Estate of Mary Teresa Maiuri

FILED
JANUARY 18, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Estate of )
) No. 34749-4-III
MARY TERESA MAIURI, )
) UNPUBLISHED OPINION
Deceased. )
SIDDOWAY, J. — When a will is admitted for probate and a personal representative
is appointed, known heirs, legatees and devisees are entitled to notice. A party who is
entitled to notice but does not receive it may move to set aside orders that affect him or
her and, because those orders are void, may do so at any time. But the curing of the
jurisdictional defect does not require all probate proceedings to start over.
After reopening this estate at the petitioners’ request, ordering an accounting, and
conducting a trial, the trial court concluded that the additional relief being requested by
the petitioners was not warranted. It reclosed the estate. While one of the reasons for its
actions was in error, the others were not. Because its only error was harmless, we affirm.
No. 34749-4-III
In re Estate of Maiuri
FACTS AND PROCEDURAL BACKGROUND
On December 24, 1995, Mary Teresa Maiuri passed away. She was survived by
three sons, Robert, Michael, and Charles Maiuri, and two grandsons, Jay and Marcus
Maiuri. 1 Jay and Marcus are Robert’s sons. Charles was developmentally disabled and
at the time of Mary’s death was living in the College Place home with her and Michael.
Mary’s will was admitted to probate on December 29, 1995. Robert and Michael
were appointed co-personal representatives. The most substantial assets of Mary’s estate
were two pieces of real estate: her College Place home and the five acres on which it was
located, valued at a total of $155,000 in the inventory filed in October 1996, and property
in Walla Walla valued at $130,000 at that time. Mary’s will devised the Walla Walla
property to Robert. It devised the College Place home, its contents, and an acre of the
land on which it was located one-half to Michael and the other half in trust for Charles,
with Robert to serve as trustee. It devised the remainder of her estate—the four acres of
farmland adjoining her College Place home and what was later inventoried to be
approximately $3,000 in value of furniture and bank account holdings—one-third to
Robert, one-third to Michael, and one-third in trust for Charles, with Robert to serve as
trustee. (The inventory also revealed approximately $48,500 in nonprobate assets: bank
accounts jointly held for the most part with Charles.)
1
Given the common surnames of the parties, first names are used throughout for
the purpose of clarity. No disrespect is intended.
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The terms of Mary’s testamentary trust provided that upon Charles’s death, any
interest in the trust’s half of the College Place home, the acre of land on which it was
located, and its contents would pass to Michael. It provided that any remaining trust
assets would pass in equal (one-fourth) shares to Robert, Michael, and grandsons Jay and
Marcus.
The assets of the testamentary trust were not kept separate and designated as
property of the trust even though Robert and Michael had the assistance of attorney R. F.
Monahan 2 in carrying out their duties. Approximately 10 months after being issued
letters testamentary, Robert and Michael, as co-personal representatives, conveyed the
College Place home and the one-acre parcel to Michael, subject to a life estate in Charles.
As co-personal representatives, they also conveyed to Michael the full 4 acres of
farmland that was supposed to have been distributed 1-1/3 acre to Robert, 1-1/3 acre to
Michael, and 1-1/3 acre in trust for Charles, with Robert as trustee. The conveyances
took place on the day before Robert and Michael filed the inventory and filed a
declaration closing the estate. The quit claim deed was prepared and recorded by the
Roach & Monahan law firm. Michael and Charles continued to live together in the
College Place home, and Michael and Robert together attended to Charles’s personal,
medical, and financial needs until Charles passed away in 2002.
2
The Roach & Monahan firm also appears to have prepared Ms. Maiuri’s will; it
was witnessed by William Roach and by Geraldine Lyons, a secretary at the law firm.
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Grandsons Jay and Marcus had not been identified as heirs, legatees or devisees in
the petition for probate, were not served with notice of the pendency of probate, and were
not served with notice when the probate was completed in October 1996. Jay and Marcus
were about 28 and 24 years old, respectively, at the time of Mary’s death.
Upon Charles’s death, Mr. Monahan recognized that Jay and Marcus had rights
under the testamentary trust created by Mary’s will. The one and one-third acre of
farmland that was supposed to have been held in trust for Charles and should have been
available (or the proceeds of which should have been available) for distribution to Robert,
Michael, Jay, and Marcus had been conveyed to Michael, however. Jay and Robert
spoke with a new attorney during the 2003 time frame and notified Mr. Monahan that
they now believed something was amiss with the estate distribution.
