Robinson v. McCalla (In re Estate of Robinson)

• Court: Washington Court of Appeals
• Writing for the Court: LEACH, J.
• Decision Date: 27 July 2020
• Docket Number: No. 80110-4-I
• Citation: Robinson v. McCalla (In re Estate of Robinson), No. 80110-4-I (Wash. App. Jul 27, 2020)
• Parties: In the Matter of the Estate of: THOMAS ROBINSON, Deceased. RUDY ROBINSON, Respondent, v. CHRISTINE O. MCCALLA, Appellant.

In the Matter of the Estate of: THOMAS ROBINSON, Deceased.

RUDY ROBINSON, Respondent, v. CHRISTINE O. MCCALLA, Appellant.

No. 80110-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

July 27, 2020

UNPUBLISHED OPINION

LEACH, J. — In this probate matter, Christine McCalla appeals a superior court order removing her as the personal representative of her late father's estate and ordering her to pay damages to the estate. The record contains insufficient evidence to support the amount of damages awarded for uncollected rent and for decreased value or destruction of estate property. So, we reverse the judgment for damages. In all other respects, we affirm.

FACTS

Thomas Robinson died testate in September 2018 survived by two children, Christine McCalla and Rudy Robinson.¹ Thomas's will named Christine as the personal representative of the estate, and if she were unable or unwilling to serve, it designated Rudy as the successor personal representative.² Thomas's will granted "unrestricted nonintervention powers" to the personal representative. Apart from specifically designated items of tangible property, the will gave the Thomas estate in equal shares to the children.

At the time of Thomas's death, he lived in the Seattle home purchased in 1970 with his late spouse. Christine lived across the street. Christine's daughter, Salina McCalla, had been living with Thomas for several years. After Thomas's spouse passed away, Salina cared for Thomas in the evenings and weekends when his employed caregiver was off duty. Salina sometimes accompanied Thomas to medical appointments or to the hospital. By mutual agreement, Salina did not pay rent to Thomas.

The primary asset of Thomas's estate was his home. After Thomas died, Christine allowed Salina to continue to live in the home without paying rent to the estate. After several months, in January 2019, Christine responded to Rudy's concerns about this arrangement. She claimed it was Thomas's wish that Salina remain in the home until it was sold. Christine also reported that after their father's death, Rudy had agreed that Salina should continue to live in the home to protect it and its contents. Christine described some steps she had taken to prepare the home for sale. Christine hired individuals to help pack her father's personal belongings and clean the home, identified a real estate agent to list the home, and arranged for an appraisal of the home. She maintained that Salina was looking for new housing.

In February 2019, Rudy submitted a creditor's claim against Thomas's estate under chapter 11.40 RCW. As the factual basis for the claim, Rudy cited Salina's continued occupation of the home without paying rent. He also alleged Salina's two pit bulls had caused "significant damage to the stairs in the house." Rudy demanded that Salina move out, and he asserted that the estate had a claim against her for rent from the date of Thomas's death and for damage to the property. Rudy estimated that the value of the claim was "$1,800/month for rent and $25,000 in property damage."

Christine, as personal representative, rejected the creditor's claim. Rudy then filed a "Petition on Rejected Claim and Complaint to Quiet Title" in superior court. Rudy made claims of unjust enrichment and ejectment.³ Rudy relied on the "facts and circumstances" alleged in his creditor's claim to support his claims. Rudy scheduled a hearing on his petition in the Probate Department of the King County Superior Court.

In response, Christine asserted that the only damage caused by the dogs had been repaired at her personal expense. She also stated her view that the house needed to be occupied while she prepared it for sale.

In reply, Rudy asked the court to remove Christine as personal representative of the estate. He also asked the court to require Christine to reimburse the estate for uncollected rent and for the property damage caused by the dogs. Rudy denied agreeing to allow Salina to continue to live in the home without paying rent and alleged the dogs had destroyed the hardwood flooring.

Christine filed an additional declaration just before the April 8, 2019 hearing. She claimed the only damage caused by Salina's dogs had been repaired and stated her intent to place the home on the market on or before April 22, 2019. Christine also declared she used her own personal funds to pay the nearly $2,000 mortgage payment for Thomas's home twice in the months before he died.

