In Re The Estate Of Tuttle Daisey Anderson, V Patricia Hicklin, P.r. ( 2015 )

FILED
COURT OF APPEALS
DIVISION ii
7.015 AUG i i AM 9: 09
STATE OF WASHINGTON
8Y
Ty
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Estate of: No. 45917 -5 -II
ANITA D. TUTTLE,
Deceased. UNPUBLISHED OPINION
DAISY ANDERSON; DOREEN HUNT; and
SHARON HORAN,
Appellants,
V.
PATRICIA HICKLIN, as personal
representative of the Estate of Anita D. Tuttle,
Respondent.
BJORGEN, A.C. J. — Daisy Anderson, Doreen Hunt, and Sharon Horan filed petitions to
contest the will admitted for the probate of the estate of their mother, Anita Tuttle.' The estate' s
personal representative, Patricia Hicklin, another of Tuttle' s daughters, successfully moved to
dismiss those petitions with prejudice for lack of personal jurisdiction, insufficiency of process,
1
We generally refer to the siblings challenging Tuttle' s will collectively as Anderson.
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insufficiency of .service of process, and failure to comply with the provisions of chapter 11. 24
RCW, which governs will contests.
Anderson appeals, claiming that the trial court improperly dismissed the petitions because
1) Hicklin had waived or was estopped from asserting the affirmative defenses raised in her
motion to dismiss the petitions and ( 2) Anderson properly served Hicklin under provisions of the
Trust and Estate Dispute Resolution Act ( TEDRA), chapter 11. 96A RCW. We hold that ( 1)
Hicklin did not waive the affirmative defenses raised in her motion to dismiss and was not estopped
from asserting them and ( 2) Anderson failed to properly serve Hicklin because the provisions of
TEDRA cannot supersede the provisions of chapter 11. 24 RCW. We affirm.
FACTS
Tuttle executed her last will and testament in December 2009. Tuttle passed away in
April 2013. Hicklin, whom Tuttle had named as her personal representative in the December
2009 will, moved to admit the will to probate in May 2013. The Clallam County Superior Court
granted the motion and confirmed Hicklin' s appointment as the estate' s personal representative.
Nearly four months later, Anderson, Horan, and Hunt, each of whom the December 2009
will had disinherited, appeared pro se and filed petitions to contest and invalidate Tuttle' s will
that was admitted to probate. The petitions were filed under the probate cause number rather
than as new actions. After filing the petitions, Anderson appeared ex parte on September 23,
2013 and obtained orders directing the clerk of the Clallam County Superior Court to issue
Hicklin citations requiring her to appear on October 4, 2013 and show cause why the trial court
should not declare the December 2009 will invalid.2
2 A citation was " equivalent to a civil summons, conferring personal jurisdiction over a party to a
will contest." In re Estate of Kordon, 157 Wash. 2d 206, 210, 137 P.3d 16 ( 2006). The legislature
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Hicklin answered Anderson' s petitions, asserting as affirmative defenses the trial court' s
lack of personal ... [ and] subject matter jurisdiction" over her as well as " insufficiency of
process, and insufficiency of service of process." Clerk' s Papers ( CP) at 27, 30. Hicklin' s
answers also stated that Anderson had failed to provide the statutorily required 20 days' notice
before the first hearing on the will contest. Based on this improper notice, Hicklin requested
that the initial hearing on the Petition[ s] not be a hearing on the merits, as this matter involves
jurisdictional, procedural, and factual issues that are not capable of resolution at the initial
hearing" and that the court direct Anderson to note the " matter[ s] for a trial setting, for trial on
the issues set forth in the Petition[ s] and in [ Hicklin' s] Response[ s]." CP at 28, 31.
