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. Stanard v. Bolin, 88 Wn.2d 614, 565 P.2d 94 (1977)..................................................... 17

Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3............................................................................................................................. 6

Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977)..................................................... 18

Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977)............................................... 17, 18

Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983).................... 21

Bly v. Pilchuck Tribe No. 42, Improved Order of Red Men, 5 Wn. App. 606, 489 P.2d 937 (1971) 16

Brown v. MacPherson's, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975)................................... 18

Bruce v. Byrne-Stevens & Assocs. Eng'rs, 51 Wn. App. 199, 752 P.2d 949 (1988), rev'd on other grounds, 113 Wn.2d 123, 776 P.2d 666 (1989).................................................................................. 19

Collins v. King County, 49 Wn. App. 264, 742 P.2d 185 (1987), overruled on other grounds, 119 Wn.2d 91, 829 P.2d 746 (1992)............................................................................................................. 19

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977).................. 18

Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978................. 18

Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978)................ 17

Cutler v. Phillips Petro. Co., 124 Wn.2d 749, 881 P.2d 216 (1994), cert. denied, 513 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995).............................................................................................. 17

Downtown Traffic Planning Comm. v. Royer, 26 Wn. App. 156, 612 P.2d 430 (1980), superseded by statute on other grounds, Snohomish County v. State, 69 Wn. App. 655, 850 P.2d 546 (1993).. 20

Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 549 P.2d 9 (1976)............................................ 21

Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)............................... 6

Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)............................. 16

Gain v. Carroll Mill Co., 114 Wn.2d 254, 787 P.2d 553 (1990)....................................... 19

Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966)....................... 18

Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978)................................................ 17

Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988)....................................................... 6

Hofto v. Blumer, 74 Wn.2d 321, 444 P.V2d 657 (1968)................................................. 18

In re Estate of Black, 116 Wn. App. 476, 483, 66 P.3d 670 (2003), aff’d, 153 Wn.2d 152, 102 P.3d 796 (2004). Review de novo on the entire record. Black, 116 Wn. App. at 483............................ 5, 6

In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8......................................................................................................................................... 6

Lien v. Barnett, 58 Wn. App. 680, 794 P.2d 865 (1990).................................................. 17

Madison v. General Acceptance Corp., 26 Wn. App. 387, 612 P.2d 826 (1980.............. 20

Meyer v. Dempcy, 48 Wn. App. 798, 740 P.2d 383 (1987)............................................. 20

Neigel v. Harrell, 82 Wn. App. 782, 919 P.2d 630 (1996).................................................. 6

Pelly v. Behneman, 168 Wash. 465, 12 P.2d 422 (1932); Gray v. Gregory, 33 Wn.2d 713, 207 P.2d 194 (1949) 18

Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838 P.2d 128 (1992)............................. 6

Roth v. Bell, 24 Wn. App. 92, 600 P.2d 602 (1979); Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)............................................................................................................................ 19

Sherwood v. Moxee Sch. Dist. No. 90, 58 Wn.2d 351, 363 P.2d 138 (1961).................. 18

Siegrist v. Simpson Timber Co., 39 Wn. App. 500, 694 P.2d 1110 (1985)...................... 20

State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926)................................ 22

Federal Accounting Standards Advisory Board............................................................... 11

CR12(b)............................................................................................................................... 8

CR12(b)(6).......................................................................................................................... 6

CR12(b)(6)]......................................................................................................................... 8

RAP 2.3(b)(1), (2),and (3).......................................................................................... passim

General Accepted Accounting Principles.......................................................................... 11

ORDER RECOGNIZING GUY M.’S WITHDRAWAL OF HIS MOTION FOR ACCOUNTING AND BILLING INFORMATION

This matter having come before the court upon Guy M.’s Motion for Accounting and Billing Information, and the court having reviewed the Motion, and the files and records herein, including all documents filed in support of and opposition to, and having heard the argument of counsel and pro se Guy M., it is therefore, hereby ORDERED that Guy M.’s motion for Accounting & Billing information is recognized as withdrawn as Guy M. is in receipt of the Personal Representative/Trustee’s Accounting for the period of January 1, 2010 through December 31, 2010 as well as Eisenhower & Carlson’s unredacted billing statements from July 28,2008 through March 31, 2011. The Court further denies Guy M.’s request for attorney’s fee and costs and reserves determination of the Personal Representative/Trustee’s request for attorney fees pending the filing of a Declaration supporting said attorney fees.

