FILED 


JUNE 16,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division 1Il 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


KEVIN PORTER, ) 

) No. 31805-2-111 

Appellant, ) (cons. with No. 31809-5-111) 

) 

v. ) 

) 

NATHANIEL (NATE) BOIS SO, ) 


PERSONAL REPRESENTATIVE OF ) PUBLISHED OPINION 


THE ESTATE OF CHARLES BOISSO, ) 


) 

Respondent. ) 

SIDDOWAY, C.J. - A creditor of a decedent's estate who is notified by the 

personal representative ofrejection ofhis 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 ofrejection 

"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 ofthe claim filed his post-rejection lawsuit in the Superior Court for 

Pierce County. They call on us to decide the meaning of "the proper court" for a postrejection suit. 
No. 3lB05-2-III; cons. wi No. 3lB09-5-III 

Porter v. Boisso 

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. 

FACTS AND PROCEDURAL BACKGROUND 

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 upon his 

payment ofthe balance owed the estate deliver to him a statutory warranty deed. 

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 ofthe 

2 

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Porter v. Boisso 

mailing ofthis Notice, and that otherwise your claim will be forever barred." Clerk's 

Papers (CP) (No. 318095) at 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. State Dep 't ofNatural Resources, 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 fivemember majority overruled that line of cases, holding that RCW 4.12.01 O( 1) prescribes 

only venue, not jurisdiction. Ralph, 182 Wn.2d at 259. 

Mr. Porter's Pierce County complaint disclosed the Kittitas County probate, his 

creditor's claim, and the estate's notice ofrejection. It described the terms of his alleged 

purchase agreement and his alleged 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.! CP (No. 

I The text ofthe handwritten note is included in an appendix to this opinion. 

3 

No. 31805-2-III; cons. wi No. 31809-5-III 

Porter v. Boisso 

318095) at 34-35. Mr. Porter's prayer for relief sought a declaratory judgment specifYing 

his right and interest in the property and an order compelling specific performance; 

alternatively, he sought damages for unjust enrichment. 

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. It eventually entered an order "Transferring Venue and Jurisdiction" to Kittitas 

County on May 3,2013. CP (No. 318095) at 231-33. 

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. 

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 

4 

No. 31805-2-111; cons. wi No. 31809-5-111 

Porter v. Boisso 

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. 

Mr. Porter appeals orders and final judgments entered in both proceedings. 

ANALYSIS 

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. 

Where, as here, a creditor's claim is rejected by the personal representative, RCW 

11.40.1OO( 1) provides that "the claimant must bring suit against the personal 

representative within thirty days after notification ofrejection 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 

ofrejection or the claim will be forever barred. 

Id. (emphasis added). 

5 

No. 31805-2-III; cons. wI No. 31809-5-III 

Porter v. Boisso 

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 

We first address whether the claims asserted by Mr. Porter in Pierce County were 

subject to the nonclaim statute. Finding that at least one ofthem was, we tum to whether 

commencement of his action in Pierce County satisfied a requirement that he timely bring 

action in "the proper court." 

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

Chapter 11.40 RCW does not define the meaning of "claim against the decedent" 

as used in the nonclaim statute. In Estate ofEarls, 164 Wn. App. 447, 448, 262 P.3d 832 

(20 11), our court stated that the nonclaim statute "encompasses every species of liability 

a personal representative can be called upon to payout ofthe estate's general funds." 

Another recent decision of our court held that '" [t]o constitute a claim against the estate 

ofa deceased person, an obligation must consist of a debt incurred by or for the decedent 

2 Mr. Porter also assigns error on the basis that his filing ofthe Pierce County 

action "tolled" the 30-day limitation period and that the superior court erred in applying 

claim and issue preclusion to dismiss his complaint. Given our decision on the other 

errors identified, a "tolling" analysis does not apply and reversal ofthe trial court's 

decision dismissing Mr. Porter's complaint is automatic. We do not address those 

assignments of error further. 

