### FILED JUNE 

### 16,2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division 1Il IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE 

### KEVINPORTER, ) ) No. 31805-2-111 Appellant, ) (cons. withNo. 31809-5-111) ) 

### v. ) ) NATHANIEL (NATE) BOISSO, ) PERSONAL REPRESENTATIVE OF ) PUBLISHED OPINION THE ESTATE OF CHARLES BOISSO, ) ) Respondent. ) SIDDOWAY, C.J. - A creditor ofa decedent's estate who is notified by the personalrepresentative 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 thatthe personalrepresentative's notification ofrejection "mustadvise the claimantthat the claimant mustbring suit in theproper court againstthe personal representative withinthirty 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-rejectionlawsuit inthe Superior Court for Pierce County. They call onus to decidethe meaning of"theproper court" for a postrejection suit.No. 3lB05-2-III; cons. 

### wi No. 3lB09-5-III Porter v. Boisso

We hold thatto the extent Kevin Porter's claims for reliefasserted 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 ownmotion for change ofvenue, 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 OnNovember 13, 2012, Kittitas County granted letters ofadministration for the probate ofthe estate ofCharles Boisso. Kevin Porter filed notice ofa creditor's claim in theprobate action several weeks later, on December 17. His notice alleged that he had entered into a contract topurchase two one-half-acre parcels ofproperty owned by the late Mr. Boisso, located in Pierce County; thatthe 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 owedthe estate deliver to him a statutory warranty deed. The estate rejected Mr. Porter's claim on December 31. Its notice ofrejection stated that "[p]ursuanttoRCW 11.40.100, you mustbring suit inthe proper Court against the Personal Representative within thirty days after the date ofthe postmark ofthe

2No. 31805-2-III; cons. 

### wiNo. 31809-5-II1 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 explainthat he did so because his claim involved real property located in Pierce County and he was concerned with a series ofWashington decisions that construed RCW 4.12.010, which governs the county in which many actions involving real property "shall be commenced," asjurisdictional. The cases "continually affirmed that RCW 4.12.010 governsjurisdiction affecting local actions and that local actions commenced in the wrong county must be dismissed." Ralph v. State Dep 't of NaturalResources, 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 decidedRalph, inwhich a fivemember majority overruled that line ofcases, holdingthat RCW 4.12.01O( 1) prescribes only venue, notjurisdiction. 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. Itdescribed the terms ofhis 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 appendixto this opinion. 3No. 31805-2-III; cons. 

### wiNo. 31809-5-III Porter v. Boisso 318095) at 34-35. Mr. Porter's prayer for reliefsought a declaratoryjudgment 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 andjurisdiction

were improper. After hearing argument, the Pierce County court initially stayed proceedings, later entertaining a motion by Mr. Porter for change ofvenue to Kittitas County. Iteventually entered an order "TransferringVenue 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. Itargued thatby filing his complaint in Pierce County, Mr. Porter failed to file suit in "theproper 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 reliefrequested by the estate on the basis that Mr. Porter failed to file a complaint in Kittitas County and, by statute, his claims were barred. Itdid not address whether the late Mr. Boisso and Mr. Porterhad 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 hadbeen litigated and 4No. 31805-2-111; cons. 

### wiNo. 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. Itawarded the estate attorney fees in the probate action and costs in both proceedings, for a total of $29,942. Mr. Porter appeals orders and finaljudgments entered in both proceedings. ANALYSIS Washington's nonclaim statute, RCW 11.40.010, provides that "[a] personhaving

a claim againstthe decedent may not maintain an action onthe claim unless

...the claimanthas presented the claim as set forth in this chapter." Once a claim is filed, the personal representative shall allow orreject each claim, failing which the statute allows the claimantto petitionthe court for a hearing to determine whetherthe claim should be allowed orrejected. RCW 11.40.080. Where, as here, a creditor's claim is rejected by the personal representative, RCW 11.40.1

### OO( 1) provides that "the claimant must bring suit against the personal representative within thirty days afternotification ofrejection orthe claim is forever barred." Itgoes onto provide that the personal representative's notification ofrejection must advise the claimant that the claimant must bring suit in theproper court against the personal representative within thirty days afternotification ofrejection or the claim will be forever barred. Id. (emphasis added).



