Opinion
No. 57032-3-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 05-2-26568-0, Dean Scott Lum, J., entered September 7, 2005.
Counsel for Petitioner(s), Sarah Lynn Clarke Wixson, Velikanje Moore Shore PS, PO Box 22550, Yakima, WA 98907-2550.
Counsel for Respondent(s), Byron D. Coney, Attorney at Law, 1047 Belmont Pl E, Seattle, WA 98102-4426.
Reversed by unpublished opinion per Becker, J., concurred in by Baker and Dwyer, JJ.
Plaintiff Jill Carnevali filed a complaint in King County, alleging mishandling of a non-testamentary trust of which she is the beneficiary. The mandatory terms of the special venue statute for trusts direct that such actions be brought in the county where the situs of the trust is located. Because the situs of the trust is in Yakima County, the trial court erred in denying defendant Gary Carnevali's motion objecting to venue in King County.
Gary Carnevali created an irrevocable trust for the benefit of his daughter Jill in 1992. The trust was to have terminated when Jill turned 35 years of age in 2002. The assets held in the trust include real property located in Yakima County and a New York Life insurance policy on Gary's life that was procured in Yakima County. It is undisputed that Yakima County is the situs of the trust. The trustee resides there and the administration of the trust takes place there. See RCW 11.96A.030 (6) and (7).
Jill filed a complaint in King County against Gary and New York Life Insurance Company on August 11, 2005, seeking a distribution from the trust. Gary moved to dismiss on the ground that Yakima County was the proper venue, or in the alternative to transfer venue to Yakima County for the convenience of the witnesses. Jill responded that venue was properly laid in King County because New York Life does business there. The court denied Gary's motion. We granted discretionary review, and now reverse. The general venue statue allows that an action "may" be brought in any county where a corporate defendant does business:
An action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants resides at the time of the commencement of the action. For the purpose of this section, the residence of a corporation defendant shall be deemed to be in any county where the corporation: (a) Transacts business; (b) has an office for the transaction of business; (c) transacted business at the time the cause of action arose; or (d) where any person resides upon whom process may be served upon the corporation.
The Trust and Estate Dispute Resolution Act, on the other hand, contains a specific venue statute providing that except for testamentary trusts, venue for proceedings pertaining to trusts "shall" be in the county where the situs of the trust is located:
(1) Venue for proceedings pertaining to trusts shall be:
(a) For testamentary trusts established under wills probated in the state of Washington, in the superior court of the county where letters testamentary were granted to a personal representative of the estate subject to the will or, in the alternative, the superior court of the county of the situs of the trust; and
(b) For all other trusts, in the superior court of the county in which the situs of the trust is located, or, if the situs is not located in the state of Washington, in any county.
RCW 11.96A.050(1)(a)(b). The trust at issue in this case is an inter vivos trust, not a testamentary trust.
The more specific venue statute for proceedings relating to trusts controls over the permissive general statute. Otherwise, the specific statute would impermissibly be rendered surplusage. Sim v. Wash. State Parks Rec. Com., 90 Wn.2d 378, 381, 583 P.2d 1193 (1978).
Jill argues that the court had discretion to keep the case in King County because Gary's motion was untimely. Another subsection of the trust venue statute provides that "Any request to change venue that is made more than four months after the commencement of the action may be granted in the discretion of the court." RCW 11.96A.050(7). According to Jill, her action was commenced not in August 2005 when she filed the present action in superior court, but rather 11 months earlier, when she served a copy of the summons and complaint upon Gary. This argument was not raised in the trial court and the record does not contain proof of the dates pleadings were served on any of the defendants. Therefore, we decline to consider it. RAP 2.5(a). The order denying change of venue must be reversed. RCW 4.12.090(1) provides:
When an order is made transferring an action or proceeding for trial, the clerk of the court must transmit the pleadings and papers therein to the court to which it is transferred and charge a fee as provided in RCW 36.18.016. The costs and fees thereof and of filing the papers anew must be paid by the party at whose instance the order was made, except in the cases mentioned in RCW 4.12.030(1), in which case the plaintiff shall pay costs of transfer and, in addition thereto, if the court finds that the plaintiff could have determined the county of proper venue with reasonable diligence, it shall order the plaintiff to pay the reasonable attorney's fee of the defendant for the changing of venue to the proper county. The court to which an action or proceeding is transferred has and exercises over the same the like jurisdiction as if it had been originally commenced therein.
Under this statute, Jill must pay the cost of transferring the action to Yakima County. Whether she could have determined the county of proper venue with reasonable diligence is a question for the trial court to consider on remand. If the court determines this issue adversely to Jill, Gary will be entitled to an award of attorney fees not only for the motion to change venue but also for fees incurred in bringing the matter to this court for review. Cole v. Sands, 12 Wn. App. 199, 202, 528 P.2d 998 (1974).
Reversed and remanded.
DWYER and BAKER, JJ., concur.