Opinion
No. 55764-5-I.
May 30, 2006.
Appeal from a judgment of the Superior Court for Whatcom County, No. 03-4-00392-5, Charles Snyder, J., entered January 25, 2005.
Counsel for Appellant(s), Helmut Kah, Attorney at Law, 16818 140th Ave NE, Woodinville, WA 98072-9001.
Counsel for Respondent(s), Larry Dean Stout, Attorney at Law, 3025 Limited Ln NW, Olympia, WA 98502-2613.
Reversed by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Grosse, JJ.
The personal representative (PR) of Nels Erik Jensen's estate rejected two claims against his estate. The claimants argued that because the PR did not properly serve the notice of rejection, the statutory tolling period during which to challenge the rejection was not triggered. The trial court issued an order ruling that the claims were time-barred. We hold that the statute explicitly requires personal service or service by certified mail of the notice of rejection of claims and reverse.
FACTS
Nels Erik Jensen died on August 24, 2003. His will was admitted into probate on October 9, 2003, and his attorney Larry D. Stout was allowed to act as PR.
On March 3, 2004, Christy Diemond, Jensen's ex-wife, her children Antesa and Andrea Jensen, and Helmut Kah, her attorney (collectively, claimants) filed six claims against Jensen's estate. One of these claims was for proceeds of a life insurance policy on Jensen's life (the insurance claim). Another was for setting aside or vacating an earlier modification of child support order that reduced Jensen's child support payment obligation on the ground that Jensen fraudulently obtained the reduction (the fraud claim). Diemond and her children were the claimants for these two claims.
Although the PR initially rejected all six of the claims on the ground that they were not timely filed, the PR filed an Amended Allowance or Rejection of Filed Creditor Claims on July 20, 2004. The PR allowed four of the six claims, and rejected the fraud and insurance claims on their merits. The PR sent Kah a copy of this filing together with a letter specifying that a challenge to the partial rejection must be brought by filing suit within 30 days, or the claims are forever barred. This was sent both by fax and by regular mail. Kah does not dispute receiving the documents.
In November, the PR informed Kah that he was ready to process payment of claims and asked Kah to update the amount of the claims. In response, Kah asserted that the fraud and insurance claims were not 'duly rejected.' On December 30, 2004, the PR sought an order determining that these claims were time-barred because there was no timely challenge to the PR's notice of rejection or, alternatively, that they were properly denied on their merits. Claimants argued that the claims were never properly rejected because notice of rejection was never properly served. The trial court concluded that the claimants were not prejudiced by the PR's failure to deliver the notice of rejection by certified mail, and ordered that because the rejection was not timely challenged the claims were time-barred. The order was entered on January 25, 2005. Claimants timely appeal.
ANALYSIS
Enacted in 1997, RCW 11.40.100(1) sets out the procedure for the PR to reject a claim:
The personal representative shall notify the claimant of the rejection and file an affidavit with the court showing the notification and the date of the notification. The personal representative shall notify the claimant of the rejection by personal service or certified mail addressed to the claimant or the claimant's agent, if applicable, at the address stated in the claim.
In 1980, this court addressed the predecessor to this statute, former RCW 11.40.030(3). Marquam v. Ellis, 27 Wn. App. 913, 621 P.2d 190 (1980). That statute provided:
If the personal representative shall reject the claim, in whole or in part, he shall notify the claimant of said rejection and file in the office of the clerk, an affidavit showing such notification and the date thereof. Said notification shall be by personal service or certified mail addressed to the claimant at his address as stated in the claim; if a person other than the claimant shall have signed said claim for or on behalf of the claimant, and said person's business address as stated in said claim is different from that of the claimant, notification of rejection shall also be made by personal service or certified mail upon said person.
See Marquam, 27 Wn. App. at 914 n. 1 (emphasis added).
