Wa Federal Savings v. Michael Klein ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
WASHINGTON FEDERAL SAVINGS,
No. 68749-2-1
Appellant,
ORDER GRANTING
v. MOTIONS TO PUBLISH
OPINION
MICHAEL P. KLEIN, Personal
Representative of the Estate of
ROBERT KLEIN, Deceased,
Respondent.
Non-parties Dean V. Butler and Sandra L. Perkins, and Respondent Michael P.
Klein have filed motions to publish the opinion filed August 12, 2013. Appellant
Washington Federal Savings has filed responses to both motions to publish. The
hearing panel has considered its prior determination and finds that the opinion will be of
precedential value; Now, therefore, it is hereby
ORDERED that the written opinion shall be published and printed in the
Washington Appellate Reports.
DONE this Vffe-- day of October, 2013.
FOR THE COURT:
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•146 Wash. 2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is
appropriate if the pleadings, affidavits, depositions, and admissions on file
demonstrate the absence of any genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. CR 56(c). A material fact is one
on which the outcome of the litigation depends. Zedrick v. Kosenski, 62 Wash. 2d
50, 54, 380 P.2d 870 (1963).
The party opposing a motion for summary judgment may not rely on
speculation, argumentative assertions that unresolved factual issues remain, or
on having its affidavits considered at face value. Seven Gables Corp. v.
MGM/UAEntm'tCo.. 106Wn.2d 1, 13,721 P.2d 1 (1986). The party must set
forth specific facts rebutting the moving party's contentions and disclose that a
genuine issue as to a material fact exists. Seven Gables, 106 Wash. 2d at 13.
Washington Federal rests its case on its claim that it never received the
documents mailed by the estate's legal team in January 2011. The evidence
Washington Federal submits are affidavits by two of its employees stating that
the documents were never received and detailing the careful procedures that
have been put in place to ensure that mail does not get lost.
If Favretto's affidavit proves mailing of the notice—an issue we will
address below—these affidavits do not rebut it. A creditor's claimed nonreceipt
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of a probate notice is not material to proving actual notice. Had proof of receipt
been of concern to the legislature, it could have so provided. Just such a
requirement exists in the mortgage foreclosure context, for example, where the
legislature requires creditors to transmit notices of foreclosure sale "by both first-
class and either certified or registered mail, return receipt requested." RCW
61.24.040(1 )(b) (emphasis added). Actual notice under RCW 11.40.020(c) is
accomplished by mailing, without regard to proof of receipt.
And proof of receipt is not necessary to satisfy due process. Under most
circumstances, notice sent by ordinary mail satisfies due process because it is
deemed reasonably calculated to inform interested parties of an impending
action. Weianerv. New York. 852 F.2d 646, 650 (2d Cir. 1988). cert, denied. 488
U.S. 1005 (1989); Tulsa Prof I Collection Srvs. v. Pope. 485 U.S. 478, 490, 108
S. Ct. 1340, 99 L. Ed. 2d 565 (1988); Mennonite Bd. of Missions v. Adams. 462
U.S. 791, 800, 103 S. Ct. 2706, 77 L. Ed. 2d 180 (1983).
The Mississippi and Kansas cases cited by Washington Federal do not
establish a rule that due process requires proof of receipt. One would have to lift
sentences out of context in order to give them that interpretation. In the Kansas
case, there was no issue as to whether an affidavit of mailing was adequate to
prove receipt; indeed, the record was "void of any evidence" that the creditor
"was ever notified" of the probate, by mailing or otherwise. In re Estate of
Reynolds. 266 Kan. 449. 970 P.2d 537, 545(1998). Nor was there a live dispute
as to mailing versus receipt in the Mississippi case. There, the court presumed
No. 68749-2-1/8
that a mailed notice was a received notice; it described the affidavit of mailing as
listing "creditors who received notice by mail." In re Estate of Petrick, 635 So. 2d
1389, 1390 (Miss. 1994) (emphasis added).
Washington Federal's essential argument on appeal is that Favretto's
affidavit was inadequate to prove that the estate mailed notice. Washington
Federal argues Favretto's use of the wording "have given, or caused to have
given" creates ambiguity as to who actually placed the document into the mail,
and whether such a person ever did, in fact, mail the document.
Klein contends that Washington Federal failed to preserve a challenge to
the adequacy of Favretto's affidavit. "On review of an order granting or denying a
motion for summary judgment the appellate court will consider only evidence and
issues called to the attention of the trial court." RAP 9.12. "The appellate court
may refuse to review any claim of error which was not raised in the trial court."
