IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

BUSINESS FINANCE CORP., a Washington corporation, Respondent,

VICTORIA KNOLL, THE ESTATE OF CRAIG KNOLL; THE UNKNOWN HEIRS OF CRAIG KNOLL, deceased; CONSTRUCTION MATERIALS INC., NORTHWEST, an inactiveWashington Corporation; TRUSERV CORP., a Delaware corporation; JERRY V. KNOLL Individually, and the MARITAL COMMUNITY OF JERRY V. AND JANE DOE KNOLL; KNOLL GREENWATER LLC, a Washington limited liability company; STATE OF WASHINGTON, DEPARTMENT OF REVENUE, STATE OF WASHINGTON, DEPARTMENT OF LICENSING; INTERNAL REVENUE SERVICE OF THE UNITED STATES OF OF AMERICA and JOHN DOES 1-25, Appellants. Spearman, J. — Jerry Knoll appeals the trial court's ruling that Business Finance Corporation (BFC) has the right to foreclose on real property owned by the Estate of Lorna Knoll. He asserts thatthe trial court erred infinding thatthe No. 73407-5-I

DIVISION ONE

UNPUBLISHED OPINION

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— on 2:^No. 73407-5-1/2 Estate was a grantor underthe deed oftrust and in concluding thatthe deed was valid and enforceable. Finding no error, we affirm. FACTS 

### Lorna Knoll and her sons Craig and Jerry1 owned four parcels of recreational property in Greenwater, Washington. The properties are referred to inthis action as parcels A, B, C, and D. Lorna owned several other properties and also owned a substantial share ofthe family business, Knoll Lumber and Hardware. Craig served as the chiefexecutive officerof Knoll Lumber and managed its operations. Jerry lived inAlaska. He owned a portion of Knoll Lumber butdid not have an active role inthe family business. Lorna died in 1998. Lorna's will named Craig and Jerry co-executors of herestate. The will specified that ifeither co-executorwas unable or ceased to act the otherwas to act as sole executor. Craig and Jerry submitted Lorna's will 

### to probate and were appointed co-personal representatives of her estate.2 Craig acted as the primary manager ofthe estate. The estate remained open for the next several years. Lorna's estate owned 64 percent ofGreenwater parcels A and B and 100 percent ofparcel D. Herwill devised this interestto Craig and Jerry inequal 

### shares. Craig and Jerry each owned 18 percent ofparcels A and B. Craig and his wife Victoria owned 100 percent of parcel C. Parcel C is not at issue inthis case.
1Wereferto membersof theKnoll family bytheirfirst names toavoid confusion. No disrespect is intended. 2In the context of this case, the terms "executor" and "personalrepresentative" are interchangeable. Both apply to the person or persons appointed to administer an estate. RCW 11.02.005(4).No. 73407-5-1/3 

### In 1999, Craig obtained financing for Knoll Lumberfrom BFC. Undera 

### loan and security agreement, BFC agreed to advance up to $1.5 million to Knoll 

### Lumber. Craig and Victoriapersonally guaranteed the loan. They granted BFC a security interest intheirpersonal residence and inseveral other properties, 

### including Greenwaterparcels A, B, C, and D. The properties securing the loan

are listed inan attachmentto the loan agreement. Some ofthe listed properties


### were owned entirely by Craig and Victoria whileothers were owned in whole or in part by Lorna's estate. As further collateral underthe loan agreement, Craig and Victoria 

### executed deeds of trust. Thefirst paragraph ofthe deed oftrust encumbering the 

### Greenwaterparcels states thatthe deed is executed by "CRAIG T. KNOLL and VICTORIAW. KNOLL, husband and wife, as to Parcel C and their undivided 

### interest inParcels A, B and D " Clerk's Papers (CP) at 30. The deed states 

### that the grantors "hereby bargain, sell and convey" parcels A, B, C, and D to BFC. The signature block at the end of the deed identifies "The Estate of Lorna L. Knoll" as a grantor. The language following Craig's signature states that he 

