_________AFTER FILING, CASE WAS ASSIGNED NO. 42213-1-II

_________No. _________________

_________COURT OF APPEALS OF WASHINGTON STATE
_________DIVISION II

____________________________________________________
___________________________|
Guy M.______________________|
_Appellant, Pro se_____________| Related Cases:
_Beneficiary_________________| Court of Appeal Case No. 38243-1-II
___________________________|
______v.____________________| Trial Cases:
___________________________| Pierce Co Superior Ct No 03-4-01245-1
Gregg M._____________________| Consolidated with No. 08-4-00411-5)
_Respondent _________________|
_Personal Representative/Trustee_|
____________________________|
____________________________| MOTION FOR DISCRETIONARY
____________________________| REVIEW OF COURT ORDER
In re Dorothy M. Estate and _______| DATED 5/06/2011
Trust________________________|
Deceased on 12/10/2002 ________|
____________________________|____________________________



MOTION FOR DISCRETIONARY REVIEW OF COURT ORDER DATED 5/06/2011


Filed by Appellant:
Guy M.
Pro Se, Beneficiary,
Son of Dorothy M.

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TABLE OF CONTENTS

Table Of Authorities 4
Motion For Discretionary Review Of Court Order Dated 5/06/2011 5
Review Requested On Court Order 5
Standard Of Review And Scope Of Review 5
Statement Of Facts 6
Arguments 8
Guy Did Not Withdraw His Motion; The Court Declared Nonsuit 8
Guy’s Claims For Relief Which Remain Unmet 8
Unmet Request For Relief #A – Separate Accounting For Each Legal Entity 9
Unmet Request For Relief #B – Honest Accounting Without Fraud 10
Unmet Request For Relief #C – Deny PR/Trustee Attorney Fees 12
Unmet Request For Relief #D – Guy’s Attorney Fees And Costs 13
Unmet Request For Relief #E – Unredacted Work Descriptions 13
Unmet Request For Relief #F – Separate Attorney Fees For Each Legal E 14
Unmet Request For Relief #G – Reveal Other Secret Attorney Work 16
PR/Trustee Failed His Burden Of Proof 16
The Court Must Presume That Guy’s Statements Of Fact Are True 17
Guy Had The Right To Plead Futher 18
Guy Can Raise New Facts On Appeal 18
Defense Must Be Treated As A Motion For Summary Judgment 19
PR/Trustee Waived His Right To Nonsuit Defense 21
Request For Relief 21
Declaration 22
Parties 22
Certificate Of Service 23
Copy Of Court Order Dated 5/06/2011 24


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TABLE OF AUTHORITIES

Cases
. 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
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

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Cases
. 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
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
Other Authorities
Federal Accounting Standards Advisory Board 11
Rules
CR12(b) 8
CR12(b)(6) 6
CR12(b)(6)]. 8
RAP 2.3(b)(1), (2),and (3) passim
Regulations
General Accepted Accounting Principles 11

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MOTION FOR DISCRETIONARY REVIEW OF COURT ORDER DATED 5/06/2011


REVIEW REQUESTED ON COURT ORDER:

Guy M. requests review of the following court order, dated May 6, 2011.
Re the Estate of DOROTHY M.
Deceased

The Honorable Thomas Larkin
NO. 03-4-01245-1

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.

Done in open court this 6 day of May, 2011.
Honorable Thomas Larkin

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.

STANDARD OF REVIEW AND SCOPE OF REVIEW

In probate cases, the standard of review is de novo on the entire record (Estate of Black [footnote 1], Neumann v. Albright [footnote 2] ) and extends to the whole controversy (Hutchinson


-----
Footnote 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

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Cancer Research Center [footnote 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. [footnote 4] ). Therefore, the entire controversy, and mixed facts and conclusion of law, are reviewed de novo. (Estate of Black [footnote 5], Neumann v. Albright [footnote 6], Hutchinson Cancer Research Center [footnote 7], Estate of Olson [footnote 8]. )

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

STATEMENT OF FACTS

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.

-----------

Footnote 2 -- Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.
Footnote 3 -- In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8
Footnote 4 -- In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5
Footnote 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
Footnote 6 -- Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.
Footnote 7 -- In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8
Footnote 8 -- In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5
Footnote 9 -- Neigel v. Harrell, 82 Wn. App. 782, 919 P.2d 630 (1996)
Footnote 10 -- Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)
Footnote 11 -- Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838 P.2d 128 (1992)
Footnote 12 -- Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988).


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On April 12, 2011, the PR/Trustee filed the Personal Representative & Trustee’s response [footnote 13]. Therein, the PR/Trustee cited COA 38243-1-II and refused to provide the Trust’s Annual Statement requested by Guy. PR/Trustee’s attorney also filed a declaration [footnote 14] demanding $500 in attorney fees for responding to Guy’s motion.

Then, prior to the hearing on May 6, 2011, the PR/Trustee did an about face and voluntarily filed some accounting information. However, that information was not responsive to Guy’s requests for relief.

In the hearing on May 6, 2011, PR/Trustee’s attorney read aloud a draft order, which stated that Guy had involuntarily “withdrawn” his motion. That was the first time that the PR/Trustee made that statement, and the PR/Trustee made it without supporting arguments. Then Superior Court signed that order, which Guy is now appealing.

In said order, Judge Larkin stated that he was recognizing Guy’s involuntarily withdrawal of his motion. However, Guy made no such withdrawal. In the hearing, Guy strongly protested the use of the term “withdrawn” by the Judge. Guy also raised his unmet requests for relief, for example Guy’s opposition to the PR/Trustee’s declaration and pleading which demanded $500 in attorney fees. However, Judge Larkin unilaterally declared that Guy was involuntarily withdrawing his motion anyway.

------------
Footnote 13 -- See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”
Footnote 14 -- See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”


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ARGUMENTS


GUY DID NOT WITHDRAW HIS MOTION; THE COURT DECLARED NONSUIT.

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)].

Rule 12. Defenses and objections

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).

GUY’S CLAIMS FOR RELIEF WHICH REMAIN UNMET

Guy’s motions made the follow requests for relief:


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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. [footnote 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.

5. Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee

6. PR/Trustee should be denied his attorney fees and cost related to this motion, because this motion would not have been needed if the PR/Trustee fulfilled his legal duties in a timely manner, and in accordance with Guy’s several requests (as listed above).

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:

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


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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.[footnote 16])

This failed to meet Guy’s Request for Relief #4.

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. [footnote 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).

UNMET REQUEST FOR RELIEF #B – HONEST ACCOUNTING WITHOUT FRAUD

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

------------------
Footnote 16 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.
Footnote 17 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.


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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 [footnote 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.

Therefore Guy’s Request for Relief #4 was not met.

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. ) 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).

--------------
Footnote 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 www.fasab.gov/accepted.html
Footnote 19 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.


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UNMET REQUEST FOR RELIEF #C – DENY PR/TRUSTEE ATTORNEY FEES

On April 12, 2011, the PR/Trustee filed the Personal Representative & Trustee’s response [footnote 20]. Therein, the PR/Trustee cited COA 38243-1-II and refused to provide the Trust’s Annual Statement requested by Guy. PR/Trustee’s attorney also filed a declaration [footnote 21] demanding $500 in attorney fees for responding to Guy’s motion. But then, the PR/Trustee did an about face and voluntarily provided an accounting for year 2010, which made the PR/Trustee’s previous objection into a frivolous pleading.

Therefore, the PR/Trustee’s demand for $500 in attorney fees should have been denied, which was part of Guy’s Request for Relief #6.
Guy’s Request for Relief #6 -- “PR/Trustee should be denied his attorney fees and cost related to this motion, because this motion would not have been needed if the PR/Trustee fulfilled his legal duties in a timely manner, and in accordance with Guy’s several requests (as listed above).”

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).


---------------------
Footnote 20 -- See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”
Footnote 21 -- See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”


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UNMET REQUEST FOR RELIEF #D – GUY’S ATTORNEY FEES AND COSTS

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.

Guy’s Request for Relief #5—“Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee.”

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).

UNMET REQUEST FOR RELIEF #E – UNREDACTED WORK DESCRIPTIONS

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:

7/01/08 ‘ DBP <-- REDACTED DESCRIPTION OF WORK $ 229.50

7/02/08 DBP .20 <-- REDACTED DESCRIPTION OF WORK $ 51.00

7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK $ 153.00

7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK $ 153.00

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.


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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.”

However, the PR/Trustee failed to provide unredacted descriptions of work for:

7/01/08 DBP <-- REDACTED DESCRIPTION OF WORK
7/02/08 DBP .20 <-- REDACTED DESCRIPTION OF WORK
7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK
7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK

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 1st, 2nd, 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.[footnonte 22])

That failed to meet Guy’s Request for Relief #4.

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. [footnonte 23])

-----------------
Footnote 22 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.
Footnote 23 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294


----------------- page 14 ------------

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.

This is particularly important in light of John M.’s declaration, quote:

“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.”
(Filed in Superior Court on December 1, 2009.)

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. [footnote 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).

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


-------------- page 15 -----------


UNMET REQUEST FOR RELIEF #G – REVEAL OTHER SECRET ATTORNEY WORK

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).

PR/TRUSTEE FAILED HIS BURDEN OF PROOF.

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).


--------------------- page 16 --------------


THE COURT MUST PRESUME THAT GUY’S STATEMENTS OF FACT ARE TRUE

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).


------------------- page 17 -------------


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).

GUY HAD THE RIGHT TO PLEAD FUTHER

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 CAN RAISE NEW FACTS ON APPEAL

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


---------------- page 18 --------------


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).


DEFENSE MUST BE TREATED AS A MOTION FOR SUMMARY JUDGMENT.

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).



------------------ page 19 -------------


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


------------------ page 20 ---------------


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).


).
PR/TRUSTEE WAIVED HIS RIGHT TO NONSUIT DEFENSE

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).


REQUEST FOR RELIEF

Guy requests discretionary review by the Court of Appeals.

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).


--------------- page 21 ----------------


Declaration

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

______________________Date: June 4, 2011
Guy M.
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX

Case Citation Regarding Unsworn Declarations
Verification of a pleading to effect that the party believes it to be true is not objectionable as a verification upon information and belief.
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926).

PARTIES
Filed by Beneficiary, Pro Se
Guy M.
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX

Personal Representative / Trustee
Gregg M., PR/Trustee
David Petrich, attorney
Eisenhower and Carlson LLP
1201 Pacific Avenue, #1200
Tacoma, WA 98402


------------------- page 22 --------------


CERTIFICATE OF SERVICE

I, Guy M., certify that on the ____June 4, 2011_____, I served copies of the following document:
NOTICE OF APPEAL OF COURT ORDER DATED 5/06/2011
to the person(s) hereinafter named by depositing said copies in the United States mail, postage prepaid, addressed as follows:

David Petrich
Eisenhower & Carlson
1201 Pacific Avenue, Suite 1200
Tacoma, WA 98402

Unsworn Declaration
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.

___________________ Date: June 4, 2011
Guy M.
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX



Filed with:
Clerk of Courts
Washington Court of Appeals Division 2
950 Broadway, Suite 300
Tacoma, WA 98402-4454


--------------- page 23 ---------------

COPY OF COURT ORDER DATED 5/06/2011


--------------- page 24 ----------------

______________________No. 42213-1-II

_________COURT OF APPEALS OF WASHINGTON STATE
_________DIVISION II

____________________________________________________
___________________________|
___________________________| Court of Appeal Case No 42213-1-II
Guy M.______________________|
_Appellant, Pro se_____________| Related Cases:
_Beneficiary__________________| Court of Appeal Case No 38243-1-II
___________________________|
______v.____________________| Trial Cases:
___________________________| Pierce Co Superior Ct No 03-4-01245-1
Gregg M._____________________| Consolidated with No. 08-4-00411-5)
_Respondent _________________|
_Personal Representative/Trustee_|
____________________________| APPELLANTS REPLY RE
____________________________| MOTION FOR DISCRETIONARY
____________________________| REVIEW OF COURT ORDER
In re Dorothy M. Estate and _______| DATED 5/06/2011
Trust________________________|
Deceased on 12/10/2002 ________|
____________________________|____________________________



APPELLANTS REPLY RE MOTION FOR DISCRETIONARY REVIEW OF COURT ORDER DATED 5/06/2011


Filed by Appellant:
Guy M.
Pro Se, Beneficiary,
Son of Dorothy M.


------------- page 1 ---------------


TABLE OF CONTENTS

Motion To Allow Overlength Reply 4
Appellant’s Reply Re Motion For Discretionary Review Of Court Order Dated 5/06/2011 4
English Language 4
Standard Of Review Of Probate And Trust Cases 4
Argument – Judge Larkin’s Two Lies Fraudulently “Recognized” Guys Motion As Withdrawn 4
Argumment – The Judge Larkin’s Lie Is Not Merely A Mistatement In The Title Of The Order, As Claimed By The Respondent 5
Argument – Respondent Acknowledge That Judge Larkin’s Order Is A Lying Fraud 5
Argument – Judge Lakin Falisified The Court Record 6
Argument – Respondent’s False Claim That Judge Larkin’s Lying Order Was Inconsequential 7
Argument – Far Deviation From Accepted Judicial Proceeding 10
Argument – Law Of The Case COA 38243-1-II Does Not Apply To This Case COA 42213-1-II 11
Argument - COA 38243-1-II Does Not Apply To Separation Of Estate Accounting From Trust Accounting 11
Argument - COA 38243-1-II Does Not Apply To The Requirement For Trust Annual Statements 12
Argument -- COA 38243-1-II Does Not Apply To Judge Larkin’s Lying Order That Falsified The Record 14
Argument – Judge Larkin’s Order And The Respondent Failed The Test Of Nonsuit 14
Argument – Review By Right Because Order On Accounting Is A Final Judgment 15
Argument – Guy Should Be Awards Fees And Costs 16
Argument – Respondent Should Be Denied Attorney Fees. 16
Argument – In COA 38243-1-II, Three Judges Lied To Falsify Evidence So The Case Does Not Apply 17
Example #1 Of COA Evidence Fraud 18
Example #2 Of COA Evidence Fraud 18
Example #3 Of COA Evidence Fraud 20
Conclusion 22
Unsworn Declaration 23
Parties 23
Certificate Of Service 24


--------------- page 2 -------------


TABLE OF AUTHORITIES

Cases
First Small Business Investment Company of California v. Intercapital Corporation of Oregon, in the Superme Ct of Wash., 108 Wn.2d 324; 738 P.2d 263; 1987 Wash. LEXIS 1074 17
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926) 23
State v. Adamo, 120 Wash. 268, 207 P. 7 (1922) 19, 21
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902) 19, 21
State v. Constantine, 48 Wash. 218, 93 P. 317 (1908) 21
State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920) 19, 21
State v. Morris, 109 Wash. 490, 187 P. 350 (1920) 19, 21
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008) 10
State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009) 20
White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894) 21
Statutes
RCW 11.02.900 12
RCW 11.96A.150(1) 16
Rules
Civil Rule 9(c) 22
CJC 3(A)(3) 5
CJC 3(D)(1): 10
CR9(c) 22
ER 105 22
ER 106 21
ER 201(b)(2) 19
ER 403 20
RAP 18.1 16
RAP 18.9 16
RAP 2.2(a)(1) 12
RAP 2.2(a)(3 12
RAP 2.2(a)(3) 15
RAP 2.3 4
RAP 2.3(b)(1) 5, 6, 7, 9, 11, 13, 15
RAP 2.3(b)(2) 6, 7, 9, 12, 14, 15
RAP 2.3(b)(3) 5, 6, 7, 10, 11, 12, 14, 15
RCW 11.106.020 11, 13, 16
Constitutional Provisions
14th Amendment, U.S. Constitution 7


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MOTION TO ALLOW OVERLENGTH REPLY

Guy is filing a separate motion to allow overlength reply. The COA should take judicial notice that Supreme Court 85937-0 and 85871-3 both granted Guy’s request to allow overlength.

APPELLANT’S REPLY RE MOTION FOR DISCRETIONARY REVIEW OF COURT ORDER DATED 5/06/2011

ENGLISH LANGUAGE

Guy is pro se and will use common terms in the English language. A lie is a lie. And a person who lies is a liar. Guy will use such terms as appropriate to add specificity, clarity, and brevity to Guy’s pleadings.

STANDARD OF REVIEW OF PROBATE AND TRUST CASES

Contrary to respondent’s claim, there is no “heightened” standard of review, there is only RAP 2.3 (and 2.2 where applicable). Review is de novo per many authorities cited in Guy motion of discretionary review.

ARGUMENT – JUDGE LARKIN’S TWO LIES FRAUDULENTLY “RECOGNIZED” GUYS MOTION AS WITHDRAWN.

Judge Larkin’s 1st Lie is in the title of the order: “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information”

Judge Larkin’s 2nd Lie is in the body of the order: “…ORDERED that Guy M.’s motion for Accounting & Billing information is recognized as withdrawn…”


---------------- page 4 --------------


Judge Larkin lied twice in one order, proving that Judge Larkin is a liar so prejudiced against Guy that Judge Larkin is unfit to sit on this case [CJC 3(A)(1), CJC 3(A)(3) ], and the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ARGUMMENT – THE JUDGE LARKIN’S LIE IS NOT MERELY A MISTATEMENT IN THE TITLE OF THE ORDER, AS CLAIMED BY THE RESPONDENT.

Judge Larkin lied twice, once in the title and a second time in the body of the order, when Larkin “recognized” that Guy withdrew his motion, which Guy did not do. The record shows that Guy’s objection to the Judge’s lies was discussed at length. Guy pressed his objection to the Judge’s lies as far as possible in a hearing. Judge Larkin’s two lies are no mere oversight or clerical error.

The order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ARGUMENT – RESPONDENT ACKNOWLEDGE THAT JUDGE LARKIN’S ORDER IS A LYING FRAUD.

Nowhere in the Response did the Respondent claim that Guy had actually withdrawn his motion. Instead, Respondent acknowledged that the lying order did not portray true facts. Respondent knows that any claim for the truth of that Judge Larkin’s


-------------- page 5 --------------


lying court order, will quickly be proven false by the record. Therefore, the order must be reviewed per:

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

ARGUMENT – JUDGE LAKIN FALISIFIED THE COURT RECORD
The COA should note the malicious wording of Judge Larkin’s order, which is designed to falsify the record by claiming that Guy withdrew his motion. To falsify the record, Judge Larkin’s order stated that the court “recognized (Guy’s Motion) as withdrawn.” Since Guy did not withdraw his motion, Judge Larkin lied to falsify the record and to make it appear as if Guy had withdrawn his motion. Judge Larkin worded his lie to make it appears as if the Judge was merely recognizing a fact.

Judge Larkin and the Respondent acted in concert as a criminal team to clear the docket of Guy’s motion and deprive Guy of due process, because they did not want those issues to be before Superior Court or before the COA, while the Supreme Court had not yet determined whether or not to review of Supreme Ct. 85937-0 and 85871-3.


----------------- page 6 ---------------


Therefore, the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ARGUMENT – RESPONDENT’S FALSE CLAIM THAT JUDGE LARKIN’S LYING ORDER WAS INCONSEQUENTIAL

Respondent makes a false argument that Judge Larkin’s lying order had no substantial effect or prejudice against Guy. That is false on several counts:

1-- Judge Larkin’s lying order falsified the record by ordering that Guy had withdrawn his motion. The falsified record has a substantial prejudice against Guy.

1(a)-- Judge Larkin’s lying order would foreclose Guy’s opportunity to appeal because said order falsely claimed that Guy had abandoned all the issues and withdrawn his motion. Thereby, Judge Larkin’s lying order deprived Guy of due process and equal protection under the law (14th Amendment, U.S. Constitution.)

1(b)-- Judge Larkin’s lying order would force Guy to abandon Guy’s claims and requests for relief which remain unmet. Guy’s motion made the following requests for relief:


--------------------- page 7 ----------------


1(b)1 -- Guy M. requests the Court to order true accounting statements instead of fraudulent accounting statements that exclude $50,000 stolen by the PR/Trustee from Dorothy M.’s Charles Swab Brokerage account. After 9 years (2002-2011), the PR/Trustee has only revealed the depleted ending balance of said account, without revealing the beginning balance. Anyone who balances a check book knows that you have to start with a true opening balance.

1(b)2 -- Sources and uses of funds should be detailed since the last accounting in March 2008.” No sources and uses may remain redacted, and Guy’s motion for discretionary review proves that four items still remain redacted.

1(b)3 -- The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen. [footnote 1]) As a distinct legal entity, the Trust requires separate accounting (which also includes billing and detailed sources and uses of funds). The Trustee should provide annual statements for 2008, 2009, 2010, and 2011 to date, which he has not provided in the past, but which is required by RCW 11.106.020. Each year should be separate as required for accounting purposes and RCW 11.106.020.

1(b)4 -- Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee

1(b)5 -- Instead the PR/Trustee filed an objection to providing any accounting at all. Then after requiring a hearing on April 22, 2011, the PR/Trustee reversed his position and offered to provide some documents. But the PR/Trustee still maintains a

------------------
Footnote 1 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.


---------------- page 8 ---------------


declaration in Superior Court demanding $500 in fees for preparing his first objection, which he later abandoned. And, the PR/Trustee has not repudiated his declaration demanding $500 in fees to prepare his now abandoned objection to accounting. (See Exhibit 4, Appendix 29, Designated for CP.)

1(b)6 -- 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 in Guy’s motion for discretionary review. Four of those items are still redacted.

1(b)7 -- Guy requested detailed descriptions for any other attorney work that has not been revealed to the beneficiaries in writing by the PR/Trustee.

Judge Larkin’s lying order had the purpose and effect of clearing Guy’s motion off the docket, so that the Supreme Court could not take judicial notice of the issues in Superior Court before the Supreme Court ruled on review of Supreme Court 85937-0 and #85871-3. Judge Larkin’s lying court order would force Guy to abandon all his unmet requests for relief (listed above) because no one can appeal after he allegedly abandoned the issues and allegedly withdrew his motion.

Therefore, the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.


------------------ page 9 ---------------


RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ARGUMENT – FAR DEVIATION FROM ACCEPTED JUDICIAL PROCEEDING

Judge Larkin’s “Order Recognizing Guy M.’s Withdrawal Of His Motion” is a lying fraud, because Guy did not withdraw his motion and Guy vigorously objected to the Order during the hearing. There is no provision in RAP, Civil Rules, or statute for such an order that forced an involuntary withdrawal of Guy’s motion. Neither is there any case precedent for such an order. Judge Larkin’s lying order falsified the court record and so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order. RAP 2.3(b)(3) .

Judge Larkin’s lying Order on 5/06/2011 showed that Larkin is not competent in the law, and should be recused via CJC 3(A)(1): “Judges should be faithful to the law and maintain professional competence in it;

And: 2) Judge Larkin’s lying Order on 5/06/20112 falsified the record with his prejudicial lies against Guy, which require the Judge to be recused via CJC 3(D)(1): “Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.”

Regarding CJC 3(D)(1), the Court of Appeals of Washington, Division Two, in stated:

“Despite this canon's use of the word "should" rather than "must," a judge's duty to recuse is clear and nondiscretionary when one of the canon's specifically listed instances for disqualification is applicable.”
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008)


------------------- page 10 ----------------


Therefore the COA has a nondiscretionary duty is to recuse Judge Larkin.

Judge Larkin’s lying order falsified the court record and so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order. RAP 2.3(b)(3) .