It was evidently agreed that to address the failure to properly administer the trust,
$54,552.47 from two certificates of deposit that Charles had owned outside the
testamentary trust, and that would have passed to Michael and Robert, would be shared
with Jay and Marcus instead. 3 So instead of receiving the one-third acre of farmland that
Jay and Marcus would each have received had the trust’s one and one-third acre of
farmland not been conveyed to Michael, each grandson received $13,184.15. Coincident
3
Michael received $15,000, and the remainder was divided equally between
Robert, Jay, and Marcus. It is reported that Michael received slightly more because he
had not wanted to incur the penalty that was incurred by cashing in the certificates.
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with the payments, Jay and Marcus signed documents acknowledging receipt of their
“full distributive share” of Mary’s estate. Clerk’s Papers (CP) at 33-34.
In the trial below, Marcus explained why he signed the acknowledgment despite
concern he had not received what he believed was his entitlement to part of his
grandmother’s farmland by recounting a conversation he had with attorney Monahan
around April 2003:
[THE COURT]: . . . [W]hat did the conversation consist of? What was it
about?
A. Dick, Mr. Monahan, basically said this is what you get, there is no
ground to distribute. Mike took it. Your dad signed for it. Mike signed for
it. There is nothing for you to get other than this little bit of money. Do
you want the money or do you want to go get an attorney? This is all you
get as your share, period. Sign the paper or don’t.
Q. Sign the paper or go get an attorney?
A. Yeah.
Report of Proceedings (RP) at 60. The distributions were completed in April 2003.
In February 2015—19 years after Mary’s death and 12 years after Charles’s
death—Jay and Marcus filed a petition asserting they were entitled to, but never received
notice of the probate or its alleged completion. They asked the court to (1) reopen the
estate, (2) set aside the declaration of completion, (3) remove Michael and Robert as co-
personal representatives, (4) appoint Jay and Marcus as successor co-personal
representatives, (5) order Michael and Robert to file an accounting, (6) order Michael and
Robert to disgorge estate assets unlawfully received and compensate the estate for assets
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wasted, and (8) award Jay and Marcus attorney fees and costs to be paid by Michael and
Robert.
Following a show cause hearing at which only Michael appeared to resist the
requested relief, the trial court set aside the declaration of completion of probate and
reopened the estate. In a letter decision, it found that “the Declaration should be deemed
void as a final decree for lack of proper notice to the Petitioners both at the beginning and
at the conclusion of the probate (CR 60(b)(5)), and for equitable reasons arising from the
wrongful distribution (CR 60(b)(l l)).” CP at 199. But it reappointed Robert and Michael
as co-personal representatives, with Michael to serve alone if Robert took no action to be
reappointed. It also ordered them to file an accounting of their administration of the
estate, and stated, “Following the submission of the accounting and supporting
documentation, the Court upon motion by any party will consider whether a trial is
necessary to address the equitable issues and to determine whether and to what extent the
additional relief requested by the Petitioners is appropriate.” CP at 52.
Michael filed an accounting a couple of months later, which the court described as
“obviously made difficult by the passage of time and transfer of assets.” CP at 199. Mr.
Monahan had passed away by this time. After reviewing the accounting, the court found
that a trial was necessary to determine whether Jay and Marcus were entitled to relief
beyond what the court had already ordered.
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Trial took place over two days. Only Marcus, Michael, and Geraldine Lyons, who
was Mr. Monahan’s secretary when the estate was being distributed, testified. Shortly
following the hearing, the trial court issued a seven-page letter decision. Among its
findings were that Marcus was sophisticated about real estate and believed in 2003 that
he should have received a portion of the College Place farmland from his grandmother’s
estate but he and Jay nonetheless accepted distributions and signed acknowledgments of
receipt of their shares of her estate. The court also found that Michael was not
sophisticated and relied to a great extent on his brother Robert and on his attorney, Mr.
Monahan.
Among the court’s key conclusions were the following:
2. The rather obvious mistakes that were made in the handling of this Estate
were not the result of extrinsic fraud but were rather the result of ignorance
on the part of the copersonal representatives combined with overreliance on
their attorney to fulfill their duties and to give effect to their mother’s
directions as set forth in her Last Will and Testament.
....
4. While not provided formal notice of the pendency of the Estate, by 2003
Jay and Marc had actual notice that an estate had been opened and that they
had an interest in the estate. While the Court is particularly concerned
about the noncompliance with the notice requirements of the statute the
Court is equally concerned about the passage of time since then. Even
[Pitzer v. Union Bank, 141 Wash. 2d 539, 9 P.3d 805 (2000)] recognizes that
while not absolute, “the interest of finality is of paramount concern.”