### signed as "Personal Representative of the Estate of Lorna L. Knoll and Individually." CP at 34. 

### KnollLumberfiled bankruptcy in March 2000. The business had no assets 

### and the bankruptcy was abandoned. Craig and Victoria, as personal guarantors ofKnoll Lumber's obligation, executed two promissory notes to BFC. The 

### promissory notes were secured by the previouslyexecuted deeds of trust. CraigNo. 73407-5-1/4 and Victoria defaulted on the promissory notes and declared bankruptcy in December 2001. Jerry brought an adversary action against Craig and Victoria inbankruptcy court. Jerry asserted that Craig, with Victoria's help, had fraudulently transferred property belonging to Lorna's estate and breached fiduciary duties to the estate. Jerry sought an accounting, an injunction prohibiting Craig from transferring further estate property, and payment of his portion of Lorna's estate. Intheir answerto Jerry's complaint, Craig and Victoria alleged thatthey had fullyinformed Jerry ofthe transactions with BFC and Jerry did not object. Craig and Victoria asserted thatthey had encumbered only their own property or 

### property they had authority to encumber. They also alleged thatJerry had neglected and abandoned any role inmanaging Lorna's estate. Jerry settled with Craig and Victoria inJune 2002. Underthe settlement, 

### the parties agreed that Lorna's estate owned Greenwater parcels Aand B. Craig and Victoria agreed to remove allencumbrances from those parcels and transfer them to a limited liability company (LLC) in which Craig and Jerry would own equal shares. The settlementwas lateramended to include parcel D. 

### Craig died soon after reaching the settlementwithJerry. Atthe time of his death, Lorna's estate was still open. The Greenwaterparcels were still encumbered and had not been transferred into an LLC. 

### BFC pursued litigation againstVictoria seeking payment on the obligation. BFC and Victoria reached a settlement agreementthatwas approved by the bankruptcy court in March 2003. The agreement discounted Victoria's totalNo. 73407-5-1/5 obligation to BFC and set new interest and repaymentterms. Victoria filed a plan of reorganization with the bankruptcy court inJuly 2003. The plan allowed Victoria seven months to marketvarious pieces of real property and pay herdebt to BFC from the proceeds. If not paid within seven months, BFC had the right to foreclose againstthe secured properties. Victoria paid BFC a portion ofherdebt and in May 2004 the bankruptcy 

### court set her obligation to BFC at $162,182.61. BFC received a payment of 

### $10,000 in May2004 and a paymentof$32,800 inJanuary 2005. BFC received no payments afterJanuary 2005. 

### In May2010, BFC broughtthis action to foreclose on Craig's interest in the Greenwater parcels and on the estate's 64 percent interest inparcels A and 

### B and 100 percent interest inparcel D. Jerry defended, arguing that BFC did not have the right to foreclose on property owned by Lorna's estate. The case proceeded to a bench trial inDecember2014. The dispute turned on whether Lorna's estate was a grantor underthe deed oftrust and, ifso, whether Craig had authority to encumberestate property withoutthe consentofJerry as copersonal representative. 

### BFC argued that Lorna's estate was a grantor. Inaddition to the language ofthe deed and the related loan agreement, BFC relied on the pleadings inthe adversary action between Craig and Jerry. BFC further argued that Craig was authorized to act as sole personal representative ofthe estate because Jerry was not a Washington resident and had never appointed a resident agent.No. 73407-5-1/6 

### Jerry argued that Lorna's estate was not a grantor underthe deed of trust. He argued thatthe plain language ofthe deed indicated thatJerry assigned only his own interest. He also argued that, even ifCraig intended to pledge estate 

### property, he had no authority to do so without Jerry's approval as co-personal representative. 

### As support, Jerry relied on the deed oftrust conveying anotherestate 

### propertyto BFC. The Monroe Farm deed, which was executed aboutthe same time as the Greenwaterdeed, identifies the Estate of Lorna Knoll as a grantor in 