A copy of the court order is attached to this motion. Guy will designate clerk’s papers, and Guy will file a verbatim report as soon as it is available.

In probate cases, the standard of review is de novo on the entire record (Estate of Black,[1] Neumann v. Albright [2]) and extends to the whole controversy (Hutchinson Cancer Research Center [3]). Also, "findings, which are actually mixed findings of fact and conclusions of law that deal with the interpretation of a trust, are reviewed de novo” (Estate of Olson.[4]). Therefore, the entire controversy, and mixed facts and conclusion of law, are reviewed de novo. (Estate of Black,[5] Neumann v. Albright,[6] Hutchinson Cancer Research Center,[7] Estate of Olson.[8])

Additionally, in nonsuit cases [CR12(b)(6)], the standard of review is also de novo. (Neigel v. Harrell,[9] Fondren v. Klickitat County,[10] Roe v. Quality Transp. Servs.,[11] Hoffer v. State.[12])

On April 6, 2011 in Superior Court, Guy filed his “Motion for Accounting and Billing Information.” Guy requested that the Trustee provide an Annual Statement for the year 2010 for the Dorothy M. Trust. Guy requested billing information on the Personal Representative’s attorney fees and on the Trustee’s attorney fees, which they had not provided for the 3 ½ years.

The record shows that Guy never requested nor agreed to withdraw his motion. Neither did the PR/Trustee present arguments that Guy had withdrawn his motion. In fact, Guy strongly protested the Judge’s use of the term “withdrawn,” and Guy requested that the Judge use a different term. However, the Judge insisted on declaring that Guy had “withdrawn” his motion.

The Judge’s only possible basis for declaring that Guy had involuntarily withdrawn his motion is if Guy had failed to state a claim upon which relief could be granted. That is the very definition of a nonsuit, and the principles of nonsuit apply. [CR12(b)(6)].

CR12(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: …, (6) failure to state a claim upon which relief can be granted, … ... If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by rule 56.

However, there remained several claims in Guy’s motion upon which relief could be granted, but which the court did not address. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

1. “Guy M. requests the Court to order accounting statements from the Dorothy M. Trust to be mailed to beneficiaries within 5 days.

2. Sources and uses of funds should be detailed since the last accounting in March 2008”

3. PR/Trustee’s attorney fees and cost should be detailed for 2008, 2009, 2010, and 2011 to date, which he has not provided.

4. The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen.[15] ) Each distinct legal entity requires separate accounting (which also includes billing and detailed sources and uses of funds). PR/Trustee should provide this for 2008, 2009, 2010, and 2011 to date, which he has not provided in the past. Each year should be separate as required for accounting purposes, or such years and separation as determined by the court.

7. Guy requests that the PR/Trustee provide a complete description and purpose of the secret work being done and billed under the redacted attorney fee items listed above. (Requested in Addendum 1 to Guy’s motion.)

8. Guy requests the same for any other attorney work that has not been revealed to the beneficiaries in writing by the PR/Trustee. (Requested in Addendum 1 to Guy’s motion.)

UNMET REQUEST FOR RELIEF #A – SEPARATE ACCOUNTING FOR EACH LEGAL ENTITY

The PR/Trustee filed some nonresponsive pleadings that failed to meet Guy’s request for relief as follows:

The Personal Representative combined his accounting for the Estate with the Trustee’s accounting for the Trust into a single tally, which violated the fact that the Estate and the Trust are distinct legal entities.(Estate of McCuen.[16] )

Guy’s Request for Relief #4 -- “The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen.[17] ) Each distinct legal entity requires separate accounting (which also includes billing and detailed sources and uses of funds). PR/Trustee should provide this for 2008, 2009, 2010, and 2011 to date, which he has not provided in the past. Each year should be separate as required for accounting purposes, or such years and separation as determined by the court.”