At the show cause hearing, Hicklin' 8 attorney began by stating, " I think it would be
appropriate to address some procedural matters first before we get to argument and I would note
that under the will contest statutes and under TEDRA, this really should be set for trial and not
heard on the merits today." Verbatim Report of Proceedings ( VRP) ( Oct. 4, 2013) at 2. The trial
court then addressed Daisy Anderson, stating, "[ Y]ou understand that the court' s really not in a
position to address on the merits the claims that you have made today." VRP ( Oct. 4, 2013) at 3.
After Anderson stated that she understood and that she had not expected the court to address the
merits of the petitions at the initial hearing, the trial court announced, "[ T] hen I will do this. I
will simply do nothing but let this matter be set for trial." VRP ( Oct. 4, 2013) at 4.
The clerk' s minutes for the show cause hearing record Hicklin' s attorney' s argument as a
mo[ tion] to strike [ the] hearing [ and] have matter set for trial." CP at 25. The minutes also note
eliminated citations from the statutory scheme for will contests in 2006, replacing them with
summonses as generally required in civil actions. LAWS of 2006, ch. 360 § 9.
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that there was "[ n] o objection" and that the "[ c] ourt str[ uck] [ the] hearing [ and] directed] [ the]
parties to [ the] [ c] ourt administ[ rator] for trial setting." CP at 25.
On December 24, 2013, Hicklin moved to dismiss Anderson' s petitions for lack of
personal jurisdiction, insufficiency of process and service of process, and failure to comply with
the procedures for will contests set out in chapter 11. 24 RCW. Hicklin contended that RCW
11. 24. 010 required Anderson to personally serve her with a copy of the petitions and that
Anderson had never done so. Hicklin further contended that the failure to personally serve her
meant that Anderson had failed to commence the will contests within the limitations period
prescribed by RCW 11. 24. 010, making the probate of Tuttle' s 2009 will final. Accordingly,
Hicklin requested that the trial court dismiss the petitions with prejudice and grant her attorney
fees.
The superior court granted the motion to dismiss and granted Hicklin attorney fees. This
appeal followed.
ANALYSIS
I. WAIVER AND ESTOPPEL
Anderson first contends that Hicklin either waived or was estopped from asserting the
affirmative defenses raised in the motion to dismiss. Hicklin contends she did not waive the
affirmative defenses and that the doctrine of equitable estoppel does not apply. We hold that
Anderson waived her estoppel and common law waiver claims and that Hicklin did not waive
her affirmative defenses under CR 12.
A. Standard of Review
We interpret court rules as we interpret statutes, State v. Chhom, 162 Wash. 2d 451, 458,
173 P.3d 234 ( 2007), meaning our review is de novo. De ' t of Ecology v. Campbell & Gwinn,
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LLC, 146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). Common law waiver claims generally raise mixed
questions of law and fact. However, where the parties do not dispute the facts, we review waiver
as a question of law subject to de novo review. Brundridge v. Fluor Fed. Servs., Inc., 164 Wash. 2d
432, 440- 41, 191 P.3d 879 ( 2008). We review a trial court' s refusal to apply the doctrine of
equitable estoppel for an abuse of discretion. Ford v. Bellingham- Whatcom County Dist. Bd. of
Health, 16 Wash. App. 709, 716, 558 P.2d 821 ( 1977).
B. Waiver Based on the Civil Rules
Anderson first argues that Hicklin triggered the consolidation and waiver provision's of
CR 12( g) and ( h). Anderson contends that Hicklin' s objection to the insufficient notice of the
show cause hearing in her. answer constituted a motion to dismiss for insufficiency of process
under CR 12( b)( 4) and that Hicklin' s request that the trial court not resolve the petitions on their
merits at the show cause hearing constituted a motion to strike under CR 12( f),citing the clerk' s
minutes of the hearing. With these prior motions, Anderson argues, Hicklin was barred by CR
12 from making her subsequent motion to dismiss.
