Estate Of L.e. Mooney: James Charles Howard v. Elizabth Ann Covey ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON t/H
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In the Matter of the Estate of
LOLA ELIZABETH MOONEY. No. 73037-1-1 i "''' _'
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JAMES CHARLES HOWARD, DIVISION ONE
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Appellant, UNPUBLISHED OPINION —
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ELIZABETH ANN COVEY,
Respondent. FILED: November 2, 2015
Appelwick, J. — Howard appeals the dismissal of his will contest petition due to
insufficient service of process. Howard served the personal representative's probate
attorney, but never served the personal representative. RCW 11.24.010 mandates
personal service on the personal representative. We affirm.
FACTS
Elizabeth Ann Covey was appointed personal representative of Lola Mooney's
estate on June 24, 2013. James Charles Howard filed a petition contesting Mooney's will
on October 3, 2013. Howard's attorney, Candace Wilkerson, served the petition and
summons upon Covey's probate attorney, Angel Vasilev. Vasilev's office received
service on October 8, 2013.
No. 73037-1-1/2
Wilkerson and Vasilev began communicating about Howard's case via e-mail on
July 19, 2013. At that time, Wilkerson notified Vasilev of her intent to file a will contest
petition. Vasilev responded on July 22, 2013: "I received your e[-]mail on the above
captioned matter. Please forward any further documents to the address below." They
exchanged several more e-mails regarding the grounds for the will contest petition during
early August. Wilkerson also claimed to have asked Vasilev by telephone if she should
serve him or Covey.
On January 21, 2014, Covey responded to the petition. She denied Howard's
allegations and raised several affirmative defenses, including insufficient service of
process under RCW 11.24.010.1
On December 11, 2014, Covey brought a motion to dismiss for insufficient service
under RCW 11.24.010. Howard responded to Covey's motion to dismiss for insufficient
service and submitted affidavits from Wilkerson and her assistant, Timothy Folkerth.
Wilkerson's affidavit asserted that Vasilev agreed, via e-mail and telephone, to accept
service. Folkerth's affidavit stated that he called Vasilev on October 4, 2013 and Vasilev
instructed him to serve the petition at Vasilev's office by legal courier.
At the hearing on the motion to dismiss, Vasilev testified that he did not recall any
agreement to accept service on Covey's behalf. Folkerth did not testify. The trial court
granted Covey's motion to dismiss for insufficient service. It did not make any written
1Covey also raised the issue that Howard's petition was procedurally defective, as
it had been filed in the probate proceeding instead of a new action as required under
RCW 11.96A.090(2). She later moved to dismiss on this ground. On October 23, 2014,
the action was dismissed for failure to file the will contest petition as a new case.
However, this order was revised so that the motion to dismiss was denied and the petition
was transferred into a new case.
No. 73037-1-1/3
findings of fact and conclusions of law in the order. However, the trial court did orally
announce the basis for its decision.2
DISCUSSION
RCW 11.24.010, the statute governing will contest petitions, is clear in its mandate.
A person who contests a will must file the petition within four months following the probate
of the will. Id. The petitioner must personally serve the personal representative within 90
days of filing the petition. Id. This statute is unequivocal. It names a particular person
who must be served—the personal representative. ]d. It also requires that the personal
representative be personally served, jd. It does not name any other agents who are
authorized to receive service on the personal representative's behalf. See icL
Here, it is undisputed that Howard served Covey's probate attorney, rather than
Covey herself. Despite the statute's clear mandate—a petitioner must personally serve
the personal representative—Howard contends he complied with RCW 11.24.010. We
disagree. Though personal service may be effectuated in a variety of methods, when a
statute explicitly requires service on a particular person, that person must be served. See
RCW 4.28.080 (listing methods of personal service); see also Nitardv v. Snohomish
County, 105 Wash. 2d 133, 134-35, 712 P.2d 296 (1986). Howard's failure to serve Covey
2 The court stated,
In looking at this, I think the burden is on the party establishing or
trying to establish that there was, in fact, a waiver. And this Court is not
persuaded by the evidence before it that there was, in fact, an agreement
by the prior attorney to accept service of process, that there is sufficient
facts to find that there was that agreement, that there was, therefore, a
waiver of the requirement to serve service of process upon the actual
individual. And I don't find that there was.
No. 73037-1-1/4
herself is not merely a mistake in the method of service. Cf. Cont'l Sports Corp. v. Dep't
of Labor & Indus.. 126 Wash. 2d 594, 604, 910 P.2d 1284 (1996) (plaintiff complied with
requirement that service be by mail by serving the party by Federal Express). Instead, it
is a complete failure to meet the statute's requirement of personal service on a particular
person. We conclude Howard's service of process on Vasilev was insufficient service
under RCW 11.24.010.