RAP 2.5(a). As a general matter, an argument neither pleaded nor argued to the
trial court cannot be raised for the first time on appeal. Sourakli v. Kvriakos, Inc..
144 Wash. App. 501, 509, 182 P.3d 985 (2008). review denied. 165 Wash. 2d 1017
(2009).
Klein is correct that Washington Federal's position on appeal has evolved
from its position in the trial court. Washington Federal's summary judgment
opposition brief did not mention Favretto's name, and it made only an oblique
reference to her affidavit.
No. 68749-2-1/9
[E]videntiary issues exist with respect to the P.R.'s ostensible proof
of his attorney's assistant's actions. Indeed, Mr. Klein's Declaration
is internally inconsistent, indicating that both his lawyer, and his
lawyer's assistant "gave . .. direct notice," and/or "given, or caused
to have given," such notice to WaFed.
It is not up to the Court or WaFed to read between the lines
and attempt to ascertain which of the multiple possibilities actually
occurred - if any; rather it is the Estate's burden to prove the
material facts. Even were the Estate to belatedly attempt
establishing a foundation for its P.R.'s knowledge of WaFed's
ostensible service, given the existing contradictions in his testimony
that evidence should be accorded very little weight.
Clerk's Papers at 170 (some emphasis added) (alteration in original) (footnotes
omitted). Washington Federal's motion for reconsideration similarly failed to
confront Favretto's affidavit directly.
For the sake of argument, we will assume the challenge to Favretto's
affidavit was not waived. The question, then, becomes whether her affidavit
established prima facie proof of "mailing the notice" to Washington Federal as
required by RCW 11.40.020(c). Favretto declared, "I have given, or caused to
have given, the creditors listed on said Exhibit A, actual notice by mailing to the
creditor's last known address, by regular first class mail, postage prepaid, a true
and correct copy of the notice to creditors filed herein."
Zeroing in on the phrase, "or caused to have given," Washington Federal
argues it means that Favretto is unable to claim personal knowledge that the
document was mailed:
Even accepting the affidavit at face value, the letter and notice may
well have been given to someone else to mail or handle—but there
is no declaration from any such person as to their actions or
confirming mailing. That alone establishes the existence of a
No. 68749-2-1/10
genuine issue of material fact as to whether "actual notice" was
given.
Brief of Appellant at 27 (emphasis omitted). According to Washington Federal,
Favretto's affidavit raises a reasonable inference that no one accomplished the
mailing.
We reject this argument. It is not uncommon for declarations of mailing to
use phrases signifying that the declarant has "caused" an important document to
be mailed. Use of this passive voice construction abounds in statutes that
describe a party's obligation to give notice. See, e.g., RCW 61.24.040(1 )(b) ("At
least ninety days before the sale, ... the trustee shall. .. cause a copy of the
notice of sale . . . to be transmitted') (emphasis added); RCW 23B.15.100(3)
("the secretary of state shall immediately cause a copy thereof to be forwarded
by certified mail") (emphasis added).
What these usages recognize is that "mailing" a notice is not a single,
complete act. Mailing a notice refers to a series of linked actions, any one of
which, hypothetically, is fallible. To prove mailing in accordance with RCW
11.40.020(c), if it is not enough for a legal assistant to say that she "caused"
actual notice to be given by mailing, then what is enough? Must she say that she
personally took the document to the mail room? Or that she personally put it on
the mail truck or in an official postbox? No. The familiar standard of "reasonably
calculated to apprise" encompasses the remote possibility that any one of these
links may break down in a given case. The office messenger may drop the
envelope into the dustbin on the way to the mail room; the wind may blow it off
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No. 68749-2-1/11
the truck into the street; or a careless postal employee may direct it to the dead
letter office. The fact that mailed notice satisfies due process reflects a judgment
that such mistakes are very rare.
So, when a legal assistant declares that she has "given, or caused to have
given" a creditor actual notice by mailing, it is reasonable to accept her statement
as prima facie proof of mailing. To refute such a declaration, a creditor must do
more than swear that the mail never arrived.
We conclude Washington Federal has not raised a genuine issue of
material fact as to the mailing of the notice to creditors on January 28, 2011. The
trial court did not err in concluding that the creditor claim is time barred.
The promissory note contains an attorney fee provision. The trial court
awarded the estate attorney fees and costs under this provision totaling $12,045.
The estate is similarly entitled to an award of attorney fees as the prevailing party
on appeal, subject to compliance with RAP 18.1.
Affirmed.
WE CONCUR:
6a&x J.
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