Therefore Guy’s Request for Relief #4 could have been granted, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily withdrawn his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

When Dorothy M. controlled her own Charles Schwab Brokerage (CSB) account, it had over $62,000 in it. At that time, Dorothy discovered that Gregg was manipulating her accounts, and Dorothy had the Charles Schwab account frozen to block Gregg’s access.

For 6 years (2002-2008), the PR/Trustee failed to report the existence of Dorothy’s CSB account in any inventory or accounting. Finally, in 2008 the PR/Trustee reported his possession of Dorothy’s CSB account for the first time, but the PR/Trustee hid the CSB account as Footnote #3 in Trustee’s Interim Accounting. By then, the PR/Trustee had depleted the CSB account by $50,000, without accounting for the missing money.

Therefore, by General Accepted Accounting Principles,[18] every inventory and accounting filed by the PR/Trustee is accounting fraud. Every accounting filed by the PR/Trustee furthers his grand larceny theft from Dorothy’s Estate and Trust. Said theft and fraud is continued by the comingled Estate and Trust accounting filed by the PR/Trustee in response to Guy’s motion.

Guy’s Request for Relief #4 -- “The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen.[19] ) Each distinct legal entity requires separate accounting (which also includes billing and detailed sources and uses of funds)….

Implicit in Guy’s request for accounting is the requirement for nonfraudulent accounting. Guy’s request for honest, accurate, nonfraudulent accounting was not met. Therefore Guy’s Request for Relief #4 could have been granted, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily withdrawn his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

The Judge already had the PR/Trustee’s itemized fee demand for $500 and a declaration in support by the PR/Trustee’s attorney Wing. The Court could have and should have denied the PR/Trustee’s demand for attorney fees. Therefore Guy’s Request for Relief #6 could have been granted, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

Guy also requested that Guy’s attorney fees (if any) and costs should be paid by the PR/Trustee, which is a valid request because Guy did not withdraw his motion.

Therefore Guy’s Request for Relief #5 could have been granted, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

Guy filed his motion for accounting and billing information on April 6, 2011. PR/Trustee’s reply refused to provide an annual accounting for 2010, but the PR/Trustee did provide Guy with an itemized attorney’s bill for over $60,000.

In that bill were 17 entries for which the work description had been redacted. PR/Trustee’s accompanying affidavit stated that it was secret work the attorney’s were doing for the PR /Trustee. Included, in those 17 redacted items, were the following four items:

In Addendum 1 to Guy’s motion, Guy requested that the PR/Trustee provide a complete description and purpose of the secret work being done and billed under the redacted attorney fee items listed above.

Guy’s Request for Relief #7 – “Guy requests that the PR/Trustee provide a complete description and purpose of the secret work being done and billed under the redacted attorney fee items listed above.”

This failure to meet Guy’s request is noted in the court order on May 6, 2011:

“… Eisenhower & Carlson’s unredacted billing statements from July 28,2008 through March 31, 2011,”

Therein, the Court acknowledged that the PR/Trustee did not provide unredacted descriptions of work for billings on July 1^st, 2^nd, and two billings on July 7^,2008.

Therefore Guy’s Request for Relief #7 could have been granted, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

UNMET REQUEST FOR RELIEF #F – SEPARATE ATTORNEY FEES FOR EACH LEGAL ENTITY

The Personal Representative combined his itemized attorney fees with the itemized attorney fees for Trustee into a single billing statement, which violated the fact that the Estate and the Trust are distinct legal entities.(Estate of McCuen.[22] )

Guy’s Request for Relief #4 -- “The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen.[23] ) Each distinct legal entity requires separate accounting (which also includes billing and detailed sources and uses of funds). PR/Trustee should provide this for 2008, 2009, 2010, and 2011 to date, which he has not provided in the past. Each year should be separate as required for accounting purposes, or such years and separation as determined by the court.”

