Opinion
No. 49433-3-I c/w 50232-8-I
Filed: November 12, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 004013067, Hon. Carlos Velategui, September 25, 2001, Judgment or order under review.
Counsel for Appellant(s), Richard Rentfrow (Appearing Pro Se), P. O. Box 624, Edwardsville, IL 62025.
Counsel for Respondent(s), Bruce R. Moen, Attorney At Law, 1601 5th Ave Ste 1300, Seattle, WA 98101.
Amy J. Goertz, 1601 5th Ave Ste 1300, Seattle, WA 98101.
Richard Rentfrow appeals various orders and the final decree entered during the probate of his uncle's estate. He contends he had no notice of certain hearings, the court commissioners were biased in favor of the personal representative, and terms were imposed against him without authority. Because terms were statutorily authorized, there is no evidence of bias, and Rentfrow either waived or suffered no prejudice from any lack of notice, we affirm.
Rentfrow's motion for oral argument is denied.
FACTS
Following Raymond Rentfrow's death in 1999, the superior court appointed Bruce Moen as personal representative of Rentfrow's estate. Appellant Richard Rentfrow is one of twelve heirs to Raymond Rentfrow's estate.
In September, 2001, Richard Rentfrow filed a motion to "Revoke Letters and Remove Personal Representative." The hearing was set for the morning of September 25, 2001. Rentfrow failed to appear at the hearing. After considering Rentfrow's written motion and affidavit, the court commissioner denied the motion. That afternoon, Rentfrow appeared and explained that he had been told by court personnel, and had confirmed on SCOMIS, that no hearing was scheduled for that morning. The commissioner reopened the matter, allowing Rentfrow to present evidence and argue his motion. Ultimately, the commissioner adhered to her initial ruling, finding that Rentfrow's allegations were "either knowingly false or . . . made in a reckless disregard for the truth," and that he was acting in bad faith. She further found that Rentfrow's "persistent false allegations . . . have interfered with the administration of the estate and increased the costs." Accordingly, she awarded Moen terms and costs. Rentfrow then filed a motion for revision, which the superior court denied.
SCOMIS stands for the "Superior Court Management Information System."
In November, 2001, Moen filed a "Notice of Hearing On Final Report, Accounting, And Petition For Distribution." After several continuances, the hearing was held on March 7, 2002. The court approved and entered the Final Report and Decree.
In December, 2001, Moen petitioned the court to liquidate the terms against Rentfrow. On December 17, 2001, the court entered an order liquidating terms in the amount of $21,199. Rentfrow appeals the order denying his motion to remove the personal representative, orders liquidating terms and authorizing distribution of personal items, and the final decree of distribution.
DECISION I.
Rentfrow first contends he received no notice of the September 25, 2001 hearing on his motion to remove the personal representative. He claims that the hearing was "mysteriously removed" from the official calendar and that court personnel informed him, and he confirmed on SCOMIS, that the hearing was not on the calendar for the 25th. Rentfrow's contention fails for two reasons. First, the court specifically noted on the record that SCOMIS did list Rentfrow's motion hearing on the calendar for the 25th. Second, Rentfrow suffered no prejudice from any misadvisement because the court reopened the matter and allowed him to present evidence and argument on the motion.
See Zimny v. Lovric, 59 Wn. App. 737, 740, 801 P.2d 259 (1990) (reversal for noncompliance with analogous service requirements of CR 6 requires showing of prejudice).
Rentfrow contends he also received no notice of the March 7, 2002 hearing on Moen's final report and petition for a decree of distribution.
The entire argument in Rentfrow's opening brief is as follows:
"Additionally, the 3-7-02 Decree of Distribution was entered without any notice of hearing, again in violation of LR 7 [.]" In addition to being fatally inadequate, this argument need not be considered since it was never raised below and Rentfrow offers no basis to consider it for the first time on appeal. In any event, it is clear from the record that Rentfrow had actual notice of the hearing. On January 3, 2002, Rentfrow appealed an order entitled "Order Authorizing The Personal Representative to Donate or Dispose of Personal Items . . . And Granting Continuance of Hearing on Final Report." (Emphasis added). Even assuming Rentfrow had not received notice of the hearing on the Final Report prior to this order, he clearly had notice as of January 3rd that there was going to be a hearing on the Final Report.
