### FILED 

## COURT OF APPEALS DIVISION ii 7. 

### 015 

### AUG i i 

### AM 9: 09 

### STATE OF WASHINGTON 8Y

# Ty

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Estate of: ANITA D. TUTTLE, DIVISION II

Deceased. DAISY ANDERSON; DOREEN HUNT; and SHARON HORAN, Appellants,

V. PATRICIA HICKLIN, as personal representative ofthe Estate ofAnita D. Tuttle, Respondent. No. 45917 - 5 -II

UNPUBLISHED OPINION

BJORGEN, A.C.J. — 

### Daisy Anderson, Doreen Hunt, and Sharon Horan filed petitions to
contest the will admitted for the probate of the estate of their mother, Anita Tuttle.' The estate' s personal representative, Patricia Hicklin, another of Tuttle' s daughters, successfully moved to 

### dismiss those petitions with prejudice for lack of personal jurisdiction, insufficiency of process,

1 We generally refer to the siblings challenging Tuttle' s will collectively as Anderson.No. 45917 - 5 -II 

### insufficiency of .

service of process, and failure to comply with the provisions of chapter 11. 24 RCW, which governs will contests. 

### Anderson appeals, claiming thatthe trial court improperly dismissed the petitions because 1) 

### Hicklin had waived or was estopped from asserting the affirmative defenses raised in her motion to dismiss the petitions and (2) Anderson properly served Hicklin under provisions ofthe Trust and Estate Dispute Resolution Act ( TEDRA), chapter 11. 96A RCW. We hold that ( 1) Hicklin did notwaive the affirmative defenses raised in her motion to dismiss and was not estopped 

### from asserting them and (2) Anderson failed to properly serve Hicklin because the provisions of TEDRA cannot supersede the provisions of chapter 11. 24 RCW. We affirm. FACTS Tuttle executed her last will and testament in December 2009. Tuttle passed away in April 2013. Hicklin, whom Tuttle had named as her personal representative in the December 

### 2009 will, moved to admit the will to probate in May 2013. The Clallam County Superior Court granted the motion and confirmed Hicklin' s appointment as the estate' s personal representative. 

### Nearly fourmonths later,Anderson, Horan, and Hunt, each ofwhom the December 2009 will had disinherited, appeared pro se and filed petitions to contest and invalidate Tuttle' s will that was admitted to probate. The petitions were filed under the probate cause number rather 

### than as new actions. After filing the petitions, Anderson appeared ex parte on September23, 2013 and obtained orders directing the clerk ofthe Clallam County Superior Courtto issue Hicklin citations requiring her to appear on October 4, 2013 and show cause whythe trial court should not declare the December 2009 will invalid.2



### 2 A citation was " equivalent to a civil summons, conferring personaljurisdiction over apartyto a will contest." In re Estate ofKordon, 157 Wn.2d 206, 210, 137 P. 3d 16 ( 2006). The legislature VNo. 45917 - 5 -II 

### Hicklin answered Anderson's petitions, asserting as affirmative defenses the trial court' s lack of personal ... [ and] subject matterjurisdiction" over her as well as " insufficiency of
process, and insufficiency of service of process." Clerk' s Papers (CP) at 27, 30. Hicklin' s 

### answers also stated that Anderson had failed to provide the statutorily required 20 days' notice 

### before the first hearing on the will contest. Based on this improper notice, Hicklin requested 

### thatthe initial hearing on the Petition[s] not be a hearing on the merits, as this matter involves jurisdictional, procedural, and factual issues that are not capable of resolution at the initial 

### hearing" and that the court directAnderson to notethe " matter[s] for atrial setting,fortrial on the issues set forth in the Petition[ s] and in [Hicklin' s] Response[ s]." CP at 28, 31.

