IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Estate of 

LYLE V. STEPHENS.

CLARA STEPHENS; KAY STEPHENS; 

KIMBERLY BERGQUIST; and KRISTIE 

HULL,

Petitioners, 

TERRY STEPHENS,

Appellant,

v. 

KAREN STEPHENS,

Respondent.

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No. 38774-7-III

UNPUBLISHED OPINION

FEARING, C.J. — This appeal involves a sibling quarrel over distribution of a 

deceased father’s estate. In this Trust and Estate Dispute Resolution Act (TEDRA), 

chapter 11.96A RCW, action, four of the decedent’s children seek recovery for alleged 

violations of fiduciary duties by their sister, the personal representative of the estate. One 

of the TEDRA petitioners, Terry Stephens, appeals the trial court’s dismissal of the 

action because of a failure to file and serve a statutory summons and a failure to join and 

serve two of the decedent’s seven children. We affirm the dismissal because of Terry’s 

failure to address, in his brief, the neglect to join and serve two of his siblings, heirs of 

the estate. 

FILED

FEBRUARY 20, 2024

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 38774-7-III, 

In re Estate of Stephens

2

FACTS

Lyle Stephens died on August 17, 2020. His seven adult children, Terry Stephens, 

Karen Stephens, Kay Stephens, Kimberly Bergquist, Kristie Hull, Timothy Stephens, and 

Kathie Davis, survived him. Lyle Stephens and the mother of the children, Clara 

Stephens, divorced in 2006. Clara also survived Lyle’s death. 

On September 2, 2020, Kay Stephens sought appointment as personal 

representative of Lyle Stephens’ estate under the terms of a purported December 31, 2007

will. On September 18, Karen Stephens filed an August 26, 2011 will. The superior 

court resolved the issue of the competing wills by adjudging the August 26, 2011 will to 

be controlling. The court appointed Karen as personal representative of the estate. 

Karen, as personal representative, published notice to creditors on March 9, 2021. 

PROCEDURE

On September 28, 2021, petitioners Terry Stephens, Clara Stephens, Kay 

Stephens, Kimberly Bergquist, and Kristie Hull filed this TEDRA action, which 

principally alleges Karen Stephens breached her fiduciary duties as personal 

representative of Lyle Stephens’ estate. We do not know why the petitioners do not 

litigate those claims in the probate case. The petitioners also allege that Karen exerted 

undue influence over Lyle Stephens, because of his age, when Lyle signed his latest will

and converted his assets. We wonder, but do not resolve, whether the claim of undue 

influence falls in the category of a will contest that should have been brought earlier. 
No. 38774-7-III, 

In re Estate of Stephens

3

Children Timothy Davis and Kathie Davis did not join the TEDRA action as 

petitioners and were not sued as respondents. Petitioners did not even identify Timothy 

Stephens and Kathie Davis as heirs or serve the TEDRA petition on the two. 

On September 28, 2021, the petitioners served a copy of the TEDRA petition on 

Karen Stephens and her attorney. Petitioners did not prepare or serve the statutory 

summons mentioned in RCW 11.96A.100(2), a section of TEDRA. See CP 9. 

On October 6, 2021, Terry Stephens filed, on behalf of himself and the other 

petitioners, a motion to consolidate the TEDRA action with the existing probate action 

and a motion to stay the pending December 3 hearing date. On November 18, the parties 

stipulated to continue the December 3 hearing to January 14, 2022 due to an unexpected 

COVID death in the family. CP 28. On December 30, Karen Stephens filed an answer to 

the TEDRA petition, a motion to resolve all issues and dismiss the petition, a 

memorandum in support of her answer and motion for dismissal, and a declaration. 

On January 3, 2022, petitioners filed a motion to continue the January 14, 2022 

hearing on the ground that mother Clara Stephens suffered a medical emergency during 

the holidays. In the motion, the petitioners explained that an ambulance transported 

Clara to a hospital on December 23, doctors diagnosed Clara with acute hypertension, 

physicians discovered a brain bleed, and they moved Clara to a rehabilitation center on 

December 27. 
No. 38774-7-III, 

In re Estate of Stephens

4

Karen Stephens filed an objection to the continuance. She argued that Clara 

Stephens had little involvement in the TEDRA action. Karen also noted in her answer to 

the petition that petitioners had failed to file and serve the statutory summons and had 

failed to serve heirs Timothy Stephens and Kathie Davis with the TEDRA petition. 

On January 11, the petitioners filed a notice for mediation. 