In Marquam, the claimant through her attorney served a claim on the administratrix of the decedent's estate. The administratrix rejected the claim, and sent the notice of rejection by first-class mail to the claimant's attorney. Marquam, 27 Wn. App. at 914. The Marquam court described the sole issue presented as whether this rejection notice was sufficient to trigger the running of the 30-day limitation period. Marquam, 27 Wn. App. at 914-15. The Marquam court held that '[t]he statutory provisions regarding to whom and in what manner a notice of rejection must be given are for the protection of the claimant.' Marquam, 27 Wn. App. at 915 (citing Mallicott v. Nelson, 48 Wn.2d 273, 293 P.2d 404 (1956)). The court held that the 'statute is clear and precise' and that 'notice of rejection by personal service or by certified mail to the claimant is not burdensome.' Marquam, 27 Wn. App. at 915. The court did not address whether or not the claimant had actual notice.
The statutory requirements have changed between former RCW 11.28.030(3) and RCW 11.40.100(1). The former statute required service on the claimant, in addition to service on any other person submitting a claim on behalf of the claimant. The current statute, to the contrary, requires service on the 'claimant or the claimant's agent.' Thus, if the claimant's agent is properly served, it is not necessary to separately and additionally serve the claimant. However, both the former and current statutes require that service be effected by either personal service or certified mail. Neither version of the statute allows for the use of regular mail.
The PR argues that Washington cases have held that substantial compliance with personal service statutes is sufficient and strict compliance is not necessary. But in cases involving attempted personal service, the 'Washington Supreme Court has provided mixed signals as to how strictly the plaintiff must comply with the statutory procedures for service of process.' Karl B. Tegland Douglas J. Ende, 15A Washington Practice, Washington Handbook on Civil Procedure, sec. 15.3 at 158 (2006) (citing cases).
Further, the PR has provided no authority suggesting we must change the holding of Marquam that service must be personal service or by certified mail. The doctrine of stare decisis 'requires a clear showing that an established rule is incorrect and harmful before it is abandoned.' In re Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). 'Further, the Legislature is presumed to be aware of judicial interpretation of its enactments, and where statutory language remains unchanged after a court decision the court will not overrule clear precedent interpreting the same statutory language.' Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004) (internal quotation omitted). The Marquam court strictly construed the notice requirements of the predecessor to the statute at issue here. When the Legislature amended the statute in 1997, it is presumed to have been aware of existing judicial interpretations. Although it amended the statute, the Legislature retained the requirement of personal service or certified mail. We strictly construe the requirements of RCW 11.40.100(1) and require either personal service or certified mail as provided in the statute. A showing of actual notice is not sufficient to override the statutory requirements.
The PR contends that Kah was personally served because he was a party to an action and subject to the service rules of CR 5, rather than the personal service rules of CR 4. CR 5(b)(2) does allow service by regular mail upon a party or the party's attorney. However, the claimants were not 'parties' to the probate of Jensen's estate. By filing the claims, they became claimants subject to the service requirements of RCW 11.40.100(1). The PR has provided no authority to support an argument that Diemond or Kah became a 'party' for purposes of CR 5 by filing a request for special notice under RCW 11.28.240, and we have discovered none.
This court has discretion to order costs and attorney fees from any party to the proceedings or from the assets of the estate 'in such amount and in such manner as the court determines to be equitable.' RCW 11.96A.150. The record reflects that the claimants had actual notice of rejection of the claims and ample opportunity to resolve the merits of their claims. To the trial court and at oral argument before this court, counsel for claimants agreed that the claimants could have filed a suit to challenge the rejection of their claims but chose not to. At one point, counsel for claimants wrote to the PR that he would file suit if the claims were not allowed in full within 14 days. He did not do so. Likewise, the PR could have readily avoided this appeal by following the statute in the first instance or by promptly curing the defect in service when raised by claimant's counsel.
The trial court noted that this is 'the kind of thing that frustrates judges because you all are arguing over splitting hairs and nothing is getting resolved here.' The trial court further noted that the probate had been open since 2003 and the claimants had 'plenty of notice' of the fact of rejection and 'had six months to do anything, to file an action, to bring a contest, to do anything available and [the claimants have] done nothing during that period of time with actual notice and actual knowledge that the claims have been denied.' We exercise our discretion to deny an award of attorney fees to either party to this appeal.
We reverse and remand.
GROSSE and COLEMAN, JJ., concur.