6 

No. 31805-2-III; cons. wiNo. 31809-5-II1 

Porter v. Boisso 

during his lifetime.'" Wittv. 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)). 

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. 

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 ofthe 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, seeking specific performance ofthe 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 ofMs. 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 

ofa 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)). 

7 

No. 31805-2-III; cons. wINo. 31809-5-III 

Porter v. Boisso 

In O'Steen v. Estate ofWineberg, 30 Wn. App. 923, 934, 640 P.2d 28 (1982), 

Wineberg had agreed to give O'Steen ten percent of his stock in a petroleum company in 

satisfaction ofa debt, but title to the shares was never transferred. When Wineberg's 

wife died, all ofthe 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 ofthe 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)). 

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 obligation had been 

satisfied, explaining: 

It does not seem to us that the statute of nonclaim has any 

application to the facts in this case. The respondent is not seeking to 

recover anything from the assets of the estate. She is not depleting the 

estate in any way. The property which was awarded to her did not belong 

to the estate, and no money judgment of any character was sought. 

Respondent is simply defending an action brought by the estate to recover 

money from her as executrix. 

The general rule is that the cestui que trust, for whom the defendant 

was in his lifetime a trustee, does not have to make a claim against the 

estate as long as the particular property he is claiming can be identified, and 

is not in any way commingled with the assets ofthe estate, the theory being 

that he is not depleting the estate, and is not claiming anything which 

belongs to the estate. He is merely claiming his own property . Woerner 

American Law of Administration, Vol. 3, § 402. Many authorities 

8 

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Porter v. Boisso 

approving the rule are quoted with approval in Davis v. Shepard, 135 

Wash. 124,237 P. 21[(1928),41 A. L. R. 163]. 

Compton 150 Wash. at 396-97 (emphasis omitted). Several other cases hold that a party 

who asserts an interest in property that might otherwise be inventoried as part of the 

estate is not asserting a creditor's claim required to be filed under the nonclaim statute. 

See Witt, 168 Wn. App. at 218 (party claiming a community property-like interest 

resulting from a meretricious relationship was not asserting a claim subject to chapter 

11.40 RCW); Olsen, 42 Wn.2d at 865-66 (tenant in common asserting an ownership 

interest in property is not a creditor); Smith v. McLaren, 58 Wn.2d 907,909,365 P.2d 

331 (1961) (filing ofa creditor's claim is not a condition precedent to an action by a 

former spouse to recover his or her share of community property). 

In this case we are dealing with an alleged real estate contract. Washington cases 

recognize that a vendee under a real estate contract has a '" valid and subsisting interest 

in property.'" Cascade Sec. Bankv. Butler, 88 Wn.2d 777,781-83,567 P.2d631 (1977) 

(quoting Griffith v. Whittier, 37 Wn.2d 351, 353, 223 P.2d 1062 (1950)); Oliver v. 

McEachran, 149 Wash. 433, 438, 271 P. 93 (1928) ("Undoubtedly such purchaser does 

have a right ofpossession and a right to acquire title in accordance with the terms ofthe 

contract."). In a 1992 decision, the Washington Supreme Court quoted with approval a 

bankruptcy court's observation that '" Washington law considers the purchaser's interest 

under the real estate contract as a property interest and the seller's interest under that 

9 

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Porter v. Boisso 

contract as a lien-type security device.'" Tomlinson v. Clarke, 118 Wn.2d 498, 509, 825 

P.2d 706 (1992) (quoting In re McDaniel, 89 B.R. 861, 869 (Bankr. E.D. Wash. 1988)). 

For probate purposes, Washington cases recognize that the vendor's interest under such a 

contract is personal property rather than real property. In re Fields 1 Estate, 141 Wash. 