### 5No. 31805-2-III; cons. 

### wINo. 31809-5-III 

### Porter v. 

### Boisso


### Mr. Porter assigns error tothe court'sjudgmentquieting 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 subjectto the nonclaim statute and, alternatively, that his commencement ofthe Pierce County action satisfiedthe requirement that he timely file suit in "theproper court."2 We first address whether the claims asserted by Mr. Porter in Pierce County were subjectto the nonclaim statute. Finding that at least one ofthem was, wetumto whether commencement ofhis action in Pierce County satisfied a requirement that he timely bring action in "theproper court." 

### 1. Mr. Porter'sprincipal claims are not "claims againsta decedent" Chapter 11.40 RCW does not define the meaning of"claim againstthe decedent"

as used inthe nonclaim statute. In 

### Estate of Earls, 164 Wn. App. 447, 448, 262 P.3d 832 (2011), our court statedthatthe nonclaim statute "encompasses every species ofliability

a personal representative can be called upon topayout ofthe estate's general funds." Another recent decision ofour court held that '" [t]o constitute a 

### claim against the estate of a deceasedperson, an obligation must consist ofa 

### debt incurred by or for the decedent

2Mr. Porter also assigns error onthe basis that his filing ofthe Pierce County action "tolled" the 30-day limitation period and thatthe superior court erred in applying claim and issue preclusionto 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 oferror further. 6No. 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.2d418 (1953)). Mr. Porter argues thatthe claims asserted in his Pierce County action were not claims against a decedentbecause he was seeking recognition ofhis interest in the property and enforcement ofa rightto completethe purchase. With respectto his claims for declaratory reliefand specific performance, a number ofWashington cases supportMr. Porter'sposition. 

### In Bairdv. 

### Knutzen, 49 Wn.2d 308, 310, 301 P.2d 375 (1956), the Bairds had granted a three-year logging easementto 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 ofthe three-year term. The Knutzens used the easement for the three years but failed to pay the full amount ofrent 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 metby 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 affirmedthe trial court's order for specificperformance finding that "[a]n action for specific performance ofacontract is notwithin thepurview ofthe statute." 

### Baird, 49 Wn.2d at 310 (citing 

### Southwickv. 

### Southwick, 34 Wn.2d 464,208 P.2d 1187 (1949)). 7No. 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'Steentenpercent ofhis stock in a petroleum company in satisfaction ofa debt, buttitle to the shares was nevertransferred. When Wineberg's wife died, all ofthe shares were inventoried as community property in her estate. O'Steenfiled no creditor's claim. The court heldthathis subsequent lawsuit was not barred bythe nonclaim statute, because "RCW 11.40.010 applies only where the claim is

a general charge againstthe assets ofthe estate. Itdoes 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 aparty's request for the return ofproperty given as collateral where the secured obligation had been satisfied, explaining: It does not seem to us that the statute ofnonclaim has any application to the facts in this case. The respondent is not seeking to recover anything from the assets ofthe estate. She is not depletingthe estate in any way. The property which was awarded to her did notbelong tothe estate, and no moneyjudgment ofany character was sought. Respondent is simply defending an actionbroughtby 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 nothave to make a claim againstthe estate as long as the particularproperty 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 ownproperty. Woerner American Law ofAdministration, Vol. 3, 

### §402. Many authorities



### 8No. 31805-2-III; cons. 

### wi No. 31809-5-III 

### Porter v. 

### Boisso approving the rule are quoted with approval in 

### Davis v. Shepard, 135 Wash. 124,237P. 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 otherwisebe inventoried as part ofthe 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 communityproperty-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 recoverhis or her share ofcommunity 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 aproperty interest and the seller's interest under that

9No. 31805-2-III; cons. 

### wi No. 31809-5-II1 

### 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)). Forprobate purposes, Washington cases recognize that the 

### vendor's interest under such a contract is personal property ratherthan 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 ofthe owner's domicile, notthe state wherein the land lies). Mr. Porter's claims for specific performance and declaratoryjudgment asserted his property interest as vendee under an alleged real estate contract. He was seekingto . ensure that the estate properly excluded the Pierce Countyparcels from its inventory, recognized the personal property character ofthe vendor's interest held by Mr. Boisso at the time ofhis death, and honored Mr. Porter's right to acquire title in accordance with the terms ofhis 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 judgmentwere not claims against a decedent within the meaning ofthe nonclaim statute. As an alternative to his claims for specific performance and declaratoryjudgment, however, Mr. Porter's Pierce County complaint asserted a restitution claim: 10No. 31805-2-III; cons. 

