IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON t/H In the Matter ofthe Estate of LOLA ELIZABETH MOONEY. JAMES CHARLES HOWARD, Appellant,

v. ELIZABETH ANN COVEY, Respondent. CD No. 73037-1-1 i "'''_' DIVISION ONE y* CO f <• UNPUBLISHED OPINION up

— C) t 4 ».— 5r<

FILED: November 2, 2015 

### Appelwick, J. — Howard appeals the dismissal of his will contest petition due to 

### insufficient service of process. Howard served the personal representative's probate 

### attorney, but never served the personal representative. RCW 11.24.010 mandates personal service on the personal representative. We affirm. FACTS 

### Elizabeth Ann Covey was appointed personal representative of Lola Mooney's estate on June 24, 2013. James Charles Howard filed a petition contesting Mooney's will


### on October 3, 2013. Howard's attorney, Candace Wilkerson, served the petition and 

### summons upon Covey's probate attorney, Angel Vasilev. Vasilev's office received service on October 8, 2013.No. 73037-1-1/2

Wilkerson and Vasilev began communicating about Howard's case via e-mail on July 19, 2013. At that time, Wilkerson notified Vasilev of her intent to file a willcontest petition. Vasilev responded on July 22, 2013: "I received your e[-]mail on the above captioned matter. Please forward any further documents to the address below." They 

### exchanged several more e-mails regarding the grounds forthewill contestpetition during early August. Wilkerson also claimed to have asked Vasilev by telephone ifshe should
serve him or Covey. 

### On January 21, 2014, Covey responded to the petition. She denied Howard's 

### allegations and raised several affirmative defenses, including insufficient service of 

### process under RCW 11.24.010.1 On December 11, 2014, Covey brought a motion to dismiss for insufficient service under RCW 11.24.010. Howard responded to Covey's motion to dismiss for insufficient service and submitted affidavits from Wilkerson and her assistant, Timothy Folkerth. Wilkerson's affidavit asserted that Vasilev agreed, via e-mail and telephone, to accept service. Folkerth's affidavit stated that he called Vasilev on October4, 2013 and Vasilev instructed him to serve the petition atVasilev's office by legal courier. 

### Atthe hearing on the motion to dismiss, Vasilev testified that he did not recall any 

### agreementto accept service on Covey's behalf. Folkerth did not testify. The trial court granted Covey's motion to dismiss for insufficient service. It did not make any written 1Covey also raised the issuethatHoward's petitionwas procedurallydefective, as it had been filed in the probate proceeding instead of a new action as required under 

### RCW 11.96A.090(2). She later moved to dismiss on this ground. On October23, 2014, the action was dismissed for failure to file the will contest petition as a new case. However, this orderwas revised so thatthe motion to dismiss was denied and the petition was transferred into a new case.No. 73037-1-1/3 findings of fact and conclusions of law in the order. However, the trial court did orally

announce the basis for its decision.2 DISCUSSION RCW 11.24.010, the statutegoverning will contestpetitions, is clearin its mandate. Apersonwho contests a will mustfilethe petitionwithin four monthsfollowing the probate ofthewill. Id. The petitionermustpersonally servethe personal representativewithin 90 

### days offiling the petition. Id. This statute is unequivocal. Itnames a particular person who must be served—the personal representative. ]d. Italso requires thatthe personal 

### representative be personally served, jd. Itdoes not name any other agents who are authorized to receive service on the personal representative's behalf. See icL 

### Here, it is undisputed that Howard served Covey's probate attorney, rather than 

### Covey herself. Despite the statute's clear mandate—a petitioner must personally serve 

### the personal representative—Howard contends he complied with RCW 11.24.010. We disagree. Though personal service may be effectuated in a variety ofmethods, when a 

### statuteexplicitlyrequires service on a particularperson, that person must be served. See RCW 4.28.080 (listing methods of personal service); see also Nitardv v. Snohomish County, 105 Wn.2d 133, 134-35, 712 P.2d 296 (1986). Howard's failure to serve Covey

2The court stated, In looking at this, Ithink the burden is on the party establishing or trying to establish that there was, in fact, a waiver. And this Court is not persuaded by the evidence before itthat there was, in fact, an agreement by the prior attorney to accept service of process, that there is sufficient facts to find that there was that agreement, that there was, therefore, a waiver of the requirement to serve service of process upon the actual individual. And I don't find that there was.No. 73037-1-1/4

herselfis not merely a mistake inthe method ofservice. Cf. Cont'l Sports Corp. v. Dep't of Labor & Indus.. 126 Wn.2d 594, 604, 910 P.2d 1284 (1996) (plaintiff complied with requirementthat service be by mail by serving the party by Federal Express). Instead, it is a completefailure to meetthe statute's requirement ofpersonal service on a particular person. We conclude Howard's service of process on Vasilev was insufficient service under RCW 11.24.010. Nonetheless, Howard contendsthatthe doctrine ofwaiverapplies here. He argues 