526, 528,252 P. 534 (1927) (holding that because decedent's vendor's interest was 

personal property, it did not pass to appellants); In re Eilermann 's Estate, 179 Wash. 15, 

19, 35 P .2d 763 (1934) (because vendor's interest in a real estate contract is personal 

property, it is taxable in the state of the owner's domicile, not the state wherein the land 

lies). 

Mr. Porter's claims for specific performance and declaratory judgment asserted his 

property interest as vendee under an alleged real estate contract. He was seeking to . 

ensure that the estate properly excluded the Pierce County parcels from its inventory, 

recognized the personal property character of the vendor's interest held by Mr. Boisso at 

the time of his death, and honored Mr. Porter's right to acquire title in accordance with 

the terms of his alleged agreement with Mr. Boisso. Mr. Porter was proposing to pay 

money, not to collect a debt incurred by Mr. Boisso during his lifetime. Consistent with 

the foregoing case law, Mr. Porter's claims for specific performance and declaratory 

judgment were not claims against a decedent within the meaning of the nonclaim statute. 

As an alternative to his claims for specific performance and declaratory judgment, 

however, Mr. Porter's Pierce County complaint asserted a restitution claim: 

10 

No. 31805-2-III; cons. wi No. 3l809-5-III 

Porter v. Boisso 

Alternatively, the plaintiff is entitled to damages for unjust enrichment 

because he has continually resided on the property from 1999 to the present 

date and has expended thousands of dollars in maintaining and improving 

the property, all of which expenditures and improvements were made with 

the full knowledge ofCharles Boisso. 

CP (318095) at 24. His prayer for relief included the alternative of "a judgment for 

damages for unjust enrichment in an amount to be fully proven at trial." Id. at 25. The 

unjust enrichment claim is not inconsequential. The estate contends that Mr. Porter's 

alleged agreement with Mr. Boisso fails to comply with the statute offrauds. If Mr. 

Porter is unable to demonstrate facts entitling him to specific performance despite 

noncompliance with the statute of frauds, restitution is his sole remaining claim. 

A claim for unjust enrichment is, within the language of our Supreme Court's 

decision in Earls, 164 Wn. App. 447, a "species of liability a personal representative can 

be called upon to payout of the estate's general funds" and thereby a "claim against the 

decedent" within the meaning ofRCW 11.40. We therefore tum to whether Mr. Porter 

brought suit on his unjust enrichment claim in "the proper court." 

II. The superior court is the proper court 

RCW 11.40.1 00(1) does not itself create a requirement that a creditor with a claim 

against the estate file its post-rejection lawsuit in "the proper court." Rather, it requires 

the personal representative to advise the claimant that it must bring suit in "the proper 

court." The estate has collapsed language in the statute into a singular requirement that a 

claimant "bring suit against the personal representative within thirty days . .. in the 

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Porter v. Boisso 

proper court . .. or the claim will be forever barred." Br. ofResp't at 1. But the 

requirement that the claimant timely file suit and the requirement that the personal 

representative warn the claimant are distinct and appear several sentences apart in the 

applicable subsection of the nonclaim statute. The subsection reads in its entirety: 

Ifthe personal representative rejects a claim, in whole or ilf part, the 

claimant must bring suit against the personal representative within thirty 

days after notification ofrejection or the claim is forever barred. The 

personal representative shall notify the claimant of the rejection and file an 

affidavit with the court showing the notification and the date of the 

notification. The personal representative shall notify the claimant of the 

rejection by personal service or certified mail addressed to the claimant or 

the claimant's agent, if applicable, at the address stated in the claim. The 

date of service or of the postmark is the date of notification. The 

notification must advise the claimant that the claimant must bring suit in 

the proper court against the personal representative within thirty days after 

notification ofrejection or the claim will be forever barred. 

RCW 11.40.l00(1) (emphasis added). 

Plainly read, the statute recognizes that a proper court exists and that the claimant 

must be warned about it, but it says nothing about which court is proper. Determining 

"the proper court" requires us to review other sources of law. 