ARGUMENT – LAW OF THE CASE COA 38243-1-II DOES NOT APPLY TO THIS CASE COA 42213-1-II.


ARGUMENT - COA 38243-1-II DOES NOT APPLY TO SEPARATION OF TRUST ACCOUNTING AND BILLING FROM ESTATE ACCOUNTING

In Guy’s motion for discretionary review, Guy merely asked for a separate annual statement for the Trust as required by RCW 11.106.020. However, Respondent combined the Personal Representative’s Estate annual report with the Trustee’s Trust Annual Statement. The Estate and Trust are separate legal entities, and the Trustee must present a separate Annual Statement, which remains to be done. (See authorities cited in Guy’s motion for discretionary review, see page 9, “Unmet Request For Relief #A – Separate Accounting For Each Legal Entity.” )

The COA 38243-1-II order terminating review did not address this issue, and hence there is no law of the case on this issue.

Therefore, there is no law of the case that mitigates Judge Larkin’s lying court order, and said order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.


------------------- page 11 ----------------


RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

Further, review by right should be granted because Trust accountings become final unless challenged. Hence, Superior Ct “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information” is a final judgment on the accounting, and the COA should grant review under RAP 2.2(a)(1) and RAP 2.2(a)(3). That is why COA 38243-1-II granted review by right.


ARGUMENT - COA 38243-1-II DOES NOT APPLY TO THE REQUIREMENT FOR TRUST ANNUAL STATEMENTS

Respondent cites In re Park’s Trust to claim that the Trustee had no obligation to file annual reports unless said omission caused harm to the beneficiaries. That is a false claim that is not supported by COA 38243-1-II or any other case.

First, when giving weight to In re Park’s Trust, the Court should note that In re Park’s Trust is an old case (1951), which 33 years before TEDRA was implemented in 1984. (RCW 11.02.900.) Second, the Court should note that no other case, except unpublished COA 38243-1-II Estate of Dorothy M., cites In re Park’s Trust. Third the Court should note that In re Park’s Trust did not absolve the Trustee’s failure to file annual reports. In re Parks’ Trust, the Court sanctioned the Trustee by requiring him to personally pay for a CPA to make the required accounting for the beneficiaries.


-------------------- page 12 ----------------


COA 38243-1-II stated that the Trustee could not be sanctioned for not filing Annual Statements, where there were only routine transactions to report. So, the Trustee could not be sanctioned for routine transactions, but the Trustee is still obligated to file annual statements per RCW 11.106.020, which does not give exceptions for routine transactions. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review.

Further, the Respondent had many non-routine transactions. First non-routine transaction: Trustee accumulated three years of attorney fee, totaling over $60,000. That is not a routine transaction that can go unreported. Even though the Trustee made periodic payments, a $60,000 expenditure is not an insignificant, routine transaction that should go unreported to the beneficiaries. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review.

Second non-routine transaction: The Respondent’s $60,000 in attorney fees included 17 items with redacted descriptions of work. Even to this day, four items still have redacted descriptions of work. (See Guy’s motion for discretionary review, page 13, “Unmet Request For Relief #E – Unredacted Work Descriptions.”) Secret attorney work, with redacted descriptions of work, are not routine transactions, and do not qualify for a reporting exemption even by the Respondent’s false interpretation of COA 38234-1-II.

Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.


----------------- page 13 ---------------


RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.
RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ARGUMENT -- COA 38243-1-II DOES NOT APPLY TO JUDGE LARKIN’S LYING ORDER WHICH FALSIFIED THE RECORD

Judge Larkin lied in his “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information.” Therein, Judge Larkin falsified the record because Guy did not withdraw his motion. COA 38243-1-II never addressed this issue, which did not exist then. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review per RAP 2.3(a),(b), and (c).

ARGUMENT – JUDGE LARKIN’S ORDER, AND THE RESPONDENT, FAILED THE TEST OF NONSUIT

The only possible justification Judge Larkin’s order had for forcing Guy to involuntarily withdraw his motion would be a nonsuit argument. Guy’s motion for discretionary review proved that Judge Larkin and the Respondent failed to make such an argument, which means they waived the argument of nonsuit. Additionally, they both failed to meet the requirements for nonsuit, CR 12, or CR 56. See Guy’s motion for discretionary review:


------------------- page 14 ---------------


PR/Trustee Failed His Burden Of Proof 16
The Court Must Presume That Guy’s Statements Of Fact Are True 17
Guy Had The Right To Plead Further 18
Guy Can Raise New Facts On Appeal 18
Defense Must Be Treated As A Motion For Summary Judgment 19
PR/Trustee Waived His Right To Nonsuit Defense 21

Therefore, there is no law of the case that mitigates Judge Larkin’s lying court order, and said order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.


ARGUMENT – REVIEW BY RIGHT BECAUSE ORDER ON ACCOUNTING IS A FINAL JUDGMENT

Further review by right should be granted because Trust accountings become final unless challenged. Hence, Superior Court “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information” is a final judgment on the Trust accounting, and the COA should grant review by right under RAP 2.2(a)(1) and RAP 2.2(a)(3) . That is why COA 38243-1-II granted its review by right.


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ARGUMENT – GUY SHOULD BE AWARDS FEES AND COSTS

Guy is represented pro se, so he does not have attorney fees. However, Guy should be awarded costs per RCW 11.96A.150(1) , RAP 18.9, and RAP 18.1.


ARGUMENT – RESPONDENT SHOULD BE DENIED ATTORNEY FEES.

Respondent has proven that he would rather litigate to circumvent the Annual Statement requirement of RCW 11.106.020 than to simply provide the Annual Statement as required by statute. Remember that on April 12, 2011 Respondent first filed a motion to deny any Annual Statement. (See Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information. Also filed in COA 42213-1-II as Exhibit 1, Appendix 29. Designated for CP.)

Then in a Superior Court hearing, the Respondent reversed his position and requested a continuance to meet Guy’s requests. (See Superior Court order, dated April 22, 2011, as Exhibit 2, Appendix 29. Designated for CP.)

However, said continuance was merely a subterfuge. Respondent failed to meet Guy’s original requests, which Guy listed above as unmet request.

Then in Superior Court hearing on May 6, 2011, Respondent’s attorney drafted Judge Larkin’s lying “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information.”

This appeal is entirely the Respondent’s fault, because he is not administering the Estate or Trust to benefit the beneficiaries. The Respondent is litigating in bad faith to convert all estate assets into his attorney fees. Respondent/PR/Trustee Gregg stated


------------------ page 16 --------------


that in his own words. (See John M.’s Declaration, which testifies to the Respondent’s personal statements. See Exhibit 3, Appendix 29. Designated for CP.)

This Court should not award attorney fees to the Respondent.

Further, the COA should note that in all Superior Court hearings, Superior Court did not award attorney fees to the PR/Trustee at Guy’s expense. And, in Supreme Court 85937-0 and 85871-3, the Supreme Court did not award attorney fees to the Respondent. The COA should take judicial notice of those decisions, and the COA should not award attorney fees to the Respondent either.

The only case that awarded attorney fees to the Respondent at Guy’s expense was COA 38243-1-II. That was because three COA Judges (J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar) went to extreme lengths and lied about the evidence in order to justify awarding attorney fees to the Respondent in what amounts to a payoff for political favors, so that the Judges can run for office in unopposed elections. Proof of the Judges’ lies about the evidence is shown below.


ARGUMENT – IN COA 38243-1-II, THREE JUDGES LIED TO FALSIFY EVIDENCE SO THE CASE DOES NOT APPLY.

When giving weight to COA 38243-1-II, the Court should discount the case as clearly erroneous, because the Judges Panel lied and falsified evidence in the case. Therefore the law of the case doctrine does not apply, and this Judges Panel should discount COA 38243-1-II.

Case quote: “The law of the case doctrine did not prevent the court from overruling a clearly erroneous decision.” First Small Business Investment Company of California v. Intercapital Corporation of Oregon, in the Supreme Ct of Wash., 108 Wn.2d 324; 738 P.2d 263; 1987 Wash. LEXIS 1074


------------------- page 17 -------------


The Rules of Evidence and known facts prove that the Judges statements were not true and they falsified evidence in COA 38243-1-II.
.
EXAMPLE #1 OF COA EVIDENCE FRAUD

Quote from COA 38243-1-II decision terminating review:

“Guy’s own actions further delayed the estate’s closure. Guy prevented the estate from closing in 2004 with his petition for an accounting, and the record is replete with his filings protesting Gregg’s activities as well as those of counsel for the estate.”

Per ER 201, the COA should take Judicial notice of the Superior Ct docket, which shows that during four years (between Guy’s petition for accounting in 2004 and Respondent’s petition to approve final accounting in 2008), the only filings made by Guy were notices of appearance and one request for special notice. That shows the COA is falsifying facts to blame Guy with nonexistent filings that allegedly delayed closing the Estate between 2004 and 2008.

EXAMPLE #2 OF COA EVIDENCE FRAUD

Quote from COA 38243-1-II decision terminating review:

“He (Guy) complains about the delays in closing this estate and complains about the significant attorney fees incurred in this estate, and I would agree with him on both counts; but I would also have Guy M. look at the reasons why there [have] been significant delays and significant fees. Report of Proceedings (RP) (June 27, 2008) at 7. (Respondent’s) Counsel added that he had received more than eight inches of material from Guy concerning the two petitions.”

Therein, COA quotes Respondent’s self-serving statement as evidence that Guy handed him “eight inches of material” concerning two petitions. Not only is the


------------------ page 18 --------------


statement provably false, but such self-serving statements are not admissible as evidence.

Case: “Self-serving statements are not admissible.”
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

The COA 38243-1-II claim is that Guy filed two pleadings, totaling eight inches thick, which delayed distribution of the beneficiaries’ inheritance. However, the COA and Respondent are both lying. No such pleadings exist.

The COA should take judicial notice of a commonly known and verifiable fact. (ER 201(b)(2)) Said fact is that a ream of copy paper is two inches thick and contains 500 pages. Therefore, the COA claims that Guy handed the Respondent two petitions totaling 2,000 pages on 6/27/2008. (Math calculation: four x 2-inch-thick reams = an 8 inch stack. Four reams of 500 pages each = 2,000 pages = an 8 inch stack.)

The COA should take judicial notice of the Superior Court docket which shows that Guy only filed two petitions totaling 44 pages, between 6/24/2008 to 6/27/2008. Hence, the COA’s claim is completely false that Guy filed two pleadings which total 8-inches-thick and comprise 2,000 pages. And the COA’s claim is false that Guy’s pleadings (8-inches thick) delayed distribution of inheritance because the COA just imagined that Guy’s 44 pages were eight inches thick and for the purposes of delay.

By contrast, The COA should take judicial notice that the Respondent filed four pleadings totaling 81 pages on the same dates, between 6/24/2008 – 6/27/2008., which is twice the number of pleadings and twice the number of pages filed in Guy’s petitions. The COA should take notice of the COA’s persistent use of fraudulent evidence in the


--------------------- page 19 ----------------


COA’s attempt to tar Guy as a frivolous litigant that delayed distribution of inheritance from 2004-2008.

In the interest of completeness, Guy did file two sets of exhibits between 6/24/2008 -6/27/2008, which totaled another 250 pages, and which stack one inch high. Even including the exhibits, Guy’s total filings on the dates in question stand approximately one inch tall, and are nowhere near the 8-inch thick stack of 2,000 pages claimed by the COA and the Respondent.

Finally, the COA’s claim that Guy filed two petitions totaling 8 inches thick (and comprising 2,000 pages) fails the evidence Balance Test in ER 403. The COA’s alleged evidence should be excluded because the COA failed to consider if the probative value of the Respondent’s false and inflammatory claim outweighed the risk of unfair prejudice.

“ER 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Case: Admission is subject to the court establishing that the evidence is relevant and that the probative value outweighs the risk of unfair prejudice under the modified ER 403 balancing test. State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009).


EXAMPLE #3 OF COA EVIDENCE FRAUD

Quote from COA 38243-1-II decision terminating review:

“As Gregg (the Respondent) stated, “A great deal of attorney time was devoted to dealing with Guy M.’s voluminous and irrelevant documents filed with the court.” CP at 483.”


------------------- page 20 ---------------


The COA should take judicial notice that said statement by the Respondent is not an evidentiary fact. Said statement makes conclusions of law that Guy’s pleadings were 1) excessively voluminous and 2) irrelevant. That is a conclusion de novo by the COA 38243-1-II, because Superior Court made no such finding.

The COA’s use of said statement from the Respondent is not evidence because it violates rules of evidence. Such a self serving statement by the Respondent is not evidence, it is merely a self-serving statement.

Case: “Self-serving statements are not admissible.”
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

The COA/Respondent’s claims that Guy’s pleadings were voluminous and irrelevant violated the rule of completeness (ER 106), because the COA failed to include any of Guy’s explanations.

“ER 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.”

Case: “Where part of a conversation is in evidence, entire conversation may be proven.” White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894).

Case: “It is error to exclude statement immediately preceding, made by person in conversation.” State v. Constantine, 48 Wash. 218, 93 P. 317 (1908).

Further, because COA 38243-1-II and the Respondent made claims of nonperformance by Guy (i.e. that Guy’s pleadings were voluminous and irrelevant), then the COA and Respondent must substantiate that claim specifically and with particularity.


------------------ page 21 ----------------



CR9(c). However, the COA specified no pleading and identified no particulars that verified voluminous or irrelevant documents. And, the Superior Ct docket already proved that the COA lied when it claimed that two of Guy’s petitions were 8-inches thick, comprising 2,000 pages.

Civil Rule 9(c) Condition precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

This case COA 42213-1-II should take judicial notice of fraudulent evidence used by the COA 38243-1-II in its trial de novo. (See Examples 1, 2, and 3, above.) The false evidence must have no role in evaluating Guy’s pleadings. Without the false evidence, the COA would have had no cause to award over $87,000 in attorney fees to the Respondent.

COA 42213-1-II should place limiting instructions on the false COA evidence in Examples 1, 2, and 3. (ER 105) Court instructions should limit use of said evidence to demonstrating the fact that the Respondent lied to the Court and the COA used false evidence to justify its decision awarding attorney fees to the Respondent.

COA 42213-1-II has no evidence or cause to award attorney fees to the Respondent. .


CONCLUSION

Based on the foregoing , Guy requests that COA grant discretionary review under RAP 2.3. Also, the COA should grant review by right under RAP 2.2 because Trust



----------------- page 22 ----------------



accountings become final judgments unless they are challenged. That is why COA 38243-1-II granted review by right.

Guy also requests an award costs pursuant to RCW 11.96A.150(1), RAP 18.9(a) and RAP 18.1. And the COA should deny attorney fees and cost to the Respondent.

Declaration

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


_____________________ Date: September 21, 2011
Guy M.
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX

Case Citation Regarding Unsworn Declarations
Verification of a pleading to effect that the party believes it to be true is not objectionable as a verification upon information and belief.
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926).

PARTIES
Filed by Beneficiary, Pro Se
Guy M.
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX

Personal Representative / Trustee
Gregg M., PR/Trustee
David Petrich, attorney
Eisenhower and Carlson LLP
1201 Pacific Avenue, #1200
Tacoma, WA 98402


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CERTIFICATE OF SERVICE

I, Guy M., certify that on the ____September 21, 2011_____, I served copies of the following document:
APPELLANT’S REPLY RE MOTION FOR DISCRETIONARY REVIEW OF COURT ORDER DATED 5/06/2011
to the person(s) hereinafter named by depositing said copies in the United States mail, postage prepaid, addressed as follows:

David Petrich
Eisenhower & Carlson
1201 Pacific Avenue, Suite 1200
Tacoma, WA 98402

Unsworn Declaration
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.

___________________ Date: September 21, 2011
Guy M.
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXX



Filed with:
Clerk of Courts
Washington Court of Appeals Division 2
950 Broadway, Suite 300
Tacoma, WA 98402-4454


------------------ page 24 --------------

______________________No. 42213-1-II

_________COURT OF APPEALS OF WASHINGTON STATE
_________DIVISION II

____________________________________________________
___________________________|
___________________________| Court of Appeal Case No 42213-1-II
Guy M.______________________|
_Appellant, Pro se_____________| Related Cases:
_Beneficiary__________________| Court of Appeal Case No 38243-1-II
___________________________|
______v.____________________| Trial Cases:
___________________________| Pierce Co Superior Ct No 03-4-01245-1
Gregg M._____________________| Consolidated with No. 08-4-00411-5)
_Respondent _________________|
_Personal Representative/Trustee_|
____________________________| MOTION TO MODIFY RULING
____________________________| DENYING REVIEW DATED 11/07/2011
____________________________|
In re Dorothy M. Estate and _______|
Trust________________________|
Deceased on 12/10/2002 ________|
____________________________|____________________________



MOTION TO MODIFY RULING DENYING REVIEW DATED 11/07/2011


Filed by Appellant:
Guy M.
Pro Se, Beneficiary,
Son of Dorothy M.


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TABLE OF CONTENTS

Table Of Authorities 4
Motion To Modify Ruling Denying Review Dated 11/07/2011 7
Motion To Allow Overlength Reply 7
English Language 7
Authority To Modify 7
Statement Of Facts 7
Supplemental Statement Of Facts 9
Standard Of Review And Scope Of Review 12
Modification Requested 13
Objection To Ruling 13
Assigned Error #1 14
Assigned Error #2 15
Assigned Error #3 15
Assigned Error #4 15
Assigned Error #5 15
Assigned Error #6 16
Assigned Error #7 16
Assigned Error #8 16
Assigned Error #9 16
Assigned Error #10 17
Assigned Error #11 17
Assigned Error #12 17
Assigned Error #13 17
Assigned Error #14 17
Assigned Error #15 17
Arguments 18
Assigned Error #16 -- Appeal By Right - Interim Trust Accounting Is A Final Judgment 18
Assigned Error - Case Citation 18
Assigned Error #17 – Judge Larkin Falsified The Record 18
Assigned Error #18 – Judge Larkin’s Two Lies Fraudulently “Recognized” Guys Motion As Withdrawn 19
Assigned Error #19 – Judge Larkin’s Lie Is Not Merely A Mistatement In The Title Of The Order, As Claimed By The Respondent 20
Assigned Error #20 –False Claim That Judge Larkin’s Lying Order Was Inconsequential 20
Assigned Error #21 – Far Deviation From Accepted Judicial Proceeding 23
Assigned Error #22 - Guy Did Not Withdraw His Motion; The Court Declared Nonsuit 24
Assigned Error #23 - Guy’s Claims For Relief Which Remain Unmet 25
Assigned Error #24 - Unmet Request For Relief #A – Separate Accounting For The Trust 26
Assigned Error #25 - Unmet Request For Relief #B – Honest Accounting Without Fraud 27
Assigned Error #26 - Unmet Request For Relief #C – Deny PR/Trustee Attorney Fees 28
Assigned Error #27 - Unmet Request For Relief #D – Guy’s Attorney Fees And Costs 29
Assigned Error #28 - Unmet Request For Relief #E – Unredacted Work Descriptions 30



-------------------- page 2 ---------------


Assigned Error #29 - Unmet Request For Relief #F – Separate Attorney Fees For Each Legal Entity 31
Assigned Error #30 - Unmet Request For Relief #G – Reveal Other Secret Attorney Work 32
Assigned Error #31 - PR/Trustee Failed His Burden Of Proof 33
Assigned Error #32 - The Court Must Presume That Guy’s Statements Of Fact Are True 34
Assigned Error #33 - Guy Had The Right To Plead Futher 35
Assigned Error #34 - Guy Can Raise New Facts On Appeal 35
Assigned Error #35 – Respondent’s Defense Must Be Treated As A Motion For Summary Judgment 36
Assigned Error #36 - PR/Trustee Waived His Right To Nonsuit Defense 38
Assigned Error #37 -- Law Of The Case COA 38243-1-II Does Not Apply To This Case COA 42213-1-II 38
Assigned Error #38 - Mandaory Judicial Notice At Any Stage Of The Proceedings 39
Assigned Error #39 - COA 38243-1-II Does Not Apply To Separation Of Trust Accounting And Billing From Estate Accounting 39
Assigned Error #40 - COA 38243-1-II Does Not Apply To The Requirement For Trust Annual Statements 40
Assigned Error #41 -- COA 38243-1-II Does Not Apply To Judge Larkin’s Lying Order Which Falsified The Record 43
Assigned Error #42 – Judge Larkin’s Order, And The Respondent, Failed The Test Of Nonsuit 43
Assigned Error #43 – Guy Should Be Awarded Fees And Costs 44
Assigned Error #44 - Respondent Should Be Denied Attorney Fees 44
Assigned Error #45 – In COA 38243-1-II, Three Judges Lied To Falsify Evidence So The Case Does Not Apply 46
Example #1 Of COA Judges’ Lies And Fraud 46
Example #2 Of COA Judges’ Lies And Fraud 47
Example #3 Of COA Judges’ Lies And Fraud 47
Example #4 Of COA Judges’ Lies And Fraud 47
Example #5 Of COA Judges’ Lies And Fraud 48
Example #6 Of COA Judges Lies And Fraud 50
Request For Relief 52
Unsworn Declaration 53
Parties 53
Certificate Of Service 54
Exhibit 1 – COA Ruling Denying Review, Dated 11/07/2011 55
Exhibit 2 - Superior Court Order Dated 5/06/2011 60
Exhibit 3 – Superior Court Order Dated 4/22/2011 Granting A Contiuance 62


------------------- page 3 ----------------


TABLE OF AUTHORITIES


Cases
. Stanard v. Bolin, 88 Wn.2d 614, 565 P.2d 94 (1977). 34
Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3 12
Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977) 35
Berge v. Gorton, 88 Wn.2d 756, 567 P.2d 187 (1977). 34, 35
Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983). 38
Bly v. Pilchuck Tribe No. 42, Improved Order of Red Men, 5 Wn. App. 606, 489 P.2d 937 (1971) 33
Brown v. MacPherson's, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975) 35
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). 37
Clark v. Cooper, 39 Wn.2d 407, 235 P.2d 469 (1951) 52
Clark v. Cooper, 39 Wn.2d 407, 235 P.2d 469 (1951). 18
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). 36
Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (1977). 35
Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978 35
Corrigal v. Ball & Dodd Funeral Home, 89 Wn.2d 959, 577 P.2d 580 (1978). 34
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). 34
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). 37
Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 549 P.2d 9 (1976) 38
First Small Business Investment Company of California v. Intercapital Corporation of Oregon, in the Supreme Ct of Wash., 108 Wn.2d 324; 738 P.2d 263; 1987 Wash. LEXIS 1074 46
Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995) 12
Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995). 33
Gain v. Carroll Mill Co., 114 Wn.2d 254, 787 P.2d 553 (1990). 36
Gold Seal Chinchillas, Inc. v. State, 69 Wn.2d 828, 420 P.2d 698 (1966) 35
Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978) 34
Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978). 34
Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988). 12
Hofto v. Blumer, 74 Wn.2d 321, 444 P.V2d 657 (1968) 35
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 12
In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8 12
Lien v. Barnett, 58 Wn. App. 680, 794 P.2d 865 (1990) 34
Madison v. General Acceptance Corp., 26 Wn. App. 387, 612 P.2d 826 (1980 37
Meyer v. Dempcy, 48 Wn. App. 798, 740 P.2d 383 (1987) 37
Neigel v. Harrell, 82 Wn. App. 782, 919 P.2d 630 (1996) 12
Pelly v. Behneman, 168 Wash. 465, 12 P.2d 422 (1932); Gray v. Gregory, 33 Wn.2d 713, 207 P.2d 194 (1949) 35
Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838 P.2d 128 (1992) 12
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) 36
Sherwood v. Moxee Sch. Dist. No. 90, 58 Wn.2d 351, 363 P.2d 138 (1961) 35
Siegrist v. Simpson Timber Co., 39 Wn. App. 500, 694 P.2d 1110 (1985) 37
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926) 53
State v. Adamo, 120 Wash. 268, 207 P. 7 (1922) 48, 51
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902) 48, 51
State v. Constantine, 48 Wash. 218, 93 P. 317 (1908) 51
State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920) 48, 51
State v. Morris, 109 Wash. 490, 187 P. 350 (1920) 48, 51
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008) 24
State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009) 50
White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894) 51
Other Authorities
Federal Accounting Standards Advisory Board 27
Rules
Civil Rule 9(c) 51
CJC 3(A)(3) 20
CJC 3(D)(1): 24
CR12(b) 25
CR12(b)(6) 12
CR12(b)(6)]. 24
CR9(c) 51
ER 105 52
ER 106 51
ER 201(b)(2) 49
ER 201(d) 39
ER 403 50
RAP 18.1 44
RAP 18.9 44
RAP 2.2(a)(1) 40
RAP 2.2(a)(3 40
RAP 2.3(b)(1) passim
RAP 2.3(b)(1), (2),and (3) passim
RAP 2.3(b)(3) passim
RCW 11.106.020 39, 41, 44
Regulations

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General Accepted Accounting Principles 27


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MOTION TO MODIFY RULING DENYING REVIEW DATED 11/07/2011

MOTION TO ALLOW OVERLENGTH REPLY

Guy is filing a separate motion to allow overlength reply. The COA should take judicial notice that Supreme Court 85937-0 and 85871-3 both granted Guy’s request to allow overlength.

