Opinion
No. 24104-1-III.
October 10, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 00-4-01128-0, Jerome J. Leveque, J., entered April 5, 2005.
Counsel for Appellant(s), Richard Charles Dullanty, Attorney at Law, 1925 E Thurston Ave, Spokane, WA, 99203-4249.
Counsel for Respondent/Cross-Appellant, Thomas M Smith, Attorney at Law, 1402 W Broadway Ave, Spokane, WA, 99201-2012.
Affirmed by unpublished opinion per Kato, J., concurred in by Schultheis, A.C.J., and Brown, J.
Richard E. Dullanty appeals the court's decision that Josephine C. Heywood's D.A. Davidson Company brokerage account was under the sole and exclusive control of Gwen Skierka, guardian of Ms. Heywood's estate. He contends the court did not have jurisdiction, the court erred by granting Ms. Skierka access to the account, and the court improperly declined to rule on his motion for reconsideration. Contending the court's findings of fact and conclusions of law are not supported by substantial evidence, Ms. Skierka cross appeals. We affirm.
Ms. Heywood was 88 years old when she inherited $90,000. She consulted Mr. Dullanty, an attorney, about the money. On June 4, 1999, Mr. Dullanty and Ms. Heywood deposited the money in a U.S. Bank checking account, where they were listed as joint owners of the account with right of survivorship.
On June 29, Ms. Heywood and Mr. Dullanty opened a brokerage account with D.A. Davidson Company. She deposited $85,000 from the U.S. Bank account into the brokerage account, which was also jointly owned by Ms. Heywood and Mr. Dullanty with right of survivorship. On August 26, 1999, Ms. Heywood signed this affidavit:
I, JOSEPHINE HEYWOOD, being first duly sworn upon oath, depose and say:
I UNDERSTAND that all of my account[s] are JTROS, [i.e.] Joint Tenancy with Right of Survivorship, in RICHARD E. DULLANTY. I have given him the authority of handling my financial affairs, including investing since I received $90,000 from the Estate of GERTRUDE R. LAURANCE, as well as the changes he has made to date.
Exhibit G12-(15).
On June 27, 2000, Ms. Heywood, with the assistance of Mr. Dullanty, cashed in her life insurance policy and deposited $17,718.10 into the D.A. Davidson account. All the money deposited into both the U.S. Bank checking account and the D.A. Davidson account belonged to Ms. Heywood. Mr. Dullanty did not deposit any of his own personal funds into either account.
On December 18, 2001, Ms. Skierka was appointed guardian of Ms. Heywood's estate. On August 6, 2002, Ms. Skierka requested a name change on the D.A. Davidson account. She asked that the account be changed into the name of "Gwen Skierka as Guardian for Josephine C. Heywood." Clerks Papers (CP) at 134. D.A. Davidson did not process the request because Mr. Dullanty was listed as a co-owner on the account and he would not consent to his name being removed from it.
On June 11, 2003, Ms. Skierka filed a motion and affidavit under RCW 11.96.070 to require Mr. Dullanty to show cause why his name should not be removed from the D.A. Davidson account. On September 9, Mr. Dullanty's attorney filed a notice of appearance and motion to dismiss, arguing the court lacked subject matter jurisdiction because RCW 11.96.070 had been repealed by statute. Mr. Dullanty argued that Ms. Skierka's reliance on the show cause procedure was improper and that a summons and petition were now necessary to institute the action. On November 12, 2003, Ms. Skierka filed a petition identifying her claims against Mr. Dullanty.
The court denied the motion to dismiss, finding it had jurisdiction through the filing of Ms. Skierka's motion and order to show cause. The court also found it had the authority to proceed without the formal filing of a summons and petition.
On August 31, 2004, the matter proceeded to bench trial. On September 1, the court continued the trial to a later date. The trial started again on February 9, 2005. On February 14, the court issued its oral ruling. On March 4, Mr. Dullanty filed a motion for reconsideration.
On April 5, the court entered its findings of fact and conclusions of law. The court determined that the money in the D.A. Davidson account was Ms. Heywood's sole property and that she did not transfer any ownership or interest in the money to Mr. Dullanty. The court then concluded the D.A. Davidson money was under the sole and exclusive control of Ms. Skierka, who would have unfettered access to the money for the payment of Ms. Heywood's costs, expenses, attorney fees, living expenses, or any other expenses Ms. Skierka deemed necessary for Ms. Heywood's benefit. The court determined Mr. Dullanty could remain on the D.A. Davidson account as a joint tenant with right of survivorship, but he did not have to be consulted or have any access to or control of the money.
On April 29, Mr. Dullanty informed the court it had not ruled on his motion for reconsideration. The court declined to hear the motion. This appeal follows.
Mr. Dullanty contends the court lacked subject matter and personal jurisdiction because he was never served with a summons. To reach the merits of a case, a court must have jurisdiction over the subject matter and over the parties. Proios v. Bokeir, 72 Wn. App. 193, 197, 863 P.2d 1363 (1993). Whether the court has jurisdiction is a question of law that is reviewed de novo. Somers v. Snohomish County, 105 Wn. App. 937, 941, 21 P.3d 1165 (2001).