According to CR 60(b), even when a judgment was procured by fraud
(whether intrinsic or extrinsic), misrepresentation or other misconduct
(Subsec.(4)), or when a judgment is void (Subsec. (5)), a motion to set
aside the judgment “shall be made within a reasonable time.” CR 60(b);
See Pitzer, 141 Wash. 2d at 551-52. Thirteen years is not a reasonable time.
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. . . Having heard the testimony and reviewed the evidence adduced at trial,
and based upon the extent to which the Petitioners already had knowledge
of the defects in the handling of the estate but chose to do nothing about the
problem in 2003, the Court’s decision is that this estate should be re-closed
and the petition dismissed with prejudice.
CP at 201-02.
Jay and Marcus appeal.
ANALYSIS
Jay and Marcus make seven assignments of error that we reframe and reorder. At
issue on appeal is whether the trial court erred by:
 Retaining Michael Maiuri as personal representative after reopening the
probate of Mary’s estate (assignment of error 3),
 Entering a finding of fact that Jay and Marcus “chose in April of 2003 to
accept the cash distribution, keep the peace, and do nothing to challenge the
handling of their grandmother’s estate”; implicitly ruling that Jay and
Marcus waived any right to challenge the handling of Mary’s estate; and
failing to require Michael to disgorge estate assets and pay damages
(assignments of error 4, 5 and 6);
 Ruling that the estate be reclosed (assignment of error 1);
 Ruling that the petition to reopen the estate was time barred (assignment of
error 2); and
 Denying Jay and Marcus’s motion for attorney fees and expenses
(assignment of error 7).
See Br. of Appellants at 3-4. We address the issues in this order.
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The trial court did not abuse its discretion when it reappointed Michael
Maiuri as personal representative
RCW 11.28.237 requires the personal representative of an estate to cause written
notice of the appointment and the pendency of the probate proceeding to be served
personally or by mail on each “heir, legatee and devisee of the estate and each beneficiary
or transferee of a nonprobate asset” whose names and addresses are known to the
personal representative. 4 The failure of a personal representative to provide the notice
required by RCW 11.28.237 deprives the parties who are not notified of procedural due
process and “amounts to a jurisdictional defect as to them, rendering the decree of
distribution void.” Hesthagen v. Harby, 78 Wash. 2d 934, 942, 481 P.2d 438 (1971).
Having found following the show cause hearing that Robert and Michael failed to
give required notice to Jay and Marcus, the trial court properly set aside the 1996
declaration of completion of probate as void for lack of proper notice.
The trial court was cautious in its findings of fact in light of the limited
information available to it at that time. Its letter ruling noted that Michael testified at the
show cause hearing that “[h]e relied on legal counsel as to how things should go in the
4
Although the court concluded that the mention of the farmland in Mary’s will
“was not in the form of a specific devise,” CP at 201, it found elsewhere that the co-
personal representatives failed to give required notice to Jay and Marcus. Because
Michael did not dispute their right to receive notice, we assume without deciding that
notice was required to be given not only to the trustee of the testamentary trust but also to
trust beneficiaries.
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In re Estate of Maiuri
estate,” and produced copies of acknowledgments by Jay and Marcus of receipt of their
full distributive share of Mary’s estate. CP at 51. The court’s findings entered in support
of the show cause decision stated that Robert and Michael “allegedly” transferred assets
that should have been held in trust for Charles’s benefit and that assets “allegedly”
transferred “may have been” assets in which Jay and Marcus had a vested interest. CP at
64. It ordered Robert and Michael to submit an accounting, including a description and
documentation of disposition of any real property of the testamentary trust.
Although Jay and Marcus asked the trial court to appoint them as co-personal
representatives, the court reappointed Robert and Michael, although Robert declined to
serve. Jay and Marcus argue that this was error after the trial court “had reopened the . . .
estate on grounds that [Michael] and the co-personal representative had failed to name
[them] beneficiaries, had failed to give them adequate notice, had acted in a manner
permitting an inference of extrinsic fraud and had procured a void declaration of
completion of probate.” Br. of Appellants at 3.
RCW 11.28.250 authorizes the superior court to revoke a personal representative’s
letters testamentary following notice and hearing whenever it has reason to believe that
the personal representative
has wasted, embezzled, or mismanaged, or is about to waste, or embezzle
the property of the estate committed to his or her charge, or has committed,
or is about to commit a fraud upon the estate, or is incompetent to act, or is
permanently removed from the state, or has wrongfully neglected the estate,
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or has neglected to perform any acts as such personal representative, or for
any other cause or reason which to the court appears necessary.
