Martin v. Ellis, No. 62598-5-I (Wash. App. 2/22/2010)

Decision Date22 February 2010
Docket NumberNo. 63493-3-I.,No. 62598-5-I.,62598-5-I.,63493-3-I.
PartiesDAVID L. MARTIN, a married man as his separate estate, Appellant, v. KATHRYN A. ELLIS, Personal Representative of the Estate of Jack DelGuzzi; and DOE DEFENDANTS 1 through 20, Inclusive, Respondent.
CourtWashington Court of Appeals

Appeal from King County Superior Court. Docket No: 07-2-21635-9. Judgment or order under review. Date filed: 10/03/2008. Judge signing: Honorable Monica Benton.

Counsel for Appellant(s), Charles Malcolm Cruikshank III, Attorney at Law, 108 S Washington St Ste 306, Seattle, WA, 98104-3406.

Counsel for Respondent(s), Rosemary Jane Moore, Lee Smart PS Inc, 701 Pike St Ste 1800, Seattle, WA, 98101-3929.

Sam Breazeale Franklin, Lee Smart PS Inc, 701 Pike St Ste 1800, Seattle, WA, 98101-3929.

UNPUBLISHED OPINION

Dwyer, A.C.J.

A superior court's order closing an estate is a final judgment that precludes a litigant from bringing claims in a collateral action that could have been brought in the probate proceeding. David Martin could have raised all of the claims that he brought in this case in the Estate of Jack DelGuzzi probate proceeding. In accordance with the doctrine of res judicata, Martin is precluded from bringing the claims constituting this action. Moreover, any reasonable investigation by Martin's attorney, Charles Cruikshank, would have revealed that there was no proper legal basis for advancing these claims. Thus, the trial court correctly awarded Kathryn Ellis attorney fees pursuant RCW 4.84.185 and imposed sanctions on Cruikshank pursuant to CR 11. Accordingly we affirm.

I

This appeal is the sixth concerning claims relating to the administration of the Estate of Jack DelGuzzi (the "estate"). See In re Estate of DelGuzzi, noted at 150 Wn. App. 1058, No. 36682-7-II, 2009 WL 1863892 (Wash. App. June 30, 2009) (DelGuzzi IV); Shaw v. Short & Cressman, noted at 150 Wn. App. 1017, No. 60995-5-I, 2009 WL 1366272 (Wash. App. May 18, 2009); In re Estate of DelGuzzi, noted at 108 Wn. App. 1003, No. 24860-3-II, 2001 WL 1001082 (Wash. App. Aug. 31, 2001) (DelGuzzi III); DelGuzzi v. Wilbert, noted at 105 Wn. App. 1004, No. 45022-1-I, 2001 WL 180995 (Wash. App. Feb. 26, 2001) (DelGuzzi II); DelGuzzi v. Wilbert, noted at 93 Wn. App. 1048, No. 21752-0-II, 1999 WL 10081 (Wash. App. Jan. 8, 1999) (DelGuzzi I). These earlier opinions explain in detail the underlying probate proceeding and the various challenges made to the estate's administration.1 Our discussion of the facts will be limited to those necessary to explain our disposition of this cause.

The parties involved in this case and the individuals and entities implicated in the earlier litigation are as follows.2 The Estate of Jack DelGuzzi constitutes the property at the center of the underlying dispute herein and in those related cases listed above. Kathryn Ellis, the defendant-respondent in this action, is the personal representative of the estate. Ellis was appointed to serve as such in 2005 by the Clallam County Superior Court, which conducted the probate proceeding concerning the estate beginning in 1978 and ending with its closure in 2007. See DelGuzzi IV, 2009 WL 1863892, at *3. Ellis replaced David Martin, the plaintiff-appellant in this action, who had briefly served as the estate's personal representative in 2004. See Shaw, 2009 WL 1366272, at *2. Prior to Martin's service, William Wilbert served as the estate's personal representative from 1982 until his death in 2004. The law firm of Short Cressman & Burgess (SCB) served as the estate's legal counsel from 1982 to 1991. See Shaw, 2009 WL 1366272, at *1-*2. Thereafter, the firm of Chicoine & Hallett (CH) represented Wilbert in his capacity as the estate's personal representative. See Shaw, 2009 WL 1366272, at *1-*2.

The following individuals have challenged the administration of the estate. Gary DelGuzzi, Jack's son and sole heir, first challenged Wilbert's administration of the estate in 1994. See DelGuzzi IV, 2009 WL 1863892, at *1. Until his death in 2004, Gary continued to litigate claims against Wilbert and the law firms representing Wilbert and to challenge the administration of the estate in the probate proceeding. See DelGuzzi IV, 2009 WL 1863892, at *1-*3. Upon Gary's death, Sidney Shaw became the personal representative of Gary's estate and was substituted for Gary in both the lawsuits that Gary had instituted and in the probate proceeding. See Shaw, 2009 WL 1366272, at *2. As explained below, in 2007, Shaw assigned certain interests and claims held by Gary's estate to Martin. It is on the basis of this assignment that Martin brought the claims constituting the subject matter of the action that is presently before us. At all pertinent times, attorney Charles M. Cruikshank represented Gary, Shaw, and Martin in both the probate proceeding and the collateral lawsuits.