CR 12( b) governs the presentation of defenses to " a claim for relief' made " in any
pleading." 3 The rule lists a number of affirmative defenses that defendants must assert either ( 1)
3 CR 12( b) provides, in relevant part, that
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: ( 1) lack of jurisdiction over
the subject matter; ( 2) lack of jurisdiction over the person; ( 3) improper venue; ( 4)
insufficiency of process; ( 5) insufficiency of service of process; ( 6) failure to state
a claim upon which relief can be granted; ( 7) failure to join a party under rule 19.
A motion making any of these defenses shall be made before pleading if a further
pleading is permitted. No defense or objection is waived by being joined with one
or more other defenses or objections in a responsive pleading or motion. If a
pleading sets forth a claim for relief to which the adverse party is not required to
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by motion made before the responsive pleading or ( 2) in the responsive pleading itself. CR
12( b). These affirmative defenses include the " lack of jurisdiction over the' person," CR
12( b)( 2), " insufficiency of process," CR 12( b)( 4), and " insufficiency of service of process." CR
12( b)( 5).
In the interests of judicial economy, two other provisions in CR 12 prevent defendants
from raising successive challenges to the trial court' s jurisdiction under CR 12( b). 3A KARL B.
TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE, CR 12( g), § 12 author' s cmts., at 287 ( 6th
ed. 2013). CR 12( g) 4 requires a party to assert all possible CR 12( b) defenses in a single motion;
any defense not asserted in the motion is waived unless otherwise provided in CR 12( h). CR
12( h)( 1) specifically provides that the affirmative defenses of "lack of jurisdiction over the
person ... insufficiency of process, [ and] insufficiency of service of process" are among those
waived if not made in a consolidated motion required by CR 12( g).
Hicklin' s objection to the short notice before the show cause hearing was not a motion to
dismiss for insufficiency of process under CR 12( b)( 4). A motion under CR 12( b)( 4) raises a
defense ... to a claim for relief." Hicklin did not assert a defense in law or fact to the claims in
the petition when she objected to insufficient notice. Instead, she asked the trial court not to
decide the petitions on their merits at that hearing. TEDRA mandated that she make that request;
serve a responsive pleading, [ the pleader] may assert at the trial any defense in law
or fact to that claim for relief.
4 CR 12( g) provides that
A party who makes a motion under this rule may join with it any other
motions herein provided for and then If a party makes a
available to the party.
motion under this rule but omits therefrom any defense or objection then available
to [ the party] which this rule permits to be raised by motion, [ the party] shall not
thereafter make a motion based on the defense or objection so omitted, except a
motion as provided in subsection ( h) ( 2) hereof on any of the grounds there stated.
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otherwise the trial court had a statutory obligation to determine the will contest at the show cause
hearing. RCW 11. 96A. 100( 8)-( 10). 5
Hicklin' s request that the trial court not adjudicate the petitions on their merits at the
show cause hearing was not a motion to strike under CR 12( f). A motion to strike under CR
12( f) asks the court to strike out " any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter" from a pleading. While the minutes of the show cause
hearing record Hicklin' s request as a motion to strike the hearing, CP at 25, neither party, nor the
superior court itself, used. the " motion to strike" terminology used by the clerk. Instead, as noted
above, Hicklin asked the trial court not to adjudicate the will contests on their merits at the show
cause hearing, a request mandated by TEDRA. That is not the type of request to strike out
portions of pleadings that constitutes a motion to strike under CR 12( f).
Because neither the objection to the deficient notice nor the request to set the case for
trial were motions within the meaning of CR 12, they did not trigger the consolidation provisions
of CR 12( g). King v. Snohomish County, 146 Wash. 2d 420, 427, 47 P.3d 563 ( 2002).
Consequently, Hicklin did not waive the affirmative defenses later raised in the motion to
5 RCW 11. 96A. 100 provides, in part, that
8) Unless requested otherwise by a party in a petition or answer, the initial
hearing must be a hearing on the merits to resolve all issues of fact and all issues of
law;
9) Any party may move the court for an order relating to a procedural
matter ... in the original petition, answer, response, or reply, or in a separate
motion, or at any other time; and
10) If the initial hearing is not a hearing on the merits or does not result in
a resolution of all issues of fact and all issues of law, the court may enter any order
it deems appropriate, which order may ( a) resolve such issues as it deems proper,
b) determine the scope of discovery, and ( c) set a schedule for further proceedings
for the prompt resolution of the matter.