ENGLISH LANGUAGE

Guy is pro se and will use common terms in the English language. A lie is a lie. And a person who lies is a liar. Guy will use such terms as appropriate to add specificity, clarity, and brevity to Guy’s pleadings.

AUTHORITY TO MODIFY via RAP 17.7

STATEMENT OF FACTS

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.

On April 12, 2011, the PR/Trustee filed the Personal Representative & Trustee’s response.[footnote 1] Therein, the PR/Trustee cited COA 38243-1-II and refused to provide the Trust’s Annual Statement requested by Guy. PR/Trustee’s attorney also filed a

------------
Footnote 1 -- See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”


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declaration [footnote 2] demanding $500 in attorney fees for responding to Guy’s motion for the annual accounting, which the Respondent alleged was frivolous.

Then, in a hearing on April 22, 2011, the PR/Trustee did an about face. Respondent requested a continuance in order to voluntarily provide the information requested in Guy’s motion. (See Superior Court order, Exhibit 3, attached.)

However, new information provided by the Respondent was not responsive to the requests for relief in Guy’s motion. Respondent failed to comply with his own request for a continuance and Respondent violated the court order that granted the continuance (Exhibit 3, attached).

In the hearing on May 6, 2011, PR/Trustee’s attorney read aloud a draft order, which stated that Guy had involuntarily “withdrawn” his motion. That was the first time that the PR/Trustee made that statement, and the PR/Trustee made it without supporting arguments. Then Superior Court signed that order, which Guy is now appealing.

In said order, Judge Larkin stated that he was recognizing Guy’s involuntarily withdrawal of his motion. However, Guy made no such withdrawal. In the hearing, Guy strongly protested the use of the term “withdrawn” by the Judge. Guy also raised his unmet requests for relief, for example Guy’s opposition to the PR/Trustee’s declaration and pleading which demanded $500 in attorney fees. However, Judge Larkin unilaterally declared that Guy was involuntarily withdrawing his motion anyway.

-----------
Footnote 2 -- See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”


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On November 7, 2011, COA Commissioner Schmidt entered a ruling denying review.

SUPPLEMENTAL STATEMENT OF FACTS

Washington State judges and the Court of Appeals Division II are not a judiciary dedicated to the constitutional application of law, but instead the judges form their own criminal syndicate and political machine, which are dedicated to ensuring that the judges get reelected in unopposed elections. The methodology of this criminal syndicate of judges is to steal estate assets from bereaved families and give the assets to local attorneys. Thusly enriched, the local attorneys launder part of the money into political contributions and favors which ensure that the 98% of these judges are re-elected in unopposed elections. Appellant’s Incomplete Brief documented these facts, beginning on page 38.

COA 38243-1-II is an example of methods used by this criminal syndicate of judges. In COA 38243-1-II, the judges panel (J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar) made many lies of fact in its opinion in order to falsely blame Appellant Guy instead of the thieving Respondent/Personal Representative/Trustee for costs and losses to the Estate. Since the COA continues its methodical lies in this case, COA 42213-1-II, it is helpful illustrate the judges’ methodical lies with three quick examples from COA 38243-1-II.

Judges’ Factual Lie #1 – The opinion in COA 38243-1-II stated that there was no evidence that Guy or the beneficiaries had been deprived of any money. With that factual lie, the Judges ignored Dorothy M.’s Charles Schwab brokerage account, which


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the Respondent/PR/Trustee stole and kept in secret for 6 years (2002-2008). Not until 2008, did the Respondent reveal the existence of the brokerage account, and then the Respondent only revealed the ending balance at that time, which was approximately $12,000. The Respondent never revealed the beginning balance, which is required to determine what happened to funds in the brokerage account. The requirement for a beginning balance is known by anyone that ever balanced a check book. It is a commonly known fact of which the Court must take judicial notice. (ER 201)

Guy testified to his personal knowledge that the beginning balance in the account exceeded $62,000, when the account came into the Respondent’s possession. But, the COA judges let the Respondent get away with stealing $50,000 from the brokerage account by allowing the Respondent to present only the ending balance of approximately $12,000.

Judges’ Factual Lie #2 -- The opinion in COA 38243-1-II stated that there were no issues before the court. That is a bold faced lie because the judges just decided the issue of missing funds from the brokerage account. Also, it is a lie because the Appellant’s Incomplete Brief presented 13 pages of request for relief. [footnote 3] Hence, the judges lied when they said there were no issues before the court.

Judges Factual Lie #3 -- The opinion in COA 38243-1-II stated that since there were no issues before the court, then no discovery was required. That was a convenient lie that prevented discovery. It completed the circle of lies to hide confirming evidence

-------------
Footnote 3 -- See “Collected Requests for Relief Made in the Trial Court,” page 24-37 in Appellant’s Incomplete Brief.


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that the Respondent had stolen $50,000 from the Charles Schwab brokerage account, which belongs to the Estate of Dorothy M.

At this time, the judges’ factual lies in COA 38243-1-II are pertinent because COA 38243-1-II affects this case, and because the judiciary continue to lie in this case COA 42213-1-II.

JUDGES COVER-UP THEIR OWN CORRUPTION

The Court of Appeals did not publish COA 38243-1-II because violated it every relevant statute and over 80 case precedents. If COA 38243-1-II had been published, it would have been analyzed, cited, and applied by attorneys for other cases. It would have done incalculable harm to the entire system of law in Washington State. The judges’ panel in COA 38243-1-II would become the scourge and laughing stock of Washington State jurisprudence, and those judges would lose their jobs in the next election. So in order to cover-up its own corruption, the COA voted not to publish COA 38243-1-II. For the same corrupt reasons, the Supreme Court denied review because those Supreme Court judges are products of the same corrupt political machine. (Example.[footnote 4] )

--------------
Footnote 4 -- In Supreme Court 85871-3 AND 85937-0, Rule of Evidence 201 made it mandatory that the court take judicial notice of commonly known and easily verifiable facts. Also, ER2012 made judicial notice mandatory for related cases. However, the Supreme violated that mandatory rule and refused to take judicial notice despite Guy motion for judicial notice. Judges of the Washington State Supreme Court are a corrupt political machine that steals estate assets from bereaved families. Said judges use local attorneys to launder the stolen money back into the Judges re-election campaigns in the form of money contributions and political favors, which ensure that 98% of judges enjoy re-election without facing an opposing candidate.


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STANDARD OF REVIEW AND SCOPE OF REVIEW

In probate cases, the standard of review is de novo on the entire record (Estate of Black [footnote 5], Neumann v. Albright [footnote 6] ) and extends to the whole controversy (Hutchinson Cancer Research Center [footnote 7] ). 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 [footnote 8] . ).

Therefore, the entire controversy, and mixed facts and conclusion of law, are reviewed de novo. (Estate of Black [footnote 9], Neumann v. Albright [footnote 10], Hutchinson Cancer Research Center [footnote 11], Estate of Olson [footnote 12]. )

Additionally, in nonsuit cases [CR12(b)(6)], the standard of review is also de novo. (Neigel v. Harrell [footnote 13], Fondren v. Klickitat County [footnote 14], Roe v. Quality Transp. Servs. [footnote 15], Hoffer v. State [footnote 16]. )

-------------
Footnote 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
Footnote 6 -- Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.
Footnote 7 -- In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8
Footnote 8 -- In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5
Footnote 9 -- 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
Footnote 10 -- Alan Neuman Productions v. Jere Albright, U.S. Court of Appeals, 862 F.2d 1388; 1988 U.S. App. LEXIS 16762, at HN3.
Footnote 11 -- In re Fred Hutchinson Cancer Research Center, 107 Wn.2d 693; 732 P.2d 974; 1987 Wash. LEXIS 1036, at HN8
Footnote 12 -- In re the Estate of John J. Olson Court Of Appeals Of Washington, Division One 2004 Wash. App. LEXIS 850 at HN5
Footnote 13 -- Neigel v. Harrell, 82 Wn. App. 782, 919 P.2d 630 (1996)
Footnote 14 -- Fondren v. Klickitat County, 79 Wn. App. 850, 905 P.2d 928 (1995)
Footnote 15 -- Roe v. Quality Transp. Servs., 67 Wn. App. 604, 838 P.2d 128 (1992)
Footnote 16 -- Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988).



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MODIFICATION REQUESTED: The Court of Appeals should accept review in COA 42213-1-II.

OBJECTIONS TO RULING:

Court of Appeals ruling dated November 7, 2011, which is attached Exhibit 1. The underlying Superior Court order, dated May 6, 2011, is attached as Exhibit 2.

Immediately below, Guy includes the entire text of the COA Ruling Denying Review. Guy objects to the text that Guy underlined, which are followed by Guy’s objections and assigned errors in all caps.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

No. 422131-ll
RULING DENYING REVIEW
Guy M. seeks discretionary review of the following trial court order:
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 fees and costs and reserves determination of the Personal Representative/Trustee’s request for attorney’s fees pending the filing of a Declaration upporting said attorney’s fees.
Resp. to Mot. for Disc. Rev., Appendix at 193 (emphasis omitted).
Guy M. filed a Motion for Accounting and Billing Information. Resp, to



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IN RE THE ESTATE OF:
DOROTHY M.:
GUY M.,

Deceased.
Petitioner.

Mot. for Disc. Rev., Appendix at 9. He sought the following relief:

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 [citation omitted]. 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.
5. Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee.
6. PR/Trustee should be denied his attorney fees and cost related to this motion, because this motion would not have been needed if the PR/Trustee fulfilled his legal duties in a timely manner, and in accordance with Guy’s several requests (as listed above).
Resp. to Mot. for Disc. Rev., Appendix at 14-15 (emphasis omitted).
Gregg M., as Personal Representative of the Estate of Dorothy M. and Trustee of the Dorothy M. Revocable Living Trust (PR/Trustee), initially resisted Guy M.’s motion. Resp. to Mot. for Disc, Rev., Appendix at
18-21. But he later provided Guy M. with an accounting of the Estate and Trust for 2010 and with unredacted attorney fees statements for July 28, 2008 to March 31, 2011. [GUY’S OBJECTION & ASSIGNED ERROR #1 - FOUR REDACTED ITEMS WERE STILL REDACTED, AND NEVER DELIVERED BY THE RESPONDENT.] Resp. to Mot, for Disc. Rev., Appendix at 75-192. At the oral argument on the motion, Guy M. acknowledged that he had received the


accounting and the attorney fees statements that his motion had requested.1 Mot. for Disc. Rev., Appendix 30 at 3 (Report of Proceedings May 6, 2011). The


---------------- page 14 ---------------


trial court concluded that Guy M. was effectively withdrawing his motion and entered the order quoted above. [GUY’S OBJECTION & ASSIGNED ERROR #2 – THE COURT DID NOT CONCLUDE THAT GUY “WAS EFFECTIVELY WITHDRAWING HIS MOTION.” THE COURT LIED BY STATING THAT GUY’S “MOTION … IS RECOGNIZED AS WITHDRAWN“, THAT IS AN AN OUTRIGHT LIE AND FALSIFICATION OF THE RECORD BY THE COURT. GUY DID NOT WITHDRAW HIS MOTION.]

2 This court grants discretionary review only when:
(1) The superior court has committed an obvious error which would render further proceedings useless;
(2) The superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court; or
(4) The superior court has certified, or all the parties to the litigation have stipulated, that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that immediate review of the order may materially advance the ultimate termination of the litigation.
RAP 2.3(b).
1 Guy M. states in his reply that four billing entries from July 2008 were still redacted. But during oral argument before the trial court, he stated he had received all of the billing information he requested. [GUY’S OBJECTION & ASSIGNED ERROR #3 -- THIS IS A FALSE STATEMENT. IN THE TRIAL COURT, GUY ONLY CONFIRMED THAT GUY RECEIVED INFO ON THE LIMITED NUMBER OF DATES ASSERTED BY THE TRUSTEE, AND WHICH ARE THOSE DATES SO STATED IN THE TRIAL COURT ORDER. BUT GUY DID NOT RECEIVE UNREDACTED INFORMATION ON ALL THE DATES THAT GUY REQUESTED. GUY STILL HAS NOT RECEIVED THAT INFORMATION.] And in oral argument before this court, counsel for the PR/Trustee represented that Guy M. had since been provided the unredacted entries for those dates. [GUY’S OBJECTION & ASSIGNED ERROR #4 – GUY STILL HAS NOT RECEIVED THE INFORMATION ON THE REMAINING FOUR REDACTED ITEMS. AND GUY SO STATED IN ORAL ARGUMENT AND IN GUY’S COA PLEADINGS. FURTHER, EVEN IF THE RESPONDENT HAD PROVIDED ITEMS AFTER THE TRIAL HEARING AND ORDER, THE COA SHALL NOT CONSIDER THEM, AS IS DUELY NOTED BY THE COA IMMEDIATELY BELOW IN THIS RULING.] Because Guy M. never brought this issue before the trial court, this court declines to address it as part of his motion for discretionary review. [GUY’S OBJECTION & ASSIGNED ERROR #5 --[b]GUY DID NOT BRING UP THE 4 REMAINING UNREDATED ITEMS BEFORE SUPREIOR COURT BECAUSE THE COURT SUDDENLY DECLARED THAT GUY HAD WITHDRAWN HIS MOTION, WHICH CURTAILED ALL FURTHER ARGUMENTS. THIS IS A PRECISE EXAMPLE OF


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HOW THE COURT’S LIE THAT GUY HAD WITHDRAWN HIS MOTION PREVENTED GUY FROM TAKING FURTHER ACTION AND PLEADING BEFORE THE COURT.]

2 In his reply brief, Guy M. argues that the order was a final order for accounting and therefore appealable as a matter of right under RAP 2.2(a)(1) and (3). But the court did not order a final accounting, so its order is not appealable as a matter of right. [GUY’S OBJECTION & ASSIGNED ERROR #6 – THE COA RULING MAKES THIS FALSE ASSERTION WITHOUT CITING ANY AUTHORITY. HOWEVER, IN PLEADINGS AND IN ORAL ARGUMENTS GUY CITED AUTHORITIES THAT INTERIM TRUST ACCOUNTINGS BECOME RES JUDICATA AND A FINAL JUDGMENT UNLESS APPEALED.]


Guy M. argues that the trial court erred when it concluded that he had withdrawn his Motion for Accounting and Billing Information. While he is correct, and the trial court should have either denied or dismissed the motion, he must show more than error to obtain discretionary review. [GUY’S OBJECTION & ASSIGNED ERROR #7 – HEREBY, THIS COA RULING ADMITS THAT THE SUPRERIOR COURT ORDER IS AN OUTRIGHT LIE AND FALSIFICATION OF THE RECORD] He must show that further proceedings would be useless, under RAP 2.3(b)(1), that the decision substantially alters the status quo or substantially limits his freedom to act, under RAP 2.3(b)(2), or that the trial court so far departed from the accepted and usual course of judicial proceedings as to call for review, under RAP 2.3(b)(3).
He does not show that any of these situations are present. [ GUY’S OBJECTION & ASSIGNED ERROR #8 -- GUY SHOWED BOTH OF THOSE OF THOSE SITUATIONS WERE PRESENT.] He complains that as a result of the trial court’s treating his motion as withdrawn, it did not address his requests for relief 4 (separate accounting for Estate and Trust), 5 (award of attorney fees and costs), and 6 (denial of PR/Trustee’s attorney fees and costs).3 But this court ruled in his prior appeal, No. 38243-1-Il, that the PR/Trustee was not required to provide accountings for the Estate and Trust. Thus, he is not required to segregate the accountings for the Estate and Trust.[ GUY’S OBJECTION & ASSIGNED ERROR #9 – IN THE TRIAL COURT ON 4/22/2011, RESPONDENT REQUESTED A CONTINUANCE WHICH WAS GRANTED BECAUSE THE REPSONDENT PROMISED TO VOLUNTARILY PROVIDE THE ACCOUNTING. NOW, IT IS A FRAUD ON THE COURT FOR THE RESPONDENT TO RENEG ON HIS COURT ORDERED COMMITMENT TO PROVIDE THE ACCOUNTING. COA 38243-1-II HAS NO APPLICATION TO THE RESPONDENT’S VOLUNTARY COMMITMENT TO PROVIDE THE ACCOUNTING. SEE TRIAL COURT ORDER ON 4/22/2011, EXHIBIT 3, ATTACHED] The trial court denied his request for costs and did not err in doing so because he did not show that he was entitled to an award of costs. And the trial court did not grant the PR/Trustee’s request for attorney fees and costs. It


------------------- page 16 -----------------


reserved ruling on that request, and it appears from the records provided to this court that the Guy M. also contends that the trial court did not address his request for relief 9, included in an addendum to his motion, that the PR/Trustee provide billing statements for “secret attorney work.” Mot. for Disc. Rev, at 16.But during oral argument before the trial court, he stated that by the time of that argument, he had received unredacted billing entries for those entries that had been previously redacted. [GUY’S OBJECTION & ASSIGNED ERROR #10 -- THIS IS A FALSE STATEMENT. IN THE TRIAL COURT, GUY ONLY CONFIRMED THAT GUY RECEIVED INFO ON THE LIMITED NUMBER OF DATES ASSERTED BY THE TRUSTEE. BUT GUY DID NOT RECEIVE UNREDACTED INFORMATION ON ALL THE DATES THAT GUY REQUESTED. GUY STILL HAS NOT RECEIVED THAT INFORMATION.]


PR/Trustee’s request is still pending. [ GUY’S OBJECTION & ASSIGNED ERROR #11 -- THE TRUSTEE SUBMITTED A BILL AND DECLARATION FOR $500 FOR PREPARING A FRIVOLOUS MOTION TO OBJECT TO GUYS REQUEST FOR ACCOUNTING BASED ON COA 38243-1-II. THEN IN THE HEARING ON 4/22/2011, RESPONDENT ABANDONED HIS OBJECTION BECAUSE RESPONDENT ACKNOWLEDGED THAT IT WAS MORE EFFICIENT TO SIMPLY COMPLY WITH THE STATUTE, AND IT WOULD BE LESS WASTEFUL OF ESTATE FUNDS. HENCE, THE TRIAL COURT HAS THE RESPONDENT’S BILL AND DECLARATION FOR $500 IN FEE FOR PREPARING A FRIVOLOUS MOTION, WHICH WAS WASTED BECAUSE THE RESPONDENT ABANDONED HIS OWN MOTION AS A WASTEFUL EXERCISE]. Thus, even though the trial court erred, Guy M. does not show that further proceedings are useless, that the status quo or his freedom to act has been substantially altered, [GUY’S OBJECTION & ASSIGNED ERROR #12 – THE COA ADMITTED THAT THE TRIAL COURT ERRED, AND GUY CONTENDS THAT THE ERROR MUST BE CORRECTED. IF JUDGE LARKIN SUCCEEEDS IN FALSIFYING THE RECORD TO STATE THAT GUY WITHDREW HIS MOTION THEN GUY IS CLEARLY PRECLUDED FROM TAKING FURTHER ACTION ON THE ISSUES IN GUY’S MOTION.] or that the trial court departed from the accepted and usual course of judicial proceedings. [ GUY’S OBJECTION & ASSIGNED ERROR #13 – FALSIFYING THE RECORD IS CLEARLY BEYOND THE PALE AND FAR DEPARTED FROM ACCEPTED OR USUAL COURT PROCEEDINGS.] Accordingly, it is hereby
ORDERED that Guy M.’s motion for discretionary review is denied [GUY’S OBJECTION & ASSIGNED ERROR #14 – REVIEW SHOULD BE GRANTED BY THE COA.] His request for an award of costs is denied. [GUY’S OBJECTION & ASSIGNED ERROR #15 – GUY’S COST AND ATTORNEY FEES (IF ANY) SHOULD BE GRANTED.] The PR/Trustee’s request for an award of attorney fees and costs is also denied.
DATED this 7th day of November , 2011.
Eric B. Schmidt


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Court Commissioner
cc: Guy M., Pro Se
David B. Petrich
Jennifer A. Wing
Hon. Thomas P. Larkin



ARGUMENTS

ASSIGNED ERROR #16 -- APPEAL BY RIGHT - INTERIM TRUST ACCOUNTING IS A FINAL JUDGMENT

Assigned Error - Case Citation: “Order approving first triennial account of trustees under testamentary trust, unappealed from, is res judicata.”
Clark v. Cooper, 39 Wn.2d 407, 235 P.2d 469 (1951).

Contrary to Com. Schmidt’s ruling, interim accounting of a trust qualifies for review by right as a final judgment, because unless appealed the interim accounting (e.g. first triennial accounting in Clark v. Cooper) becomes res judicata. And, that is why COA 38243-1-II granted review of the Respondent’s previous interim trust accounting. RAP 2.2(a)(1).

ASSIGNED ERROR #17 – JUDGE LARKIN FALSIFIED THE RECORD

Guy Did Not Withdraw His Motion as proved by verbatim report (5/06/2011), as acknowledged by Respondent’s Reply on discretionary review, and as acknowledged by Com. Schmidt’s ruling (11/07/2011).

The COA should note the malicious wording of Judge Larkin’s order, which is designed to falsify the record by claiming that Guy withdrew his motion. To falsify the record, Judge Larkin’s order stated that the court “recognized (Guy’s Motion) as withdrawn.” Since Guy did not withdraw his motion, Judge Larkin lied to falsify the


----------------- page 18 ----------------


record and to make it appear as if Guy had withdrawn his motion. Judge Larkin worded his lie to make it appears as if the Judge was merely recognizing a fact.

Judge Larkin and the Respondent acted in concert as a criminal team to clear the docket of Guy’s motion and deprive Guy of due process, because they did not want those issues to be before Superior Court or before the COA, while the Supreme Court had not yet determined whether or not to review of Supreme Ct. 85937-0 and 85871-3.