### the firstparagraph and is signed by both Craig and Jerry as co-personal 

### representatives. Jerry argued that the Monroedeed demonstrates that BFC was
aware that Craig was onlyone of two co-personal representatives and that Craig lacked authority to pledge estate property withoutJerry's consent. Jerry also contended that BFC's claim was time barred. He argued thatthe three-year 

### statute oflimitations applied because BFC introduced parol evidenceto prove an essential term ofthe contract. 

### Atthe close ofevidence, Jerry moved to dismiss, arguing that BFC's action was time barred even underthe six-year statute oflimitations. Jerry 

### argued that BFC did notpresentsufficientevidenceto prove thatVictoria voluntarilymade a payment inJanuary 2005 and thus tolled the statute of limitations. The trial court denied the motion. The trial courtfound thatthe estate was a grantor underthe deed oftrust. 

### The court concluded that Craig was the only qualified personal representative of Lorna's estate and that his signature as personal representative was legallyNo. 73407-5-1/7 

### sufficientto bind the estate. The court also concluded thatthe six-year statute of limitations applied and BFC's claim was not time barred. The courtthus ruled that BFC had the right to foreclose on the estate's interest in parcels A, B, and D. Jerry appeals. DISCUSSION Jerry challenges the trial court's finding that Lorna's estate was a grantor underthe deed oftrust. We reviewfindings offact for substantial evidence and review conclusions oflaw de novo. Sunnvside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003). Interpretation of a deed oftrust is a mixed question offact and law. Niemann v. Vaughn Community Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005). In construing a deed, our aim is to give effectto the intent ofthe parties. Id. (citing Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 739, 844 P.2d 1006 (1993)). The intent ofthe parties is a question of fact, the legal consequences ofthat intent are a question of law. ]d_, (citing Veach

v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)). Ifthe language ofthe deed is ambiguous, we may consider extrinsic evidence to determine the parties' intent. Id, Jerry argues thatthe trial court drew a conclusion of law in determining that Lorna's estate was a grantor. But whether Lorna's estate was a grantor is a question offact that depends on the intent ofthe parties. To answerthat question, the trial court looked to the language ofthe deed oftrust and extrinsic evidence. The trial court properly characterized the ruling as a finding offact. We review the trial court's finding for substantial evidence.No. 73407-5-1/8 The first paragraph ofthe deed oftrust does not identify Lorna's estate as
a grantor: THIS DEED OF TRUST, made this 1stday ofSept., 1999, between CRAIG T. KNOLL and VICTORIAW. KNOLL, husband and wife, as to Parcel C and their undivided interest in Parcels A, B, and D, GRANTORS, ..., and BUSNESS [sic] FINANCE CORPORATION, a Washington corporation, BENEFICIARY.... CP at 30. The deed states thatthe grantors "hereby bargain, sell and convey" parcels A, B, C, and D to BFC. CP at 30. The signature block atthe end ofthe document identifies Lorna's estate as a grantor: "GRANTORS" THE ESTATE OF LORNA L. KNOLL By: s/ Craig T. Knoll Its: Personal Representative ofthe Estate of Lorna L. Knoll and Individually s/ Victoria W. Knoll, Individually and as spouse of Craig T. Knoll CP at 34. The language ofthe deed supports the trial court's finding that Lorna's estate was a grantor. The signature block identifies Lorna's estate as a grantor. The deed describes Craig as signing both in his personal capacity and as personal representative ofthe estate. Inaddition, the deed grants BFC an interest in parcel D, which was owned entirely by Lorna's estate. The record also included the extrinsic evidence produced by both parties. Jerry produced the Monroe Farm deed in support of his argumentthat Lorna's estate was not a grantor underthe Greenwater deed. But BFC produced the loan

8No. 73407-5-1/9 agreement, which lists the Greenwater parcels, including parcel D, among the collateral for the loan. BFC also relied on the pleadings inthe adversary action between Craig and Jerry, which indicate that both brothers understood that Craig granted BFC a security interest in estate property. There was conflicting evidence before the trial court. But the language of the deed oftrust, the loan agreement, and the pleadings inthe action between Jerry and Craig support BFC's argumentthat Craig as personal representative pledged estate property as security for the BFC loan. We conclude that substantial evidence supports the trial court's finding that Lorna's estate was a grantor. 