Rentfrow raises several new arguments and statutes, including RCW 11.28.240 and 11.28.210, for the first time in his reply brief. Because "[a]n issue raised and argued for the first time in a reply brief is too late to warrant consideration[,]" we decline to consider these arguments. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (passing treatment of issue or lack of reasoned argument insufficient to merit judicial consideration); accord State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
RAP 2.5(a); Zimny, 59 Wn. App. at 741 (failure to raise a CR 6 notice violation at trial constitutes waiver and precludes review on appeal).
See State v. Sanders, 66 Wn. App. 878, 888 n. 3, 833 P.2d 452 (1992) (defendant "has failed to argue on appeal that this alleged error is constitutional and thus may be reviewable absent an adequate exception below"); Savage v. State, 72 Wn. App. 483, 495 n. 9, 864 P.2d 1009 (1994), reversed in part on other grounds, 127 Wn.2d 434, 899 P.2d 1270 (1995) (noting that no special circumstances compelling review for the first time on appeal had been brought to court's attention.); accord, State v. Wiley, 79 Wn. App. 117, 121 n. 1, 900 P.2d 1116 (1995).
A party claiming lack of notice must show a lack of actual notice. Zimny, 59 Wn. App. at 740.
II.
Rentfrow next argues that commissioners in the proceedings below were biased in favor of the personal representative. Citing the Code of Judicial Conduct, Canon 3(D)(1), an Ethics Advisory Committee Opinion, and several statutes, he contends Moen's work as a commissioner pro tempore created an actual bias among the commissioners and violated CJC 3(D)(1). This argument is meritless.
In general, due process, the appearance of fairness doctrine, and CJC 3(D)(1) require a commissioner to disqualify himself if he is biased against a party or his impartiality may reasonably be questioned. But there is a presumption that the judge performs his functions regularly and properly without bias or prejudice. The party seeking to overcome that presumption must offer evidence of a judge's actual or potential bias. Rentfrow has not overcome that presumption. He has provided no evidence of actual bias. As to potential bias, the Ethics Advisory Committee Opinion he cites states that "a pro tem judge may practice law in the court in which the person . . . is serving as a pro tem judge." Thus, the mere fact that Moen appeared in a court in which he had served as a commissioner does not overcome the presumption of impartiality. Rentfrow contends Moen was "treated with absolute deference by the other commissioners[.]" He alleges that Moen "wrote orders as he wanted and simply obtained a signature from a fellow commissioner[.]" But as Moen points out, LR 7(b)(4)(c) requires a moving party to provide a proposed order to the judge or commissioner considering a motion. Nothing in the record supports Rentfrow's allegation of deference or bias on the part of the commissioners involved in this case.
State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996).
Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 459 (1967); Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993).
State v. Post, 118 Wn.2d 596, 619 n. 9, 826 P.2d 172, 837 P.2d 599 (1992); State v. Carter, 77 Wn. App. 8, 11, 888 P.2d 1230 (1995); Wolfkill Feed Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000).
III.
Last, Rentfrow contends the commissioner who imposed terms against him cited no authority for that sanction. He concedes that the court referenced Title 11 in the judgment, but argues that "[t]here is no basis under Title 11 to enter sanctions against a next of kin/heir, for attempting to remove an Administrator [.]" He is mistaken. RCW 11.96A.150 provides that ""[e]ither the superior court or the court on appeal may, in its discretion, order costs, including reasonable attorneys' fees, to be awarded to any party: (a) From any party to the proceedings[.]" The word "party" includes the personal representative and any heir. RCW 11.96A.030(4). The court thus had statutory authority to impose fees and costs against Rentfrow.
Moen requests attorney fees on appeal under RCW 11.96A.150. He argues that Rentfrow "continues to act in bad faith," alleging that Rentfrow has not served him with any filings in this court and has submitted false certificates of service. Although we decline to award fees on that basis, we conclude fees are warranted because the appeal is frivolous. Moen is entitled to an award of attorney fees and costs for responding to this appeal, subject to compliance with RAP 18.1(d).
Rentfrow denies these allegations.
An appeal is "`frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there is no reasonable possibility of reversal.'" In re Marriage of Gillespie, 77 Wn. App. 342, 349, 890 P.2d 1083 (1995) (quoting Kendall v. Douglas, Grant, Lincoln Okanogan Counties Pub. Hosp. Dist 6, 118 Wn.2d 1, 15, 820 P.2d 497 (1991)).