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dismiss by failing to consolidate them with the objection or the request to set the case for trial.
See CR 12( h).
C. Equitable Estoppel and Common Law Waiver
Anderson also argues that Hicklin waived the affirmative defenses asserted in the motion
to dismiss under theories of equitable estoppel and common law waiver. Anderson, however,
has waived these claims under RAP 2. 5 by failing to raise them before the trial court.
RAP 2. 5( a) states in pertinent part,
t] he appellate court may refuse to review any claim of error which was not
raised in the trial court. However, a party may raise the following claimed errors
for the first time in the appellate court: ( 1) lack of trial court jurisdiction, (2) failure
to establish.facts upon which relief can be granted, and ( 3) manifest error affecting
a constitutional right.
In considering whether an issue had been raised under this rule, the court in Bennett v. Hardy,
113 Wash. 2d 912, 917, 784 P.2d 1258 ( 1990), held:
so long as [ the appellant] advanced the issue below, thus giving the trial court an
opportunity to consider and rule on the relevant authority, the purpose of RAP
2. 5( a) is served and the issue is properly before [ the court on appeal].
Thus, Anderson need not have actually used the terms " estoppel," " waiver," or any synonym, but
must at least have given the trial court fair notice of the nature of the challenge.
This, Anderson failed to do. Her statements to the trial court at Verbatim Report of
Proceedings pages 13- 14 discuss an alleged inconsistency in Hicklin' s positions, but fall well
short of apprising the court of a common law waiver argument. In addition, counsel' s remarks
included nothing about any reliance by Anderson on Hicklin' s position or any injury to Anderson
from Hicklin' s alleged change in position. These are central and essential elements of an
estoppel claim. Lybbert v. Grant County, 141 Wash. 2d 29, 35, 1 P.3d 1124 ( 2000). In the absence
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of any arguable reference to them, we cannot say that Anderson raised her estoppel challenge in
the trial court. Therefore, we do not reach either argument under RAP 2. 5( a).
This, Anderson failed to do. Her statements to the trial court at Verbatim Report of
Proceedings pages 13- 14 discuss an alleged inconsistency in Hicklin' s positions, but fall well
short of apprising the court of a common law waiver argument. In addition, counsel' s remarks
included nothing about any reliance by Anderson on Hicklin' s position or any injury to Anderson
from Hicklin' s alleged change in position. These are central and essential elements of an
estoppel claim. Lybbert, 141 Wash. 2d at 35. In the absence of any arguable reference to them, we
cannot say that Anderson raised her estoppel challenge in the trial court. Therefore, we do not
reach either the estoppel or the common law waiver argument under RAP 2. 5( a).
II. SERVICE OF PROCESS
Anderson next contends that the trial court erred by granting the motion to dismiss,
because she properly served Hicklin based on provisions of TEDRA. Hicklin contends that,
because Anderson never personally served her as required by RCW 11. 24. 010, the trial court
properly dismissed the petitions. Hicklin is correct.
A. Standard of Review
The party initiating a civil action bears the burden of showing proper service of process.
See Streeter- Dybdahl v. Huynh, 157 Wn. App. 408, 412, 236 P.3d 986 ( 2010). Further, the party
asserting that a trial court has personal jurisdiction bears the burden of establishing it after a
challenge to that jurisdiction. Outsource Servs. Mgmt., LLC v. Nooksack Bus. Corp., 172 Wn.