### Jerry next argues that, even ifLorna's estate was a grantor underthe deed oftrust, the deed is not enforceable because Craig did not have authority to 

### pledge estate property withoutJerry's consent as co-personal representative. The trial court concluded as matters of law that Jerry was not a qualified co

### personal representative ofLorna's estate, Craig was authorized to actwithout 

### Jerry's consent, and the deed was valid. We review conclusions of lawde novo. Sunnvside Valley, 149 Wn. 2d at 879-80. 

### Co-personal representatives of a nonintervention estate are subjectto the

same laws as co-trustees. RCW 11.68.095. One co-trustee alone may not 

### encumbertrust property unless the otherco-trustee consents or delegates his power. RCW 11.98.070; Cornettet al. v. West, 102Wash. 254, 261, 173 P.44 

### (1918). Aperson who is not an in-state resident may be appointed as personalNo. 73407-5-1/10 representative "if [he] appoints an agentwho is a resident ofthe countywhere such estate is being probated..., upon whom service of all papers may be made

. . . ."RCW 11.36.010(6). 

### The parties dispute whetherJerry was qualified to act as personal representative ofLorna's estate. BFC argues that, because Jerry was not a 

### Washington resident and did not appoint a resident agent, he was neverqualified to act as co-personal representative. Jerry does not dispute that he was at all times a resident ofAlaska, but he argues that residence inWashington is only a 

### condition ofappointment, not a qualification for serving as a personal 

### representative. Jerry also argues that because service of allpapers could be 

### made on Craig, Jerry's status as a nonresidentwas not relevant. RCW 11.36.010(6). 

### This dispute turns on interpretation of RCW 11.36.010 and related statutes. We review questions ofstatutory interpretation de novo. Pham v. 

### Corbett, 187 Wn. App. 816, 831, 351 P.3d 214 (2015) (citing Statev. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). Ininterpreting statutes, ouraim is to 

### discern and implementthe Legislature's intent. |o\ (citingState v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003)). Legislative intent may be discerned from 

### the statutory scheme as a whole. ]d_. (citing Dep'tof Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)). 

### RCW 11.36.010 addresses qualifications for serving as personal 

### representative. Under the statute, minors, persons ofunsound mind, and persons convicted of a felony or a crime of moral turpitude are not qualified to act as

10No. 73407-5-1/11 personal representative. RCW 11.36.010(1). The statute instructs the courtto revoke the appointment ofany personal representative who becomes disqualified by becoming ofunsound mind orbeing convicted of a serious crime. RCW 11.36.010(5). Subsection (6) addresses the appointment of a person who is not a resident ofthe state: (6) A nonresident may be appointed to act as personal representative ifthe nonresident appoints an agentwho is a resident ofthe countywhere such estate is being probated or who is an attorney ofrecord ofthe estate, upon whom service of all papers may be made; such appointment must be made in writing and filed by the clerkwith other papers of such estate;...



### Bystating that a nonresident may act as personal representativejf he or she appoints a resident agent, subsection (6) creates a condition underwhich a 

### nonresident may act as personal representative. RCW 11.36.010 does not specifically identify failure to comply with the resident agent requirement of subsection (6) as a disqualification. But the conditional language ofthe subsection and the location ofthe subsection in a statute that address 

### qualifications indicatethat a nonresidentwho does not comply is not qualified. Related statutes supportthis reading. An "executor" underthe probate code is a "personal representative." RCW 11.02.005(4). Indescribing the qualifications ofan executor, RCW 11.28.040 refers to absence from the state as