At the brief hearing on Rudy's petition, the parties focused on whether as the personal representative, Christine had a fiduciary duty to the estate to rent the home and whether there was evidence of property damage. At the conclusion of the hearing, the court revoked Christine's letters testamentary and appointed Rudy as personal representative. The court found that Christine had engaged in "mismanagement and/or fraud on the estate by allowing her daughter to live in the house on a rent free basis for the last seven (7) months." The court also ordered Christine to pay damages of $37,600 to the estate. The court later denied Christine's motion for reconsideration. Christine appeals.

ANALYSIS

Removal of Personal Representative

RCW 11.68.070 allows an heir, devisee, or legatee to petition the superior court to remove a personal representative, even one with nonintervention powers. This statute provides that a party qualified to seek removal must file a petition with a supporting affidavit that establishes a prima facie cause for removal. After this occurs, the superior court must cite the personal representative to appear before it to respond to the petition.

Christine challenges her removal as personal representative of the estate. She correctly points out that Rudy did not file a petition under RCW 11.68.070, the applicable statute, and did not expressly ask the court to revoke her personal representative status until he filed his reply brief.⁴ To the extent Christine suggests these procedural deficiencies implicated the court's "jurisdiction" to decide the matter, we disagree. In a recent analogous case involving the removal of co-personal representatives/co-trustees, Matter of Estate of Reugh, Division Three of this court rejected language in previous cases declaring that a superior court can lose "jurisdiction" to decide matters involving nonintervention estates.⁵ The court clarified that under the Washington Constitution and numerous statutes, superior courts have jurisdiction over all probate matters. "Subject matter jurisdiction simply means the claimant brought the suit in the right court."⁶ This jurisdiction does not depend on compliance with statutory procedural requirements.⁷

Nevertheless, Christine contends that without a petition under RCW 11.68.070 before it, the court's authority was "never correctly triggered" and the court did not "gain authority" to intervene in the management of the nonintervention estate. But, Christine did not properly raise this claim of error in the trial court. A party may not generally raise a new argument on appeal that the party did not present to the trial court.⁸ A party must inform the court of the rules of law it wishes the court to apply and give the trial court an opportunity to correct any error.⁹ Proper preservation of error not only provides the trial court with the opportunity to correctly rule on matters, but it also serves the goal of judicial economy and facilitates appellate review by ensuring a complete record on appeal.¹⁰

The decision in Reugh is instructive. There, purported trust beneficiaries filed a motion in probate proceedings to remove the co-trustees/co-personal representatives.¹¹ The testator's children opposed the motion on the ground that the beneficiaries filed a motion and not a petition, which starts a show cause process.¹² But, they did not challenge the court's authority based on the nonintervention powers of the trustees or argue that the purported beneficiaries were not qualified to seek removal under RCW 11.68.070.¹³ The children also declined the court's offer to remedy any procedural error by entering a show cause order and scheduling a later hearing.¹⁴ Because the children failed to raise the issue about the court's authority in a nonintervention estate in the trial court, the court declined to address their claim on appeal.¹⁵ The court also held the children either waived any objection to the process or invited the error by choosing to proceed to address the merits of the request for removal.¹⁶

Here, Rudy consistently alleged that Christine was mismanaging the primary asset of the estate. Christine responded to his allegations claiming that Salina's continued occupancy of the home was a benefit to the estate and asserting that both Thomas and Rudy had agreed to the arrangement. After Rudy filed his reply brief, and expressly sought her removal as the personal representative, Christine filed additional documents. In doing so, she directly responded to Rudy's reply but did not raise the issue of the court's authority to rule on the request for removal. At the hearing on Rudy's petition, the court specifically noted the request before it to revoke Christine's status as the personal representative. Again, Christine focused on the substantive allegations and did not challenge the court's authority based on the nonintervention estate or lack of compliance with RCW 11.68.070 to address the removal request. As in Reugh, Christine waived any claim that the court lacked authority to decide Rudy's request.¹⁷

Even if the court had authority to entertain Rudy's request, Christine claims the record contains no evidence of misconduct that warranted her removal as personal representative. A personal representative "stands in a fiduciary relationship to those beneficially interested in the estate ... [and] is obligated to exercise the utmost good faith and diligence in administering the estate in the best interests of the heirs."¹⁸ RCW 11.68.070 and RCW 11.28.250...