App. 799, 807, 292 P.3d 147 ( 2013), aff'd, 181 Wash. 2d 272 ( 2014). Where the trial court rules on
a motion to dismiss under CR 12( b)( 2) or ( b)( 4) based on undisputed facts, we review the
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resulting order de novo. Outsource Servs. Mgmt., 172 Wash. App. at 807; see Streeter-Dybdahl,
157 Wash. App. at 412.
B. Service of Process Under Chapter 11. 24 RCW
First and basic to any litigation is jurisdiction. First and basic to [ personal] jurisdiction
is service of process."' Scott v. Goldman, 82 Wn. App. 1, 6, 917 P.2d 131 ( 1996) ( quoting In re
Marriage. ofLogg, 74 Wash. App. 781, 786, 875 P.2d 647 ( 1994)).
Proper service of process has both constitutional and statutory elements. Scanlan v.
Townsend, 181 Wash. 2d 838, 847, 336 P.3d 1155 ( 2014). Turning to the latter, the legislature
prescribed two elements for proper service of process in will contests in chapter 11. 24 RCW.
First, any party contesting a will must personally serve the estate' s personal representative with
the petition commencing the will' contest within 90 days of filing the petition. RCW 11. 24.010.6
Second, the contesting party must provide the notice described in RCW 1 1. 96A. 100, meaning a
summons using certain language or substantially equivalent language.' RCW 11. 24. 020; RCW
11. 96A. 100.
6 The relevant part of RCW 11. 24. 010 provides that:
For the purpose of tolling the four-month limitations period, a contest is deemed
commenced when a petition is filed with the court and not when served upon the
personal representative. The petitioner shall personally serve the personal
representative within ninety days after the date of filing the petition. If, following
filing, service is not so made, the action is deemed to not have been commenced
for purposes of tolling the statute of limitations.
RCW 11. 96A. 100( 2) provides, in relevant part, that
a] summons must be served in accordance with this chapter,... however, if the
proceeding is commenced as an action incidental to an existing judicial proceeding
relating to the same trust or estate or nonprobate asset, notice must be provided by
summons only with respect to those parties who were not already parties to the
existing judicial proceedings.
RCW 11. 96A. 100( 3) prescribes the form the summons required by RCW 11. 96A. 100( 2) must
take.
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Once Hicklin challenged the service of process, and consequently the trial court' s
personal jurisdiction over her, Anderson bore the burden of establishing proper service and the
trial court' s personal jurisdiction over Hicklin. Anderson introduced no evidence to do so: no
return of service by the sheriff or a sheriff' s deputy stating that he or she personally delivered the
summonses and petitions to Hicklin, no affidavit of service by a person attesting to personally
delivering the summonses and petitions to Hicklin or properly mailing them, and no writing by
Hicklin or her attorney- in- fact accepting service. See CR 4( g)( 1), ( 2), ( 5), ( 7). Anderson failed
to discharge her burden of proving personal service on Hicklin, the personal representative.8
Anderson, however, points out that RCW 11. 96A. 100( 2), part of TEDRA, requires
service of a summons only on " those parties ... not already parties to [ an] existing judicial
proceeding[]" where a proceeding is brought incidental to that existing proceeding. Anderson
argues that this provision excused her from personally serving the summonses and petitions on
Hicklin, because the petition was filed incidentally to the probate of Tuttle' s estate.
The requirement of personal service of the petition on the personal representative arises from
RCW 11. 24. 010, which is not part of TEDRA. Similarly, the requirement that the notice
described in RCW 11. 96A. 100 be given stems from RCW 11. 24. 020, which also is not part of
TEDRA. TEDRA cannot supersede these requirements. RCW 11. 96A.080; In re Estate of
Kordon, 157 Wash. 2d 206, 212, 137 P.3d 16 ( 2006). Accordingly, regardless whether RCW
11. 96A. 100( 2) excused Anderson from serving summonses on Hicklin, the provision did not
repeal RCW 11. 24. 010' s requirement of personal service of the petitions on Hicklin as personal
8 Anderson' s attorney argued at the hearing on the motion to dismiss that she had served the
estate' s attorney. Anderson repeats this argument in her briefing. Even if we accepted her
representations as evidence, they fail to establish that Anderson personally served Hicklin. See
Ashcraft v. Powers, 22 Wash. 440, 442- 43, 61 P. 161 ( 1900); RCW 4. 28. 080.