### a "disqualification." Compliance with RCW 11.36.010(6) is necessary for a nonresidentto "qualify" as an executor: Ifthe executor be a minor or absent from the state, letters of administration with the willannexed shall be granted, during the time of such minority or absence, to some other person unless there be another executorwho shall acceptthe trust, inwhich case the estate shall be administered by such otherexecutor

11No. 73407-5-1/12 until the disqualification shall be removed, when such minor, having arrived atfull age, or such absentee, having returned, shall be admitted asjointexecutorwith the former, provided a nonresident ofthis state may Qualify as provided in RCW 11.36.010. RCW 11.28.040 (emphasis added). Under RCW 11.28.040, absence from the state is a "disqualification" and a nonresident must appoint a resident agent as stated in RCW 11.36.010(6) to "qualify." Reading the statutes together, we conclude that RCW 11.36.010(6) creates a qualification that a nonresident must meet in orderto serve as a personal representative. 

### We conclude that, because Jerry was a nonresident and he did not 

### comply withthe requirementto appoint a resident agent, Jerry was not qualified to actas personal representative. ButJerry argues that any lack of qualification is moot because the probate court appointed him to act as personal representative. 

### He argues that once appointed by the court a personal representative retains his authority until removed by the court. 

### Jerry relies on RCW 11.28.250, which instructs the courtto remove a 

### personal representative who is "permanently removed fromthe state." But RCW 11.28.040, quoted above, provides thatwhen an executoris absentfrom the state the other executor may administerthe estate until the out ofstate person

returns. 

### Similarly, RCW 11.28.050 addresses the authority of a remaining executor when a co-executor is not qualified to act. The statute provides that: 

### [w]hen any ofthe executors named shall not qualify or having qualified shall become disgualified or be removed, the remaining executors shall have the authority to perform every act and

12No. 73407-5-1/13 discharge every trust required by the will, and their acts shall be effectual for every purpose. RCW 11.28.050 (emphasis added). The statute confers authority on the remaining executors to act without participation of a co-executorwho is removed

or disqualified. Use ofthe word "or" indicates that disqualification, without removal by the court, suffices to allow a remaining executorto act independently. This provision is not consistentwith Jerry's argumentthat, once appointed, a personal representative retains authority until removed by the court. Jerry asserts that RCW 11.28.050 applies only to co-executors who have not been appointed by the probate court or who, having been appointed, are subsequently removed. Reply Briefat 6. But this reading ignores the plain 

### language ofthe statute, which addresses co-executors who, "having qualified," either "become disqualified" or are "removed." Jerry also argues that a 

### disqualified co-executormust retain authority until removed by the probate court to avoid uncertainty concerning who is authorized to administerthe estate. But 

### because the language of RCW 11.28.050 is clearand unambiguous we enforce the statute as written. Cerrillo v. Esparza, 158 Wn.2d 194, 201, 142 P.3d 155 

### (2006). We conclude that under RCW 11.28.050 a qualified co-executor is authorized to act on behalfofthe estate when a co-executor becomes 

### disqualified even ifthe court has not acted to remove the disqualified coexecutor. 

### Jerry next asserts that BFC is making an impermissible collateral attack

on the probate court's order appointing him as personal representative. He argues that BFC could have challenged Jerry's appointment in probate courtbut

13No. 73407-5-1/14 is precluded from challenging Jerry's authority as personal representative here. Reply Briefat 8-10. Jerry relies primarily on Anderson v. Anderson, 52 Wn.2d 757, 761, 328 P.2d 888 (1958), which states that a court order "is not open to contradiction or impeachment by parties or privies by a collateral attack
. .. ." (Quoting Baskin v. Livers. 181 Wash. 370, 374, 43 P.2d 42 (1935)). But the collateral attack doctrine is not applicable inthis case. BFC's first dealings with the Knoll family occurred


### overa yearafterJerry's appointment as co-personal representative. BFC was thus not a party to the order appointing Jerry and not in privity with any ofthe parties to the order. 