Therefore, the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ASSIGNED ERROR #18 – JUDGE LARKIN’S TWO LIES FRAUDULENTLY “RECOGNIZED” GUYS MOTION AS WITHDRAWN

Judge Larkin’s 1st Lie is in the title of the order: “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information”

Judge Larkin’s 2nd Lie is in the body of the order: “…ORDERED that Guy M.’s motion for Accounting & Billing information is recognized as withdrawn…”

Judge Larkin lied twice in one order, proving that Judge Larkin is a liar so prejudiced against Guy that Judge Larkin is unfit to sit on this case [CJC 3(A)(1), CJC


---------------- page 19 ----------------


3(A)(3) ], and the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ASSIGNED ERROR #19 – JUDGE LARKIN’S LIE IS NOT MERELY A MISTATEMENT IN THE TITLE OF THE ORDER, AS CLAIMED BY THE RESPONDENT.

Judge Larkin lied twice, once in the title and a second time in the body of the order, when Larkin “recognized” that Guy withdrew his motion, which Guy did not do. The record shows that Guy’s objection to the Judge’s lies was discussed at length. Guy pressed his objection to the Judge’s lies as far as possible in a hearing. Judge Larkin’s two lies are no mere oversight or clerical error.

The order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ASSIGNED ERROR #20 –FALSE CLAIM THAT JUDGE LARKIN’S LYING ORDER WAS INCONSEQUENTIAL

Respondent makes a false argument that Judge Larkin’s lying order had no substantial effect or prejudice against Guy. That is false on several counts:

1-- Judge Larkin’s lying order falsified the record by ordering that Guy had withdrawn his motion. The falsified record has a substantial prejudice against Guy.


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1(a)-- Judge Larkin’s lying order would foreclose Guy’s opportunity to appeal because said order falsely claimed that Guy had abandoned all the issues and withdrawn his motion. Thereby, Judge Larkin’s lying order deprived Guy of due process and equal protection under the law (14th Amendment, U.S. Constitution.)

1(b)-- Judge Larkin’s lying order would force Guy to abandon Guy’s claims and requests for relief which remain unmet. Guy’s motion made the following requests for relief:

1(b)1 -- Guy M. requests the Court to order true accounting statements instead of fraudulent accounting statements that exclude $50,000 stolen by the PR/Trustee from Dorothy M.’s Charles Swab Brokerage account. After 9 years (2002-2011), the PR/Trustee has only revealed the depleted ending balance of said account, without revealing the beginning balance. Anyone who balances a check book knows that you have to start with a true opening balance.

1(b)2 -- Sources and uses of funds should be detailed since the last accounting in March 2008.” No sources and uses may remain redacted, and Guy’s motion for discretionary review proves that four items still remain redacted.

1(b)3 -- The accounting should not be combined for both distinct legal entities: (1) the Estate and (2) the Trust. (Estate of McCuen [footnote 17].) As a distinct legal entity, the Trust requires separate accounting (which also includes billing and detailed sources and uses of funds). The Trustee should provide annual statements for 2008, 2009, 2010, and 2011 to date, which he has not provided in the past, but which is required by RCW

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


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11.106.020. Each year should be separate as required for accounting purposes and RCW 11.106.020.

1(b)4 -- Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee

1(b)5 -- Instead the PR/Trustee filed an objection to providing any accounting at all. Then after requiring a hearing on April 22, 2011, the PR/Trustee reversed his position and offered to provide some documents. But the PR/Trustee still maintains a declaration in Superior Court demanding $500 in fees for preparing his first objection, which he later abandoned. And, the PR/Trustee has not repudiated his declaration demanding $500 in fees to prepare his now abandoned objection to accounting. (See Exhibit 4, Appendix 29, Designated for CP.)

1(b)6 -- 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 in Guy’s motion for discretionary review. Four of those items are still redacted.

1(b)7 -- Guy requested detailed descriptions for any other attorney work that has not been revealed to the beneficiaries in writing by the PR/Trustee.

Judge Larkin’s lying order had the purpose and effect of clearing Guy’s motion off the docket, so that the Supreme Court could not take judicial notice of the issues in Superior Court before the Supreme Court ruled on review of Supreme Court 85937-0 and #85871-3. Judge Larkin’s lying court order would force Guy to abandon all his unmet requests for relief (listed above) because no one can appeal after he allegedly abandoned the issues and allegedly withdrew his motion.


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Therefore, the order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

ASSIGNED ERROR #21 – FAR DEVIATION FROM ACCEPTED JUDICIAL PROCEEDING

Judge Larkin’s “Order Recognizing Guy M.’s Withdrawal Of His Motion” is a lying fraud, because Guy did not withdraw his motion and Guy vigorously objected to the Order during the hearing. There is no provision in RAP, Civil Rules, or statute for such an order that forced an involuntary withdrawal of Guy’s motion. Neither is there any case precedent for such an order. Judge Larkin’s lying order falsified the court record and so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order. RAP 2.3(b)(3) .

Judge Larkin’s lying Order on 5/06/2011 showed that Larkin is not competent in the law, and should be recused via CJC 3(A)(1): “Judges should be faithful to the law and maintain professional competence in it;

And: 2) Judge Larkin’s lying Order on 5/06/20112 falsified the record with his prejudicial lies against Guy, which require the Judge to be recused via CJC 3(D)(1):


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“Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.”

Regarding CJC 3(D)(1), the Court of Appeals of Washington, Division Two, in stated:

“Despite this canon's use of the word "should" rather than "must," a judge's duty to recuse is clear and nondiscretionary when one of the canon's specifically listed instances for disqualification is applicable.”
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008)

Therefore the COA has a nondiscretionary duty is to recuse Judge Larkin.

Judge Larkin’s lying order falsified the court record and so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order. RAP 2.3(b)(3) .

ASSIGNED ERROR #22 - GUY DID NOT WITHDRAW HIS MOTION; THE COURT DECLARED NONSUIT.

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)].


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Rule 12. Defenses and objections

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).

ASSIGNED ERROR #23 - GUY’S CLAIMS FOR RELIEF WHICH REMAIN UNMET

Guy’s motions made the follow requests for relief:

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 [footnote 18].) 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.

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Footnote 18 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.


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5. Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee

6. PR/Trustee should be denied his attorney fees and cost related to this motion, because this motion would not have been needed if the PR/Trustee fulfilled his legal duties in a timely manner, and in accordance with Guy’s several requests (as listed above).

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.)


ASSIGNED ERROR #24 - UNMET REQUEST FOR RELIEF #A – SEPARATE ACCOUNTING FOR THE TRUST

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 [footnote 19]. )

This failed to meet Guy’s Request for Relief #4.

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 [footnote 20]. ) 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.”

----------
Footnote 19 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.
Footnote 20 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.



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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).

ASSIGNED ERROR #25 - UNMET REQUEST FOR RELIEF #B – HONEST ACCOUNTING WITHOUT FRAUD

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 [footnote 21], 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

------------
Footnote 21 -- 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 www.fasab.gov/accepted.html


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and fraud is continued by the comingled Estate and Trust accounting filed by the PR/Trustee in response to Guy’s motion.

Therefore Guy’s Request for Relief #4 was not met.

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 [footnote 23]. ) 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).

ASSIGNED ERROR #26 - UNMET REQUEST FOR RELIEF #C – DENY PR/TRUSTEE ATTORNEY FEES

On April 12, 2011, the PR/Trustee filed the Personal Representative & Trustee’s response.[footnote 23] Therein, the PR/Trustee cited COA 38243-1-II and refused to provide the Trust’s Annual Statement requested by Guy. PR/Trustee’s attorney also filed a declaration [footnote 24] demanding $500 in attorney fees for responding to Guy’s motion. But

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

Footnote 23 -- See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”
Footnote 24 -- See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”



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then, the PR/Trustee did an about face and voluntarily provided an accounting for year 2010, which made the PR/Trustee’s previous objection into a frivolous pleading.

Therefore, the PR/Trustee’s demand for $500 in attorney fees should have been denied, which was part of Guy’s Request for Relief #6.
Guy’s Request for Relief #6 -- “PR/Trustee should be denied his attorney fees and cost related to this motion, because this motion would not have been needed if the PR/Trustee fulfilled his legal duties in a timely manner, and in accordance with Guy’s several requests (as listed above).”

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).

ASSIGNED ERROR #27 - UNMET REQUEST FOR RELIEF #D – GUY’S ATTORNEY FEES AND COSTS

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.

Guy’s Request for Relief #5—“Guy requests that his attorney fees (if any) and costs for this motion (and related litigation in Superior Court) should be paid by the PR/Trustee.”

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


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Guy had involuntarily “withdrawn” his motion. That mistake by the Court qualifies for discretionary review under RAP 2.3(b)(1), (2),and (3).

ASSIGNED ERROR #28 - UNMET REQUEST FOR RELIEF #E – UNREDACTED WORK DESCRIPTIONS

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:

7/01/08 ‘ DBP <-- REDACTED DESCRIPTION OF WORK $ 229.50

7/02/08 DBP .20 <-- REDACTED DESCRIPTION OF WORK $ 51.00

7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK $ 153.00

7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK $ 153.00


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.”

However, the PR/Trustee failed to provide unredacted descriptions of work for:

7/01/08 DBP <-- REDACTED DESCRIPTION OF WORK
7/02/08 DBP .20 <-- REDACTED DESCRIPTION OF WORK
7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK
7/07/08 DBP .60 <-- REDACTED DESCRIPTION OF WORK


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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 1st, 2nd, 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).


ASSIGNED ERROR #29 - 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 [footnote 25]. )

That failed to meet Guy’s Request for Relief #4.

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 [footnote 25]. ) 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.”

------------
Footnote 25 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.
Footnote 26 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.




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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.

This is particularly important in light of John M.’s declaration, quote:

“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.”
(Filed in Superior Court on December 1, 2009.)

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 [footnote 27]. ) 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).


ASSIGNED ERROR #30 - UNMET REQUEST FOR RELIEF #G – REVEAL OTHER SECRET ATTORNEY WORK

-----------
Footnote 27 -- HN1 in Estate of Genevieve McCuen vs. Fred Schoen, 2007 Wash. App. LEXIS 294.


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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).

ASSIGNED ERROR #31 - PR/TRUSTEE FAILED HIS BURDEN OF PROOF.

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).


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ASSIGNED ERROR #32 - THE COURT MUST PRESUME THAT GUY’S STATEMENTS OF FACT ARE TRUE

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

====================================

PART 2 OF THIS POST IS CONTINUED IN THE FOLLOWING REPLY.
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CONTINUING WITH PART 2 OF THE PREVIOUS POST
Guy M. v Gregg M., Appeal 42213-1-II, 11/16/2011

=========================================

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).

ASSIGNED ERROR #33 - GUY HAD THE RIGHT TO PLEAD FUTHER

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).


ASSIGNED ERROR #34 - GUY CAN RAISE NEW FACTS ON APPEAL

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.


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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).


ASSIGNED ERROR #35 – RESPONDENT’S DEFENSE MUST BE TREATED AS A MOTION FOR SUMMARY JUDGMENT

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).


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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).



------------------ page 37 ----------------

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).


ASSIGNED ERROR #36 - PR/TRUSTEE WAIVED HIS RIGHT TO NONSUIT DEFENSE

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).



ASSIGNED ERROR #37 -- LAW OF THE CASE COA 38243-1-II DOES NOT APPLY TO THIS CASE COA 42213-1-II


--------------- page 38 --------------------


ASSIGNED ERROR #38 - MANDAORY JUDICIAL NOTICE AT ANY STAGE OF THE PROCEEDINGS

“ER 201(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.”

Case: “ [HN2] Judicial notice is allowed at any stage of the proceeding. Wash. R. Evid. 201(f). Judicial notice may be taken on appeal if the following standard is met: an appellate court may take judicial notice of the record in the case presently before it or in proceedings innervate, ancillary, or supplementary to it.”
Conner v. City of Spokane, Supreme Court of Wash, 155 Wn.2d 89; 117 P.3d 1117; 2005 Wash. LEXIS 672

JUDICIAL NOTICE

COA 42213-1-II should take judicial notice that Supreme Court 85937-0 (re: COA 38243-1-II) and Supreme Court 85871-3 (re: COA 41463-5-II) both refused to take judicial notice of COA 42213-1-II, which was mandatory per ER 201,

By those two decisions, the Supreme Court determined that COA 42213-1-II is unrelated to those four cases (Supreme Court 85937-0 re: COA 38243-1-II, and Supreme Court 85871-3 re: COA 41463-5-II). None of those four cases provide law of the case for COA 42213-1-II.

ASSIGNED ERROR #39 - COA 38243-1-II DOES NOT APPLY TO SEPARATION OF TRUST ACCOUNTING AND BILLING FROM ESTATE ACCOUNTING

In Guy’s motion for discretionary review, Guy merely asked for a separate annual statement for the Trust as required by RCW 11.106.020.

However, Respondent combined the Personal Representative’s Estate annual report with the Trustee’s Trust Annual Statement. The Estate and Trust are separate legal entities, and the Trustee must present a separate Annual Statement, which remains to be done. (See authorities


-------------------- page 39 ---------------


cited in Guy’s motion for discretionary review, see page 9, “Unmet Request For Relief #A – Separate Accounting For Each Legal Entity.” )
The COA 38243-1-II order terminating review did not address this issue, and hence there is no law of the case on this issue.

Therefore, there is no law of the case that mitigates Judge Larkin’s lying court order, and said order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.

Further, review by right should be granted because Trust accountings become final unless challenged. Hence, Superior Ct “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information” is a final judgment on the accounting, and the COA should grant review under RAP 2.2(a)(1) and RAP 2.2(a)(3). That is why COA 38243-1-II granted review by right.

ASSIGNED ERROR #40 - COA 38243-1-II DOES NOT APPLY TO THE REQUIREMENT FOR TRUST ANNUAL STATEMENTS


---------------------- page 40 --------------


Respondent cites In re Park’s Trust to claim that the Trustee had no obligation to file annual reports unless said omission caused harm to the beneficiaries. That is a false claim that is not supported by COA 38243-1-II or any other case.

First, when giving weight to In re Park’s Trust, the Court should note that In re Park’s Trust is an old case (1951), which 33 years before TEDRA was implemented in 1984. (RCW 11.02.900.) Second, the Court should note that no other case, except unpublished COA 38243-1-II Estate of Dorothy M., cites In re Park’s Trust. Third, the Court should note that In re Park’s Trust did not absolve the Trustee’s failure to file annual reports. In re Parks’ Trust, the Court sanctioned the Trustee by requiring him to personally pay for a CPA to make the required accounting for the beneficiaries.

COA 38243-1-II stated that the Trustee could not be sanctioned for not filing Annual Statements, where there were only routine transactions to report. So, the Trustee could not be sanctioned for routine transactions, but the Trustee is still obligated to file annual statements per RCW 11.106.020, which does not give exceptions for routine transactions. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review.

Further, the Respondent had many non-routine transactions. First non-routine transaction: Trustee accumulated three years of attorney fee, totaling over $60,000. That is not a routine transaction that can go unreported. Even though the Trustee made periodic payments, a $60,000 expenditure is not an insignificant, routine transaction that should go unreported to the beneficiaries. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review.


----------------- page 41 ---------------


Second non-routine transaction: The Respondent’s $60,000 in attorney fees included 17 items with redacted descriptions of work. Even to this day, four items still have redacted descriptions of work. (See “Unmet Request For Relief #E – Unredacted Work Descriptions.”) Secret attorney work, with redacted descriptions of work, are not routine transactions, and do not qualify for a reporting exemption even by the Respondent’s false interpretation of COA 38234-1-II.

Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

Third Non Routine Transaction – PR/Trustee still has not revealed the beginning balance of the Charles Schwab brokerage account from which the PR/Trustee removed $50,000 and only revealed the final balance of approximately $12,000 in 2008. That is not a routine transaction. Further, COA 38243-1-II has no authority to permit outright theft and fraud, regardless of what the corrupt judges says.

Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.


------------------- page 42 ----------------


ASSIGNED ERROR #41 -- COA 38243-1-II DOES NOT APPLY TO JUDGE LARKIN’S LYING ORDER WHICH FALSIFIED THE RECORD

Judge Larkin lied in his “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information.” Therein, Judge Larkin falsified the record because Guy did not withdraw his motion. COA 38243-1-II never addressed this issue, which did not exist then. Therefore, law of the case COA 38243-1-II does not apply, and the Court should grant discretionary review per RAP 2.3(a),(b), and (c).

ASSIGNED ERROR #42 – JUDGE LARKIN’S ORDER, AND THE RESPONDENT, FAILED THE TEST OF NONSUIT

The only possible justification Judge Larkin’s order had for forcing Guy to involuntarily withdraw his motion would be a nonsuit argument. Guy’s motion for discretionary review proved that Judge Larkin and the Respondent failed to make such an argument, which means they waived the argument of nonsuit. Additionally, they both failed to meet the requirements for nonsuit, CR 12, or CR 56.

Therefore, there is no law of the case that mitigates Judge Larkin’s lying court order, and said order must be reviewed per RAP 2.3(b)(1) Superior court committed an obvious error which would render further proceedings useless in entering its order.

RAP 2.3(b)(2) Superior court committed probable error and the decision substantially altered the status quo OR substantially limited the freedom of a party to act in entering its order.

RAP 2.3(b)(3) Superior court so far departed from accepted and usual course of judicial proceedings as to call for appellate review in entering its order.


---------------------- page 43 ----------------


ASSIGNED ERROR #43 – GUY SHOULD BE AWARDED FEES AND COSTS

Guy should be awarded attorney fees (if any) and costs per RCW 11.96A.150(1) , RAP 18.9, and RAP 18.1.


ASSIGNED ERROR #44 - RESPONDENT SHOULD BE DENIED ATTORNEY FEES

The COA should deny attorney fees and cost to the Respondent, including the $500 attorney fee and declaration which the Respondent already filed in Superior Court for preparing the motion that the Respondent abandoned on 4/22/2011. The assigned error is that Superior Court and the COA have not denied that $500 attorney fee, which the Respondent already filed by declaration.

Respondent proved that he would rather litigate to circumvent the Annual Statement requirement of RCW 11.106.020 than to simply provide the Annual Statement as required by statute. Remember that on April 12, 2011 Respondent first filed a motion to deny any Annual Statement. (See Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information. Also filed in COA 42213-1-II as Exhibit 1, Appendix 29. Designated for CP.)

Then in a Superior Court hearing, the Respondent reversed his position and requested a continuance to meet Guy’s requests. (See Superior Court order, dated April 22, 2011, as Exhibit 2, Appendix 29. Designated for CP.)


----------------- page 44 -----------------


However, said continuance was merely a subterfuge. Respondent failed to meet Guy’s original requests, which Guy listed above as unmet request.

Then in Superior Court hearing on May 6, 2011, Respondent’s attorney drafted Judge Larkin’s lying “Order Recognizing Guy M.’s Withdrawal Of His Motion For Accounting And Billing Information.”

This appeal is entirely the Respondent’s fault, because he is not administering the Estate or Trust to benefit the beneficiaries. The Respondent is litigating in bad faith to convert all estate assets into his attorney fees. Respondent/PR/Trustee Gregg stated that in his own words. (See John M.’s Declaration, which testifies to the Respondent’s personal statements. See Exhibit 3, Appendix 29. Designated for CP.)

This Court should not award attorney fees to the Respondent.

Further, the COA should note that in all Superior Court hearings, Superior Court did not award attorney fees to the PR/Trustee at Guy’s expense. And, in Supreme Court 85937-0 and 85871-3, the Supreme Court did not award attorney fees to the Respondent. The COA should take judicial notice of those decisions, and the COA should not award attorney fees to the Respondent either.

The only case that awarded attorney fees to the Respondent at Guy’s expense was COA 38243-1-II. That was because three COA Judges (J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar) went to extreme lengths and lied about the evidence in order to justify awarding attorney fees to the Respondent in what amounts to a payoff for political favors, so that the Judges can run for office in unopposed elections. Proof of the Judges’ lies about the evidence is shown below.


-------------------- page 45 -----------------


ASSIGNED ERROR #45 – IN COA 38243-1-II, THREE JUDGES LIED TO FALSIFY EVIDENCE SO THE CASE DOES NOT APPLY

When giving weight to COA 38243-1-II, the Court should discount the case as clearly erroneous, because the Judges Panel lied and falsified evidence in the case. Therefore the law of the case doctrine does not apply, and this Judges Panel should discount COA 38243-1-II.
Case quote: “The law of the case doctrine did not prevent the court from overruling a clearly erroneous decision.” First Small Business Investment Company of California v. Intercapital Corporation of Oregon, in the Supreme Ct of Wash., 108 Wn.2d 324; 738 P.2d 263; 1987 Wash. LEXIS 1074

The Rules of Evidence and known facts prove that the Judges statements were not true and they falsified evidence in COA 38243-1-II.

EXAMPLE #1 OF COA JUDGES’ LIES AND FRAUD – The opinion in COA 38243-1-II stated that there was no evidence that Guy or the beneficiaries had been deprived of any money. With that factual lie, the Judges ignored Dorothy M.’s Charles Schwab brokerage account, which the Respondent/PR/Trustee stole and kept in secret for 6 years (2002-2008). Not until 2008, did the Respondent reveal the existence of the brokerage account, and then the Respondent only revealed the ending balance at that time, which was approximately $12,000. The Respondent never revealed the beginning balance, which is required to determine what happened to funds in the brokerage account. The requirement for a beginning balance is known by anyone that ever balanced a check book. It is a commonly known fact of which the Court must take judicial notice. (ER 201)


----------------- page 46 -----------------


Guy testified to his personal knowledge that the beginning balance in the account exceeded $62,000, when the account came into the Respondent’s possession. But, the COA judges let the Respondent get away with stealing $50,000 from the brokerage account by allowing the Respondent to present only the ending balance of approximately $12,000.

EXAMPLE #2 OF COA JUDGES’ LIES AND FRAUD -- The opinion in COA 38243-1-II stated that there were no issues before the court. That is a bold faced lie because the judges just decided the issue of missing funds from the brokerage account. Also, it is a lie because the Appellant’s Incomplete Brief presented 13 pages of request for relief. [footnote 28] Hence, the judges lied when they said there were no issues before the court.

EXAMPLE #3 OF COA JUDGES’ LIES AND FRAUD -- The opinion in COA 38243-1-II stated that since there were no issues before the court, then no discovery was required. That was a convenient lie that prevented discovery. It completed the circle of lies to hide confirming evidence that the Respondent had stolen $50,000 from the Charles Schwab brokerage account, which belongs to the Estate of Dorothy M..

.
EXAMPLE #4 OF COA JUDGES’ LIES AND FRAUD

Quote Judges J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar in COA 38243-1-II decision terminating review:

“Guy’s own actions further delayed the estate’s closure. Guy prevented the estate from closing in 2004 with his petition for an accounting, and the record is replete with his filings protesting Gregg’s activities as well as those of counsel for the estate.”

----------------
Footnote 28 -- See “Collected Requests for Relief Made in the Trial Court,” page 24-37 in Appellant’s Incomplete Brief.


---------------------- page 47 ---------------


Per ER 201, the COA should take Judicial notice of the Superior Ct docket, which shows that during four years (between Guy’s petition for accounting in 2004 and Respondent’s petition to approve final accounting in 2008), the only filings made by Guy were notices of appearance and one request for special notice. That shows the COA is falsifying facts to blame Guy with nonexistent filings that allegedly delayed closing the Estate between 2004 and 2008.