### that Covey waived her rightto receive personal servicewhen herprobateattorneyagreed to accept service on her behalf. He challenges the trial court's oral findings that there was no such agreementand the statutewas notsowaived. Alternatively, Howard claims 

### that Covey waived the ability to raise the affirmative defense of improper service by waiting to respond to the petition until after the statute oflimitations had expired. Although the trial court's findings were notformally written as findings of fact, the trialcourt's oral decision may be used to interpret the judgment. Feree v. Doric Co., 62 Wn.2d 561. 567. 383 P.2d 900 (1963). We review the trial court's findings under a substantial evidence standard. Miller v. City of Tacoma. 138 Wn.2d 318, 323, 979 P.2d 

### 429 (1999). Under this standard, findingsbecomeverities on appeal so longas they are 

### supported by substantial evidence, jd. Substantial evidence meansevidence insufficient quantum to persuade a fair-minded person of the truth of the finding. Robinson v. Safeway Stores. Inc.. 113 Wn.2d 154, 157-58, 776 P.2d 676 (1989). 

### Howardargues that substantial evidence does not supportthe trialcourt's finding that the attorneys did not agree to serve Vasilev. Howard points to Vasilev's vagueNo. 73037-1-1/5
recollection ofthe events leading up to service to suggest that Vasilev's testimony was not convincing. He contrasts Vasilev's testimony with Folkerth's and Covey's 

### declarations, arguing that those pieces of evidence meet the substantial evidence standard. But, there is evidence in the record to support the trial court's findings that there


### was no e-mail or telephone agreement. Vasilev testified before the trial court regarding 

### the e-mail and telephone conversations inquestion. Heexplained thatthe July 22, 2013 e-mail in which he told Wilkerson to "forward" all further documents was not intended as 

### an authorization to serve him with the will contest petition. He also testified that he did 

### notremembera telephone conversation in which Wilkersonasked ifshe couldserve him 

### rather than Covey. Nordid he recall such a conversationwith Folkerth. He emphasized that itwas his firm's practice to document such agreements inwriting, yet there was no written agreement before the court. 

### Now, Howard argues that Vasilev's testimony was not persuasive. But, this court does not make credibilitydeterminations onappeal. Thompson v. Hanson, 142 Wn. App. 53, 60, 174 P.3d 120 (2007), affd by, 168 Wn.2d 738, 239 P.2d 537 (2009). We hold thatthere was substantial evidence inthe record to supportthe finding thatthere was no 

### agreementforVasilevto acceptservice andwaivethestatutoryservice requirement.3

3 Moreover, even if Vasilev agreed to accept service, Covey denies authorizing 

### Vasilev to make such an agreement. RCW 11.24.010 does not expressly authorize a personal representative to waive personal service or to designate agents to accept service on behalf of the personal representative. We need notdecide whether itdoes or does not authorize such delegation and waiver.No. 73037-1-1/6


### Howard argues in the alternative that Covey waived the affirmative defense of insufficient service of process through dilatory or inconsistent conduct. He claims that 

### Covey waived the defense by raising it onlyafterthe statute of limitations had run, so that Howard could not cure the service defect. As Howard recognizes, though, the trial court did not reach this issue. Therefore, this issue is not properly before us on appeal. See 

### Pascua v. Heil, 126 Wn. App. 520, 533, 108 P.3d 1253 (2005) (noting that this court 

### generally does not review issues the trial court did notdecide). Even ifthis issue is properly before us, Howard's argument mustfail. He relies on Lvbbert v. Grant County, 141 Wn.2d 29, 1 P.3d 1124 (2000). But, that case does not 

### support his argument. There, the plaintiffs argued that the defendant was equitably 

### estopped from raising the defense because itfailed to call attention to the insufficient service before the statute of limitations ran. Id at 35-36. The Lvbbert court rejected this 

### argument, because the statute at issue explicitly required service on a particular person, the county auditor, and the plaintiffs failed to serve that person. Id. at 36, 32. Given the 

### clarity of the statute, it was unreasonable for the plaintiffs to assume the defendant's silence meant this service was effective. \± at 36. Here, RCW 11.24.010 is similarly 

### explicit in itsmandate. Therefore, Covey's failure to inform Howard of the service defect before the statute of limitations ran is not a basis for equitable estoppel. The Lvbbert court went on to hold that the defendant had waived the defense by 

### engaging in extensive discovery priorto the statute oflimitations expiring. Id. at 44-45. Here, there is no evidence inthe record to suggest that Covey conducted discovery or 

### otherwise prepared forlitigation duringthe time between Howard's service onVasilevandNo. 73037-1-1/7

the statuteoflimitations expiring. NeitherLvbbertnorthe cases on which itrelies provides
a basis to conclude Covey waived service of process. We affirm.

WE CONCUR: 

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