### Jerry also argues thatcollateral estoppel bars BFC from challenging 

### Jerry's authority as personal representative. Jerry asserts that, because BFC
was aware thatJerry was a co-personal representative and did not challenge his appointment inprobate court, it is estopped from asserting the challenge here. 

### Jerry relies on Hackler v. Hackler, 37 Wn. App. 791, 683 P.2d 241 (1984). In that case, this court held that a person "who was a witness in an action, fully 

### acquainted with its character and object and interested in its results, is estopped bythejudgmentas fullyas if he had been a party." Id. at 795 (quoting Bacon v. Gardner, 38 Wn.2d 299, 229 P.2d 523 (1951), Hackler is inapposite because BFC was not a witness to the action appointing Jerry as co-personal 

### representative or involved with the action inany manner. Collateral estoppel does not apply to bar BFC's claim.

14No. 73407-5-1/15 Jerry next argues thatthe trial court erred in dismissing his statute of limitations defenses. He first challenges the trial court's conclusion thatthe sixyear statute of limitations applies inthis case. A six-year statute of limitations applies to actions on written agreements, including deeds oftrust and promissory notes. Walckerv. Benson and McLaughlin, P.S., 79 Wn. App. 739, 741, 904 P.2d 

### 1176 (1995) (citing RCW4.16.040). Athree-year statute oflimitations applies to actions on oral agreements. RCW 4.16.080(3). 

### Forthe six-yearstatute of limitations to apply, a written agreement "must contain all the essential elements ofthe contract." Bogle & Gates. P.L.L.C. v. 

### Zapel, 121 Wn. App. 444, 449, 90 P.3d 703 (2004) (quoting Bogle &Gates, P.L.L.C. v. HollyMountain Resources. 108 Wn. App. 557, 560, 32 P.3d 1002 

### (2001)). The essential elements of a contract are subjectmatter, parties, promise, terms and conditions, and insomejurisdictions, price. Id. The party asserting a contractmust also prove a "mutual intention on the part of the parties to contractwith each other." Ross v. Ravmer, 32 Wn.2d 128, 137, 201 P.2d 129 

### (1948) (citingTroverv. Fox, 162 Wash. 537, 298 P. 733 (1931)). If a written contract does not contain an essential element and parol 

### evidence is necessaryto establish that element, the contractis partly oral and 

### the three-year statute oflimitations applies. Zapel, 121 Wn. App. at 449. But 

### "[p]arol evidence admitted to interpret the meaning of what is actually contained in a contract does not alterthe terms contained in the contract." DePhillips v. Zolt 

### Const. Co., Inc., 136 Wn.2d 26, 32, 959 P.2d 1104 (1998). The use ofparol

15No. 73407-5-1/16 evidence to interpretwritten terms does not remove a written contractfrom the six-year statute of limitations. Id. Jerry argues that BFC introduced parol evidence to prove thatthe estate
was a grantor. But here, the writing ofthe deed oftrust identified the grantors in 

### the first paragraph and inthe signature block. The parties introduced parol evidence to interpretthat writing, not to supply a missing element. Similarly, Jerry argues that BFC relied on parol evidence to prove the intent ofthe contracting parties. He asserts that mutual intention is an essential element, and BFC's use of parol evidence to prove intent removes the action from the six-year statute of limitations. Jerry relies on Zapel, inwhich this court stated that a person asserting a contract "must prove each essential fact, including the existence of a mutual intention." Bogle &Gates, P.L.L.C,121 Wn. App. at449 (quoting Zapel, 108 Wn. App. at 560). Jerry confuses two distinct issues. The existence of a mutual intention to
enter into a contract is an essential element. Ross, 32 Wn.2d at 137. But the intent ofthe parties as to written terms is a question of interpretation, and resorting to parol evidence to resolve that issue does not remove a written contractfrom the six-year statute of limitations. DePhillips, 136 Wn.2d at 32. We conclude thatthe six-year statute of limitations applies. Jerry next argues that BFC's claim was time barred even under a six-year statute of limitations. When at least one payment has been made on a contract obligation, the statute of limitations begins to run from the last payment, provided thatthe payment was voluntarily made "'by the party against whom the payment