EXAMPLE #5 OF COA JUDGES’ LIES AND FRAUD

Quote Judges J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar in COA 38243-1-II decision terminating review:

“He (Guy) complains about the delays in closing this estate and complains about the significant attorney fees incurred in this estate, and I would agree with him on both counts; but I would also have Guy M. look at the reasons why there [have] been significant delays and significant fees. Report of Proceedings (RP) (June 27, 2008) at 7. (Respondent’s) Counsel added that he had received more than eight inches of material from Guy concerning the two petitions.”
Therein, COA quotes Respondent’s self-serving statement as evidence that Guy handed him “eight inches of material” concerning two petitions. Not only is the statement provably false, but such self-serving statements are not admissible as evidence.

Case: “Self-serving statements are not admissible.”
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

The COA 38243-1-II claim is that Guy filed two pleadings, totaling eight inches thick, which delayed distribution of the beneficiaries’ inheritance. However, the COA and Respondent are both lying. No such pleadings exist.


-------------------- page 48 ----------------


The COA should take judicial notice of a commonly known and verifiable fact. (ER 201(b)(2)) Said fact is that a ream of copy paper is two inches thick and contains 500 pages. Therefore, the COA claims that Guy handed the Respondent two petitions totaling 2,000 pages on 6/27/2008. (Math calculation: four x 2-inch-thick reams = an 8 inch stack. Four reams of 500 pages each = 2,000 pages = an 8 inch stack.)

The COA should take judicial notice of the Superior Court docket which shows that Guy only filed two petitions totaling 44 pages, between 6/24/2008 to 6/27/2008. Hence, the COA’s claim is completely false that Guy filed two pleadings which total 8-inches-thick and comprise 2,000 pages. And the COA’s claim is false that Guy’s pleadings (8-inches thick) delayed distribution of inheritance because the COA just imagined that Guy’s 44 pages were eight inches thick and for the purposes of delay.

By contrast, The COA should take judicial notice that the Respondent filed four pleadings totaling 81 pages on the same dates, between 6/24/2008 – 6/27/2008., which is twice the number of pleadings and twice the number of pages filed in Guy’s petitions. The COA should take notice of the COA’s persistent use of fraudulent evidence in the COA’s attempt to tar Guy as a frivolous litigant that delayed distribution of inheritance from 2004-2008.

In the interest of completeness, Guy did file two sets of exhibits between 6/24/2008 -6/27/2008, which totaled another 250 pages, and which stack one inch high. Even including the exhibits, Guy’s total filings on the dates in question stand approximately one inch tall, and are nowhere near the 8-inch thick stack of 2,000 pages claimed by the COA and the Respondent.


--------------------- page 49 ----------------


Finally, the COA’s claim that Guy filed two petitions totaling 8 inches thick (and comprising 2,000 pages) fails the evidence Balance Test in ER 403. The COA’s alleged evidence should be excluded because the COA failed to consider if the probative value of the Respondent’s false and inflammatory claim outweighed the risk of unfair prejudice.

“ER 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Case: Admission is subject to the court establishing that the evidence is relevant and that the probative value outweighs the risk of unfair prejudice under the modified ER 403 balancing test. State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009).


EXAMPLE #6 OF COA JUDGES LIES AND FRAUD

Quote Judges J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar in COA 38243-1-II decision terminating review:

“As Gregg (the Respondent) stated, “A great deal of attorney time was devoted to dealing with Guy M.’s voluminous and irrelevant documents filed with the court.” CP at 483.”

The COA should take judicial notice that said statement by the Respondent is not an evidentiary fact. Said statement makes conclusions of law that Guy’s pleadings were 1) excessively voluminous and 2) irrelevant. That is a conclusion de novo by the COA 38243-1-II, because Superior Court made no such finding.

The COA’s use of said statement from the Respondent is not evidence because it violates rules of evidence. Such a self serving statement by the Respondent is not evidence, it is merely a self-serving statement.


----------------------- page 50 ----------------


Case: “Self-serving statements are not admissible.”
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

The COA/Respondent’s claims that Guy’s pleadings were voluminous and irrelevant violated the rule of completeness (ER 106), because the COA failed to include any of Guy’s explanations.

“ER 106. Remainder of or related writings or recorded statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.”

Case: “Where part of a conversation is in evidence, entire conversation may be proven.” White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894).

Case: “It is error to exclude statement immediately preceding, made by person in conversation.” State v. Constantine, 48 Wash. 218, 93 P. 317 (1908).

Further, because COA 38243-1-II and the Respondent made claims of nonperformance by Guy (i.e. that Guy’s pleadings were voluminous and irrelevant), then the COA and Respondent must substantiate that claim specifically and with particularity. CR9(c). However, the COA specified no pleading and identified no particulars that verified voluminous or irrelevant documents. And, the Superior Ct docket already proved that the COA lied when it claimed that two of Guy’s petitions were 8-inches thick, comprising 2,000 pages.

Civil Rule 9(c) Condition precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.


--------------------- page 51 ---------------


This case COA 42213-1-II should take judicial notice of fraudulent evidence used by the COA 38243-1-II in its trial de novo. (See Examples 1 through 6, above.)

COA 42213-1-II should place limiting instructions on the false COA evidence in Examples 4, 5, and 6. (ER 105) Court instructions should limit use of said evidence to demonstrating the fact that the Respondent lied to the Court and the COA used false evidence to justify its decision in COA 38243-1-II.

COA 38243-1-II has no application as law of the case to this case COA 42213-1-II.

REQUEST FOR RELIEF

Request for Relief #1 -- Based on the foregoing , Guy requests that COA grant review by right under RAP 2.2 because interim Trust accountings become final judgments unless they are appealed. Clark v. Cooper, 39 Wn.2d 407, 235 P.2d 469 (1951). And, COA 38243-1-II granted review by right of the Respondent’s previous interim accounting for the Trust.

Request for Relief #2 -- Alternately, the COA should grant discretionary review under RAP 2.3(a).

Request for Relief #3 -- Guy requests an award costs pursuant to RCW 11.96A.150(1), RAP 18.9(a) and RAP 18.1.

Request for Relief #4 -- COA should deny attorney fees and costs to the Respondent, including the $500 attorney fee, which the Respondent already filed by declaration in Superior Court for the Respondent’s work in preparing a motion that the Respondent abandoned in Court on 4/22/2011.


--------------------- page 53 ----------------


Declaration

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


________________ Date: November 16, 2011
Guy M.
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX

Case Citation Regarding Unsworn Declarations
Verification of a pleading to effect that the party believes it to be true is not objectionable as a verification upon information and belief.
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926).

PARTIES

Filed by Beneficiary, Pro Se
Guy M.
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX


Personal Representative / Trustee
Gregg M., PR/Trustee
David Petrich, attorney
Eisenhower and Carlson LLP
1201 Pacific Avenue, #1200
Tacoma, WA 98402


------------------- page 53 ---------------


CERTIFICATE OF SERVICE

I, Guy M., certify that on the ____November 16, 2011_____, I served copies of the following document:

MOTION TO MODIFY RULING DENYING REVIEW DATED 11/07/2011

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

David Petrich
Eisenhower & Carlson
1201 Pacific Avenue, Suite 1200
Tacoma, WA 98402

Unsworn Declaration
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.

__________________ Date: November 16, 2011
Guy M.
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXX



Filed with:
Clerk of Courts
Washington Court of Appeals Division 2
950 Broadway, Suite 300
Tacoma, WA 98402-4454


--------------------- page 54 ----------------

EXHIBIT 1 – COA RULING DENYING REVIEW, DATED 11/07/2011

EXHIBIT 2 - SUPERIOR COURT ORDER DATED 5/06/2011

EXHIBIT 3 – SUPERIOR COURT ORDER DATED 4/22/2011 GRANTING A CONTIUANCE REQUESTED BY TRUSTEE IN ORDER TO VOLUNTARILY PROVIDE THE INFORMATION REQUESTED IN GUY’S MOTION.


--------------------- page 55 ----------------

______________________No. 42213-1-II

_________COURT OF APPEALS OF WASHINGTON STATE
_________DIVISION II

____________________________________________________
___________________________|
___________________________| Court of Appeal Case No 42213-1-II
Guy M.______________________|
_Appellant, Pro se_____________| Related Cases:
_Beneficiary__________________| Court of Appeal Case No 38243-1-II
___________________________|
______v.____________________| Trial Cases:
___________________________| Pierce Co Superior Ct No 03-4-01245-1
Gregg M.____________________| Consolidated with No. 08-4-00411-5)
_Respondent ________________|
_Personal Representative/Trustee_|
____________________________| MOTION TO RECUSE APPELLATE
____________________________| JUDGES QUINN-BRINTNALL,
____________________________| ARMSTRONG, AND PENOYAR
In re Dorothy M. Estate and _______| DUE TO THEIR PREJUDICED
Trust________________________| LIES OF FACT AND BASELESS
Deceased on 12/10/2002 ________| THREAT OF SANCTIONS
____________________________|____________________________



MOTION TO RECUSE APPELATE JUDGES QUINN-BRINTNALL, ARMSTRONG, AND PENOYAR DUE TO THEIR PREJUDICED LIES OF FACT AND BASELESS THREAT OF SANCTIONS


Filed by Appellant:
Guy M.
Pro Se, Beneficiary,
Son of Dorothy M.


------------- page 1 ---------------


TABLE OF CONTENTS


Table Of Authorities 5
Motion To Recuse Appelate Judges Quinn-Brintnall, Armstrong, And Penoyar 6
Purpose Of This Motion 6
Motion To Allow Overlength Motion 6
English Language 6
Statement Of Facts 7
Supplemental Statement Of Facts 8
Judges Cover-Up Their Own Corruption 9
In COA 38243-1-II, Three Judges Lied To Falsify Evidence 10
Example #1 Of COA Judges’ Lies And Fraud 10
Example #2 Of COA Judges’ Lies And Fraud 11
Example #2 Of COA Judges’ Lies And Fraud 12
Example #4 Of COA Judges’ Lies And Fraud 12
Example #5 Of COA Judges’ Lies And Fraud 14
Judges’ Lies Resulted In $60,000 Of Unnecessary Litigation Fees 17
Example #6 Of COA Judges’ Lies And Fraud 18
Example #7 Of COA Judges’ Lies And Fraud 19
Example #8 Of COA Judges’ Lies And Fraud 20
Example #9 Of COA Judges’ Lies And Fraud 22
Recuse 3 COA Judges Due Their Baseless Threat Of Sanctions 24
Objection To 24
Arguments Regarding Baseless Threat Of Sanctions 24
Not Redundent - Guy’s Motion To Strike Was Not Redundant 24
Not Frivolous -- Appellant’s Briefs And Motions 25
Not Frivolous – Guy’s First Motion To Strike 25
Not Frivolous – Guy’s 2nd Motion To Stike After Briefs Were Filed 26
Not Frivolous - Guy’s Notice Of False Affidavit Of Serice 26
Respondent Is A Serial Violator Of Due Process 26
Respondent Is A Serial Violator In Bad Faith 26
Respondent’s Long History Of Failure To Serve Motions, Notices, And Briefs 27
Damages Done By Respondent’s Serial Violations Of Due Process 30
Not Frivolous - Affidavits Should Be Considered For Sanctions 31
John’s Affidavit Proves Respondent Is Litigating Out Of Spite 31
Respondent’s Litigation Out Of Spite Is Cause For Sanctions 31
Repsondent’s Continued Litigation In Bad Faith Warrants Sanctions 32
Not Frivolous -- Size And Purpose Of Sanctions 33
Not Frivous -- Sanctions Because Repsondent Requested Affirmatvie Releif Without Filing A Cross Appeal 33
Not Frivolous -- Guy’s Motion Raised Debatable Issues 35
Not Frivolous -- Issue Not Yet Decided By Published Opinion 35
Not Frivolous – Theory Different From Past Precedent 35
Not Frivolous – Because Guy Cited Legal Authorities 36


----------------- page 2 ------------------


Not Abusive – Truth Is Its Own Defense 37
Judicial Lies 37
Judicial Lies 37
Judicial Lies 38
Judicial Incompetence 38
Judicial Incompetence 38
Judicial Incompetence 38
Judicial Corruption 39
Judicial Corruption 40
Not Abusive - Zealous And Highly Contentious Conduct Is Not Abusive 40
Not Abusive – Guy Was Attacked First And Must Defend 41
Cause For Recusal -- Judiciary Scapegoats Guy To Disguise Payoffs 41
Cause For Recusal –Judicial Crime Lords And Their Criminal Enterprise 43
Cause For Recusal – Signaling To Criminal Cohorts By Judicial Crime Lords 43
Cause For Recusal – Weapons Of The Judicial Crime Lords 44
Cause For Recusal – Proof Of Anger And Lies By Judical Crime Lords 45
Criteria And Authorities For Recusal 47
Requests For Relief 50
Unsworn Declaration 51
Certificate Of Service 52
Affidavit Of Service 52
Exhibit – COA Order Date 11/18/2010 55


------------------- page 3 --------------


TABLE OF AUTHORITIES

Cases
Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994 34
Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994) 42
Bryant v. Joseph Tree, Inc., 57 Wn. App. 107, 786 P.2d 829, amended, 57 Wn. App. 107, 791 P.2d 537 (1990), aff'd, 119 Wn.2d 210, 829 P.2d 1099 (1992) 31, 44, 46
Caperton V. Massey, 129 S. Ct. 2252 - Supreme Court 2009 48
Carlsen, Llp, v. American Best Food, 2001 Wash. App. LEXIS 554 49
Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968) 49
Doe v. Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 780 P.2d 853 (1989) 32
Donald M. Barovic Trust, 88 Wn. App. 823; 946 P.2d 1202; 1997 Wash. App. LEXIS 1921 47
Federal Land Bank v. Redwine, 51 Wn. App. 766, 755 P.2d 822 (1988) 35
Gross v. Sunding, 139 Wn. App. 54, 64, 161 P.3d 380 (2007) (citing Thayer, 8 Wn. App. at 41) 38
Guardianship of: Larry K. Cosby; Linda J. Devore v. Jennie Morris, et al, No. 24201-0-II, 2000 Wash. App. LEXIS 882 27
Hancock v. Gooley, Supreme Court of Washington, 196 Wash. 357; 83 P.2d 221; 1938 Wash. LEXIS 627; 118 A.L.R. 1484 34
Hotel Employees & Restaurant Employees, Local 8 v. Jensen, 51 Wn. App. 676, 754 P.2d 1277 (1988) 36
In re Estate of Ehlers, Wash. Court of Appeals, 80 Wn. App. 751, 757, 911 P.2d 1017 (1996) 16
In re Estate of Larson, Supreme Court Of Washington, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985) 16
In re Marriage of Zier, 136 Wn. App. 40, 147 P.3d 624 (2006) 34
In re Murchison, 349 U.S. 133, 136 (1955) 48
Janet Kirchan vs. Fred Schoen, 2007 Wash. App. LEXIS 294 29
Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 157 P.3d 431 (2007) 40
Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 929 P.2d 1204 (1997) 34
Lockhart v. Greive, 66 Wn. App. 735, 834 P.2d 64 (1992) 35
Madden v. Foley, 83 Wn. App. 385, 922 P.2d 1364 (1996) 33
Marriage of Tomsovic, 118 Wn. App. 96, 74 P.3d 692 (2003). 35
Mayberry v. Pennsylvania, 400 U.S. 455 (1971) 47
Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530 (1988) 32
Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530 (1988); MacDonald v. Korum Ford, 80 Wn. App. 877, 912 P.2d 1052 (1996). 33
Mistretta v. United States, 488 U.S. 361, 407 (1989) 48
Myers v. Exch. Nat’l Bank, 96 Wash. 244, 164 P. 951 (1917) 15, 16
Park’s Trust, Supreme Court of Washington, 39 Wn.2d 763 (1951) 13
Peters v. Kiff, 407 U.S. 493, 502 (1972) 49
Public Employees Mut. Ins. Co. v. Rash, 48 Wn. App. 701, 740 P.2d 370 (1987); 35
Pugel v. Monheimer, 83 Wn. App. 688, 922 P.2d 1377 (1996), review denied, 131 Wn.2d 1024, 937 P.2d 1101 (1997). 33


------------------ page 4 ------------------


Reed v. Streib, 65 Wn.2d 700, 399 P.2d 338 (1965 32
Rhonda S. Bowers v. Spokane County, 2007 Wash. App. LEXIS 1366 49
Skimming v. Boxer, 119 Wn. App. 748, 82 P.3d 707 (2004), review denied, 152 Wn.2d 1016, 101 P.3d 108 (2004). 31
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926) 51
State Of Washington, v. Perala, 132 Wn. App. 98; 130 P.3d 852; 2006 Wash. App. LEXIS 435 49
State Of Washington, v. Wilson, 2007 Wash. App. LEXIS 2129 49
State v. Adamo, 120 Wash. 268, 207 P. 7 (1922) 20, 22
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902) 20, 22
State v. Constantine, 48 Wash. 218, 93 P. 317 (1908) 23
State v. Fair, 2005 Wash. App. Lexis 1957 26
State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920) 20, 22
State v. Morris, 109 Wash. 490, 187 P. 350 (1920) 20, 22
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008) 49
State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009) 22
Suarez v. Newquist, 70 Wn. App. 827, 855 P.2d 1200 (1993) 32
Van Dinter v. City of Kennewick, 64 Wn. App. 930, 827 P.2d 329 (1992), aff'd, 121 Wn.2d 38, 846 P.2d 522 (1993 36
Ward v. Vill. of Monroeville, 409 U.S. 57, 62 (1972) 48
Wash. Beef, Inc. v. County of Yakima, 143 Wn. App. 165, 177 P.3d 162 (2008) 34
White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894) 23
Withrow v. Larkin, 421 U.S. 35, 47 (1975) 47
Statutes
RCW 11.106.020 14
RCW 11.20.010 28
RCW 11.48.010 17
RCW 4.84.185 32
Wash. Rev. Stat. § 11548-27 (Remington 1943) 14
Rules
Civil Rule 9(c) 24
CJC 3(A)(1) 50
CJC 3(D)(1): 50
CR 11 32
CR9(c) 24
ER 105 24
ER 106 23, 24
ER 403 22
RAP 18.4(c) 27, 30
RAP 18.9 34
Regulations
Generally Accepted Accounting Principles 20


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MOTION TO RECUSE APPELATE JUDGES QUINN-BRINTNALL, ARMSTRONG, AND PENOYAR DUE TO THEIR PREJUDICED LIES OF FACT AND BASELESS THREAT OF SANCTIONS


PURPOSE OF THIS MOTION

The purpose of this motion to recuse three Appellate judges, Quinn-Brintnall, Armstrong, and Penoyar who repeatedly lied and falsified facts in the related case COA 38243-1-II. Consequently, Guy requests that the three judges be recused from this case COA 42213-1-II due to their lying prejudice against Guy. This is particularly necessary because important issues in this case center on another lie by Judge Thomas Larkin, who lied in the Superior Court order dated 5/6/2011 (Exhibit 3, attached), which falsely stated that Guy had withdrawn his motion for a trust accounting. It is important to recuse lying Appellate judges Quinn-Brintnall, Armstrong, and Penoyar, because they will lie again to protect the lying Superior Court Judge Larkin.

MOTION TO ALLOW OVERLENGTH MOTION


Guy is filing a separate motion to allow this overlength motion. The COA should take judicial notice that Supreme Court 85937-0 and 85871-3 both granted Guy’s request to allow overlength.

ENGLISH LANGUAGE

Guy is pro se and will use common terms in the English language. A lie is a lie. And a person who lies is a liar. Guy will use such terms as appropriate to add specificity, clarity, and brevity to Guy’s pleadings.


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STATEMENT OF FACTS

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.

On April 12, 2011, the PR/Trustee filed the Personal Representative & Trustee’s response.[footnote 1] Therein, the PR/Trustee cited COA 38243-1-II and refused to provide the Trust’s Annual Statement requested by Guy. PR/Trustee’s attorney also filed a declaration [footnote 2] demanding $500 in attorney fees for responding to Guy’s motion for the annual accounting, which the Respondent alleged was frivolous.

Then, in a hearing on April 22, 2011, the PR/Trustee did an about face. Respondent requested a continuance in order to voluntarily provide the information requested in Guy’s motion. (See Superior Court order, dated April 22, 2011, Exhibit 1, attached.)

However, new information provided by the Respondent was not responsive to the requests for relief in Guy’s motion. Respondent failed to comply with the terms of his own request for a continuance and Respondent violated the court order that granted the continuance (Exhibit 1, attached).

In the hearing on May 6, 2011, PR/Trustee’s attorney read aloud a draft order, which stated that Guy had involuntarily “withdrawn” his motion. That was the first time

-------------
Footnote 1 -- See “Personal Representative & Trustee’s Response to Guy M.’s Motion for Accounting and Billing Information.”
Footnote 2 -- See “Declaration Of Jennifer A. Wing In Support Of Personal Representative & Trustee’s Response To Guy M.’s Motion For Accounting & Billing Information.”


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that the PR/Trustee made that statement, and the PR/Trustee made it without supporting arguments. Judge Larking then declared that Guy had withdrawn his motion. This was done over Guy’s vigorous objections, because Guy had not withdrawn his motion. Nevertheless, Superior Court entered the order declaring that Guy had withdrawn his motion. Guy is now appealing that order.

In said order, Judge Larkin stated that he was recognizing Guy’s involuntarily withdrawal of his motion. However, Guy made no such withdrawal. In the hearing, Guy strongly protested the use of the term “withdrawn” by the Judge. Guy also raised his unmet requests for relief, for example Guy’s opposition to the PR/Trustee’s declaration and pleading which demanded $500 in attorney fees. However, Judge Larkin unilaterally declared that Guy was involuntarily withdrawing his motion anyway.

On November 7, 2011, COA Commissioner Schmidt entered a ruling denying review.

On November 17, 2011, Guy filed a motion to modify the ruling denying review.

SUPPLEMENTAL STATEMENT OF FACTS

Washington State judges and the Court of Appeals Division II are not a judiciary dedicated to the constitutional application of law, but instead the judges form their own criminal syndicate and political machine, which are dedicated to ensuring that the judges get reelected in unopposed elections. The methodology of this criminal syndicate of judges is to steal estate assets from bereaved families and give the assets to local attorneys. Thusly enriched, the local attorneys launder much the money into political contributions and favors which ensure that the 95% of these judges are re-elected in unopposed


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elections. Appellant’s Incomplete Brief documented these facts in COA 38243-1-II, beginning on page 38.

COA 38243-1-II is an example of methods used by this criminal syndicate of judges. In COA 38243-1-II, the judges panel J. Armstrong, J. Quinn-Britnall, and C.J. Penoyar made many lies of fact in its opinion in order to falsely blame Appellant Guy instead of the thieving Respondent/Personal Representative/Trustee for costs and losses to the Estate. Since the COA continues its lies in this case, COA 42213-1-II, it is necessary to list judges’ methodical lies with examples from COA 38243-1-II.