Mr. Dullanty first argues the court lacked subject matter jurisdiction, the court's authority to hear and decide the class of actions to which the case belongs. In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976). Because Washington courts are courts of general jurisdiction, they will lack subject matter jurisdiction only in compelling circumstances. In re Marriage of Thurston, 92 Wn. App. 494, 498, 963 P.2d 947 (1998), review denied, 137 Wn.2d 1023 (1999). These compelling circumstances include specific limitations on jurisdiction by the legislature or by Congress. Id.
The Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, mandates using nonjudicial resolution in trust and estate cases, but permits judicial resolution if other methods are unsuccessful. RCW 11.96A.010. Under TEDRA, "[t]he superior court of every county has original subject matter jurisdiction over the probate of wills and the administration of estates of incapacitated, missing, and deceased individuals in all instances." RCW 11.96.040(1).
Here, Ms. Skierka filed a motion to show cause, followed by a petition invoking TEDRA. The provisions of TEDRA give superior courts broad and exclusive jurisdiction over the estates of incapacitated individuals. The court thus had subject matter jurisdiction.
Mr. Dullanty next argues the court did not acquire personal jurisdiction over him because he was not served with a summons. But "[a] party waives his defense of lack of personal jurisdiction or insufficiency of process by failing to raise the issue in any entry of appearance, pleadings, or answers." State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 63, 7 P.3d 818 (2000). Every defense shall be asserted in the responsive pleading if one is required, and the defenses of lack of personal jurisdiction or insufficiency of service may also be made by motion. CR 12(b).
Mr. Dullanty failed to assert the issue of lack of personal jurisdiction by motion or responsive pleading. The only affirmative defense he raised was that the court lacked subject matter jurisdiction because Ms. Skierka's motion to show cause relied on a repealed statute. Mr. Dullanty did not consistently plead the defense of lack of personal jurisdiction. He participated in discovery on the merits and other issues through trial. At the trial's conclusion, Mr. Dullanty raised the issue of personal jurisdiction in his motion for reconsideration. In these circumstances, Mr. Dullanty waived that defense and the court had personal jurisdiction over him.
Mr. Dullanty next contends the court erred by declining to rule on his motion for reconsideration. But Mr. Dullanty cites no authority for this argument. Because it is not supported by citation to any authority, we need not consider the issue. State v. Benn, 120 Wn.2d 631, 661, 845 P.2d 289, cert. denied, 510 U.S. 944 (1993).
Mr. Dullanty also contends the court erred by voiding his request for special notice. On May 21, 2004, Mr. Dullanty requested "[s]pecial [n]otice of all proceedings . . . including but not limited to: filing of petitions for sale of any property of the Estate, filing of accounts, and intent to pay attorney's or guardian fees." CP at 329. The court denied his request.
Mr. Dullanty argues there was no basis for the court's action because he was an old friend of Ms. Heywood and he was concerned for her welfare. Mr. Dullanty again provides no citation to legal authority to support his argument. We thus need not consider this contention. Benn, 120 Wn.2d at 661.
Mr. Dullanty contends the court erred by giving Ms. Skierka unfettered access to the D.A. Davidson money. In its findings of fact and conclusions of law, the court stated:
The Guardian, Gwen Skierka, shall have unfettered access to all of the funds in Account No. 33876727 at D.A. Davidson, and that Richard E. Dullanty shall have no authority or input as to the disposition of said funds. It is the Court's finding that the Guardian, Gwen Skierka, may use said funds to pay all of the expenses, costs, and fees incurred by Josephine C. Heywood until such funds are exhausted. The D.A. Davidson Company shall look only to Gwen Skierka as Guardian, or her successor, of the Estate of Josephine C. Heywood as the sole owner and manager of said funds under Account No. 33876727 and shall respond to all her requests for use of or withdrawal of funds as she deems appropriate as Guardian of the Estate of Josephine C. Heywood.
CP at 136. Mr. Dullanty argues Ms. Skierka intended to remove the money from the account at her first opportunity and the money should have been used exclusively for Ms. Heywood's direct care. In support, Mr. Dullanty relies on RCW 11.92.140:
The court, upon the petition of a guardian of the estate of an incapacitated person . . . after such notice as the court directs and other notice to all persons interested as required by chapter 11.96A RCW, may authorize the guardian to take any action, or to apply funds not required for the incapacitated person's own maintenance and support, in any fashion the court approves as being in keeping with the incapacitated person's wishes so far as they can be ascertained.
According to the court's finding, it gave Ms. Skierka access to the money to pay for all expenses incurred by Ms. Heywood. Prior to accessing the money, Ms. Skierka filed a petition seeking approval for payment of fees and expenses with the court. Her petition detailed Ms. Heywood's financial interests and personal needs during 2004. There is no evidence that the D.A. Davidson money was used for anything but Ms. Heywood's expenses and direct care.