"Subject matter jurisdiction is a tribunal's authority to adjudicate the type of 

controversy involved in the action." Shoop v. Kittitas County, 108 Wn. App. 388,393, 

30 PJd 529 (2001). "Venue rules serve to limit a plaintiffs choice of forum to ensure 

that the locality of a lawsuit has some logical relationship to the litigants or the subject 

12 

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Porter v. Boisso 

matter of the dispute." Id. at 396 (citing JACK H. FRIEDENTHAL, MARY KAYKANE & 

ARTHUR R. MILLER, CIVIL PROCEDURE § 2.1 at 9-10 (3d Ed. 1999». 

Our state constitution provides, "The superior court shall have original jurisdiction 

in all cases at law which involve ... all matters of probate." CONST. art. IV, § 6. It 

further provides that "[t]he superior court shall also have original jurisdiction in all cases 

and of all proceedings in which jurisdiction shall not have been by law vested exclusively 

in some other court." Id. 3 The Washington Supreme Court has interpreted this language 

as giving to the superior court'" universal original jurisdiction,'" thereby preventing the 

legislature from limiting subject matter jurisdiction as among superior courts located in 

different counties. Ralph, 182 Wn.2d at 252 (quoting Moore v. Perrott, 2 Wash. 1, 4, 25 

P. 906 (1891». 

In 1999, the legislature adopted the Trust and Estate Dispute Resolution Act 

(TEDRA) for the stated purpose of "set[ting] forth generally applicable statutory 

provisions for the resolution of disputes and other matters involving trusts and estates in a 

single chapter under Title 11 RCW." RCW 11.96A.OI0. TEDRA includes both a 

3 The estate has suggested that use ofthe definite article "the" unambiguously 

refers to a single court, implying that it must refer to a superior court in a particular 

county. Br. ofResp't at 12-13. But both the constitution and the relevant statutes speak 

predominantly, if not exclusively, of "the superior court" as a single court that has a 

presence in all counties. While Washington laws also sometimes speak ofmultiple 

"superior courts," then, it is entirely reasonable to construe "the proper court" as referring 

to the single, statewide superior court recognized in the state constitution. 

13 
No. 31805-2-111; cons. wiNo. 31809-5-111 

Porter v. Boisso 

jurisdiction and a venue provision. The jurisdiction provision provides that "[t]he 

superior court of every county has original subject matter jurisdiction over the probate of 

wills and the administration of estates of incapacitated, missing, and deceased individuals 

in all instances." RCW 11.96A.040(1). It also provides 

[t]he subject matter jurisdiction of the superior court applies without regard 

to venue. A proceeding or action by or before a superior court is not 

defective or invalid because of the selected venue ifthe court has 

jurisdiction of the subject matter ofthe action. 

RCW 11.96A.040(4). 

TEDRA's venue provision provides that the original venue for proceedings 

pertaining to the probate of wills and most other estate administration matters is "in any 

county ofthe state of Washington that the petitioner selects," subject to a party's right to 

make a timely request to change venue to a county given priority by statute. RCW 

11.96A.050( 4). "Once letters testamentary or of administration have been granted in the 

state of Washington," however, "all orders, settlements, trials, and other proceedings 

under this title must be had or made in the county in which such letters have been granted 

unless venue is moved as provided in [RCW 11.96.050(4)]." RCW 11.96A.050(5). 

The general provisions regarding venue and jurisdiction in Washington courts 

appear in chapter 4.12 RCW. RCW 4.12.030 identifies grounds for changing the venue 

of an action, including "[t]hat the county designated in the complaint is not the proper 

county." RCW 4.12.030(1). Where a motion for change of venue on the basis that the 

14 

No. 31805-2-111; cons. wi No. 31809-5-111 

Porter v. Boisso 

action has been brought in the wrong county is allowed, "the change shall be made to the 

county where the action ought to have been commenced." RCW 4.12.060. As our 

Supreme Court recently observed in Ralph, "RCW 4.12.030(1) contemplates that actions 

will inevitably be filed in the wrong county and RCW 4.12.060 authorizes moving an 

improperly filed action 'to the county where the action ought to have been commenced.'" 