RCW 11.68.070 provides that such removal is “in the discretion of the court.” Grounds
for removal must be valid and supported by the record. In re Estate of Beard, 60 Wash. 2d
127, 132, 372 P.2d 530 (1962). A court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons. In re
Marriage of Katare, 175 Wash. 2d 23, 35, 283 P.3d 546 (2012).
Jay and Marcus show no abuse of discretion by the trial court. It is the general
rule that if a fiduciary exercised due care in the selection and employment of an attorney
or other agent to assist him in the management of his trust, he is not absolutely bound by
the dereliction of such agent or attorney. See Hesthagen, 78 Wash. 2d at 942. It was not
clear to the trial court at the show cause stage whether Jay and Marcus had been damaged
by any wrongdoing by Michael and Robert.
The trial court’s challenged finding of an implicit waiver of notice
and refusal to require Michael to disgorge estate assets and pay
damages are supported by the evidence
Following Michael’s delivery of an accounting in May 2015, the trial court set the
disputed issues that remained for trial. Following the trial, the court supplemented its
findings and conclusions from the show cause hearing with additional findings, including
the following:
 After Mary’s death, no testamentary trust was established for Charles.
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 When Charles died, there was no probate of his estate because any funds
Charles owned were jointly held with Michael and/or Robert with right of
survivorship.
 It can be inferred from the evidence that following Charles’s death Mr.
Monahan realized that Jay and Marcus were interested parties with whom there
needed to be a settlement. Mr. Monahan’s records included a notation that
“‘Mike will come up with funds to pay them off - so we need to figure out what
each is owed.’” Accounts in which Michael and/or Robert had an interest were
divided between Jay, Marcus, Robert, and Michael. CP at 201 (Finding of Fact
10).
 Upon division of the accounts belonging to Michael and Robert, signed receipts
for the money received were signed by Jay and Marcus. The receipts were in
evidence and bore the court caption of Mary’s probate. Each stated, “The
undersigned hereby acknowledges receipt of his full distributive share of the
above entitled estate.” CP at 33-34.
 The court’s impression was that Marcus was a highly educated and
sophisticated businessman, particularly knowledgeable about real estate and
when he was offered $13,000 after Charles’s death in 2002, he was aware that
his grandmother’s estate had been probated and he had the option to consult and
attorney about challenging the handling of the estate. The court inferred that
Jay was similarly knowledgeable. “Both chose in April of 2003 to accept the
cash distribution, keep the peace, and do nothing to challenge the handling of
their grandmother’s estate.” CP at 201 (Finding of Fact 14).
The trial court’s challenged finding that Jay and Marcus “chose in April of 2003 to
accept the cash distribution, keep the peace, and do nothing to challenge the handling of
their grandmother’s estate,” is supported by substantial evidence: Michael’s and
Marcus’s testimony and the receipts.
In challenging the trial court’s implicit finding of a waiver, Jay and Marcus rely on
breach of contract cases and the showing required to prove the waiver by a party of a
contractual right. Br. of Appellants at 20-21, (citing Mid-Town P’ship v. Preston, 69 Wash.
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App. 227, 233, 848 P.2d 1268 (1993) and Fulle v. Boulevard Excavating, 20 Wash. App.
741, 744, 582 P.2d 566 (1978)). But this case does not involve parties who negotiated
and gave consideration for a contract right they are alleged to have waived. The relevant
law is case law dealing with a party’s waiver of statutorily-required notice of a
proceeding. Where notice of a proceeding is statutorily required but not provided, the
right to notice is waived by appearing in court and participating in proceedings. Friese v.
Adams, 44 Wash. 2d 305, 308, 267 P.2d 107 (1954); In re Marriage of Steele, 90 Wash. App.
992, 997-98, 957 P.2d 247 (1998) (lack of personal jurisdiction for failure to give notice
is waived where a party impliedly consents to the exercise of jurisdiction).
Jay and Marcus signed receipts that were apparent on their face as
acknowledgments in the probate of Mary’s estate that they received their full distributive
share. This appearance and participation in the probate of Mary’s estate was sufficient to
operate as a waiver of the statutory notice requirement.
Jay and Marcus devote no argument to their assignment of error to the trial court’s
failure to require Michael to disgorge assets or pay damages. Assignments of error that
are neither briefed nor argued are deemed abandoned. RAP 10.3(a)(5); Hollis v.