The hearing on the TEDRA action and the petitioners’ motions proceeded on 

January 14, 2022. In support of the motion to continue, Terry Stephens informed the 

court that the prior night, on January 13, the rehabilitation center, wherein Clara Stephens 

resided, phoned him to inform him that Clara would be released that day. Terry 

requested that the continuance be granted so Clara could participate. After 

acknowledging Clara’s circumstances as one of the bases for the continuance, the 

superior court asked the petitioners if they requested a continuance on any other grounds. 

In response, Kay Stephens stated that “[w]e found out yesterday that defense couldn’t be 

here because of illness.” Report of Proceedings at 7. When the court asked Kay to 

identify the ill person, Kay explained that the sick individual requested his or her name be 

withheld due to privacy concerns. Kay added that the continuance was warranted 

because petitioners had lacked an opportunity to conduct sufficient discovery and had 

struggled to retain representation. Kay informed the court that the petitioners retained

counsel but, given time constraints, they could not meet with her before the hearing and 

planned to meet with her at a later date. 
No. 38774-7-III, 

In re Estate of Stephens

5

Karen Stephens, through counsel, objected to any continuance. Karen argued that 

Clara Stephens lacked any interest in the TEDRA case. Clara sought to recover damages 

from the estate as the result of alleged wrongs committed by Lyle Stephens before the 

divorce. Clara had filed a creditor’s claim, which the estate rejected, and Clara had not 

timely sued after the rejection. Karen added that no one had contested the will. She 

insisted that the TEDRA action lacked merit as indicated by the petitioners’ failure to 

respond to Karen’s answer. 

The superior court, on numerous grounds, denied the motion to postpone the 

hearing on the merits of the TEDRA petition. The court had already granted one 

continuance. Because they had filed the petition, the petitioners should have been 

prepared at any time to argue the merits of their claims. Anyone who was ill could have 

appeared by Zoom. The superior court also denied the petitioners’ motions to compel 

mediation and to consolidate the TEDRA action with the probate case. 

After argument on the merits of the TEDRA action, the superior court announced

its decision that the petitioners had failed to procure sufficient service of process. 

Petitioners had failed to serve the statutory summons on Karen Stephens. The court 

added that the petitioners had failed to include all parties and serve all necessary heirs. 

The court reasoned that the failures bolstered his decision to deny the motion to delay the 

hearing. The court declined to address the merits of the TEDRA petition and dismissed 
No. 38774-7-III, 

In re Estate of Stephens

6

the action without prejudice. Finally, the superior court awarded Karen Stephens 

reasonable costs and attorney’s fees. 

The superior court’s written order confirmed that the petitioners had failed to join 

all parties to the action. Petitioners had failed to name and serve siblings Timothy 

Stephens and Kathie Davis. The written order did not mention dismissal of the petition 

because of failure to prepare and serve the summons mentioned in RCW 11.96A.100(2). 

LAW AND ANALYSIS

Petitioner Terry Stephens solely appeals. Terry assigns error to the superior 

court’s dismissal of the TEDRA action because of the failure to serve a statutory 

summons, refusal to grant a continuance of the January 14, 2022 hearing, denial of any 

relief for Karen Stephens’ violation of fiduciary duties, and award of reasonable attorney 

fees and costs to Karen. Nevertheless, Terry fails to assign error to the superior court’s 

ruling that petitioners failed to join and serve needed parties, one of their sisters and 

brothers who were also heirs. This failure to address this ruling is fatal to the appeal 

since this ruling on its own justified the superior court’s dismissal of the TEDRA action. 

We will not address or overturn a superior court ruling to which the appellant never 

assigned error. RAP 10.3(g); Rutter v. In re Estate of Rutter, 59 Wn.2d 781, 787-88, 370 

P.2d 862 (1962). 

Because of our ruling affirming the dismissal on the basis of failure to join parties, 

we need not address the contentions that the superior court erred when denying the 
No. 38774-7-III, 

In re Estate of Stephens

7

motion to continue and motion to compel mediation. Terry Stephens did not assign error 

to the superior court’s grant of reasonable attorney fees and costs to Karen. So, we also 

affirm the trial court’s award of fees and costs. 

Karen Stephens requests an award of reasonable attorney fees and costs on appeal. 

We grant her this request under RCW 11.96A.150 and RAP 18.1(a). 

CONCLUSIONS

We affirm the superior court’s dismissal of the TEDRA action without prejudice 

and its grant of reasonable attorney fees and costs to Karen Stephens. We award Karen 

reasonable attorney fees and costs on appeal. 

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.

_________________________________

Fearing, C.J.

WE CONCUR:

______________________________

Pennell, J.

______________________________

Staab, J.