In order to protect the beneficiaries, PR/Trustee’s attorneys must provide sufficiently clear information to evaluate their billing by the following criteria:

Case Citation: [HN5] In fixing the amount to be allowed as a fee for the attorney of a decedent's personal representative, the court should consider the 1) amount and nature of the services rendered, 2) the time required in performing them, 3) the diligence with which they have been executed, the value of the estate, 4) the novelty and difficulty of the legal questions involved, 5) the skill and training required in handling them, 6) the good faith in which the various legal steps in connection with the administration were taken, and 7) all other matters which would aid the court in arriving at a fair and just allowance.

Estate of Carl Larson, Supreme Court Of Washington, 103 Wn.2d 517; 694 P.2d 1051; 1985 Wash. LEXIS 1063.

“Gregg M. (PR/Trustee) has repeatedly stated that he will not distribute any funds until Guy M. has surrendered all of Guy M.’s legal rights to pursue any legal action against Greg M. and the Dorothy M. Trust.”

Therefore Guy’s Request for Relief #4 could have been granted by separate fee statements for each legal entity (1) the Estate and (2) the Trust. .(Estate of McCuen.[24] ) But, Guy’s request #4 was not met, and the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

Guy’s Request for Relief #9: “Guy requests the same for any other attorney work that has not been revealed to the beneficiaries in writing by the PR/Trustee.” (Requested in Addendum 1 to Guy’s motion.)

The PR/Trustee did not even address the Guy’s question about other secret attorney work, which had not yet been discovered by Guy. Therefore, Guy’s Request for Relief #9 could have been granted by the Court, but the Court did not do so. The Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

The PR/Trustee made no argument or showing of fact at all to support a contention of nonsuit, when the PR/Trustee declared that Guy had involuntarily “withdrawn” Guy’s motion. Therefore, the Court should not have dismissed Guy’s claims as a nonsuit under the Court’s false declaration that Guy had involuntarily withdrawn his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authorities.

While plaintiffs should bear the burden at trial of proving fraud, perjury or other corrupt means, for the purposes of a motion made pursuant to subdivision (b)(6) of this rule, the defendants must show that no set of facts would entitle the plaintiffs to the relief they seek. Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995).

When a motion to dismiss made under subdivision (b)(6) or subdivision (c) of this rule is treated as one for summary judgment, the burden is on the moving party to show by competent evidence that no material fact is in issue. Bly v. Pilchuck Tribe No. 42, Improved Order of Red Men, 5 Wn. App. 606, 489 P.2d 937 (1971).

The court must presume that Guy’s statements of fact are true, which means the Court could have, but did not grant Guy’s unmet requests for relief. The Court is required to consider even hypothetical facts which support Guy’s unmet requests for relief. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authorities.

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the plaintiff's factual allegations are presumed to be true; furthermore, the court may consider hypothetical facts not part of the formal record. Lien v. Barnett, 58 Wn. App. 680, 794 P.2d 865 (1990).

In ruling on a subdivision (b)(6) motion, the court may consider specific allegations by the plaintiff to aid in evaluation of the legal sufficiency of the plaintiff's claim. Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978).

Any hypothetical situation conceivably raised by the complaint defeats a subdivision (b)(6) motion if it is legally sufficient to support plaintiff's claim. Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978).

Factual allegations of complaint must be accepted as true for purposes of a subdivision (b)(6) motion. Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977).

Factual contentions of complaint dismissed under subdivision (b)(6) must be accepted as true for purposes of review. Stanard v. Bolin, 88 Wn.2d 614, 565 P.2d 94 (1977).

Courts should dismiss a claim under subdivision (b)(6) only if it appears beyond a reasonable doubt that no facts exist that would justify recovery. Cutler v. Phillips Petro. Co., 124 Wn.2d 749, 881 P.2d 216 (1994), cert. denied, 513 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873 (1995).