At the show cause hearing, Hicklin' 8 attorney began 

### by stating, " I think it would be appropriate to address some procedural matters first before we get to argument and I would note 

### that underthe will contest statutes and underTEDRA,this really should be setfortrial and not heard on the merits today." Verbatim Report of Proceedings (VRP) ( Oct. 4, 2013) at 2. The trial

court then addressed Daisy Anderson, stating, "[ 

### Y]ou understand thatthe court' s really not in a position to address on the merits the claims that you have made today." VRP (Oct. 4, 2013) at 3. After Anderson stated that she understood and that she had not expected the courtto address the
merits of the petitions at the initial hearing, the trial court announced, "[ T]hen I will do this. I
will simply do nothing but let this matter be set for trial." VRP (Oct. 4, 2013) at 4. 

### The clerk's minutes forthe show cause hearing record Hicklin' s attorney' s argument as a mo[tion] to strike [the] hearing [ and] have matter set for trial." CP at 25. The minutes also note



### eliminated citations from the statutory scheme for will contests in 2006, replacing them with summonses as generally required in civil actions. LAWS of 2006, ch. 360 § 9.No. 45917 - 5 -II
that there was "[ n] o objection" and that the "[ c] ourt str[ uck] [ the] hearing [ and] directed] [the] parties to [ the] [ c] ourt administ[ rator] for trial setting." CP at 25. On December 24, 2013, Hicklin moved to dismiss Anderson' s petitions for lack of 

### personaljurisdiction, insufficiency ofprocess and service ofprocess, and failure to comply with the procedures for will contests set out in chapter 11. 24 RCW. Hicklin contended that RCW 

### 11. 24.010 required Anderson to personally serve herwith a copy ofthe petitions and that Anderson had never done so. Hicklin further contended that the failure to personally serve her meant that Anderson had failed to commence the will contests within the limitations period 

### prescribed by RCW 11. 24.010, making the probate ofTuttle's 2009 will final. Accordingly, Hicklin requested that the trial court dismiss the petitions with prejudice and grant her attorney fees. 

### The superior court granted the motion to dismiss and granted Hicklin attorney fees. This appeal followed. ANALYSIS I. WAIVER AND ESTOPPEL Anderson first contends that Hicklin either waived orwas estopped from asserting the affirmative defenses raised in the motion to dismiss. Hicklin contends she did not waive the 

### affirmative defenses and thatthe doctrine ofequitable estoppel does not apply. We hold that Anderson waived her estoppel and common law waiver claims and that Hicklin did not waive her affirmative defenses under CR 12. A. Standard of Review We interpret court rules as we interpret statutes, State v. Chhom, 162 Wn.2d 451, 458, 173 P. 3d 234 (2007), meaning our review is de novo. De ' t ofEcology v. Campbell & Gwinn,
MNo. 45917 - 5 -II LLC, 146 Wn.2d 1, 9, 43 P.3d 4 ( 2002). Common lawwaiver claims generally raise mixed questions of law and fact. However, where the parties do not dispute the facts, we review waiver

as a question of law subject to de novo review. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 440-41, 191 P. 3d 879 (2008). 

### We review a trial court's refusal to applythe doctrine of equitable estoppel for an abuse ofdiscretion. Ford v. Bellingham-Whatcom County Dist.Bd. of 

### Health, 16 Wn.App. 709, 716, 558 P.2d 821 ( 1977). B. Waiver Based on the Civil Rules

Anderson first argues that Hicklin triggered the consolidation and waiver provision' s of CR 12(g) and (h). Anderson contends that Hicklin' s objection to the insufficient notice ofthe 

### show cause hearing in her.answer constituted a motion to dismiss for insufficiency ofprocess under CR 12(b)( 4) and that Hicklin' s request that the trial court not resolve the petitions on their 

### merits atthe show cause hearing constituted a motion to strike under CR 12(f), citing the clerk's minutes ofthe hearing. With these prior motions, Anderson argues, Hicklin was barred by CR 12 from making her subsequent motion to dismiss. CR 12(b) governs the presentation ofdefenses to " a claim for relief' made " in any pleading."3 The rule lists a number ofaffirmative defenses that defendants must assert either (1)