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representative. Kordon, 157 Wash. 2d at 212; see also In re Estate ofHarder, 185 Wash. App. 378,
385, 341 P.3d 342 ( 2015) ( citing Kordon, 157 Wash. 2d at 212). Anderson did not personally serve
Hicklin with copies of the petitions. Therefore, she failed to serve process in accordance with
the provisions of RCW 11. 24. 010.
Anderson also appears to contend that she did not need to serve Hicklin with process
because Hicklin had actual notice of the will contests. Actual notice is insufficient to confer
jurisdiction on the trial court. Logg, 74 Wash. App. at 784; see In re Estate ofHarder, 185 Wn.
App. at 384. Indeed, accepting Anderson' s actual notice argument essentially eliminates the
statutory service of process requirements, contradicting a long line of Supreme Court,precedent,
recently reaffirmed, that service of process has both constitutional and statutory elements.
Scanlan, 181 Wash. 2d at 847.
Finally, Anderson invokes, in her reply brief,,the principle that " the law favors the
resolution of legitimate disputes brought before the courfrather than leaving parties without a
remedy." In re Estate ofPalucci, 61 Wn. App. 412, 416, 810 P.2d 970 ( 1991). She cites a
number of cases where the courts have excused technical failures to comply with statutory notice
requirements under the doctrine of substantial compliance. By failing to raise her substantial
compliance argument in her opening brief, Anderson waived it. Cowiche Canyon Conservancy
v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 ( 1992).
The trial court properly granted Hicklin' s motion to dismiss.
III. ATTORNEY FEES
Anderson requests reasonable attorney fees pursuant to RAP 18. 1( a) and RCW
11. 96A. 150. While citing to those statutory provisions, she offers no argument why attorney
fees are justified. We decline to award fees to Anderson given her failure to justify them.
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Wilson Court Ltd. P' ship v. Tony Maroni' s, Inc., 134 Wash. 2d 692, 710- 11 & n.4, 952 P.2d 590
f998).
Hicklin requests reasonable attorney fees under RAP 18. 1, RCW 11. 24. 050, and RCW
11. 96A. 150. RAP 18. 1 sets the procedure for requesting attorney fees authorized by applicable
law. RCW 11. 24. 050, in turn, allows a court to award reasonable attorney fees where a will is
sustained against a challenge, " unless it appears that the contestant acted with probable cause and
in good faith." Hicklin contends that we should award reasonable attorney fees under RCW
11. 24. 050 because the failure to properly commence the action shows Anderson' s lack of
probable cause and good faith. Anderson and her siblings, though, appeared pro se and appear to
have commenced the action as best they could. Nothing about their behavior betrays a desire to
proceed without probable cause to do so or in bad faith. Fees are unwarranted under RCW
11. 24. 050.
RCW 11. 96A. 150( 1) allows a court to award reasonable attorney fees " to any party."
Hicklin contends that an award of reasonable attorney fees is warranted under the provision
because Anderson' s petitions have delayed the administration of the estate, resulting in
unnecessary expenses. Anderson, though, has not engaged in scorched earth litigation and, bare
allegations from Hicklin aside, no evidence indicates that they filed these petitions or this appeal
to frustrate the closing of Tuttle' s estate. They simply wanted their day in court. Again, we find
an award of fees unwarranted.
CONCLUSION
Anderson failed to comply.with the provisions of chapter 11. 24 RCW governing service
of process in will contests. The trial court properly dismissed her petitions challenging the will
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of her mother. We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
JoE EN, A.C. J.
We concur:
LSE, J.
SUTTON, J.
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