In re Estate of Peterson
| Decision Date | 06 June 2013 |
| Docket Number | No. 30686-1-III,30686-1-III |
| Court | Washington Court of Appeals |
| Parties | IN RE THE ESTATE OF: GARTH BENJAMIN PETERSON, Deceased. |
KULIK, J. — In the probate of their father's estate, heirs Rena and Lyndra Peterson moved to revoke the letters of administration and petitioned to be appointed co-personal representatives. They also objected to the personal representative's accounting and payment of a creditor's claim. The court denied their motions and overruled their objections. We affirm the trial court.
Garth Benjamin Peterson died without a will and none of his relatives petitioned to administer his estate. Eventually, the estate's principal creditor, Thomas Milby Smith P.S. (Smith P.S.), petitioned to have a personal representative appointed. The court appointed Smith P.S.'s president, Thomas Milby Smith.
At the outset of the case, Mr. Smith notified one heir, Rena Peterson, of his appointment. He later learned of three other heirs: Lyndra Peterson, David Peterson, andLeigh Ann Yocum.1 He notified each them of his appointment and continued to notify them of other filings.
Although the $210,000 estate was relatively modest, Mr, Smith spent considerable time and money administrating it. He hired a private investigator to locate the heirs and evicted Rena from the estate's real property. He also spent a significant sum of money dealing with the estate's property, which was numerous and generally in disrepair. He also spent much time responding to the motions and objections of Rena and Lyndra.
Mr. Smith eventually filed a motion to sell the estate's personal property, list the real property for sale, and require the heirs to retrieve personal property and family memorabilia that they wanted to keep. He mailed the heirs notice of the hearing and copies of his motions. None of the heirs filed bids or appeared at the hearing. The court granted Mr. Smith's motions.
Afterwards, Rena and Lyndra filed several motions. They both moved for reconsideration. They alleged that Mr. Smith failed to properly notify the heirs of his motions and that he violated a right of first refusal. Rena also moved for the court to recuse itself. The court denied both motions.
Mr. Smith later filed a notice of intent to resign, request for approval of administration and final accounting, and distribution of estate funds. Rena and Lyndra, now represented by counsel, moved to be appointed substitute co-personal representatives and objected to Mr. Smith's motions on a variety of grounds. They argued Mr. Smith breached his fiduciary duty to the heirs, was disqualified from acting as personal representative because of his antagonism toward Mr. Peterson and the heirs, failed to properly inventory to estate, failed to notify Lyndra of the inventory, and accrued unreasonable fees. They also argued that the court lacked personal jurisdiction over the heirs and that Smith P.S.'s creditor's claim was invalid. The court overruled those objections and denied the motion to appoint Rena and Lyndra co-personal representatives.
Rena and Lyndra appeal the court's decisions on their motions and objections.2
The record reveals that Mr. Smith had some difficulty serving the heirs with notice of his appointment. The court appointed Thomas Milby Smith personal representative on September 3, 2010, and issued letters of administration of September 30. Mr. Smith mailed a notice of appointment to Rena Peterson, who was the only heir as far as heknew, on October 7, 2010.
About one month later, Mr. Smith learned that Mr. Peterson had three additional children. Mr. Smith hired a private investigator to locate them and, in December 2010, he mailed them notices of the proceedings and his appointment. The notice to David was returned in the mail. Mr. Smith then got a new address for David in Portland, Oregon, and began mailing notices there.
In the summer of 2011, Rena and Lyndra supported their motions for reconsideration with the unsworn declarations of David and Leigh Ann. David said that he never received notice from Mr. Smith. He also disclosed a mailing address in Otis, Oregon. Leigh Ann said that she had not received notice of a hearing on July 26, 2011.
The record shows that there was no hearing on July 26. There was a hearing on July 22, and Mr. Smith mailed Leigh Ann notice of it. It also shows that Mr. Smith began mailing notices to David's Otis, Oregon, address once he learned of it.
On appeal, Rena and Lyndra argue that the trial court's orders should be vacated because Mr. Smith failed to properly serve the heirs and, therefore, the court never acquired personal jurisdiction over the heirs. This argument raises three issues: (1) whether David and Leigh Ann waived their lack of personal jurisdiction defense,(2) whether Mr. Smith exercised due diligence in locating the heirs, and (3) whether the final orders must be vacated to cure any jurisdictional defect.3 We review these issues of law de novo. See State v. Squally, 132 Wn.2d 333, 340, 937 P.2d 1069 (1997).