Ms. Skierka contends on cross appeal that there was insufficient evidence to support the court's findings of fact and conclusions of law. Specifically, she assigns error to the following findings of fact and conclusions of law:
FINDINGS OF FACT
. . . .
V.
On or about August 26, 1999, Josephine C. Heywood signed the August 29, 1999 affidavit which reflected her intent regarding account number 33876727.
. . . .
XII.
Richard E. Dullanty does not have any authority or right to interfere with the Guardian's, Gwen Skierka's, access to or control of the monies in the D.A. Davidson Account No. 33876727. As Guardian, Gwen Skierka, is to have unfettered access to all of the funds of the D.A. Davidson Account No. 33876727, however, the account shall remain as a joint account with right of survivorship between Gwen Skierka as Guardian of the estate of Josephine C. Heywood and Richard E. Dullanty.
. . . .
CONCLUSIONS OF LAW
. . . .
IV.
That all of the monies deposited into the D.A. Davidson Account No. 33876727 are under the sole and exclusive control of Gwen Skierka, as Guardian, or her successor, of the Estate of Josephine C. Heywood, and Gwen Skierka shall have unfettered access to said funds for the payment of any of the Ward's costs, expenses, attorney's fees, living expenses, or such expenses as the Guardian deems necessary for the benefit of the Ward without recourse to Richard E. Dullanty. Richard E. Dullanty may remain as a joint tenant with right of survivorship on said account, but need not be consulted nor have any access to or control of said funds in the D.A. Davidson Account No. 33876727 before the death of Josephine C. Heywood. Should the account be exhausted before death, any claim to the D.A. Davidson account No. 33876727 is likewise extinguished.
CP at 133-38.
Ms. Skierka argues the court's findings of fact and conclusions of law, to the extent they allow Mr. Dullanty to remain on the D.A. Davidson account, were in error and unsupported by the evidence.
"When the trial court has weighed the evidence, our review is limited to determining whether the court's findings are supported by substantial evidence and, if so, whether the findings support the court's conclusions of law and judgment." Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000) (citing Brin v. Stutzman, 89 Wn. App. 809, 824, 951 P.2d 291, review denied, 136 Wn.2d 1004 (1998)), review denied, 142 Wn.2d 1018 (2001). "The challenged findings will be binding on appeal if they are supported by substantial evidence in the record." In re Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 (2000). "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Evidence may be substantial even if there are other interpretations of the evidence. Sherrell v. Selfors, 73 Wn. App. 596, 600-01, 871 P.2d 168, review denied, 125 Wn.2d 1002 (1994). "The party challenging a finding of fact bears the burden of showing that it is not supported by the record." Panorama Vill., 102 Wn. App. at 425.
In support, Ms. Skierka cites her testimony and that of three other witnesses at trial to show Ms. Heywood wanted Mr. Dullanty's name removed from the account and Ms. Heywood did not want him to receive any of the money or manage her financial affairs.
The record shows Ms. Heywood signed an affidavit giving Mr. Dullanty joint tenancy with right of survivorship in the account. Witnesses at trial then testified she did not want him to remain on the account. The court relied on the affidavit as reflecting Ms. Heywood's intentions regarding ownership of the account. This is a determination that we do not second-guess on appeal. It is not the role of the appellate court to substitute its judgment for that of the trial court or to weigh the evidence or the credibility of the witnesses. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 Wn.2d 1030 (1996). The court's findings are supported by the evidence.
Both parties seek attorney fees on appeal. Mr. Dullanty requests attorney fees under CR 11, but he did not move for CR 11 sanctions below. CR 11 sanctions are appropriate when a party or attorney files frivolous pleadings. Manteufel v. Safeco Ins. Co. of Am., 117 Wn. App. 168, 175-76, 68 P.3d 1093, review denied, 150 Wn.2d 1021 (2003).
Ms. Skierka's petition was not frivolous. Moreover, we do not engage in CR 11 fact-finding. Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994). CR 11 attorney fees are unwarranted.
Ms. Skierka also requests attorney fees under RAP 18.1(b), RCW 11.96A.150(1), and RCW 11.98.070(27). She argues the estate has been forced to spend substantial money to prosecute its rightful possession and control of Ms. Heywood's money and to defend against Mr. Dullanty's allegations on appeal.
Courts may, in their discretion, award costs and reasonable attorney fees in estate proceedings. RCW 11.96A.150(1), (2). The award may be paid from any party to the proceedings, from the estate's assets or from a nonprobate asset that is the subject of the proceedings. RCW 11.96A.150(1)(a)-(c). The court, however, may decline to award fees under RCW 11.96A.150 when the case involves novel or unique issues. In re Estate of Burks, 124 Wn. App. 327, 333, 100 P.3d 328 (2004), review denied, 154 Wn.2d 1029 (2005); Mearns v. Scharbach, 103 Wn. App. 498, 514-15, 12 P.3d 1048 (2000), review denied, 143 Wn.2d 1011 (2001).
This case involved unique issues regarding ownership and access to Ms. Heywood's D.A. Davidson account. An award of fees to either party is thus unwarranted.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and BROWN, J. Concur.