JUDGES COVER-UP THEIR OWN CORRUPTION

The Court of Appeals did not publish COA 38243-1-II because it violated every relevant statute and over 80 case precedents. If COA 38243-1-II had been published, it would have been analyzed, cited, and applied by attorneys for other cases. It would have done incalculable harm to the entire system of law in Washington State. The judges’ panel in COA 38243-1-II would become the scourge and laughing stock of Washington State jurisprudence, and judges Quinn-Brintnall, Armstrong, and Penoyar would lose their jobs in the next election. So in order to cover-up its own corruption, the COA voted not to publish COA 38243-1-II. For the same corrupt reasons, the Supreme Court denied review because those Supreme Court judges are products of the same corrupt political machine. (Example [footnote 3]. )

------------
Footnote 3 -- In Supreme Court 85871-3 AND 85937-0, Rule of Evidence 201 made it mandatory that the court take judicial notice of commonly known and easily verifiable facts. Also, ER2012 made judicial notice mandatory for related cases. However, the Supreme violated that mandatory rule and refused to take judicial notice despite Guy motion for judicial notice. Judges of the Washington State Supreme Court are a corrupt political machine that steals estate assets from bereaved families. Said judges use local attorneys to launder the stolen money back into the Judges re-election campaigns in the form of money contributions and political favors, which ensure that 98% of judges enjoy re-election without facing an opposing candidate.


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IN COA 38243-1-II, THREE JUDGES LIED TO FALSIFY EVIDENCE

The Rules of Evidence and known facts prove that the Judges statements were not true and that they falsified evidence in COA 38243-1-II.

EXAMPLE #1 OF COA JUDGES’ LIES AND FRAUD – In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated there is “no evidence that anyone is attempting to deprive him (Guy) of funds to which he is entitled.”

With that factual lie, the Judges ignored Dorothy M.’s Charles Schwab brokerage account, which the Respondent/PR/Trustee stole and kept in secret for 6 years (2002-2008). Not until 2008, did the Respondent reveal the existence of the brokerage account, and then the Respondent only revealed the ending balance at that time, which was approximately $12,000. (See footnote #3 in the 2008 Trust Accounting, Exhibit 5 in Appendix 29 in COA 42213-1-II.) To date, the Respondent has never revealed the beginning balance, which is required to determine what happened to funds in the brokerage account. The requirement for a beginning balance is known by anyone that ever balanced a check book. It is a commonly known fact of which the Court must take judicial notice. (ER 201) And, a beginning balance is required by legally binding Generally Accepted Accounting Principles.[footnote 4]

----------
Footnote 4 -- 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 www.fasab.gov/accepted.html


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Further, Guy testified to his personal knowledge that the beginning balance in the account exceeded $62,000, when the account came into the possession of the PR/Trustee/Respondent. But, the COA judges let the Respondent get away with stealing $50,000 from the brokerage account by allowing the Respondent to present only the ending balance of approximately $12,000. Judges Quinn-Brintnall, Armstrong, and Penoyar simply lied when they stated there is “no evidence that anyone is attempting to deprive him (Guy) of funds to which he is entitled.” Not only was Guy being deprived of the stolen money, but so too were all three of the beneficiaries

EXAMPLE #2 OF COA JUDGES’ LIES AND FRAUD -- –In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated
“ TEDRA permits discovery only when a judicial proceeding placing a specific issue in controversy has commenced, or when good cause is shown. RCW 11 .96A. 115. Guy’s requests for discovery are general at best… We see no reason why the trial court should have granted Guy’s request to conduct additional discovery.”

Judges Armstrong, Penoyar, and Quinn-Brintnall lied when they stated that “Guy’s requests for discovery are general at best.” In the same order, the same judges also stated there is “no evidence that anyone is attempting to deprive him (Guy) of funds to which he is entitled.” That is a very specific issue in controversy for which Guy requested discovery.

Judges Armstrong, Penoyar, and Quinn-Brintnall simply lied, when they stated that “Guy’s requests for discovery are general at best.” Thereby, the lying judges prevented discovery of incontrovertible proof that PR/Trustee Gregg had stolen $50,000 from the Charles Schwab brokerage account. Such incontrovertible proof is simple to obtain by getting an initial balance from brokerage account statement. But, instead Judges Armstrong,


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Penoyar, and Quinn-Brintnall lied to protect their criminal cronies in the theft of assets from the Dorothy M. estate.

More, ample proof that Judges Armstrong, Penoyar, and Quinn-Brintnall lied, when they stated that “Guy’s requests for discovery are general at best,” is shown in Appellant’s Incomplete Brief, which presented 13 pages of requests for relief [footnote 5], and which included many specific issues requiring discovery. But instead of allowing discovery, Judges Armstrong, Penoyar, and Quinn-Brintnall lied to protect their criminal cronies in the theft of assets from the Dorothy M. estate.

EXAMPLE #3 OF COA JUDGES’ LIES AND FRAUD -- –In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated
“ We see no reason why the trial court should have granted Guy’s request to conduct additional discovery.”

By using the term “additional discovery” the judges falsely claimed that Guy had already conducted discovery, and Guy was only seeking more discovery. That was a lie because the Courts never permitted any discovery at all.

Thus, judges Armstrong, Penoyar, and Quinn-Brintnal completed the circle of lies by which they hid confirming evidence that the PR/Trustee/Respondent stole $50,000 from the Charles Schwab brokerage account, which belongs to the Estate of Dorothy M..

EXAMPLE #4 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated

-----------
Footnote 5 -- See “Collected Requests for Relief Made in the Trial Court,” page 24-37 in Appellant’s Incomplete Brief.


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“The record does not show, however, that Gregg engaged in any trust transaction other than the distribution in which Guy shared. And, although Guy again complains that Gregg failed to provide an annual accounting, there were no receipts and disbursements to account for, except for the $600,000 disbursement that included Guy. See RCW 11.106.020 (trustee shall deliver to beneficiaries annual statement of all receipts and disbursements of trust funds). Furthermore, correspondence shows that counsel for the estate kept Guy informed of trust matters. Any failure to provide annual trust accountings did not prejudice Guy, and his claim of wrongdoing fails.”

In order to make their next lie effective, the judges Quinn-Brintnall, Armstrong, and Penoyar had to make an absurd conclusion of law that a Trustee is never required to file an annual accounting statement, even though annual statements are required by the plain language of “RCW 11.106.020 Trustee’s Annual Statement.” The judges cited a very old case, Park’s Trust (1951)[footnote 6], which occurred 31 years before the statute RCW 11.106.020 was created by the legislature. And the actual Park’s trust was created before the 1941 law requiring trust accounting, so even the 1941 law did not apply to Park’s Trust. Wash. Rev. Stat. § 11548-27 (Remington 1943) .

Thereby, judges Quinn-Brintnall, Armstrong, and Penoyar negated the plain language of our modern (1982) law RCW 11.106.020 which requires an annual statement.

That is an absurd conclusion of law, but Guy is not here to question the Judges’ absurd conclusion of law, but to expose prejudiced lies of fact by judges Quinn-Brintnall, Armstrong, and Penoyar.

Here is where the judges’ lie of fact comes into play. In order to excuse the Trustee from never filing an annual report in 6 years (2002-2008), the judges had to claim “there were no receipts and disbursements to account for, except for the $600,000 disbursement that included Guy.” That was a lie. In 2008, the Trustee reported the Charles Schwab

------------
Footnote 6 -- Park’s Trust, Supreme Court of Washington, 39 Wn.2d 763 (1951)


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brokerage account for the first time ever in 6 years (2002-2008), and then it was hidden as footnote.[footnote 7] After Guy discovered the missing Charles Schwab account, it became apparent that the brokerage account had been depleted by $50,000, leaving approximately $12,000 in the account. But, the Trustee refused to reveal the initial balance of the Charles Schwab account, and has never done so. Keeping a brokerage account secret for 6 years and not reporting it in the Estate inventory is a fraud; so is reporting only the ending balance. And, stealing $50,000 from the account is a felony crime by the PR/Trustee. When the judges Quinn-Brintnall, Armstrong, and Penoyar claimed that “there were no receipts and disbursements to account for, except for the $600,000 disbursement that included Guy,” they were lying. Judges Quinn-Brintnall, Armstrong, and Penoyar lied again when they stated that “Any failure to provide annual trust accountings did not prejudice Guy, and his claim of wrongdoing fails.” The PR/Trustee’s theft $50,000 from the Charles Schwab brokerage account is a felony crime.

The COA judges lied to protect their partners in crime (the local attorneys) that steal estate assets from bereaved families and then launder the money into political contributions and favors, which ensure that the judges can run for re-election without an opposing candidate.

EXAMPLE #5 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated that :

----------
Footnote 7 -- See Trust accounting filed in 2008, which is Exhibit 5 in Appendix 29, in COA 42213-1-II.


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“The record shows that in January 2003, Guy learned of his mother’s death as well as his inheritance from her estate. “

This is a lie by judges Quinn-Brintnall, Armstrong, and Penoyar, because the Personal Representative/Trustee Gregg did not inform Guy about Guy’s inheritance. It is not true that “The record shows that in January 2003, Guy learned of his mother’s death as well as his inheritance from her estate.”

The Guardian/Personal-Representative/Trustee Gregg did not even inform Guy about his mother’s death or her funeral. Eventually, Guy learned that his mother died because Guy’s cards and letters were returned by the Post Office.

In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied, again, when they stated that

Although Gregg did not file his mother’s will with the court until nine months later, the trial court found that the heirs received timely notice of Gregg’s appointment as personal representative and the pendency of probate proceedings. Guy can show no prejudice in Gregg’s delay in filing the will where he learned of his inheritance in a timely manner and has shared in the disbursements to date. See Myers v. Exch. Nat ‘1 Bank, 96 Wash. 244, 164 P. 951 (1917) (action for damages where objecting party did not receive disbursement due to custodian’s failure to timely produce will).

Judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated that “Guy can show no prejudice in Gregg’s delay in filing the will where he learned of his inheritance in a timely manner and has shared in the disbursements to date. See Myers v. Exch. Nat’l Bank, 96 Wash. 244, 164 P. 951 (1917).” In fact, Myers v. Exch. Nat’l Bank states just the opposite: “that any person who shall willfully fail or neglect to so deliver a will shall be liable to every person interested in the will for damages by such neglect.”


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[HN1] Wash. Code §§ 1289, 1292 state that any person having the custody of a will shall, within 30 days after he shall have received knowledge of the death of the testator or testatrix, deliver the will into the superior court having jurisdiction or to the person named in the will as executor, and that any person who shall willfully fail or neglect to so deliver a will shall be liable to every person interested in the will for damages by such neglect.”
Myers v. Exch. Nat’l Bank, 96 Wash. 244, 164 P. 951 (1917)

That is no mere error in the Judges’ conclusion of law. It is an outright lie by judges Quinn-Brintnall, Armstrong, and Penoyar to completely revise the plain language of the case (Myers v. Exch Nat’l Bank) to it give the exact opposite meaning. Their lie is consistent with the judges’ pattern of false claims that Guy was not damaged by the PR/Trustee’s delays and refusal to distribute Guy’s inheritance for many years.

The opinion in COA 38243-1-II acknowledged that the PR/Trustee and his attorneys owe a fiduciary responsibility to the beneficiaries (Estate of Larson [footnote 8] and Estate of Ehlers [footnote 9] ), which includes distribution the inheritance “as rapidly and quickly as possible” per RCW 11.48.010. However, the PR Trustee maliciously delayed distribution for 6 years, from 2002-2008, in order to punish the beneficiaries. (See John M.’s Declaration confirming the PR/Trustee’s own statements to this effect.[footnote 10] )

Additionally, the PR/Trustee gave several false excuses for the 6 year delay in distribution (2002 - 2008). Even granting all the excuses, it still leaves a 3 year delay in distribution, which the PR/Trustee did not even try to excuse. The three years, with no excuse offered, consist of: (A) ten months delay in delivering Dorothy’s Will to probate court, and (B) two years delay (2006-2008) after the statute of limitations expired on a

-----------
Footnote 8 -- In re Estate of Larson, Supreme Court Of Washington, 103 Wn.2d 517, 521, 694 P.2d 1051 (1985)
Footnote 9 -- In re Estate of Ehlers, Wash. Court of Appeals, 80 Wn. App. 751, 757, 911 P.2d 1017 (1996), at HN1
Footnote 10 -- John M.’s Declaration is filed in Superior Court and in COA Appendix 13. John’s declaration should be considered by the Court per .Bryant v. Joseph Tree, Inc.



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Federal taxes (which the Estate never owed and never paid because the Estate was too small to be taxed, anyway).

In their false statements, appellate judges Quinn-Brintnall, Armstrong, and Penoyar said that Guy was not prejudiced or damaged by PR/Trustee’s delays. However, damages are manifest. It is a commonly known fact that delays in payment to a rightful recipient damages the recipient. The IRS charges interest and penalties for late payment. Credit card companies charge interest and penalties for late payment. So do landlords. Even, the PR/Trustee’s attorneys demand interest for late payment of their fees. And, the State of Washington won payment of interest from the Personal Representative for late filing of a will in Hyde‘s Estate.[footnote 11] Late filing a will was a crime and a gross misdemeanor in Hyde‘s Estate. [footnote 12]

Additionally, for much of the 6-years (2002-2008) and now for 9-years (2002-2011), Guy has been homeless or indigent. It is a fact that Guy has been severely damaged by the delay in distribution of his inheritance, and judges Quinn-Brintnall, Armstrong, and Penoyar lied when they said Guy was not prejudiced or damaged by delays.


JUDGES’ LIES RESULTED IN $60,079.99 OF UNNECESSARY LITIGATION FEES

The Respondent /Trustee was the prevailing party in COA 38243-1-II, and he billed $60,079.99 in attorney fees for that appeal, but then at the very next opportunity (this case) the Trustee refused to use COA 38243-1-II as the law of the case.

-----------
Foonote 11 -- In re Hyde ‘s Estate, Supreme Court Of Washington, 190 Wash. 88, 93, 66 P.2d 856 (1937)
Foonote 12 -- In re Hyde ‘s Estate, Supreme Court Of Washington, 190 Wash. 88, 93, 66 P.2d 856 (1937)



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Quoting the Trustee in Verbatim Report of 5/06/2011, page 4 [footnote 13]:

“However, to avoid continued lengthy and unnecessary litigation, we agreed to and, in fact did file an accounting of the estate and the trust and provided that to Mr. M., and that accounting is for the period January 1, 2010 through December 31, 2010.”

So even the prevailing party (Trustee) acknowledged he had engaged in lengthy and unnecessary litigation in COA 38243-1-II. After spending $60,079.99 in attorney fees to win COA 38243-1-II, the Trustee refused to use it as the law of the case in COA 42213-1-II, and the Trustee simply agreed to provide an annual accounting as required by RCW 11.106.020.

This proves that the Judges lies in COA 38243-1-II resulted in a decision that served no purpose but to steal estate assets and transfer them to the Judges’ criminal cronies, who are the local attorneys working for the Trustee. This is how the judges steal assets and have them laundered back into political campaign contributions and favors, so that the judges can run for re-election without an opposing candidate.

EXAMPLE #6 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated that there was no cause to replace the PR/Trustee.

“We review a trial court’s decision to retain a personal representative or trustee for an abuse of discretion. We find none in the trial court’s refusal to terminate Gregg’s appointment in either capacity. Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 716, 732 P.2d 974 (1987); In re Beard’s Estate, 60 Wn.2d 127, 132, 372 P.2d 530 (1962). Nor do we find any grounds for the estate counsel’s termination. Counsel’s conduct, as demonstrated by the record and by the respondent’s brief on appeal, shows no basis for any determination that he has acted in bad faith with regard to the estate, the trust, or the beneficiaries. See In re Estate of Larson, 103 Wn.2d at 521 (attorney’s fiduciary duties run to personal

------------
Footnote 13 -- Superior Court Verbatim Report of 5/06/2011 is in Appendix 30 in COA 42213-1-II.


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representative and heirs of estate). “

For seven years (2004-2011), Gregg has claimed to be the Trustee without filing the Trust or documentation to support his claim. Gregg has always been a self-proclaimed Trustee. That, alone, is cause to replace the Trustee.

Further, the PR/Trustee hid the Charles Schwab brokerage (CSB) account for 6 years (2002-2008), and then the PR/Trustee only revealed the ending balance of approximately $12,000. During those 6 years, PR/Trustee secretly stole $50,000 from the Charles Schwab brokerage account. That proves that that every previous inventory and accounting had been a fraud by the Guardian/Personal-Representative/Trustee/Respondent Gregg. Also, according to legally binding Generally Accepted Accounting Principles [footnote 14], the Estate and Trust accountings continue to be frauds. That theft and fraud by the self-proclaimed Trustee are facts, and the COA judges committed lies of fact when they said there was no reason to replace the Trustee.

EXAMPLE #7 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated
“Guy’s own actions further delayed the estate’s closure. Guy prevented the estate from closing in 2004 with his petition for an accounting, and the record is replete with his filings protesting Gregg’s activities as well as those of counsel for the estate.”

----------
Footnote 14 -- 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 www.fasab.gov/accepted.html


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This is another lie by judges Quinn-Brintnall, Armstrong, and Penoyar so they could blame Guy for the PR/Trustee’s refusal to distribute the beneficiaries’ inheritance. The Superior Court docket shows that during four years (between Guy’s petition for accounting in 2004 and Respondent’s petition to approve final accounting in 2008), the only filings made by Guy were notices of appearance and one request for special notice. That proves that for 4 years (2004-2008), the delay was caused by the PR/Trustee’s refusal to present an accounting. And after four years, when the PR/Trustee did present an accounting it was fraud because the PR/Trustee had kept the Charles Schwab brokerage account a secret from 2002-2008. Then and now, the PR/Trustee is still keeping the beginning balance a secret, having only revealed the ending balance. That proves that judges Quinn-Brintnall, Armstrong, and Penoyar were lying about the facts, when they blamed Guy for delays in closing the estate.

EXAMPLE #8 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated
“He (Guy) complains about the delays in closing this estate and complains about the significant attorney fees incurred in this estate, and I would agree with him on both counts; but I would also have Guy M. look at the reasons why there [have] been significant delays and significant fees. Report of Proceedings (RP) (June 27, 2008) at 7. (Respondent’s) Counsel added that he had received more than eight inches of material from Guy concerning the two petitions.”

Therein, judges quote Respondent’s self-serving statement as if it were a fact that Guy handed him “eight inches of material” concerning two petitions. Not only is the statement provably false, but such self-serving statements are not admissible as evidence.

Case: “Self-serving statements are not admissible.”


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State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

COA 38243-1-II claimed that Guy filed two pleadings, totaling eight inches thick, which delayed closing the estate and delayed distribution of the beneficiaries’ inheritance. However, judges Quinn-Brintnall, Armstrong, and Penoyar and the Respondent are all lying. No such pleadings exist.

It is a commonly known and easily verifiable fact (ER 201(b)(2)) that a ream of copy paper is two inches thick and contains 500 pages. Therefore, the judges’ lied when they claimed that Guy handed the Respondent two petitions totaling 2,000 pages on 6/27/2008. (Math calculation: four x 2-inch-thick reams = an 8 inch stack. Four reams of 500 pages each = 2,000 pages = an 8 inch stack.)

The Superior Court docket shows that Guy only filed two petitions totaling 44 pages, between 6/24/2008 to 6/27/2008. Hence, the COA’s claim is completely false that Guy filed two pleadings which total 8-inches-thick and comprise 2,000 pages. And the judges’ claim is false that Guy’s pleadings (8-inches thick) delayed distribution of inheritance because the judges’ just lied that Guy’s 44 pages were eight inches thick.

By comparison, the Respondent filed four pleadings totaling 81 pages on the same dates, between 6/24/2008 – 6/27/2008., which is twice the number of pleadings and twice the number of pages filed in Guy’s petitions. Appellant judges Quinn-Brintnall, Armstrong, and Penoyar persist in lying about the facts in their attempt to tar Guy as a frivolous litigant that delayed distribution of inheritance from 2004-2008.


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Finally, the judge’s claim that Guy filed two petitions totaling 8 inches thick (and comprising 2,000 pages) fails the evidence Balance Test in ER 403. By case precedent and rules of evidence, the judges lying claim must be excluded because the judges failed to consider if the probative value of their false and inflammatory claim outweighed the risk of unfair prejudice. (ER 403 and State v. Scherner. [footnote 15])

EXAMPLE #9 OF COA JUDGES’ LIES AND FRAUD -- In their opinion in COA 38243-1-II (March 29, 2011), judges Quinn-Brintnall, Armstrong, and Penoyar lied when they stated
“As Gregg (the Respondent) stated, “A great deal of attorney time was devoted to dealing with Guy M.’s voluminous and irrelevant documents filed with the court.” CP at 483.”

The COA should take judicial notice that said statement by the Respondent is not an evidentiary fact. Said statement makes conclusions of law that Guy’s pleadings were 1) excessively voluminous and 2) irrelevant. That is a conclusion de novo by the COA 38243-1-II, because Superior Court made no such finding.

The COA’s use of said statement from the Respondent is not evidence because it violates rules of evidence. Such a self serving statement by the Respondent is not evidence, it is merely a self-serving statement.

Case: “Self-serving statements are not admissible.”
State v. Burton, 27 Wash. 528, 67 P. 1097 (1902); State v. Morris, 109 Wash. 490, 187 P. 350 (1920); State v. Gottstein, 111 Wash. 600, 191 P. 766 (1920); State v. Adamo, 120 Wash. 268, 207 P. 7 (1922)

------------
Footnote 15 -- Admission is subject to the court establishing that the evidence is relevant and that the probative value outweighs the risk of unfair prejudice under the modified ER 403 balancing test. State v. Scherner, 153 Wn. App. 621, 225 P.3d 248 (2009).


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The COA/Respondent’s claims that Guy’s pleadings were voluminous and irrelevant violated the rule of completeness (ER 106), because the COA failed to include any of Guy’s denials or explanations.

“ER 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part, or any other writing or recorded statement, which ought in fairness to be considered contemporaneously with it.”

Case: “Where part of a conversation is in evidence, entire conversation may be proven.” White v. Territory, 1 Wash. 279, 24 P. 447 (1890); State v. Freidrich, 4 Wash. 204, 29 P. 1055 (1892); State v. Regan, 8 Wash. 506, 36 P. 472 (1894).

Case: “It is error to exclude statement immediately preceding, made by person in conversation.” State v. Constantine, 48 Wash. 218, 93 P. 317 (1908).

Further, because COA 38243-1-II and the Respondent made claims of nonperformance by Guy (i.e. that Guy’s pleadings were voluminous and irrelevant), then the COA and Respondent must substantiate that claim specifically and with particularity. CR9(c). However, the COA specified no pleading and identified no particulars that verified voluminous or irrelevant documents. And, the Superior Court docket already proved that the COA lied when it claimed that two of Guy’s petitions were 8-inches thick, comprising 2,000 pages.

Civil Rule 9(c) Condition precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

This case COA 42213-1-II should take judicial notice of fraudulent evidence conjured up by judges Quinn-Brintnall, Armstrong, and Penoyar lies in COA 38243-1-II (See Examples 1 through 8, above.)


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COA 42213-1-II should place limiting instructions on the judges lying evidence in COA 38243-1-II. (ER 105) Court instructions should limit use of said evidence to demonstrating the fact that the Respondent lied to the Court, and that Appellant judges Quinn-Brintnall, Armstrong, and Penoyar lied to use false evidence to justify its decision in COA 38243-1-II.

COA 38243-1-II has no application as law of the case to this case COA 42213-1-II, because the judges made many lies of fact, (and because the Respondent waived COA 38243-1-II when he voluntarily agreed to provide an annual accounting).

