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Porter v. Boisso

Court of Appeals of Washington, Division 3

June 16, 2015

Kevin Porter, Appellant ,
Nathaniel (Nate) Boisso, as Personal Representative, Respondent . In the Matter of the Estate of Charles Boisso

Oral Argument December 3, 2014.

Appeal from Kittitas Superior Court. Docket No: 13-2-00169-4. Judge signing: Honorable Frances Paddack Chmelewski. Judgment or order under review. Date filed: 07/03/2013.

Bryce H. Dille and Stephen A. Burnham (of Campbell, Dille, Barnett & Smith PLLC ), for appellant.

Douglas W. Nicholson (of Lathrop, Winbauer, Harrel, Slothower & Denison LLP ); and Jeffrey D. Winter (of Jeffrey D. Winter PS ), for respondent.

Authored by Laurel H. Siddoway. Concurring: George B. Fearing, Kevin M. Korsmo.


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[188 Wn.App. 289] Laurel H. Siddoway, C.J.

[¶1] A creditor of a decedent's estate who is notified by the personal representative of rejection of his claim is required by Washington's nonclaim statute to bring suit within 30 days, failing which his claim is forever barred. RCW 11.40.100. The statute provides that the personal representative's notification of rejection " must advise the claimant that the claimant must bring suit in the proper court against the personal representative within thirty days." Id. (emphasis added). These consolidated cases involve a creditor's claim filed in a Kittitas County probate that was dismissed because the holder of the claim filed his postrejection lawsuit in the Superior Court for Pierce County. They call on us to decide the meaning of " the proper court" for a postrejection suit.

[¶2] We hold that to the extent Kevin Porter's claims for relief asserted in his Pierce County action were subject to the nonclaim statute (and some were not), " the proper court" in which to assert them was the superior court. His action, which was transferred to Kittitas County on Mr. Porter's own motion for change of venue, should not have been dismissed nor should the Kittitas County court have quieted title to the real property that was at issue in Charles Boisso's estate. We reverse several orders and the final judgments entered in both matters and remand for proceedings consistent with this opinion.


[¶3] On November 13, 2012, Kittitas County granted letters of administration for the probate of the estate of Charles Boisso. Kevin Porter filed notice of a creditor's claim in the probate action several weeks later, on December 17. His notice alleged that he had entered into a contract to purchase two one-half-acre parcels of property owned by the late Mr. Boisso, located in Pierce County; that the agreed purchase price had been $120,000; and that he had, since 1999, paid a total of $116,900. He asked that [188 Wn.App. 290] upon his payment of the balance owed the estate deliver to him a statutory warranty deed.

[¶4] The estate rejected Mr. Porter's claim on December 31. Its notice of rejection stated that " [p]ursuant to RCW 11.40.100, you must bring suit in the proper Court against the Personal Representative within thirty days after the date of the postmark of the mailing of this Notice, and that otherwise your claim will be forever barred." Clerk's Papers (CP) (No. 31809-5) at 5.

[¶5] On January 29, 2013, Mr. Porter filed suit in Pierce County. He would later explain that he did so because his claim involved real property located in Pierce County and he was concerned with a series of Washington decisions that construed RCW 4.12.010, which governs the county in which many actions involving real property " shall be commenced," as jurisdictional. The cases " continually affirmed that RCW 4.12.010 governs jurisdiction affecting local actions and that local actions commenced in the wrong county must be dismissed." Ralph v. Dep't of Natural Res., 182 Wn.2d 242, 267, 343 P.3d 342 (2014) (Wiggins, J., dissenting) (citing cases). After briefing in this appeal was completed, our Supreme Court decided Ralph, in which a five-member majority overruled that line of cases, holding that RCW 4.12.010(1) prescribes only venue, not jurisdiction. Ralph, 182 Wn.2d at 259.

[¶6] Mr. Porter's Pierce County complaint disclosed the Kittitas County probate, his creditor's claim, and the estate's notice of rejection. It described the terms of his alleged purchase agreement and his alleged

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substantial performance. Attached to the complaint was a handwritten letter from the late Mr. Boisso to Mr. Porter dated July 17, 2001, that included references to a mortgage, an interest rate, and a principal balance.[1] CP (No. 31809-5) at 34-35. Mr. Porter's prayer for relief sought a declaratory judgment specifying his right to and interest in the property and an [188 Wn.App. 291] order compelling specific performance; alternatively, he sought damages for unjust enrichment.

[¶7] The estate moved to dismiss the complaint, arguing that venue and jurisdiction were improper. After hearing argument, the Pierce County court initially stayed proceedings, later entertaining a motion by Mr. Porter for change of venue to Kittitas County. The court eventually entered an order " Transferring Venue and Jurisdiction" to Kittitas County on May 3, 2013. CP (No. 31809-5) at 231-33.

[¶8] Meanwhile, the estate had filed a petition in the Kittitas County probate proceeding for an order clearing title to the Pierce County properties. It argued that by filing his complaint in Pierce County, Mr. Porter failed to file suit in " the proper court" and was forever barred from asserting a claim. As further support for the requested relief, it argued that Mr. Porter had no contract right to purchase the Pierce County property but instead had been a tenant paying rent, attaching a 1999 rental agreement signed by Mr. Porter as support. After hearing from the parties, the court granted the relief requested by the estate on the basis that Mr. Porter failed to file a complaint in Kittitas County and, by statute, his claims were barred. It did not address whether the late Mr. Boisso and Mr. Porter had entered into a real estate purchase and sale agreement.