A. Waiver. As an initial matter, Mr. Smith argues that any failure to strictly comply with the notice statute should be forgiven because the heirs waived notice by appearing in the case. Here, there is no dispute that Rena and Lyndra waived a lack of personal jurisdiction defense because they repeatedly sought affirmative relief from the court. The issue here is whether David and Leigh Ann waived their defense.
Mr. Smith relies on In re Estate of Walker, 10 Wn. App. 925, 521 P.2d 43 (1974) to argue that the heirs waived the defense. There, the court stated that "the superior court has personal jurisdiction over the persons who appear in the proceedings whether or not they receive the requisite notices." Id. at 930 (citing former RCW 11.16.083 (1965)). That statement was based on former RCW 11.16.083, which provided that "[a]ny person who submits to the jurisdiction of the court in any hearing shall be deemed to have waived notice thereof." That statute has been repealed. LAWS OF 1999, ch. 42, § 637 (effective Jan. 1, 2000).
Nevertheless, "[a] party also waives any claim of lack of personal jurisdiction if, before the court rules, he or she asks the court to grant affirmative relief, or otherwise consents, expressly or impliedly, to the court's exercising jurisdiction." In re Marriage of Steele, 90 Wn. App. 992, 997-98, 957 P.2d 247 (1998); see Kulman Equip. Co. v. Tammermatic, Inc., 29 Wn. App. 419, 424-25, 628 P.2d 851 (1981) (). A party does not waive a lack of personal jurisdiction claim by failing to appear. Steele, 90 Wn. App. at 998. But "[e]ven informal acts, such as written or oral statements to the plaintiff in the action can constitute an appearance." State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 63, 7 P.3d 818 (2000). In Jenkins, the court held that the defendant had appeared by writing several letters to the plaintiff regarding the case. Id.
The facts here are distinguishable from those cases where courts held that parties had impliedly consented to the court's jurisdiction. While David and Leigh Ann did appear insofar as they submitted unsworn declarations in support of Lyndra's motion for a temporary restraining order, they did not communicate with Mr. Smith directly or ask the court for affirmative relief. We, thus, conclude that they did not waive their lack of personal jurisdiction defense.
B. Due Diligence. Because the personal representative is a fiduciary and officer of the court, he or she must exercise due diligence by making "an earnest effort in the course of his trust to determine who would be lawfully entitled to the estate." Hesthagen v. Harby, 78 Wn.2d 934, 941, 481 P.2d 438 (1971). Due diligence is a question of fact, unless reasonable minds could reach only one conclusion. See State v. Hessler, 155 Wn.2d 604, 608, 121 P.3d 92 (2005); August v. U.S. Bancorp, 146 Wn. App. 328, 343, 190 P.3d 86 (2008). Failing to abide by the notice statute, including failing to notify heirs unknown but ascertainable through due diligence, "is a denial of procedural due process that 'amounts to a jurisdictional defect as to [the heirs], rendering the decree of distribution void.'" In re Estate of Little, 127 Wn. App. 915, 921, 113 P.3d 505 (2005) (quoting Hesthagen, 78 Wn.2d at 942); but see Walker, 10 Wn. App. at 930 (). In Little and Hesthagen, the court concluded that decrees of distribution were void when administrators conducted no investigation whatsoever into the existence of heirs. Little, 127 Wn. App. at 925-26; Hesthagen, 78 Wn.2d at 942.
Here, the court found that Mr. Smith's overall efforts to locate the heirs constituted due diligence. There is nothing in the record showing that Mr. Smith made any attempt tolocate the heirs within 20 days after his appointment. However, the record shows that Mr. Smith was appointed September 3, was unavailable for about six weeks, notified Rena of his appointment on October 7, and began looking for other heirs in November. Given the need to determine who and where the heirs were, the court properly concluded that Mr. Smith exercised due diligence.
C. Cure of Jurisdictional Defect. But even if Mr. Smith did not exercise due diligence, there would be no need to vacate the court's final orders. In Walker, the court concluded that the entire proceeding was voidable as to 16 legatees who never received notice of the proceeding. Walker, 10 Wn. App. at 931. But because "all that has transpired in more than 2 years of administration would be a nullity and would have to be redone at great inconvenience, delay, and expense to the parties," the court created a procedure to "cure the 'jurisdictional' defect." Id. at 931-32. The...
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