Appellate judges Quinn-Brintnall, Armstrong, and Penoyar should be recused from this case due to their lying prejudice against Guy.
.

RECUSE 3 COA JUDGES DUE THEIR BASELESS THREAT OF SANCTIONS


OBJECTION TO ORDER ON 11/18/2010 IN COA 38243-1-II

Quoting said order by the three COA Judges (Exhibit 2, attached):

“Appellant’s motion to strike is redundant…. If Appellant continues to file abusive pleadings and frivolous motions, this court may impose sanctions.”

As proven below, the COA’s claim that Guy filed redundant, abusive and frivolous motions simply a lie.


ARGUMENTS REGARDING BASELESS THREAT OF SANCTIONS

NOT REDUNDENT - GUY’S MOTION TO STRIKE WAS NOT REDUNDANT

In 38243-1-II, on 9/27/2010, Guy filed a motion to strike respondent’s brief. However, the COA refused to file the motion. The COA issued Court orders (6/30/2010


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and 9/23/2010) and Clerk’s letter (10/4/2010), which refused to file Guy’s motion until after all briefs had been filed. Therefore, Guy filed a second motion to strike after all briefs had been filed. This was in accordance with COA court orders, and Guy second motion to strike Respondent’s reply brief was not redundant.

NOT FRIVOLOUS -- APPELLANT’S BRIEFS AND MOTIONS

In 38243-1-II, the Respondent filed a motion on the merits, which the COA denied on October 1, 2010. Therefore, the COA proved that Guy’s Appellant’s brief, Appellant’s reply brief, and the arguments therein were not frivolous.

Case Citation: There were debatable issues, as evidenced by an order denying respondent's motion on the merits; thus, respondent was not entitled to an award of fees against appellant for a frivolous appeal. Pearson v. Schubach, 52 Wn.App. 716, 763 P.2d 834 (1988), review denied, 112 Wn.2d 1008 (1989).

Guy’s subsequent motion to strike Respondent’s brief contained some of the same debatable issues that Guy included in his briefs. Therefore, Guy’s motion to strike was not frivolous and not sanctionable.

NOT FRIVOLOUS – GUY’S FIRST MOTION TO STRIKE

In 38243-1-II, Respondent’s Reply Brief was served to the wrong address. Hence, Respondent’s affidavit of service was false. Guy eventually received Respondent’s brief with far too little time to prepare an adequate reply. Hence, Guy first motion to strike the respondent’s reply brief was not frivolous. Guy was obligated to inform the court of Respondent’s false affidavit and to request more time to file the Appellant’s reply.


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NOT FRIVOLOUS – GUY’S 2ND MOTION TO STIKE AFTER BRIEFS WERE FILED

In 38243-1-II, the COA refused to file Guy’s first motion to strike. See COA 38243-1-II orders (6/30/2010 and 9/23/2010) and Clerk’s letter (10/4/2010). That forced Guy to file his second motion to strike, which Guy filed in accordance with said court orders. Those court orders required Guy to hold motions and file them after all briefs were filed,

NOT FRIVOLOUS - GUY’S NOTICE OF FALSE AFFIDAVIT OF SERICE

Because an affidavit of service is presumed to be correct, it was Guy’s obligation to inform the court that Respondent used multiple false affidavits of service in COA 38243-1-II. Hence, Guy’s second motion to strike was not frivolous.

Case Citation: [HN4] An affidavit of service that is, on its face, regular in form and substance is presumptively correct. The person challenging the validity of service has the burden to show that service is improper by clear and convincing evidence.
State v. Fair, 2005 Wash. App. Lexis 1957


RESPONDENT IS A SERIAL VIOLATOR OF DUE PROCESS

Quote from Guy’s 2nd motion to strike respondent’s reply brief, in 38243-1-II:

“RESPONDENT IS A SERIAL VIOLATOR IN BAD FAITH
The Respondent has used his dirty trick of failure to serve in five recent pleadings. For example in Supreme Court #84648-1, Respondent’s pleadings that were not served to Guy. In COA 38243-1, Respondent’s Motion on the Merits was not served to Guy. Guy became aware Respondent’s motion on the merits after Guy received the COA order on said motion.”

Respondent’s failure to serve his motion on the merits deprived Guy of the opportunity to respond, which violated RAP 18.4(c).


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RESPONDENT’S LONG HISTORY OF FAILURE TO SERVE MOTIONS, NOTICES, AND BRIEFS

Respondent has a 10 year pattern of inexcusable delays and failure to provide notice or accounting. This caused estate assets to disappear, prolonged litigation, deprived the beneficiaries of their inheritance, and mulched the estate and trust. Now, the Respondent has mulched the Estate and Trust for $87,000 in attorney fees through 2010 [footnote 16], with no end in sight because Respondent has yet file a motion to close the Trust.

A few examples of Respondent’s delays, failure to provide notice, failure to provide accounting, and use of false affidavits of service, are listed below.

1) Respondent failed to notify Guy that the Respondent filed a guardianship action against Guy’s mother, Dorothy, who is the testator. That violated RCW 11.88.040 and the Guardianship of: Larry K. Cosby.[footnote 17] Guy did not find out until well over a year later. By then the Guardianship was in place, without testimony from Dorothy, herself, or from Guy who is her son. The last 10 years of litigation would have been avoided if Dorothy or Guy had been permitted to testify, because Gregg (guardian, personal representative, trustee) has a history of multiple kidnappings fraud, and elder abuse.

2) Respondent failed to deliver Dorothy’s Will to the court until 10 months after Dorothy’s Death, in violation of RCW 11.20.010. Thereby, the Respondents delayed distributing the inheritance for another year.

-------------
Footnote 16 -- In Superior Court 03-4-01245-1, Respondent filed billing statements totaling approximately $87,000 through 2010. Respondent’s billing for 2011 remains unknown to the estate beneficiaries.

Footnote 17 -- Guardianship of: Larry K. Cosby; Linda J. Devore v. Jennie Morris, et al, No. 24201-0-II, 2000 Wash. App. LEXIS 882



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3) Estate inventory and appraisal were not completed in a timely manner because 10 months elapsed until the will was delivered to the court. Thereby, the Respondent avoided accounting for estate assets for another year. For example: Testator Dorothy’s brokerage account at Charles Schwab never appeared in the Estate inventory or in Respondent’s accounting until 2008, which was 6 years late after Dorothy’s death. By then $50,000 had disappeared from the account, while it was under the Respondent’s control. The $50,000 is still missing.

4) At the first hearing for Dorothy’s Trust, Respondent sent a fraudulent note to motion docket to Guy, which directed Guy to a different case in another courtroom. Respondent tried to deceive Guy, so the Respondent would get Trustee’s motion approved without opposition.

5) Respondent ignored multiple requests for special notice filed by Guy

• December 2003. Guy requested special notice pursuant to RCW 12.28.240, RCW 11.44.015(2), and RCW 11.106.20. (CP 24-25.)

• June 2005. Guy requested special notice on 14 listed categories, including (a) Intent to distribute estate assets, and (b) Intent to pay attorney’s fees. (CP 47, 48.)

• November 2008. Guy requested special notice in his Motion to Compel Production of Documents, page 68. (Designated for CP).

However, the Respondent did not comply with any of Guy’s requests for special notice. Frequently, the Respondent just lied to gain more delays to keep the inheritance money and allow his attorneys to mulch the estate. For example, Respondent made a written promise to send monthly bank statements to Guy M., beginning in 2004.


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Quote Respondent’s attorney Petrich: “I am also having statements for the Merrill Lynch account sent to me, which I will forward to you on a regular basis for your client’s review.” (Exhibit. [footnote 18] )

The Respondent did not keep their promise. That violated the beneficiaries’ right to review billings. (Kirchan v. Schoen at HN6.[footnote 19] )

6) On 6/27/2008, Respondent obtained an ex parte injunction on distribution of Guy’s inheritance. The ex parte injunction was never presented in a court hearing by written or verbal pleading, nor was the injunction given to Guy for review during the court hearing. The Verbatim Report from June 27, 2008 proved that the injunction on distribution was ex parte.

7) Respondent’s Failure to Serve Motions and Briefs – The Respondent has used his dirty trick of failure to serve in several recent pleadings.

For example

• In Supreme Court #84648-1, Respondent’s filed a false affidavit of service, and Respondent’s pleading was not served to Guy until the afternoon before oral arguments.

• In COA 38243-1-II, Respondent’s Motion on the Merits was not served to Guy. Guy did not become aware Respondent’s motion on the merits until after Guy received the COA order which decided said motion. Respondent’s failure to serve his motion on the merits deprived Guy of the opportunity to respond, which violated RAP 18.4(c), and deprived Guy of due process.

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Footnote 18 -- See the letter dated 12/16/2004, from PR/Trustee’s attorney Petrich to Guy M.’s attorney Jensen, which was included as Exhibit B in the “Declaration in Support of Personal Representative/Trustee’s Reply” by Mr. Petrich. “ (Letter at CP 539, in COA 38243-1-II.)
Footnote 18 -- Janet Kirchan vs. Fred Schoen, 2007 Wash. App. LEXIS 294



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• In COA 38243-1-II, Respondent failed to serve Guy with Respondent’s reply brief in a timely manner, which allowed Guy only 1 week to reply. (Fortunately, the COA denied the Respondent’s previous motion on the merits, and consequently rescheduled the filing date for Guy’s reply brief.)

• In COA 42213-1-II, Respondent failed to serve Guy with Respondent’s response to Guy’s motion for discretionary review. Then the COA gave a 15 day extension of time, and Respondent still failed to serve his response on Guy.

DAMAGES DONE BY RESPONDENT’S SERIAL VIOLATIONS OF DUE PROCESS

Respondent is strongly motivated to deprive Guy of notice and service, because the judiciary is extremely reluctant to reverse their own court orders, even when the order was issued without due process. A reversal just looks bad on the Judge’s re-election resume, and it opens the judiciary to questions about their own competence.

Every time the Respondent got a court order entered ex parte, without giving Guy a chance to reply, that was a major win for the Respondent. The damages are that Guy’s only recourse is to appeal. But that impoverishes Guy and rewards the Respondent with more delays, costs, attorney fees, and the spiteful pleasure of punishing Guy. (This is described in beneficiary John M.’s declaration and affidavit. Designated for CP and filed in COA 38243-1-II, Appendix 13.)

Every time the Respondent tries the same tactic and is not sanctioned by the COA, it motivates the Respondent to try it again, which he does.


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NOT FRIVOLOUS - AFFIDAVITS SHOULD BE CONSIDERED FOR SANCTIONS

The Court should consider the affidavit by beneficiary John M., when Guy requests sanctions against the Respondent.

Case Citation: In determining whether sanctions should be imposed, a trial court may consider affidavits submitted in opposition to the sanctions rather than limiting its review to the complaint itself. Bryant v. Joseph Tree, Inc., 57 Wn. App. 107, 786 P.2d 829, amended, 57 Wn. App. 107, 791 P.2d 537 (1990), aff'd, 119 Wn.2d 210, 829 P.2d 1099 (1992).

Beneficiary John’s declaration was filed in Superior Court on December 1, 2009, so it is not new evidence and does not need to meet RAP 9.11 requirements.

JOHN’S AFFIDAVIT PROVES RESPONDENT IS LITIGATING OUT OF SPITE

Beneficiary John M.’s sworn declaration proves that Respondent/Trustee Gregg M. is intentionally destroying the Trust to punish the beneficiaries. (John’s declaration is designated for CP and filed in the COA 38243-1-II Appendix 13.)

John’s declaration stated:

“2. Gregg M. (trustee) has repeated said in conversations with me (John) that he is refusing to distribute any funds so that all the funds are fully consumed by legal expenses as punishment to Guy M. for creating legal challenges.


RESPONDENT’S LITIGATION OUT OF SPITE IS CAUSE FOR SANCTIONS

Beneficiary John M.’s declaration and affidavit prove that the Respondent is litigating out of spite to delay distribution and to consume all inheritance in litigation expenses. John declaration is borne out by the record of 8 years of litigation by the Respondent, instead of simply distributing the inheritance.

Case Citation: the record did not show the county employee's defamation suit was frivolous, or for the purpose of harassment, delay, nuisance, or spite, and the trial court did not abuse its discretion by refusing fees and costs pursuant to CR 11 or


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RCW 4.84.185. Skimming v. Boxer, 119 Wn. App. 748, 82 P.3d 707 (2004), review denied, 152 Wn.2d 1016, 101 P.3d 108 (2004).

In Skimming v. Boxer, litigation to cause harassment, delay, and spite are reason for sanctions.

REPSONDENT’S CONTINUED LITIGATION IN BAD FAITH WARRANTS SANCTIONS

Respondent’s motions are indistinguishable from affidavits.

Case Citation: …pleadings and affidavits are indistinguishable by virtue of the verification requirements. Reed v. Streib, 65 Wn.2d 700, 399 P.2d 338 (1965).

In light of John M.’s sworn declaration, the Court is now aware that the Respondent perjured himself in all subsequent pleadings.

Respondent continues to litigate to delay distribution of inheritance, to punish beneficiary Guy, and to increase cost until all the trust funds are consumed by litigation. Respondent should be sanctioned for all such pleadings subsequent to John M.’s sworn declaration.

Case Citation re CR11: In addition to deterring baseless filings, this rule was designed to reduce delaying tactics, procedural harassment, and mounting legal costs. Suarez v. Newquist, 70 Wn. App. 827, 855 P.2d 1200 (1993).

Case Citation re CR11: While this rule imposes no affirmative duty on an attorney to dismiss an action once it has become unreasonable to continue its prosecution, the rule does apply to all signed documents filed in the course of a lawsuit; accordingly, once reasonable inquiry reveals that the action is neither justified by fact nor law, the attorney's signature on any subsequent pleading, memorandum, or motion in furtherance of the lawsuit violates this rule. Doe v. Spokane & Inland Empire Blood Bank, 55 Wn. App. 106, 780 P.2d 853 (1989).

Case Citation re CR11: An attorney's good faith no longer provides a shield against sanctions under this rule. Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530 (1988).

Since the Respondent and his attorneys have always known that they were litigating in bad faith, they should be sanctioned for all of their pleadings.


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NOT FRIVOLOUS -- SIZE AND PURPOSE OF SANCTIONS

The court should impose sanctions sufficient 1) to compensate Guy for 7 years of spiteful litigation by the Respondent, ever since the Trust’s first $600,000 distribution in 2004; 2) to deter repetition of perjury and spiteful litigation by the Respondent; 3) to deter emulation by others; 4) to educate other would be criminal profiteering attorneys; and 5) to inform heirs in other families that they have practical recourse in the courts against this type of fraud, crimes, and bad faith litigation.

Case Citation re CR11: In fashioning an appropriate sanction pursuant to this rule, the trial judge must of necessity determine priorities in light of the deterrent, punitive, compensatory, and educational aspects of sanctions as required by the particular circumstances. Miller v. Badgley, 51 Wn. App. 285, 753 P.2d 530 (1988); MacDonald v. Korum Ford, 80 Wn. App. 877, 912 P.2d 1052 (1996).

Case Citation re CR11: The policies underlying this rule are best served where the rule is interpreted broadly so a court can fashion a penalty that deters litigation abuses most efficiently and effectively. Madden v. Foley, 83 Wn. App. 385, 922 P.2d 1364 (1996).


NOT FRIVOUS -- SANCTIONS BECAUSE REPSONDENT REQUESTED AFFIRMATVIE RELEIF WITHOUT FILING A CROSS APPEAL

Respondent failed to file a cross appeal, yet Respondent requested affirmative relief, which violates RAP 2.4(a)

Case Citation: Where defendant, in violation of RAP 2.4(a), submitted a brief assigning error and making various claims for affirmative relief, and where plaintiff then included in his reply brief a response to defendant's claims, and while it might have been more efficient for plaintiff to move to strike the defendant's brief, unquestionably defendant's violation of the rules caused more work for plaintiff, and accordingly an award of attorney fees was appropriate under RAP 18.9. Pugel v. Monheimer, 83 Wn. App. 688, 922 P.2d 1377 (1996), review denied, 131 Wn.2d 1024, 937 P.2d 1101 (1997).


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Specifically, Respondent requested affirmative relief in the form of new injunction on distribution of Guy’s inheritance. Respondent’s brief, in COA 38243-1-II, requested affirmative relief as follows:

Quote: “the appellate court can order that Guy’s distribution be reduced by the reasonable attorney’s fees and costs incurred by the Estate/Trust in responding to the motions.” Unquote.

Respondent’s motion on the Merits requested affirmative relief:

Quote: “the appellate court can order that Guy’s distribution be reduced by the reasonable attorney’s fees and costs incurred by the Estate/Trust.” Unquote

Respondent’s affirmative demand violated standard court practice.

Case Citation: an averment of a readiness and willingness to bring the money into court and pay the same on the order of the court, is sufficient. Hancock v. Gooley, Supreme Court of Washington, 196 Wash. 357; 83 P.2d 221; 1938 Wash. LEXIS 627; 118 A.L.R. 1484

Respondent’s affirmative requests without filing a cross appeal amount to an attempt at fee shifting.

Case Citation: Sanctions should not be used as a fee-shifting mechanism. Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994).

In 38243-1-II, Respondents affirmative demands to withhold Guy’s inheritance caused Guy to commit significant work and space in his reply brief to countering the Respondent’s affirmative demands. Since Respondent did not file a cross appeal, Respondent violated RAP 2.4(a) and Guy is entitled to fees and costs from the Respondent. Further, the Trust should not pay the Trustee’s attorney for filing his affirmative demands without a cross appeal.


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=========================================
PART 2 OF THIS POST WILL BE CONTINUED ON THE NEXT REPLY

THIS PART 2 IS CONTINUED FROM PART 1 IN THE PREVIOUS POSTING.
Guy M. v Gregg M., Appeal 42213-1-II,11/30/2011

==============================================

NOT FRIVOLOUS -- GUY’S MOTION RAISED DEBATABLE ISSUES

As shown herein and in Guy’s second motion to strike, Guy raised the debatable issues over proper sanctions for a serial violator of due process, i.e. the Respondent.

Case Citations: Appeal held not so frivolous as to warrant sanctions under this rule, because the issues presented were at least debatable.
• Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 929 P.2d 1204 (1997)
• Wash. Beef, Inc. v. County of Yakima, 143 Wn. App. 165, 177 P.3d 162 (2008).
• In re Marriage of Zier, 136 Wn. App. 40, 147 P.3d 624 (2006).

Case Citation: An appeal that is affirmed simply because the arguments are rejected is not frivolous. Federal Land Bank v. Redwine, 51 Wn. App. 766, 755 P.2d 822 (1988).


NOT FRIVOLOUS -- ISSUE NOT YET DECIDED BY PUBLISHED OPINION

To Guy’s knowledge, Washington courts have not published opinions on the proper sanctions for a serial violator of due process that repeatedly files false affidavits of service for motions, as did the Respondent.

Case Citation: When a father unsuccessfully requested a minor modification of a parenting plan before the trial court and on appeal, his appeal was not frivolous and he was not, therefore, liable for his former wife's appellate attorney fees because the issue he presented had not previously been directly addressed in a published opinion. Marriage of Tomsovic, 118 Wn. App. 96, 74 P.3d 692 (2003).


NOT FRIVOLOUS – THEORY DIFFERENT FROM PAST PRECEDENT

The court may not uphold Guy’s arguments about: (1) Respondent’s criminal profiteering, (2) Respondent’s intentional violations of due process, (3) Respondent’s intentional failures to provide notice, (4) Respondent’s intentional false affidavits of service, and (5) judicial corruption in support of criminal profiteering. Whatever the court’s final decision, Guy’s arguments are still not frivolous. Guy presented debatable issues that the court should decide and publish.


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Case Citation: Theory advanced by appellant that homeowner's insurance policy covered damages caused by intentional sexual abuse was sufficiently different from past precedent to defeat the claim that the appeal was frivolous. Public Employees Mut. Ins. Co. v. Rash, 48 Wn. App. 701, 740 P.2d 370 (1987); and Lockhart v. Greive, 66 Wn. App. 735, 834 P.2d 64 (1992).


NOT FRIVOLOUS – BECAUSE GUY CITED LEGAL AUTHORITIES

Although, Guy’s 2nd motion to strike was short, Guy’s motion clearly referenced previous arguments about the Respondent’s serial violations of due process.

Guy’s motions and briefs have cited over 100 relevant cases and authorities. Hence, by the following authorities, Guy’s motion to strike was not frivolous.

Case Citation: Appeal in which appellant cited case supporting his position was not frivolous. Van Dinter v. City of Kennewick, 64 Wn. App. 930, 827 P.2d 329 (1992), aff'd, 121 Wn.2d 38, 846 P.2d 522 (1993).

Case Citation: Where appellant cited case supporting its position, although not found persuasive by the court, the case precluded a finding that the appeal was totally devoid of merit and therefore frivolous. Hotel Employees & Restaurant Employees, Local 8 v. Jensen, 51 Wn. App. 676, 754 P.2d 1277 (1988).


NOT ABUSIVE – CLEAR AND CONCISE LANGUAGE

The court may prefer a term like “intentionally false statement” instead of the common English word “lie.” But, there is a need for clear and concise language in pleadings. In fact, in the same order (11/18/2010) the COA required Guy to shorten his Appellant’s Reply Brief. In English, the word lie has a clear and concise meaning. Guy properly presented objective evidence of such intentionally false statements by specific members of the judiciary.

Guy did not disparage the court with unsubstantiated 4-letter words like dung worm or scum of the earth. It was proper for Guy to present evidence and arguments


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about incompetent, angry, prejudiced, and corrupt judiciary. Guy will use plain English in his arguments as necessary for brevity, clarity, and consistency.

NOT ABUSIVE – TRUTH IS ITS OWN DEFENSE

The COA order (11/18/2010) did not specify what it considered abusive. However, COA’s allegation of an abusive pleading is analogous to a claim of defamation in that truth is its own defense.

JUDICIAL LIES - Perhaps the COA took umbrage at Guy’s proof that Commissioner Schmidt lied. Commissioner Schmidt used a series of 8 lies to create his own fantasy scenario that Guy had received and reviewed a draft court order during a hearing. Commissioner Schmidt was not there. Guy was there, and Guy told the truth. Commissioner Schmidt’s statements were completely false, and it was appropriate for Guy to call a lie exactly what it is. Commissioner Schmidt committed his lies in two cases: COA 38603-8-II, and 38733-6-II. (Details.[footnote 20] )

JUDICIAL LIES - Perhaps the COA took umbrage at Guy’s proof that Supreme Court Commissioner Goff lied. Commissioner Goff accused Guy of lying about Guy’s eye injury. In response, Guy proved that Com. Goff applied Goff’s own nonexistent medical expertise to countermand the medical record provided by two physicians, an Optometrist and an Ophthalmologist (eye surgeon) who diagnosed Guy with dangerous eye injury and recommended follow-up treatment. (Details.[footnote 21] )

. Goff’s accusations were false, and it was appropriate for Guy to call a lie exactly what it is.

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Footnote 20 -- Guy’s motion to recuse Commissioner Schmidt in the COA.
Footnote 21 -- In Supreme Court 84648-1, Guy’s Motion to Modify Ruling Denying Review Dated 8/26/2010.