Ralph, 182 Wn.2d at 255 (emphasis omitted) (quoting RCW 4.12.060). Absent a request 

for a change ofvenue, an action brought in the wrong county "may nevertheless be tried 

therein unless the defendant, pursuant to the provisions of rule 12, requests that the trial 

be held in the proper county and files an affidavit of merits." CR 82(b). 

At least two Washington cases have held, directly or indirectly, that "the proper 

court" in which a person having a claim against a decedent must bring suit is the superior 

court. In McWhorter v. Bush, 7 Wn. App. 831, 502 P.2d 1224 (1972), the executor ofan 

estate appealed from the allowance of a claim that the executor contended had been 

pursued by improperly asserting an action in the existing probate rather than filing a 

separate civil action. The facts in Mc Whorter were more compelling than those in the 

present case-unlike the venue of an action, which can be wrong but is subject to waiver 

or correction, the procedure followed in Mc Whorter was unquestionably wrong under 

existing case law requiring the commencement of a separate civil action. 7 Wn. App. at 

832 (citing Rutter v. Rutter, 59 Wn.2d 781, 784, 370 P.2d 862 (1962); Schluneger v. 

Seattle First-Nat 'I Bank, 48 Wn.2d 188, 190,292 P.2d 203 (1956)). Still, this court held 

15 

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Porter v. Boisso 

that the superior court was "the proper court" and whatever mistakes had been made, the 

claim had been pursued in the superior court: 

[Former] RCW 11.40.60 requires that suits upon rejected claims be 

brought "in the proper court" within 30 days of notice ofrejection. The 

"proper court" in this instance is the superior court; this probate and the 

actions on the rejected claims were filed in the superior court .... Probate 

proceedings are properly within the jurisdiction ofthe superior court. 

McWhorter, 7 Wn. App. at 832-22 (footnote omitted). 

An earlier case, Stell Co. v. Smith, 16 Wn.2d 388, 398, 133 P.2d 811 (1943), 

recognized that filing suit against an estate in the wrong county was inconsequential. The 

Supreme Court was presented with an argument that a creditor's action "should have 

been brought in superior court for Grant county, the probate forum, instead of being 

instituted in superior court for Chelan county." Id. It rejected the argument, in part for 

the reason that "ifthe action was commenced in the wrong county, venue to Grant county 

could have been changed upon respondent's motion therefor." Id. 

We hold that under the Washington Constitution and statutes, then, "the proper 

court" in which a person having a claim against a decedent is to bring suit is the superior 

court. 

The estate argues that even if "the proper court" under the nonclaim statute is the 

superior court, "judicial admissions" estop Mr. Porter from arguing that jurisdiction was 

proper in Pierce County. Resp't's Br. at 30. It points specifically to the "Order 

Transferring Venue and Jurisdiction to Kittitas County," and its finding that the "action 

16 

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Porter v. Boisso 

[is] of a nature that requires change of venue and jurisdiction to Kittitas County." Br. of 

Resp't at 30. It relies on Mukilteo Retirement Apartments v. Mukilteo Investors LP, 176 

Wn. App. 244, 256 n.8, 310 P .3d 814 (2013). 

Mukilteo Retirement Apartments deals with judicial admissions that are made in a 

party's answer, are never deleted by amendment, and are the basis on which a case is 

tried. It is clearly inapposite. More importantly, language in the Pierce County court's 

order is not inconsistent with the position Mr. Porter was taking at the time. While it is 

now clear from the Supreme Court's decision in Ralph that the Pierce County court was 

not transferring jurisdiction, the concept of transferring jurisdiction was consistent with 

Mr. Porter's belief in 2013 that he was required by RCW 4.12.010(1) to file his postrejection lawsuit in Pierce County as the only county with subject matter jurisdiction. 