16No. 73407-5-1/17 is invoked as tolling the statute.'" Sanders v. Brown, 123 Wash. 611, 612, 212 P. 1070 (1923) (quoting J. M.Arthur & Co. v. Burke, 83 Wash. 690. 145 Pac. 974 (1915)). See RCW4.16.270. The burden ofproving that a voluntary payment
was made rests on the party seeking to extend the statute oflimitations. Wickwire v. Reard, 37 Wn.2d 748, 751 226 P.2d 192 (1951) (citing J. M.Arthur & Co., 83 Wash. 690). 

### Jerry challenges the trialcourt's findings of fact concerning the payment 

### received in 2005. He argues thatthe trial court erred in findingthatVictoriamade


### a voluntary payment on the loanobligation in January 2005 because BFC did not prove that Victoria, and not someone otherthan her, had made the payment. The record included evidence that Knoll Lumberwent bankrupt, had no 

### corporate assets, and the bankruptcywas abandoned. Afterthe demise ofKnoll Lumber, BFC dealt with Craig and Victoria and entered intosettlementswith 

### them.AfterCraig's death in 2002, all of BFC's dealings werewith Victoria. BFC entered into a settlement agreementwith Victoria.The bankruptcy court 

### approved a plan ofreorganization requiring Victoriato payBFCfrom the proceeds ofproperties owned byVictoria. Victoria made payments toBFC in 2003 and 2004. BFC's presidenttestified thatthe money paid onthe Knoll 

### Lumberobligation in 2005 was obtainedfrom the proceeds of a sale of real property. The onlyevidence before the court was thatVictoria made payments on the Knoll Lumber obligation to BFC and thatVictoriawas selling property in orderto satisfy the debtto BFC.There was no evidencethat any otherperson

17No. 73407-5-1/18 

### undertookthese obligations. We conclude that substantial evidence supports the trial court's finding thatVictoria made the 2005 paymentto BFC. Jerry next argues that BFC's action is based on Victoria's obligation under 

### the two promissory notes. He argues thatthe consolidation ofthe debt by the bankruptcy court is irrelevant because the two promissory notes were never merged. Jerry asserts that even ifVictoria made a payment in2005, that payment applied to only one promissory note and the otherpromissory note was outside the statute of limitations. This argument is without merit because the 2003 settlement agreement is

a subsequent contractthat subsumes the previous notes. Although the settlement does not explicitly state that itreplaces or merges the promissory notes, itsets Victoria's obligation to BFC and establishes new interest and paymentterms. "[T]he legal effect of a subsequent contract made by the same parties and covering the same subject matter, but containing inconsistentterms, rescinds the earlier contract." In re Estate ofWimberlev, 186 Wn. App. 475, 505, 349 P.3d 11 (2015) (citing Higgins v. Stafford. 123 Wn.2d 160, 165-66, 866 P.2d 31 (1994) rev. denied. 183 Wn.2d 1023, 355 P.3d 1153 (2015). We conclude thatthe trial court did not err in rejecting Jerry's statute of limitations defenses. The six-year statute of limitation applied, the statute was tolled until January 2005, and BFC's action was timely. The trial courtdid noterr in ruling that BFC was entitled to foreclose on the portion ofthe Greenwater parcels owned by Lorna's estate. Substantial evidence supports the trial court's finding thatthe estate was a grantor underthe deed of

18No. 73407-5-1/19 trust. And the trial court properly concluded as a matter of law that, because 

### Jerry was not qualified to act as co-personal representative ofLorna's estate, Craig was authorized to act as sole personal representative. The deed signed by 

### Craig as personal representative ofthe estate is valid and BFC's action is not barred by the statute of limitations. Affirm.

)*,6/A^> WE CONCUR: J 

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