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JUDICIAL LIES - Perhaps the COA took umbrage at Guy’s proof that COA Clerk lied when the Clerk stated that Guy had received numerous, lengthy continuances in COA 38243-1-II, when in fact, Guy had received no continuances at Guy’s request in 38243-1-II. Then the Clerk granted a continuance to the respondent, but denied one to Guy. The Clerk’s statement was false, and it was appropriate for Guy to call a lie exactly what it is.

JUDICIAL INCOMPETENCE - Perhaps, the COA took umbrage when Guy notified COA Judges that the Clerk, which they administer, refused to accept service on himself from a process server. However, “defendants have a duty not to evade service and to accept validly tendered service.” (Gross v. Sunding, 139 Wn. App. 54, 64, 161 P.3d 380 (2007) (citing Thayer, 8 Wn. App. at 41)). Guy made a valid point that the Clerk’s refusal to accept service was unbecoming of his office.

JUDICIAL INCOMPETENCE – Perhaps the COA took umbrage when Guy pointed out that the Clerk issued a letter and decision dated December 18, 2009, in COA 38603-8-II, which was a discretionary review case related to this case 38243-1-II. Four days later, the Clerk issued another letter which withdrew and reversed his first letter. That was incompetence by the Clerk, and it caused considerable extra work for Guy to prepare pleadings based on the Clerk’s first letter before it was reversed.

JUDICIAL INCOMPETENCE – Perhaps the COA took umbrage when Guy pointed out that the Clerk issued another letter and decision, which was incompetent and which the Clerk had to withdraw. The Clerk’s first letter, dated December 6, 2010, refused to file Guy’s 25 page reply brief for this case. First, that was incompetent because the Clerk could not count to 25 per RAP 10.4(b). Second, it was incompetent because the Clerk made threats to have


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Guy sanctioned. Third, it was incompetent because the Clerk claimed he was infallible and the Clerk’s decisions were not subject to modification. Fourth, it was incompetent because the Clerk had to retract his own letter.

On December 13, 2010, the Clerk withdrew the Clerk’s first letter from December 6th. All of the Clerk’s incompetencies caused a great deal of extra work to Guy, because it forced Guy to prepare and file a motion to modify.

JUDICIAL CORRUPTION - Perhaps the COA took umbrage at Guy’s evidence that corrupt Washington judiciary protect and promote gangs criminal profiteers that abuse the elderly, attack bereaved families, and steal estates through probate fraud. (See detailed evidence in Appellant’s Incomplete Brief in COA 38243-1-II, pages 37-49, and list of Clerk’s Papers.[footnote 22] ).

Throughout the Estate of Dorothy M., in Superior Court and the COA, Guy presented evidence of judicial corruption. Said evidence included reference to an affidavit by third party attorney Solwick (details [footnote 23] ), evidence by third party attorney Douglas Schafer

------------
Footnote 22 --For evidence of criminal profiteering, fraud, perjury, professional misconduct, criminal profiteering and other crimes, see Clerk’s papers (COA No. 38243-1-II):
Item 1) Clerks papers, pages 173-179, “Evidence of Professional Misconduct and Fraud by Personal Representative’s Attorney David Petrich.
Item 2) Clerk’s papers, pages 385-410, “Guy M.’s Motion Regarding Administration and Accounting Deficiencies, and Request for Relief.”
Item 3) Clerk’s papers, pages 679-718, “Motion for Reconsideration Regarding Motions Decided in Court )
Item 4) Clerks papers, pages 757-835, “Addendum #1 for Motion for Reconsideration Regarding Motions Decided in Court Hearing on 06/27/08.”
Item 5) Clerk’s papers, pages 997-1007, “Guy M.’s Reply to PR/Trustee’s Response to Motion for Reconsideration”
Item 6) Clerk’s papers, pages 448-476, “Supplemental Authorities #1 and Requests for…”

Footnote 23 -- Declaration of Anne N. Solwick filed January 6, 1994 in Guardianship of Anna Shay (Pierce County Superior Court No. 93-4-00873-5) that my colleague discovered while reviewing court files. It indicates that Commissioner Megan Foley was a guest at attorney Diana Kiesel's Christmas party, and that the guardianship attorneys present sat with the commissioner around a table discussing, over drinks, a case that was scheduled to come before the commissioner. – Guy M. cited this information in Superior Court.



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(details [footnote 24] ), evidence of uncontroverted crimes by the Respondents (details [footnote 25]), evidence of missing funds and accounting fraud (details [footnote 26] ).

JUDICIAL CORRUPTION - Guy presented a news story (details [footnote 27] ), which marveled that 95% of Washington Judges were elected by default as the sole candidate for their position. Guy repeated known arguments that Washington judges benefit by enriching local attorneys so that judges retain their jobs via unopposed elections. Otherwise, disgruntled local attorneys would be motivated to enter elections as candidates for the judge’s job.

Whatever the source of COA umbrage, Guy’s pleadings were not abusive because the truth, evidence, and logical arguments are their own defense.

NOT ABUSIVE - ZEALOUS AND HIGHLY CONTENTIOUS CONDUCT IS NOT ABUSIVE

COA 38243-1-II order, dated 11/18/2010, did not specify what they considered abusive. However, if Guy’s presentation of his case is zealous, or even contentious, it is not a sanctionable offense.

-----------
Footnote 24 -- Peirce County Attorney Douglas Schafer, with 40 years experience before the bar. His information was confirmed by a special committee of Three Past Presidents of The Tacoma Pierce County Bar Association in their report dated June 9, 1995. They show that the criminal profiteering gang attacks serial victims in Pierce County. Schafer’s research is designated for Clerk’s Papers. In Guy M.’s pleading in Superior Court, titled: “Appendix for Addendum 1 for Guy M.’s Motion for Recusal of Honorable Judge Thomas Larkin,” Exhibit 5 on pages 33-45. (See Appendix 7, Exhibit 4, COA No. 38603-8-II)

Footnote 25 -- See Appellant’s Incomplete Brief, pages 37-49, and Clerk’s Papers listed in footnote 3 herein.).

Footnote 26 -- See Appellant’s Incomplete Brief, pages 252-253 Assigned Errors - Charles Schwab Account and Incomprehensible Accounting. And see Appellant Reply Brief #2, on page 25, section title: $50,000 Missing From The Estate

Footnote 27 -- Quote: “Of the 22 Pierce County Superior Court judges, only one drew a challenger on the Aug. 19 ballot.” Unquote. That quote is from Article in The News Tribune, Seattle-Tacoma Newspaper. August 4, 2008. See theNewsTribune.com website. Also, uncontested judicial elections continue in 2010, with the uncontested re-election of COA Judge Marywave Van Deren, who ruled against the beneficiaries in this case. Details were presented in the Appellant’s Incomplete Brief, pages 27 & 28, in the section titled Judicial Misconduct Enforces the Criminal Profiteering System.


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Case Citation: General zealous and highly contentious conduct did not amount to sanctionable actions. Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 157 P.3d 431 (2007).


NOT ABUSIVE – GUY WAS ATTACKED FIRST AND MUST DEFEND

Guy gave respect to the COA and to the individuals therein. But, those individuals attacked Guy with unfounded allegations which amounted to prejudiced rants. In the specific examples given above, the COA Clerk, Commissioner, and Judges attacked Guy with incompetent, angry, lying, prejudiced rants. Guy was forced to defend himself against the judiciary’s false allegations, lest they become accepted as uncontroverted facts.

The COA’s unfounded and nonspecific threat for sanctions shows COA’s pervasive prejudice against Guy. It is part of the COA’s continuous effort to deprive Guy of due process, simply because Guy may have litigated zealously in his 10-year effort to defend his family from the judiciary’s corrupt political machine and to recover his inheritance from the criminal profiteers.

CAUSE FOR RECUSAL -- JUDICIARY SCAPEGOATS GUY TO DISGUISE PAYOFFS

95% of judges were elected by default without opposing candidates (details [footnote 28]). The judiciary’s political machine pays off local attorneys so local attorneys will not run for election against the incumbent judges. The payoff is laundered by awarding unconscionably large legal fees to local attorneys on probate cases.

------------
Footnote 28 -- Quote: “Of the 22 Pierce County Superior Court judges, only one drew a challenger on the Aug. 19 ballot.” Unquote. That quote is from Article in The News Tribune, Seattle-Tacoma Newspaper. August 4, 2008. See theNewsTribune.com website. Also, uncontested judicial elections continue in 2010, with the uncontested re-election of COA Judge Marywave Van Deren, who ruled against the beneficiaries in this case.. Details were presented in the Appellant’s Incomplete Brief, pages 27 & 28, in the section titled Judicial Misconduct Enforces the Criminal Profiteering System.


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But, the corrupt judiciary has a problem in laundering over $87,000 in payoffs in this case, the Estate of Dorothy M.. Local attorneys for the Respondent have billed well over $87,000 in legal fees, with no end in sight. (Respondent’s attorney fees are filed in Superior Court.[footnote 29] ) Those legal fees are so excessive (for a simple probate and inheritance case) that even laymen and the general public know the fees result from judicial corruption.

That puts the judiciary in a tight spot. If the judiciary fails to award the embarrassing large fees, they break their compact with local attorneys and their political re-election machine breaks down. The judiciary’s solution is to blame their victims, who are the beneficiaries. That is why this judiciary corruptly, incompetently, and prejudicially lied about Guy being a frivolous litigant.

Once, the judiciary tars Guy with lies that Guy litigated frivolously, the judiciary can sanction Guy to pay the criminal profits demanded and billed by Respondent’s local attorneys. That amounts to an illegal use of sanctions to shift fees and launder political payoffs.

Case Citation: “Sanctions should not be used as a fee-shifting mechanism.”
Biggs v. Vail, 124 Wn.2d 193, 876 P.2d 448 (1994).

Hence, the three COA judges, which falsely ruled that Guy’s pleading(s) were redundant, frivolous, and abusive must be recused from this case before they use Guy’s inheritance to complete their political payoffs. (See COA order on 11/18/2010, attached.)

CAUSE FOR RECUSAL –JUDICIAL CRIME LORDS AND THEIR CRIMINAL ENTERPRISE

------------
Footnote 29 -- In Superior Court, Guy moved for a fee statement from the Personal Representative and the Trustee. As a result, on April 29, 2011, the PR/Trustee filed an itemized fee statement that covered 3 ½ years of litigation. The fee statement was 37 pages long.


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Corrupt Washington State judges are only the tip of the iceberg. In order for 95% of judges to be elected without opposing candidates, the judges must enrich a large number of local attorneys. Corrupt local attorneys, including Respondent’s attorneys, joined the criminal scheme with enthusiasm. They even produce a video on how to attack the elderly, steal their estates, and circumvent the law. (Details in Appellant’s brief, page 41,[footnote 30] in COA 38243-1-II.)

Like any corrupt enterprise, the Judges’ criminal enterprise quickly exhausted the easy pickings, and their criminal profiteering attorneys turned to violent crime, such as armed kidnapping and false imprisonment of Dorothy M., and committing bank fraud, check fraud, and accounting fraud against her estate.

CAUSE FOR RECUSAL – SIGNALING TO CRIMINAL COHORTS BY JUDICIAL CRIME LORDS

By attacking Guy with false statements that Guy’s pleading are redundant, frivolous, and abusive, the judicial crime lords signaled to their cohorts, the criminal profiteering attorneys:

• That the compact between judges and local attorneys remains intact.

• That criminal profiteering attorneys should continue their perjury to provide a paper thin cover for the rulings by the judicial crime lords

• Those criminal profiteering attorneys will be paid whatever they bill, so they should not stop litigating with their fraud and perjury.

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Footnote 30 -- See Assigned Error - Systematic Crimes Revealed by Attorney Douglas Schafer, page 41 of Appellant’s Incomplete Brief.



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• That beneficiaries and victims will be blamed, so that the criminal profiteering attorneys will not be embarrassed by their huge fees and will not lose future clients.

CAUSE FOR RECUSAL – WEAPONS OF THE JUDICIAL CRIME LORDS

1st Weapon –Judicial Crime Lords (judges) abuse their discretion in a continuous pattern to protect their cohorts, the criminal profiteering attorneys, instead of using judicial discretion to ensure justice.

2nd Weapon – Judicial Crime Lords (judges) suppress evidence. They denied the beneficiaries’ substantial right to liberal discovery. They denied requests for the trust to present profession accounting of missing funds, even though the trust had already paid several thousand dollars for professional accounting. They ignored John M.’s affidavit of bad faith litigation in COA 38603-8-II, 38733-6-II, and 38243-1-II which violates Bryant v. Joseph Tree [footnote 31]

3rd Weapon -- Judicial Crime Lords (judges) impoverished the beneficiaries, by letting he criminal profiteering attorneys drag out litigation for over 9 years, instead of requiring distribution of the simple inheritance trust.

4th Weapon – Judicial Crime Lords (judges) lavishly funded and enriched the criminal profiteering attorneys by letting them bill well over $87, 000 to the Estate without proving the value of their services by any legal criteria.

----------
Footnote 31 -- Bryant v. Joseph Tree, Inc., 57 Wn. App. 107, 786 P.2d 829, amended, 57 Wn. App. 107, 791 P.2d 537 (1990), aff'd, 119 Wn.2d 210, 829 P.2d 1099 (1992).


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5th Weapon – Judicial Crime Lords (judges) lied about the beneficiary victim (Guy) being a frivolous litigant and threaten sanctions to gag the victim and deprive Guy of due process.

6th Weapon - Judicial Crime Lords (judges) sanction attorneys that reveal judicial corruption and help the victims. Judges try to destroy the careers of those attorneys. Quoting Washington attorney Douglas Schaefer: “The Court's very clear message is that any lawyer who dares to report a corrupt judge or fellow lawyer had better expect to go through Hell and see his or her career and life destroyed! It's a close-knit fraternity, you see.”[footnote 32]

CAUSE FOR RECUSAL – PROOF OF ANGER AND LIES BY JUDICAL CRIME LORDS

• The Judges should use discretion to ensure justice, but every discretionary ruling accrued to further their political machine and criminal enterprise, and to harm Guy.

• Like the crime lords of criminal cartels, COA judges got get angry when crossed.

• Their pattern of angry, judicial lies is evident at every level of the COA. As shown above, Commissioner Schmidt, Clerk Ponzaha, and now the three COA all engaged in judicial lies.

• Anger by the COA is so evident that after only 10 minutes in the COA lobby, a process server commented on COA anger against Guy. (On, 8/27/2010, Clerk David

-------------
Footnote 32 -- To Kill a Messenger -- for Reporting a Corrupt Judge, DougSchafer.com


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Ponzaha refused to accept service, on himself, from a professional process server.[footnote 33] )

• COA Judges are demonstrably frustrated that Guy weathered the judges’ attacks and survived to exercise his due process rights.
For example, the Judges falsely accused Guy of redundant, frivolous, and abusive pleadings.

Guy’s pleading was not redundant, but followed COA orders. Guy’s pleadings were not frivolous as is obvious by the large number of legal authorities cited and evidence presented to support logical arguments. Guy’s pleading were not abusive because Guy presented substantial evidence, authorities, and logic to support his statements of judicial corruption and lies.

Judges lack of proportionality proves judicial anger. Whatever frivolous error the COA attributes to Guy, it is nothing compared to the COA errors. It is the COA that retracted or reversed 5 rulings by the Clerk (See COA order on April 17, 2008 in COA 38603-8-II, 38733-6-II, and 38243-1-II. See Clerks letters dated December 18, 2009, in COA 38603-8-II, which the Clerk had to retract. And see clerk’s letter dated December 10, 2010, in COA 38243-1, which the clerk had to retract.)

Further, the Court knows that Guy is litigating as a pro se indigent. While the Respondent engaged three attorneys from a large law firm and spent over $87,000 in legal fees. The Court is well aware that Respondent’s three expensive attorneys are litigating

------------
Footnote 33 -- The process server is Mr. Mike Graham, KKWT Process Services, P.O. Box 4623, Spanaway, WA 98433, Tel. (253)565-6670.


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out of spite to harass and impoverish the beneficiaries. (See John M.’s declaration, which must be considered by the Court per Bryant v. Joseph Tree.[footnote 34] )

CRITERIA AND AUTHORITIES FOR RECUSAL

Elder abuse, theft and mulching from their estates are so common as to be a regular industry in Pierce County Superior Courts, all of which occurred in the Estate of Dorothy M..

But, when someone complains, the Judges retaliate, as they did In the Matter of the Estate of Andrea C. Barovic; In the Matter of the Estate of Mike Barovic; In the Matter of the Donald M. Barovic Trust, 88 Wn. App. 823; 946 P.2d 1202; 1997 Wash. App. LEXIS 1921.
Similarly, the COA Judges are retaliating against Guy in the Estate of Dorothy M., COA 38243-1-II.

In Mayberry v. Pennsylvania, 400 U.S. 455 (1971), the U.S. Supreme Court held that a judge who had been subjected to repeated verbal abuse by a criminal defendant could not preside over the defendant’s criminal contempt proceedings. Id. at 466. Despite the absence of evidence of actual bias on the part of the judge, the Court concluded that recusal was required because “no one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” Id. at 465; see also Withrow v. Larkin, 421 U.S. 35, 47 (1975) (“experience teaches that the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable” in cases in which the judge “has been the target of personal abuse or criticism from the party before him”).

-------------
Footnote 34 -- Bryant v. Joseph Tree, Inc., 57 Wn. App. 107, 786 P.2d 829, amended, 57 Wn. App. 107, 791 P.2d 537 (1990), aff'd, 119 Wn.2d 210, 829 P.2d 1099 (1992).


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In the Estate of Dorothy M., Guy did not slander the judges. However, the judges reacted to Guy’s exposure of their incompetence and corruption with angry lies and unfounded threats of sanctions against Guy. That shows that the Judges felt cruelly slandered to the point that they cannot be impartial.

Final Opinion of The U.S. Supreme Court in Caperton V. Massey:

Quote: (b) Because the objective standards implementing the Due Process
Clause do not require proof of actual bias, this Court … need not determine whether there was actual bias. Rather, the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47.

Quote: “Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias.”

Held: In all the circumstances of this case, due process requires recusal.
Caperton V. Massey, 129 S. Ct. 2252 - Supreme Court 2009

In the Estate of Dorothy M., the Judiciary’s angry and unfounded attacks on an indigent beneficiary and pro se litigant (Guy) created an “appearance of bias” that is so significant that due process requires the recusal of the judges who launched or benefited from those attacks. (Caperton v. Massey.) Through their attacks on Guy, these COA judges received psychological satisfaction (Caperton v. Massey). In addition, COA Judges receive real benefits through enriching local attorneys that support the judges’ re-election. Judges recusal is imperative to preserve the “reputation for impartiality and non-partisanship”—and, ultimately, the “legitimacy”—“of the Judicial Branch.” Mistretta v. United States, 488 U.S. 361, 407 (1989).


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The U.S. Supreme Court has emphasized that a “fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955). A “neutral and detached judge” is an essential component of this due process requirement. Ward v. Vill. of Monroeville, 409 U.S. 57, 62 (1972). Indeed, “even if there is no showing of actual bias” on the part of a judge, “due process is denied by circumstances that create the likelihood or the appearance of bias” because such a possibility of judicial impropriety creates a constitutionally unacceptable risk of actual impropriety. Peters v. Kiff, 407 U.S. 493, 502 (1972).

The U.S. Supreme Court has emphasized that “any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.” Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968).

Washington State case law came to same conclusion:

“[HN3] Due process, the appearance of fairness, and Wash. Code Jud. Conduct Canon 3(D)(1) requires disqualification of a judge biased against a party or whose impartiality may be reasonably questioned.”
• Rhonda S. Bowers v. Spokane County, 2007 Wash. App. LEXIS 1366, and
• Carlsen, Llp, v. American Best Food, 2001 Wash. App. LEXIS 554
• State Of Washington, v. Perala, 132 Wn. App. 98; 130 P.3d 852; 2006 Wash. App. LEXIS 435
• State Of Washington, v. Wilson, 2007 Wash. App. LEXIS 2129

EITHER: 1) The COA order on 11/18/2010 showed the three judges were not competent in the law, and should be recused via CJC 3(A)(1): “Judges should be faithful to the law and maintain professional competence in it;

OR: 2) The three judges committed prejudicial lies, and their unfounded threats of sanctions are a vendetta against Guy, which require the Judges to be recused via CJC


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3(D)(1): “Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned.”

Regarding CJC 3(D)(1), the Court of Appeals of Washington, Division Two, in
State v. Ra, 175 P.3d 609 142 Wn. App. 868, (2008), stated:

“Despite this canon's use of the word "should" rather than "must," a judge's duty to recuse is clear and nondiscretionary when one of the canon's specifically listed instances for disqualification is applicable.”

Therefore the COA has a nondiscretionary duty is to recuse the three judges: . Quinn-Brintnall, Armstrong, and Penoyar.


REQUESTS FOR RELIEF:

Guy requests that judges Quinn-Brintnall, Armstrong, and Penoyar should be recused from this case COA 42213-1-II.

Appellate judges Quinn-Brintnall, Armstrong, and Penoyar repeatedly lied and falsified facts in the related case COA 38243-1-II. Consequently, Guy requests that the three judges be recused from this case COA 42213-1-II due to their lying prejudice against Guy. This is particularly necessary because important issues in this case center on another lie by Judge Thomas Larkin, who lied in the Superior Court order dated 5/6/2011 (Exhibit 3, attached), which falsely stated that Guy had withdrawn his motion for a trust accounting. It is important to recuse lying Appellate judges Quinn-Brintnall, Armstrong, and Penoyar, because they will lie again to protect the lying Superior Court Judge Larkin.


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Unsworn Declaration

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

_________________Date: November 30, 2011
Guy M.
XXXXXXXXXXXXX
XXXXXXXXXXXXX
XXXXXXXXXXXXX

Case Citation Regarding Unsworn Declarations
Verification of a pleading to effect that the party believes it to be true is not objectionable as a verification upon information and belief.
State ex rel. Evans v. Chapman, 139 Wash. 556, 247 P. 946 (1926).

Filed by Appellant:
Guy M.
XXXXXXXX
XXXXXXXX
XXXXXXXX


Respondents: Gregg M., Personal Representatives/Trustee
Attorney for Respondent:
David B. Petrich, WSBA #18711
1201 Pacific Avenue, Suite 1200
Tacoma, WA 91402
(253) 572-4500


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CERTIFICATE OF SERVICE

I, Guy M., certify that on the ____ November 30, 2011_____, I served copies of the following document:

MOTION TO RECUSE APPELATE JUDGES QUINN-BRINTNALL, ARMSTRONG, AND PENOYAR DUE TO THEIR PREJUDICED LIES OF FACT AND BASELESS THREAT OF SANCTIONS

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

David B. Petrich,
Eisenhower and Carson
1201 Pacific Avenue, Suite 1200
Tacoma, WA 91402


Unsworn Declaration
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.

_______________Date: November 30, 2011
Guy M.
XXXXXXXXXXX
XXXXXXXXXXX
XXXXXXXXXXX


Filed with:
Clerk of Courts
Washington Court of Appeals Division 2
950 Broadway, Suite 300
Tacoma, WA 98402


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EXHIBIT 1 – SUPERIOR COURT ORDER DATED 4/22/2011 GRANTING A COTINUANCE TO THE PR/TRUSTEE.

EXHIBIT 2 – COA ORDER DATE 11/18/2010

EXHIBIT 3 - SUPERIOR COURT ORDER DATED 5/06/2011 WHICH FALSIFIED THE RECORD BY STATING THAT GUY HAD WITHDRAWN HIS MOTION FOR ACCOUNTING.


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