In July of 2007, the Clallam County Superior Court entered an order closing the probate of Jack's estate, approving Ellis's final report, and granting her motion for final distribution of estate assets. See DelGuzzi IV, 2009 WL 1863892, at *3. Shaw objected to Ellis's motion and challenged her administration of the estate in the probate proceeding. The superior court's 2007 closing order came nine years after the same court had entered a closing plan. See DelGuzzi IV, 2009 WL 1863892, *1-*4. It also followed the same court's approval, in 2005 and 2006, of interim reports and interim distributions of estate assets, to which Shaw objected, but from which he did not directly appeal. See DelGuzzi IV, 2009 WL 1863892, *1-*4. In her 2007 final report and motion for final distribution, Ellis listed the estate properties she had sold, the proceeds from those sales, and the creditor and administrative disbursements she had made upon providing notice to interested parties. See DelGuzzi IV, 2009 WL 1863892, at *8.

In May of 2007, two months prior to the closing of the estate, Shaw assigned certain claims and interests held by Gary's estate to Martin. In November of 2007, Martin brought causes of action against Ellis for negligence and breach of fiduciary duty.3 Martin subsequently prosecuted his claims against Ellis after Shaw had objected to Ellis's administration in the probate proceeding and while Shaw appealed from the 2007 closing order.

For the purposes of this appeal, the critical fact is that Shaw and Martin pursued parallel actions concerning Ellis's administration of the estate in different judicial forums. That they did so raises the core issue in this case: whether Martin is precluded from litigating the claims brought in this action.

Because Shaw challenged the administration of the estate in the probate proceeding prior to Martin's commencement of this action, we describe the issues raised by Shaw before describing the claims brought herein by Martin. As Shaw had done with the 2005 and 2006 reports and related motions for interim distributions, he objected in the probate proceeding to the 2007 report and the motion for final distribution and closure, alleging that Ellis had been negligent and had breached her fiduciary duty to the estate. See DelGuzzi IV, 2009 WL 1863892, *8-*10. Shaw asserted that Ellis had failed to follow statutory notice requirements set forth in RCW 11.28.240 and that she had failed to follow statutory procedures for submitting the final report set forth in RCW 11.76.020-.050. See DelGuzzi IV, 2009 WL 1863892, at *8. In particular, Shaw claimed that Ellis failed to notify all devisees of the proposed closing and failed to describe estate property that had not been disposed. See DelGuzzi IV, 2009 WL 1863892, at *8. Further, Shaw claimed that Ellis should not have authorized the payment of attorney fees from the estate to SCB. See DelGuzzi IV, 2009 WL 1863892, at *9. However, Shaw did not assign specific error to administrative payments made to Wilbert's estate and to SCB in 2007. See DelGuzzi IV, 2009 WL 1863892, at *9.

In addition, Shaw asserted that Ellis had failed to properly account for various estate properties near Port Angeles, Washington, in Costa Rica, and in British Columbia. See DelGuzzi IV, 2009 WL 1863892, at *9-*10, *11 n.19. Shaw claimed that Ellis had failed to provide a verified inventory and appraisal of estate property in violation of RCW 11.44.015, .025, and .050. Shaw also raised issues concerning the 1998 closing plan and the superior court's 2005 and 2006 interim orders from which he had not appealed. In addition, he asserted many of the contentions that had been previously raised by Gary in the litigation commenced in 1994 and in various challenges to the administration of the estate, including the allegedly unjustified payment of fees to SCB, that various of Wilbert's actions had constituted breaches of his fiduciary duty, and that Wilbert had mishandled estate property. See DelGuzzi IV, 2009 WL 1863892, at *11 n.19.

The Clallam County Superior Court, in the probate proceeding, and Division II of this court, on appeal, rejected all of Shaw's contentions. On June 30, 2009, Division II affirmed the superior court's 2007 closing order and dismissed as untimely Shaw's challenges to the superior court's pre—2007 approval of interim distributions. See DelGuzzi IV, 2009 WL 1863892, at *11. With respect to all actions taken before or in conjunction with the 2006 interim order, Division II concluded that either Shaw or Gary should have raised issues concerning those actions at appropriate earlier times and that Shaw was time-barred from raising them on appeal because of his and Gary's failure to appeal directly from the various challenged orders. See DelGuzzi IV, 2009 WL 1863892, at *8-*11. With respect to the issues raised by Shaw concerning Ellis's actions in 2006 and 2007, the court found no merit to Shaw's contentions. See DelGuzzi IV, 2009 WL 1863892, at *8-*11. Further, the court noted that its decision had "a preclusive...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT