B. CAREY; PAUL L.CAREY; TODD J. CAREY; and CYNTHIA A. WARNER
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3as provided in the preceding paragraph and the distributionof the L.R. Bailey, Inc. stock, or in the alternative uponentry of the judgment provided for in the precedingparagraph, then BRYAN B. CAREY; PAUL L. CAREY;TODD J. CAREY; and CYNTHIA A. WARNER shallhave received their full and final distributive share of theEstate........25. Any dispute between the parties arising out of thisAgreement or the parties’ settlement shall be heard andresolved by Jan R. Armstrong, who shall serve and actas an arbitrator for such purpose, and whose decisionon any disputed matter shall be final, binding, and non-appealable ... The prevailing party/ies in an arbitrationaction shall be entitled to recover his/her/its reasonableattorneys’ fees, costs, and expenses from the other party/ies.CP at 603-07, 611.In early June 2021, Ms. Whitman, as PR of the Estate,executed an assignment of shares of L.R. Bailey, Inc., infavor of Bryan, Paul, Todd, and Ms. Warner. The payment of$460,000 was not made by November 6, 2021, 180 days afterthe Agreement was executed, causing Ms. Whitman to listthe Benton City Rental Properties for sale. When the propertysold in December 2021, counsel for Ms. Whitman delivereda $460,000 check to counsel for Bryan, Paul, Todd, and Ms.Warner.On November 15, 2023, Ms. Whitman filed a “Declaration ofCompletion of Probate” and a “Notice of Filing Declarationof Completion of Probate.” CP at 668-71. More than amonth later, Todd, acting pro se, filed a petition for an orderdirecting the former PR, Mr. May, to deliver a report of affairsof the Estate. Todd filed a second petition requesting thatMs. Whitman also deliver a report of affairs as well as athird petition titled “Petition for Procedure When PersonalRepresentative Recreant to Trust or Subject to Removal.” CPat 676. The third petition did not make a specific requestfor relief (The petition requesting an accounting from Ms.Whitman is not in the record but her response to the requestis.).Ms. Whitman filed a motion for summary judgment seekingdismissal of Todd's petitions and an award of attorney fees.Mr. May joined in the motion. Todd retained an attorneyand did not file a response to the motion for summaryjudgment. Rather, he submitted a declaration in opposition tothe requested fees and costs.*4 Todd and his attorney appeared at the hearing on themotion for summary judgment. Todd, through his attorney,moved to strike his petitions and stated, “We do not challengethe motion for summary judgment.” RP (Feb. 28, 2024) at209. The court confirmed there was no opposition to summaryjudgment and Todd's attorney, during her argument againstthe fee requests of Ms. Whitman and Mr. May, stated,So, once I was brought fully tospeed and was, you know, had afrank conversation with [Todd] Careyregarding the civil procedural barriersthat this Court faces regarding hispetitions, we made the decision tostrike those petitions to not oppose asummary judgment and then with thehopes to reduce some of the fees.RP (Feb. 28, 2024) at 212. The court granted summaryjudgment, dismissed Todd's petitions, and awarded attorneyfees to Mr. May and Ms. Whitman.Todd appeals. Following submission of the parties’ briefs,Todd filed an objection to Ms. Whitman's and Mr. May'srequest for attorney fees on appeal. Ms. Whitman respondedto Todd's objection, moved to strike the objection, andrequested sanctions be imposed against Todd.Todd also filed a notice of supplemental authority. Ms.Whitman responded to Todd's notice, moved to strike, andagain asked for sanctions against Todd. Both motions werereferred to the panel deciding the case.ANALYSISMOTION TO STRIKE TODD’S OBJECTION AND FORSANCTIONSMs. Whitman moves to strike Todd's objection to her'sand Mr. May's attorney fee requests and asks this court tosanction Todd. We strike Todd's objection because it is animproper attempt to submit supplemental briefing but declineto sanction him.