[¶9] In May 2013, the estate filed a motion to dismiss Mr. Porter's complaint on collateral estoppel grounds, arguing that the issues presented had been litigated and resolved against Mr. Porter through the quiet title proceeding. The court granted the estate's motion and dismissed Mr. Porter's complaint with prejudice. It awarded the estate attorney fees in the probate action and costs in both proceedings, for a total of $29,942.

[¶10] Mr. Porter appeals orders and final judgments entered in both proceedings.

[188 Wn.App. 292] ANALYSIS

[¶11] Washington's nonclaim statute, RCW 11.40.010, provides that " [a] person having a claim against the decedent may not maintain an action on the claim unless ... the claimant has presented the claim as set forth in this chapter." Once a claim is filed, the personal representative shall allow or reject each claim, failing which the statute allows the claimant to petition the court for a hearing to determine whether the claim should be allowed or rejected. RCW 11.40.080.

[¶12] Where, as here, a creditor's claim is rejected by the personal representative, RCW 11.40.100(1) provides that " the claimant must bring suit against the personal representative within thirty days after notification of rejection or the claim is forever barred." It goes on to provide that the personal representative's notification of rejection

must advise the claimant that the claimant must bring suit in the proper court against the personal representative within thirty days after notification of rejection or the claim will be forever barred.

Id. (emphasis added).

[¶13] Mr. Porter assigns error to the court's judgment quieting title to the Pierce County properties in the estate, arguing that his claims asserted in the Pierce County action are not claims against a decedent subject to the nonclaim statute and, alternatively, that his commencement of the Pierce County action satisfied the requirement that he timely file suit in " the proper court." [2]

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[¶14] We first address whether the claims asserted by Mr. Porter in Pierce County were subject to the nonclaim [188 Wn.App. 293] statute. Finding that at least one of them was, we turn to whether commencement of his action in Pierce County satisfied a requirement that he timely bring action in " the proper court."

I. Mr. Porter's principal claims are not " claims against a decedent"

[¶15] Chapter 11.40 RCW does not define the meaning of " claim against the decedent" as used in the nonclaim statute. In In re Estate of Earls, 164 Wn.App. 447, 448, 262 P.3d 832 (2011), our court stated that the nonclaim statute " encompasses every species of liability a personal representative can be called upon to pay out of the estate's general funds." Another recent decision of our court held that " '[t]o constitute a claim against the estate of a deceased person, an obligation must consist of a debt incurred by or for the decedent during his lifetime.'" Witt v. Young, 168 Wn.App. 211, 218, 275 P.3d 1218 (2012) (internal quotation marks omitted) (quoting Olsen v. Roberts, 42 Wn.2d 862, 865-66, 259 P.2d 418 (1953)).

[¶16] Mr. Porter argues that the claims asserted in his Pierce County action were not claims against a decedent because he was seeking recognition of his interest in the property and enforcement of a right to complete the purchase.

[¶17] With respect to his claims for declaratory relief and specific performance, a number of Washington cases support Mr. Porter's position. In Baird v. Knutzen, 49 Wn.2d 308, 310, 301 P.2d 375 (1956), the Bairds had granted a three-year logging easement to the Knutzens in exchange for an annual rental and an agreement that the Knutzens would convey 80 acres of the logged timberland to the Bairds at the conclusion of the three-year term. The Knutzens used the easement for the three years but failed to pay the full amount of rent and failed to convey the 80 acres. Ms. Knutzen died thereafter. The Bairds later sued, [188 Wn.App. 294] seeking specific performance of the obligation to convey the 80 acres. They were met by the defense that they had failed to file a creditor's claim in the probate proceedings of Ms. Knutzen's estate as required by former RCW 11.40.010 (Rem. Rev. Stat. § 1477 (Supp. 1923)). The court affirmed the trial court's order for specific performance finding that " [a]n action for specific performance of a contract is not within the purview of the statute." Baird, 49 Wn.2d at 310 (citing Southwick v. Southwick, 34 Wn.2d 464, 208 P.2d 1187 (1949)).

[¶18] In O'Steen v. Estate of Wineberg, 30 Wn.App. 923, 934, 640 P.2d 28 (1982), Wineberg had agreed to give O'Steen 10 percent of his stock in a petroleum company in satisfaction of a debt, but title to the shares was never transferred. When Wineberg's wife died, all of the shares were inventoried as community property in her estate. O'Steen filed no creditor's claim. The court held that his subsequent lawsuit was not barred by the nonclaim statute, because " RCW 11.40.010 applies only where the claim is a general charge against the assets of the estate. It does not apply where the claim is for specific property in the estate." Id. at 934 (citing Compton v. Westerman, 150 Wash. 391, 273 P. 524 (1928)).

[¶19] In Compton, the court held the nonclaim statute did not apply to a party's request for the return of property given as collateral where the secured ...

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