3 CR 12(b) provides, in relevant part, that



### Every defense, in law or fact,to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the 

### responsive pleading thereto ifone is required, except that the following defenses may at the option of the pleader be made by motion: ( 1) lack ofjurisdiction over the subject matter; (2) lack ofjurisdiction over the person; (3) improper venue; (4) insufficiency of process; ( 5) insufficiency of service of process; ( 6) failure to state a claim upon which relief can be granted; (

### 7) failure tojoin a party under rule 19. 

### A motion making any ofthese defenses shall be made before pleading ifa further pleading is permitted. No defense or objection is waived by beingjoined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required toNo. 45917 - 5 -II 

### by motion made before the responsive pleading or (2) in the responsive pleading itself. CR 12( b). These affirmative defenses include the " lack ofjurisdiction over the' person," CR 12(b)( 2), " insufficiency of process," CR 12(b)( 4), and " insufficiency of service of process." CR 12( b)( 5). 

### Inthe interests ofjudicial economy, two other provisions in CR 12 prevent defendants from raising successive challenges to the trial court' s jurisdiction under CR 12(b). 3A KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE, CR 12( g), § 12 author' s cmts., at 287 (6th
ed. 2013). CR 12( g)

### 4 requires apartyto assert all possible CR 12(b) defenses in asingle motion; any defense not asserted in the motion is waived unless otherwise provided in CR 12(h). CR 

### 12(h)( 1) specifically provides thatthe affirmative defenses of "lack ofjurisdiction overthe
person ... insufficiency of process, [and] insufficiency ofservice ofprocess" are among those 

### waived ifnot made in a consolidated motion required by CR 12(g). Hicklin's objection to the short notice before the show cause hearing was not a motion to dismiss for insufficiency of process under CR 12( b)( 4). A motion under CR 12(b)( 4) raises a defense ... to a claim for relief." Hicklin did not assert a defense in law or fact to the claims in the petition when she objected to insufficient notice. Instead, she asked the trial court not to decide the petitions on their merits at that hearing. TEDRA mandated that she make that request;

serve a responsive pleading, [

### the pleader] may assert atthe trial any defense in law or fact to that claim for relief. 

### 4 CR 12(g) providesthat

A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to [ the party] which this rule permits to be raised 

### by motion, [the party] shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subsection (h) (2) hereofon any ofthe grounds there stated.

ONNo. 45917 - 5 -II 

### otherwise the trial court had a statutory obligation to determine the will contest atthe show cause hearing. RCW 11. 96A. 100( 8)-( 10). 5

Hicklin' s request that the trial court not adjudicate the petitions on their merits at the
show cause 

### hearing was not a motion to strike under CR 12(f).A motion to strike under CR 

### 12(f)asks the courtto strike out "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" from a pleading. While the minutes ofthe show cause 

## hearing record Hicklin's request as amotionto strikethe hearing,CP at25, neitherparty,northe superior court itself,used.the " motion to strike" terminology used by the clerk. Instead, as noted above, Hicklin asked the trial court not to adjudicate the will contests on their merits at the show 

### cause hearing, a request mandated by TEDRA. That is notthe type ofrequest to strike out portions of pleadings that constitutes a motion to strike under CR 12(f). Because neither the objection to the deficient notice nor the request to set the case for 

### trial were motions within the meaning ofCR 12, they did not triggerthe consolidation provisions
of CR 12( g). 

### King v. Snohomish County, 146 Wn.2d 420, 427, 47 P.3d 563 (2002). Consequently, Hicklin did notwaive the affirmative defenses later raised in the motion to

5 RCW 11. 96A. 100 provides, in part,that



### 8) Unless requested otherwise by a party in apetition or answer,the initial 

### hearing must be ahearing on the meritsto resolve all issues offact and all issues of law; 

### 9) Any party may move the court for an order relating to a procedural matter ... 

### in the original petition, answer, response, or reply, or in a separate motion, or at any other time; and 

### 10) Ifthe initial hearing is not a hearing on the merits or does not result in a resolution ofall issues offact and all issues oflaw,the court may enter any order 