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Todd filed an objection to the request for attorney fees inDecember 2025, long after submission of his reply brief inJuly 2025. Todd filed a 55-page reply brief on the merits andcould have addressed Mr. May's and Ms. Whitman's attorneyfee requests there. He is not entitled to belatedly submitsupplemental briefing on the issue.Ms. Whitman also requests sanctions against Todd, notingthat he has repeatedly attempted to submit new argumentto this court under the guise of RAP 10.8 and has alreadyattempted to obtain leave to file a supplemental brief, whichwas denied. Though Ms. Whitman is correct and Todd hasclearly created more work for her, Mr. May, and this court,we decline to impose sanctions because, as discussed below,Todd is being sanctioned for filing this frivolous appeal.MOTION TO STRIKE TODD’S SUPPLEMENTALAUTHORITIES AND FOR SANCTIONSMs. Whitman moves to strike Todd's notice of supplementalauthority and for sanctions. We strike Todd's filing but declinesanctioning him.Todd filed a notice of supplemental authority contending thathe obtained a billing invoice that he alleged related to issueshe raised on appeal. Though he states the filing “does notseek to supplement the record under RAP 9.11 or requestnew factual determinations,” it appears that is the purpose ofTodd's filing. Appellant's RAP 10.8 Notice of SupplementalAuthority, In re Estate of Carey, No. 40344-1-III (Wash. Ct.App. Dec. 5, 2025). Todd does not include a citation to theclerk's papers for the invoice he references, and it is unclearwhere in the record the invoice could be found. RAP 10.8 isintended to allow citation to new authority, not supplementalargument or supplementation of the record. Again, as Ms.Whitman points out, Todd has repeatedly attempted to useRAP 10.8 for improper purposes. Thus, we strike his filing.However, because we are sanctioning Todd for filing thisfrivolous appeal, we decline to impose sanctions for thisviolation.MS. WHITMAN’S MOTION FOR RECONSIDERATIONOF THE ORDER REMOVING HER AS PR ANDAPPOINTING TODD*5 Todd argues Ms. Whitman's motion for reconsiderationof the order removing her as PR and appointing himas successor PR was improper, the court's order onreconsideration was erroneous, and these errors violatedhis right to due process. Ms. Whitman responds that thesearguments are untimely and not properly before this court.Ms. Whitman also contends Todd failed to follow the RAPsand provided this court with citations to fictitious cases.We agree with Ms. Whitman. Todd's claimed errors are notproperly before this court and Todd's citations to fictitiouscases preclude our review.Ms. Whitman contends Todd's purported errors related tothe court's order on reconsideration were not appealed andtherefore are not properly before this court. We agree. Themotion and order Todd complains of were filed in 2020,and no appeal of the order on reconsideration was filed.Rather, Todd simply appealed the court's order on summaryjudgment. Thus, we decline to address this argument.We further decline to address Todd's claimed error becausehe failed to provide sufficient legal authority supportinghis position. RAP 10.3(a)(6) requires a party to an appealto provide argument in support of the issues presented forreview and citations to relevant legal authority. The purposeof RAP 10.3(a) “is to enable the court and opposing counselefficiently and expeditiously to review the accuracy of thefactual statements made in the briefs and efficiently andexpeditiously to review the relevant legal authority.” Hurlbertv. Gordon, 64 Wn. App. 386, 400, 824 P.2d 1238 (1992).Consequently, we will not consider conclusory argumentsunsupported by citation to authority. Joy v. Dep't of Lab. &Indus., 170 Wn. App. 614, 629, 285 P.3d 187 (2012). Todd'scitations to fictious legal authority3 equates to a lack of legalauthority. Thus, we decline review of the arguments premisedon fictious authority.ASSISTANCE OF COUNSELTodd argues he was afforded ineffective assistance of counsel.Ms. Whitman responds that Todd did not have a constitutionalright to counsel during probate and the TEDRA proceedings.We agree with Ms. Whitman.Probate and TEDRA actions are civil matters. Theconstitutional right to effective assistance of counsel appliesto criminal proceedings, and “[n]o similar right is given toparties in civil actions.” Seventh Elect Church in Israel v.Rogers, 34 Wn. App. 105, 120, 660 P.2d 280 (1983). Todddid not have the right to effective assistance of counsel for theprobate and TEDRA proceedings.VALIDITY OF THE AGREEMENT