Actual allegations of complaint must be accepted as true for purposes of a subdivision (b)(6) motion. Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978).

Complaint cannot be dismissed upon a subdivision (b)(6) motion if it is found to adequately allege a claim based upon some theory even if that theory is other than that advanced by plaintiff. Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977).

Under subdivision (b)(6), the only issue before the trial judge is whether it can be said there is no state of facts which the plaintiff could have proven entitling him to relief under his claim. Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977).

In passing upon a motion to dismiss for failure to state a claim upon which relief may be granted, a complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Sherwood v. Moxee Sch. Dist. No. 90, 58 Wn.2d 351, 363 P.2d 138 (1961); Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966); Hofto v. Blumer, 74 Wn.2d 321, 444 P.V2d 657 (1968); Brown v. MacPherson's, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975); Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977); Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978).

Superior Court dismissed Guy’s motion by declaring that Guy had involuntarily “withdrawn” his motion, which violated Guy’s right to plead further. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3) , per the following case authority.

Order for dismissal entered at the same time as order overruling demurrer is premature unless the demurring party has refused to plead further. Pelly v. Behneman, 168 Wash. 465, 12 P.2d 422 (1932); Gray v. Gregory, 33 Wn.2d 713, 207 P.2d 194 (1949).

Guy has the right to state claims upon which relief could be granted, even if they are hypothetical claims which Guy raises for the first time on appeal. But, the Court did not allow Guy to plead his claims. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authorities.

A dismissal of an action for failure to state a claim upon which relief can be granted should not be upheld on appeal if any state of facts could be proved under the complaint which would entitle the plaintiff to relief. A hypothetical situation asserted by the complaining party, not part of the formal record, may be considered by a court in making its determination, including facts alleged for the first time on appellate review. Collins v. King County, 49 Wn. App. 264, 742 P.2d 185 (1987), overruled on other grounds, 119 Wn.2d 91, 829 P.2d 746 (1992).

In determining whether there is any state of facts plaintiffs could prove entitling them to relief under their claim, appellate court accepts as true the factual allegations of the complaint and, if necessary, facts raised for the first time on appeal. Roth v. Bell, 24 Wn. App. 92, 600 P.2d 602 (1979); Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995).

Superior Court asked Guy to stipulate to his receipt of unredacted work descriptions from the PR/Trustee’s attorney. But, PR/Trustee’s attorney did not file the unredacted work descriptions in court. (See Exhibit A in “Supplemental Declaration of David B. Petrich Regarding Guy’s M.’s Motion for Accounting. Said Exhibit referred to the unredacted work descriptions but does not actually file them.) Per authorities below, that forces the Court to treat the PR/Trustee’s defense as a motion for summary judgment. [(CR56(b)(6) and CR56(c).] But instead, Superior Court declared that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authorities.

Where trial court considered stipulated facts, defendant's motion, styled as a motion to dismiss for failure to state a claim upon which relief could be granted, was properly treated by the trial court as a motion for summary judgment. Gain v. Carroll Mill Co., 114 Wn.2d 254, 787 P.2d 553 (1990).

A motion to dismiss for failure to state a claim will be treated as a motion for summary judgment when matters outside the pleadings are presented to and not excluded by the trial court. Bruce v. Byrne-Stevens & Assocs. Eng'rs, 51 Wn. App. 199, 752 P.2d 949 (1988), rev'd on other grounds, 113 Wn.2d 123, 776 P.2d 666 (1989).

When motions for dismissal for failure to state a claim upon which relief can be granted or for a judgment on the pleadings are supplemented by matters outside the pleadings, they are treated as motions for summary judgment. Siegrist v. Simpson Timber Co., 39 Wn. App. 500, 694 P.2d 1110 (1985).