Until abrogated by Ralph, Washington decisions had held that as long as an action 

involving title to real property was brought in the county in which the property was 

located, the superior court in that proper county could "confer" its jurisdiction over a 

properly commenced action upon transferring the action to another court. Ralph, 182 

Wn.2d at 255 (citing cases). 

Mr. Porter filed his post-rejection lawsuit in the proper court. 

Ill. Conclusion and attorney fees 

For the foregoing reasons, the trial court erred in treating Mr. Porter as having 

failed to timely bring suit under the nonclaim statute and in quieting title in the Pierce 

17 

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Porter v. Boisso 

County properties in the Boisso estate. It necessarily erred in applying its judgment in 

the probate action as collateral estoppel and, on that basis, dismissing the claims ofMr. 

Porter that had been transferred to Kittitas County by the Pierce County Superior Court. 

The court's finding that the estate was the prevailing party in the probate proceeding for 

purposes of awarding attorney fees was an abuse of discretion. 

Both parties request an award of attorney fees on appeal under RCW 11.96A.150. 

The estate additionally requests an award of fees under RAP 18.9, which authorizes us to 

require a party to pay the opposing party's reasonable attorney fees and costs if an appeal 

is frivolous. Needless to say, Mr. Porter's appeal was not frivolous. 

RCW 11.96A.150 provides that we may, in our discretion 

order costs, including reasonable attorneys' fees, to be awarded to any 

party: (a) From any party to the proceedings; (b) from the assets of the 

estate or trust involved in the proceedings; or ( c) from any nonprobate 

asset that is the subject ofthe proceedings. The court may order the costs, 

including reasonable attorneys' fees, to be paid in such amount and in such 

manner as the court determines to be equitable. In exercising its discretion 

under this section, the court may consider any and all factors that it deems 

to be relevant and appropriate, which factors may but need not include 

whether the litigation benefits the estate or trust involved. 

Having considered the statutory factors, we decline to award attorney fees and 

costs on appeal to either party. 

We vacate the final judgments in both actions; reverse the trial court's orders 

clearing title, dismissing Mr. Porter's complaint with prejudice, and awarding attorney 

18 

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Porter v. Boisso 

fees and costs to the estate; and remand for further proceedings consistent with this 

OpinIOn. 

Siddowa~' dz~,d?

WE CONCUR: 

19 

No. 31805-2-111 (consolidated with No. 31809-5-111) 

Porter v. Raissa 

Appendix 

APPENDIX 


July 17,01 

hi Kevin 

I found the copy ofthe title 


finally-huh! I dated 7/26/01 


Thanks for the payment last month! 


I calculated what the monthly interest 


will be on the mortgage for the remaining balance of 


$106,950 using 


8.25% interest rate. Current rate 


with good credit is around 7.25% 


People I've talked to say owner 


who holds the paper should ask 


2-3% above bank rate, to 


help cover the risk. I'm asking 8.25% 


The yearly interest will be $8819.00 


monthly it will be $734.33 


so you'll need to pay $734.33 interest 


a month plus principal. 


I've been taking all money 


given to me off the principal/no interest. 


I'd really like to see a 


little more money monthly around the 


20th-25th so it's more regular 


and closer to the interest plus 


20 

No. 31805-2-II1 (consolidated with No. 31809-5-III) 

Porter v. Boisso 

Appendix 

principal amount when we 

do the paper work. I'll continue 

to take total amount off principal 

until we sign. 

1 360 8 1-509-933-1913 

Charles 

(BONNIVILLE) 

Also the bonneville power co. 

will be marking and cutting 

dangerous trees on the front near 

the lines 6/1% 1 

See yasoonCP (No. 318095) at 34-35. 

21