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.5Todd ostensibly contends the Agreement is unfair, and hesigned it under duress. He seemingly takes issue with theamount of time he was given to consider the Agreementand with its actual terms.4 We decline to address this issuebecause it is not properly before this court. As discussedabove, Todd only appealed the trial court's order on summaryjudgment.ORDER ON MS. WHITMAN’S AND MR. MAY’SMOTION FOR SUMMARY JUDGMENT*6 Todd argues the court's order on summary judgmentin favor of Ms. Whitman and Mr. May was inappropriate.Ms. Whitman responds that Todd consented to summaryjudgment and may not now appeal that order. We agree withMs. Whitman. At the hearing on the motion for summaryjudgment, Todd's counsel confirmed he did not oppose themotion. Consequently, the court entered an order grantingsummary judgment in favor of Ms. Whitman and Mr. May.Todd cannot be heard objecting in this court to that which heassented to in the superior court. Port v. Parfit, 4 Wash. 369,375, 30 P. 328 (1892).ATTORNEY FEESAll parties request their attorney fees on appeal. Because Toddhas not prevailed, he is not entitled to attorney fees. Ms.Whitman and Mr. May request their fees pursuant to RAP18.1, RCW 11.96A.150, RCW 4.84.185, and the Agreement.We grant Ms. Whitman's and Mr. May's requests.RAP 18.1(a) allows an award of attorney fees to a prevailingparty if “applicable law grants to a party the right to recoverreasonable attorney fees or expenses” and they comply withthe requirements of the rule. RCW 11.96A.150(1)(c) providesthat this court may, in its discretion, order a party to aTEDRA action to pay any other party's attorney fees “insuch an amount and in such manner as the court determinesto be equitable.” RCW 4.84.185 allows a prevailing partyto recover attorney fees for opposing a frivolous action ordefense. An appeal is frivolous “if no debatable issues arepresented upon which reasonable minds might differ, and it isso devoid of merit that no reasonable possibility of reversalexists.” Chapman v. Perera, 41 Wn. App. 444, 455-56,704 P.2d 1224 (1985). Finally, the Agreement states, “Theprevailing party/ies in an arbitration action shall be entitledto recover his/her/its reasonable attorneys’ fees, costs, andexpenses from the other party/ies.” CP at 611.Here, Ms. Whitman and Mr. May each complied with RAP18.1. Moreover, Todd's appeal is so devoid of merit that therewas no possibility for reversal, rendering his appeal frivolous.Attorney fees are also warranted under RCW 11.96A.150and the TEDRA Agreement itself because this action directlyconcerns the TEDRA Agreement.Ms. Whitman also requests sanctions against Todd for filingthis frivolous appeal, his failure to comply with the RAPs,and his multiple citations to fictious cases and authority.RAP 18.9(a). Indeed, Todd cited to incorrect, chimerical, orinapplicable case law throughout his briefing to support hisarguments. Where the case itself was not fabricated, Toddoften misquoted or misrepresented the holdings. We declineto sanction Todd for his use of fictitious case law and failureto comply with the RAPs but order sanctions for the filing thisfrivolous appeal.CONCLUSIONWe affirm the trial court's order on summary judgmentand decline review of Todd's purported errors that he waswrongly removed as PR, was afforded ineffective assistanceof counsel, and that the Agreement was signed by him underduress and should be invalidated. We award Ms. Whitman andMr. May attorney fees and costs and sanction Todd for filingthis frivolous appeal.A majority of the panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will befiled for public record pursuant to RCW 2.06.040.WE CONCUR:Staab, A.C.J.Murphy, J.All CitationsNot Reported in Pac. Rptr., 2026 WL 586674
In the Matter of the Estate of CAROL M. CAREY,..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1We use first names where individuals share a last name. No disrespect is intended.2Pursuant to RAP 18.1 and RCW 11.96A.150, Mr. May joined and adopted by reference all portions of Ms.Whitman's brief. However, he did make an independent request for attorney fees that is addressed below.3See, e.g., Opening Br. of Appellant Todd Carey at 65 (citations to In re Estate of Stoler, 113 Wn. App. 104(2002) (this citation appears to correspond to State v. Neely, 113 Wn. App. 100, 52 P.3d 539 (2002), acriminal case with no applicability to estate law or TEDRA) and Estate of Wallace v. Palmer, 103 Wn. App.1064 (2000), neither of which appear to exist), 36, 38; (citation to In re Estate of Powers, 255 Ill. App. 3d 1006(1994), which does not appear to exist, and Perez v. Pappas, 98 Wn.2d 835, 659 P.2d 475 (1983), which isinapplicable to his argument); 41-42 (citations to McIntosh v. McIntosh, 282 Ga. 610, 652 S.E.2d 546 (2007),and In re Estate of Griffith, 327 P.3d 612 (Colo. 2014), neither of which appear to exist).4Todd also makes claims in passing regarding: TEDRA being “exploited” and used against him, Ms. Whitman'salleged “self-dealing,” and the real estate agent that helped Ms. Whitman sell properties formerly belongingto the Estate engaged in fraud, among other things. Reply Br. of Appellant Todd Carey at 8, 11, 16. Becausethese claims are supported by little, if any, argument or authority, we decline to address them. Palmer v.Jensen, 81 Wn. App. 148, 153, 913 P.3d 413 (1996) (“Passing treatment of an issue or lack of reasonedargument is insufficient to merit judicial consideration.”).End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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