### it deems appropriate, which order may (a) resolve such issues as it deems proper, b) determinethe scope ofdiscovery, and (c) set a schedule forfurther proceedings for the prompt resolution of the matter.
7No. 45917 - 5 -II 

### dismiss by failing to consolidate them with the objection orthe requestto setthe case fortrial. See CR 12(h). C. Equitable Estoppel and Common Law Waiver Anderson also argues that Hicklin waived the affirmative defenses asserted in the motion to dismiss under theories of equitable estoppel and common law waiver. Anderson, however, 

### has waived these claims under RAP 2.5 by failing to raise them before the trial court.

RAP 2.5( a) states in pertinent part, t]he appellate court may refuse to review any claim of error which was not 

### raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: ( 1) lack oftrial courtjurisdiction, (2) failure to establish.facts upon which reliefcan be granted, and (3) manifest error affecting a constitutional right. 

### In considering whether an issue had been raised under this rule,the court in Bennettv. Hardy, 113 Wn.2d 912, 917, 784 P.2d 1258 ( 1990), held: 

### so long as [ the appellant] advanced the issue below, thus giving the trial court an 

### opportunity to consider and rule on the relevant authority, the purpose of RAP 2.5(a) is served and the issue is properly before [the court on appeal]. Thus, Anderson need not have actually used the terms " estoppel," " waiver," 

### or any synonym, but must at least have given the trial court fair notice ofthe nature ofthe challenge.

This, Anderson failed to do. Her statements to the trial court at Verbatim Report of 

### Proceedings pages 13- 14 discuss an alleged inconsistency in Hicklin's positions, but fall well short ofapprising the court ofa common law waiver argument. In addition, counsel' s remarks 

### included nothing about any reliance byAnderson on Hicklin' s position or any injury to Anderson from Hicklin' s alleged change in position. These are central and essential elements of an estoppel claim. Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P. 3d 1124 ( 2000). In the absenceNo. 45917 - 5 -II 

### ofany arguable reference to them,we cannot saythatAnderson raised her estoppel challenge in the trial court. Therefore, we do not reach either argument under RAP 2.5( a).

This, Anderson failed to do. Her statements to the trial court at Verbatim Report of 

### Proceedings pages 13- 14 discuss an alleged inconsistency in Hicklin' s positions, but fall well short ofapprising the court ofa common law waiver argument. In addition, counsel' s remarks 

### included nothing about any reliance byAnderson on Hicklin's position or any injuryto Anderson from Hicklin' s alleged change in position. These are central and essential elements ofan estoppel claim. Lybbert, 141 Wn.2d at 35. In the absence of any arguable reference to them, we 

### cannot say thatAnderson raised her estoppel challenge in the trial court. Therefore, we do not reach either the estoppel or the common law waiver argument under RAP 2.5( a). II. SERVICE OF PROCESS 

### Anderson next contends thatthe trial court erred by granting the motion to dismiss, 

### because she properly served Hicklin based on provisions ofTEDRA. Hicklin contends that, because Anderson never personally served her as required by RCW 11.24.010, the trial court properly dismissed the petitions. Hicklin is correct. A. Standard of Review 

### The party initiating a civil action bears the burden ofshowing proper service ofprocess. See Streeter-Dybdahl v. Huynh, 157 Wn.App. 408, 412, 236 P. 3d 986 (2010). Further, the party 

### asserting that atrial court has personaljurisdiction bears the burden ofestablishing it after a challenge to thatjurisdiction. Outsource Servs. Mgmt., LLC v. Nooksack Bus. 