Garwall, Inc., 137 Wash. 2d 683, 689 n.4, 974 P.2d 836 (1999). We also observe that Jay
and Marcus’s more direct claim was against their father; it was the duty of Robert as
trustee of the testamentary trust to identify and segregate the assets of the trust and keep
the beneficiaries reasonably informed about its administration and material facts
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necessary for them to protect their interest. RESTATEMENT (SECOND) OF TRUSTS § 179
(Am. Law Inst. 1959), 5 (cited with approval by Wilkins v. Lasater, 46 Wash. App. 766,
779, 733 P.2d 221 (1987)); RCW 11.98.072(1). And Robert was, of course, a co-
personal representative.
The court did not err in ordering that the estate be reclosed
Following trial, the court concluded that Mary’s estate should be reclosed. In an
order entered in August 2016, it ordered the estate closed, canceled a lis pendens that had
been filed, discharged Michael as personal representative, and dismissed with prejudice
Jay and Marcus’s petition and a cross claim by Michael.
Jay and Marcus assign error to the order reclosing the estate, which they contend
“reinstat[ed] a declaration of completion of probate that had been properly set aside as
void.” Br. of Appellants at 3. They mischaracterize the effect of the court’s order. In
March 2015, following the show cause hearing, the trial court set aside the declaration of
completion filed in October 1996 and ordered the estate reopened. It determined
following trial that seven years after that declaration of completion, Jay and Marcus
chose to accept funds and acknowledge receipt of their full distribution from the estate. It
determined that nothing more needed to be done in the probate proceeding. Its order did
5
“The trustee is under a duty to the beneficiary to keep the trust property separate
from his individual property, and, so far as it is reasonable that he should do so, to keep it
separate from other property not subject to the trust, and to see that the property is
designated as property of the trust.”
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not reinstate the 1996 declaration of closing but recognized that the probate could be
reclosed.
The court’s only error was in ruling that the petition to reopen the
estate was time barred, but the error was harmless
The trial court’s only error was in stating in its conclusions following trial that
even when a judgment is void, a motion to set aside the judgment shall be made within a
reasonable time. It relied on an unfortunate statement in Pitzer, following a discussion of
CR 60(b)(4) and (5), that “[i]n all cases, a motion under CR 60 must be brought within a
‘reasonable time.’” 141 Wash. 2d at 552. In the immediately prior paragraph, the Pitzer
court discussed the fact that void decrees have no force, and quoted a law review article
by Professor Trautman for the proposition that “‘[t]here is no time limit’” for vacating
void judgments “‘as a judgment entered without jurisdiction is void.’” Id. (quoting
Philip A. Trautman, Vacation and Correction of Judgments in Washington, 35 WASH. L.
REV. 505, 530 (1960)).
CR 60(b) has long included the language that a motion for relief from a judgment
or order “shall be made within a reasonable time and for reasons (1), (2) or (3) not more
than 1 year after the judgment, order, or proceeding was entered or taken.” Washington
courts have long held, however, that based on the very concept of voidness, a party can
move to set aside a void judgment at any time. E.g., In re Marriage of Leslie, 112 Wash. 2d
612, 618, 772 P.2d 1013 (1989); Servatron, Inc. v. Intelligent Wireless Prod., Inc., 186
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Wn. App. 666, 679, 346 P.3d 831 (2015) (“There is no time limit to bring a motion to
vacate a void judgment.”); Allstate Ins. Co. v. Khani, 75 Wash. App. 317, 323-24, 877 P.2d
724 (1994); Brenner v. Port of Bellingham, 53 Wash. App. 182, 188, 765 P.2d 1333 (1989)
(“motions to vacate under CR 60(b)(5) are not barred by the ‘reasonable time’ or the 1-
year requirement of CR 60(b)” (footnote omitted)). Courts have a nondiscretionary duty
to vacate void judgments. In re Marriage of Markowski, 50 Wash. App. 633, 635, 749 P.2d
754 (1988).
The court’s misstatement of the law was harmless, because it was only one basis
for the actions taken by the court. The court’s actions were all proper.
The trial court did not err in denying Jay and Marcus’s motion for
attorney fees and expenses
Both parties requested an award of attorney fees in the trial court, and both
requests were denied. Jay and Marcus argue that the denial of an award of their fees was
error because their actions benefitted the estate. Inasmuch as we affirm virtually all of
the trial court’s actions that caused it to find no benefit to the estate, we affirm its denial
of fees as well.
FEES ON APPEAL
Both parties request an award of attorney fees and costs on appeal. RAP 18.1,
together with RCW 11.96A.150, authorize this court to make a fee award in its discretion.
We exercise our discretion to deny fees to both parties.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW
2.06.040.
Siddoway, J.
WE CONCUR:
Fearing, C.J.
Lawrence-Berrey, J.
j
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