Nonetheless, Howard contends that the doctrine of waiver applies here. He argues
that Covey waived her right to receive personal service when her probate attorney agreed
to accept service on her behalf. He challenges the trial court's oral findings that there
was no such agreement and the statute was not so waived. Alternatively, Howard claims
that Covey waived the ability to raise the affirmative defense of improper service by
waiting to respond to the petition until after the statute of limitations had expired.
Although the trial court's findings were not formally written as findings of fact, the
trial court's oral decision may be used to interpret the judgment. Feree v. Doric Co., 62
Wash. 2d 561. 567. 383 P.2d 900 (1963). We review the trial court's findings under a
substantial evidence standard. Miller v. City of Tacoma. 138 Wash. 2d 318, 323, 979 P.2d
429 (1999). Under this standard, findings become verities on appeal so long as they are
supported by substantial evidence, jd. Substantial evidence means evidence in sufficient
quantum to persuade a fair-minded person of the truth of the finding. Robinson v.
Safeway Stores. Inc.. 113 Wash. 2d 154, 157-58, 776 P.2d 676 (1989).
Howard argues that substantial evidence does not support the trial court's finding
that the attorneys did not agree to serve Vasilev. Howard points to Vasilev's vague
No. 73037-1-1/5
recollection of the events leading up to service to suggest that Vasilev's testimony was
not convincing. He contrasts Vasilev's testimony with Folkerth's and Covey's
declarations, arguing that those pieces of evidence meet the substantial evidence
standard.
But, there is evidence in the record to support the trial court's findings that there
was no e-mail or telephone agreement. Vasilev testified before the trial court regarding
the e-mail and telephone conversations in question. He explained that the July 22, 2013
e-mail in which he told Wilkerson to "forward" all further documents was not intended as
an authorization to serve him with the will contest petition. He also testified that he did
not remember a telephone conversation in which Wilkerson asked ifshe could serve him
rather than Covey. Nor did he recall such a conversation with Folkerth. He emphasized
that it was his firm's practice to document such agreements in writing, yet there was no
written agreement before the court.
Now, Howard argues that Vasilev's testimony was not persuasive. But, this court
does not make credibility determinations on appeal. Thompson v. Hanson, 142 Wash. App.
53, 60, 174 P.3d 120 (2007), affd by, 168 Wash. 2d 738, 239 P.2d 537 (2009). We hold
that there was substantial evidence in the record to support the finding that there was no
agreement for Vasilev to accept service and waive the statutory service requirement.3
3 Moreover, even if Vasilev agreed to accept service, Covey denies authorizing
Vasilev to make such an agreement. RCW 11.24.010 does not expressly authorize a
personal representative to waive personal service or to designate agents to accept
service on behalf of the personal representative. We need not decide whether it does or
does not authorize such delegation and waiver.
No. 73037-1-1/6
Howard argues in the alternative that Covey waived the affirmative defense of
insufficient service of process through dilatory or inconsistent conduct. He claims that
Covey waived the defense by raising it only after the statute of limitations had run, so that
Howard could not cure the service defect. As Howard recognizes, though, the trial court
did not reach this issue. Therefore, this issue is not properly before us on appeal. See
Pascua v. Heil, 126 Wash. App. 520, 533, 108 P.3d 1253 (2005) (noting that this court
generally does not review issues the trial court did not decide).
Even ifthis issue is properly before us, Howard's argument must fail. He relies on
Lvbbert v. Grant County, 141 Wash. 2d 29, 1 P.3d 1124 (2000). But, that case does not
support his argument. There, the plaintiffs argued that the defendant was equitably
estopped from raising the defense because it failed to call attention to the insufficient
service before the statute of limitations ran. Id at 35-36. The Lvbbert court rejected this
argument, because the statute at issue explicitly required service on a particular person,
the county auditor, and the plaintiffs failed to serve that person. Id. at 36, 32. Given the
clarity of the statute, it was unreasonable for the plaintiffs to assume the defendant's
silence meant this service was effective. \± at 36. Here, RCW 11.24.010 is similarly
explicit in its mandate. Therefore, Covey's failure to inform Howard of the service defect
before the statute of limitations ran is not a basis for equitable estoppel.
The Lvbbert court went on to hold that the defendant had waived the defense by
engaging in extensive discovery prior to the statute of limitations expiring. Id. at 44-45.
Here, there is no evidence in the record to suggest that Covey conducted discovery or
otherwise prepared for litigation during the time between Howard's service on Vasilev and
No. 73037-1-1/7
the statute of limitations expiring. Neither Lvbbert nor the cases on which it relies provides
a basis to conclude Covey waived service of process.
We affirm.
WE CONCUR:
VCU.-'^e,