### Corp., 172 Wn. App. 799, 807, 292 P. 3d 147 (2013), aff'd, 181 Wn.2d 272 (2014). Where the trial court rules on a motion to dismiss under CR 12(b)( 2) or (b)(4) based on undisputed facts, we review the

CNo. 45917 - 5 -II resulting order de novo. Outsource Servs. Mgmt., 

### 172 Wn.App. at 807; see Streeter-Dybdahl, 157 Wn.App. at 412. B. Service of Process Under Chapter 11. 24 RCW



### First and basicto any litigation isjurisdiction. First and basic to [personal]jurisdiction is service of process."' Scott v. Goldman, 82 Wn.

### App. 1, 6, 917 P.2d 131 ( 1996) ( 

### quoting In re 

### Marriage.ofLogg, 74 Wn.App. 781, 786, 875 P.2d 647 ( 1994)). Proper service ofprocess has both constitutional and statutory elements. Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P. 3d 1155 ( 2014). 

### Turning to the latter, the legislature prescribed two elements for proper service of process in will contests in chapter 11. 24 RCW. First, any party contesting awill must personally serve the estate' s personal representative with 

## the petition commencing thewill'contestwithin 90 days offiling the petition. RCW 11.24.010.6 Second,the contesting party must provide the notice described in RCW 1 1. 96A.100, meaning a

summons using certain language or substantially equivalent language.' RCW 11. 24.020; RCW 11. 96A. 100. 6 The relevant part of RCW 11. 24.010 provides that: 

### For the purpose oftolling the four-month limitations period, a contest is deemed commenced when a petition is filed with the court and not when served upon the personal representative. The petitioner shall personally serve the personal 

### representative within ninety days afterthe date offiling the petition. If,following 

### filing, service is not so made, the action is deemed to not have been commenced for purposes oftolling the statute oflimitations. RCW 11. 96A. 100(2) provides, in relevant part, that

a] summons must be served in accordance with this chapter,... however, if the 

### proceeding is commenced as an action incidental to an existingjudicial proceeding 

### relating to the same trust or estate or nonprobate asset, notice must be provided by summons only with respect to those parties who were not already parties to the existingjudicial proceedings. 

### RCW 11. 96A.100(3) prescribes the form the summons required by RCW 11. 96A. 100(2) must take. 10No. 45917 - 5 -II. Once Hicklin challenged the service ofprocess, and consequently the trial court' s personal jurisdiction over her, Anderson bore the burden ofestablishing proper service and the trial court' s personal jurisdiction over Hicklin. Anderson introduced no evidence to do so: no 

### return ofservice by the sheriffor a sheriff's deputy stating thathe or she personally delivered the summonses and petitions to Hicklin, no affidavit ofservice by a person attesting to personally 

### delivering the summonses and petitions to Hicklin orproperly mailing them, and no writing by Hicklin or her attorney- in-fact accepting service. See CR 4( g)( 1), ( 2), ( 5), ( 7). Anderson failed 

## to discharge herburden ofproving personal service on Hicklin,the personal representative.8

Anderson, however, points out that RCW 11. 96A. 100(2), part of TEDRA, requires
service of a summons only on " those parties ... 

### not already parties to [an] existingjudicial proceeding[]" 

### where aproceeding is brought incidentalto that existing proceeding. Anderson argues that this provision excused her from personally serving the summonses and petitions on 

### Hicklin, because the petition was filed incidentallyto the probate ofTuttle' s estate. The requirement ofpersonal service ofthe petition on the personal representative arises from RCW 11. 24.010, which is not part ofTEDRA. Similarly,the requirement that the notice described in RCW 11. 96A. 100 be given stems from RCW 11. 24.020, which also is not part of 

### TEDRA. TEDRA cannot supersede these requirements. RCW 11. 96A.080; In re Estate of Kordon, 157 Wn.2d 206, 212, 137 P. 3d 16 ( 2006). 