Motion to dismiss for failure to state a claim will be considered as a motion for summary judgment when made after filing of answer. Madison v. General Acceptance Corp., 26 Wn. App. 387, 612 P.2d 826 (1980

At the end of Superior Court hearing on May 6, 2011, the PR/Trustee first stated that Guy had involuntarily “withdrawn” his motion, which is the same as the PR/Trustee presenting a defense of nonsuit . Because the PR/Trustee already filed an answer prior to his verbal statement that Guy had involuntarily “withdrawn” his motion, then the Court was obligated to treat the PR/Trustee’s defense as a Motion for Summary Judgment. Instead, the Court declared that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authorities.

If an answer is filed prior to a motion to dismiss for failure to state a claim upon which relief may be granted and the court considers matters outside the pleadings, the motion to dismiss is considered a motion for summary judgment. Meyer v. Dempcy, 48 Wn. App. 798, 740 P.2d 383 (1987).

Where court considers matters outside the pleadings in dismissing complaint, motion ruling must be treated as one on a motion for summary judgment. Downtown Traffic Planning Comm. v. Royer, 26 Wn. App. 156, 612 P.2d 430 (1980), superseded by statute on other grounds, Snohomish County v. State, 69 Wn. App. 655, 850 P.2d 546 (1993).

Therefore, Superior Court was obligated to give Guy a chance file a reply, which the court did not do before the Court declared that Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authority.

Where a trial court treats a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings as one for summary judgment, it should ordinarily ask all parties if they wish to present materials, but where the appealing party in fact presented materials and argued the motion as one for summary judgment, the trial court was not required on its own initiative to ask the question. Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983).

The PR/Trustee failed to affirmatively plead his defense that Guy had involuntarily “withdrawn his motion. The PR/Trustee defense was not pleaded or supported in any manner. The PR/Trustee failed to show that Guy made no request for relief that could be granted. The PR/Trustee did not even argue nonsuit. Instead the Court declared that Guy and involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3), per the following case authority.

If an affirmative defense is not affirmatively pleaded, asserted by motion or tried by express or implied consent of the parties, it is waived. Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 549 P.2d 9 (1976).

Review as an obvious error that would render further proceedings useless, , RAP 2.3(a)(1),.

Review as a probable error that substantially limits the freedom of a party to act;, RAP 2.3(a)(2)

Review as a “far departure from the accepted and usual course of judicial proceedings,” RAP 2.3(a)(3).

I, Guy M., declare, under penalty of perjury, under laws of Washington State, that the foregoing is true.

Verification of a pleading to effect that the party believes it to be true is not objectionable as a verification upon information and belief.

I, Guy M., certify that on the ____June 4, 2011_____, I served copies of the following document:

to the person(s) hereinafter named by depositing said copies in the United States mail, postage prepaid, addressed as follows:

I, Guy M., declare, under penalty of perjury, under laws of Washington State, that the foregoing Certificate of Service is true to the best of my knowledge and belief.

[1] In re Estate of Black, 116 Wn. App. 476, 483, 66 P.3d 670 (2003), aff’d, 153 Wn.2d 152, 102 P.3d 796 (2004). Review de novo on the entire record. Black, 116 Wn. App. at 483

[2] Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.

[3] In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8

[4] In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5

[5] In re Estate of Black, 116 Wn. App. 476, 483, 66 P.3d 670 (2003), aff’d, 153 Wn.2d 152, 102 P.3d 796 (2004). Review de novo on the entire record. Black, 116 Wn. App. at 483

[6] Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.

[7] In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8

[8] In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5

[9] Neigel v. Harrell, 82 Wn. App. 782, 919 P.2d 630 (1996)

[10] Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)

[11] Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838 P.2d 128 (1992)

[12] Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988).

[13] See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”

[14] See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”

[15] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[16] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[17] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[18] The term "generally accepted accounting principles" has a specific meaning for accountants and auditors. The GAAP principles are followed by all professional accountants, and the principles are set by the Federal Accounting Standards Advisory Board. See http://www.fasab.gov/accepted.html

[19] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[20] See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”

[21] See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”

[22] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[23] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.

[24] HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.