### Accordingly, regardless whether RCW 

### 11. 96A.100(2) excused Anderson from serving summonses on Hicklin,the provision did not repeal RCW 11. 24.010' s requirement ofpersonal service ofthe petitions on Hicklin as personal


### 8 Anderson's attorney argued atthe hearing onthe motionto dismiss that she had served the estate' s attorney. Anderson repeats this argument in herbriefing. Even ifwe accepted her representations as evidence, they fail to establish thatAnderson personally served Hicklin. See Ashcraft v. Powers, 22 Wash. 440, 442-43, 61 P. 161 ( 1900); RCW 4.28. 080. 11No. 45917 - 5 -II 

### representative. Kordon, 157 Wn.2d at 212; see also In re Estate ofHarder, 185 Wn.App. 378, 385, 341 P. 3d 342 (2015) ( citing Kordon, 157 Wn.2d at 212). Anderson did not personally serve Hicklin with copies ofthe petitions. Therefore, she failed to serve process in accordance with the provisions of RCW 11. 24.010.

Anderson also appears to contend that she did not need to serve Hicklin with process because Hicklin had actual notice ofthe will contests. Actual notice is insufficient to confer 

### jurisdiction on the trial court. Logg, 74 Wn.App. at 784; see In re Estate ofHarder, 185 Wn. App. at 384. Indeed, accepting Anderson' s actual notice argument essentially eliminates the 

### statutory service ofprocess requirements, contradicting a long line ofSupreme Court,precedent, recently reaffirmed, that service ofprocess has both constitutional and statutory elements. Scanlan, 181 Wn.2d at 847. 

### Finally, Anderson invokes, in her reply brief,, the principle that "the law favors the resolution of legitimate disputes brought before the courfrather than leaving parties without a remedy." In re Estate ofPalucci, 61 Wn.App. 412, 416, 810 P. 2d 970 ( 1991). She cites a 

### number ofcases where the courts have excused technical failures to complywith statutory notice requirements under the doctrine ofsubstantial compliance. By failing to raise her substantial 

### compliance argument in her opening brief,Anderson waived it. Cowiche Canyon Conservancy 

### v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 ( 1992). The trial court properly granted Hicklin's motion to dismiss. III. ATTORNEY FEES 

### Anderson requests reasonable attorney fees pursuantto RAP 18. 1( a) and RCW 11. 96A. 150. While citing to those statutory provisions, she offers no argument why attorney fees arejustified. We decline to award fees to Anderson given her failure tojustify them.

12No. 45917 - 5 -II Wilson Court Ltd. P' ship v. Tony Maroni' s, Inc., 134 Wn.2d 692, 710- 11 & n.4, 952 P. 2d 590 

### f998). Hicklin requests reasonable attorney fees under RAP 18.1, RCW 11. 24.050, and RCW 11. 96A. 150. RAP 18. 1 sets the procedure for requesting attorney fees authorized by applicable 

### law. RCW 11. 24.050, in turn, allows a court to award reasonable attorney fees where awill is
sustained against a challenge, " unless it appears that the contestant acted with probable cause and in good faith." 

### Hicklin contends thatwe should award reasonable attorney fees under RCW 

### 11. 24.050 because the failure to properly commence the action shows Anderson's lack of probable cause and good faith. Anderson and her siblings, though, appeared pro se and appear to 

### have commenced the action as best they could. Nothing abouttheir behavior betrays a desireto proceed without probable cause to do so or in bad faith. Fees are unwarranted under RCW 11. 24.050. 

### RCW 11. 96A.150( 1) allows a court to award reasonable attorney fees " to any party." 

### Hicklin contends that an award ofreasonable attorney fees is warranted under the provision because Anderson' s petitions have delayed the administration ofthe estate, resulting in 

### unnecessary expenses. Anderson,though, has not engaged in scorched earth litigation and, bare allegations from Hicklin aside, no evidence indicates that they filed these petitions orthis appeal 

### to frustrate the closing ofTuttle's estate. They simplywanted their day in court. Again,we find an award of fees unwarranted. CONCLUSION 

### Anderson failed to comply.with the provisions ofchapter 11. 24 RCW governing service ofprocess in will contests. The trial court properly dismissed her petitions challenging the will

13No. 45917 - 5 -II of her mother. We affirm. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

LSE, J.

SUTTON, J.

14 JoE EN, A.C.J.