### wi No. 3l809-5-III Porter v. Boisso Alternatively, the plaintiffis entitled to damages for unjust enrichment because he has continually resided on the property from 1999 tothepresent date and has expendedthousands ofdollars in maintaining and improving the property, all ofwhich expenditures and improvements were made with the full knowledge ofCharles Boisso. CP (318095) at 24. His prayer for reliefincluded the alternative of"ajudgment for damages for unjust enrichment in an amountto 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 entitlinghim to specificperformance despite noncompliance with the statute offrauds, restitution is his sole remaining claim. A claim for unjust enrichment is, within the language ofour Supreme Court's decision in Earls, 164 Wn. App. 447, a "species ofliability a personal representative can be called upon to payout ofthe estate's general funds" andthereby a "claim against the decedent" within the meaning ofRCW 11.40. Wetherefore tum to whetherMr. Porter brought suit on his unjust enrichmentclaim in "theproper court." II. The superior court is theproper court RCW 11.40.100(1) does notitselfcreate a requirement that a creditor with a claim against the estate file its post-rejection lawsuit in "thepropercourt." Rather, itrequires the personal representative to advise the claimantthat it mustbring suit in "theproper 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 11No. 31805-2-III; cons. 

### wiNo. 31809-5-III Porter 

### v. Boisso



### propercourt. .. orthe claim will be forever barred." Br. ofResp't at 1. Butthe requirement that the claimanttimely file suit and the requirement that thepersonal representative warn the claimant are distinct and appear several sentences apart in the applicable subsection ofthe nonclaim statute. The subsection reads in its entirety: 

## If thepersonalrepresentative rejects a claim, in whole or ilf part, the claimant must bringsuitagainst thepersonal representative within thirty days after notification of rejection or the claim isforever barred. The personal representative shall notify the claimant ofthe rejection and file an affidavit with the court showing the notification andthe date ofthe notification. The personal representative shall notify the claimant ofthe rejection by personal service or certified mail addressed to the claimant or the claimant's agent, ifapplicable, at the address stated in the claim. The date ofservice or ofthe postmark is the date ofnotification. The notification mustadvise the claimant that the claimant mustbringsuit in theproper court against thepersonalrepresentative within thirty days after notification of rejection or the claim will beforever 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 "theproper court" requires us to review other sources oflaw. "Subjectmatterjurisdiction 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). "Venuerules serve to limit a plaintiffs choice offorum to ensure that the locality ofa lawsuit has some logical relationship to the litigants or the subject

12No. 31805-2-III; cons. 

### wi No. 31809-5-III Porter 

### v. Boisso

matter ofthe 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 constitutionprovides, "The superior court shall have originaljurisdiction in all cases at law which involve

... all matters ofprobate." CONST. art. IV, § 6. It further provides that "[t]he superior court shall also have originaljurisdiction in all cases and ofall proceedings in whichjurisdiction shall nothave beenby law vested exclusively in some other court." Id. 3 The Washington Supreme Court has interpreted this language

as givingto the superior court'" universal originaljurisdiction,'" thereby preventingthe legislature from limiting subject matterjurisdiction as among superior courts located in different counties. Ralph, 182 Wn.2d at 252 (quotingMoore 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 statedpurpose of"set[ting] forth generally applicable statutory provisions for the resolution ofdisputes 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, implyingthat it must refer to a superior court in a particular county. Br. ofResp't at 12-13. Butboth the constitution and the relevant statutes speak predominantly, ifnot 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 "theproper court" as referring to the single, statewide superior courtrecognized in the state constitution. 13No. 31805-2-111; cons. wiNo. 31809-5-111 Porter 

### v. Boisso jurisdiction and a venue provision. Thejurisdictionprovision provides that "[t]he superior court ofevery county has original subject matterjurisdiction overtheprobate of wills and the administration ofestates ofincapacitated, missing, and deceased individuals in all instances." RCW 11.96A.040(1). It also provides [t]he subject matterjurisdiction ofthe superior court applies withoutregard to venue. A proceeding or action by or before a superior court is not defective or invalid because ofthe selected venue ifthe court has jurisdiction ofthe subject matter ofthe action. RCW 11.96A.040(4). TEDRA's venue provision provides thatthe original venue for proceedings pertaining to the probate ofwills and most other estate administration matters is "in any county ofthe state ofWashington that the petitioner selects," subjectto 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 ofadministration have been granted in the state ofWashington," however, "all orders, settlements, trials, and otherproceedings 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 andjurisdiction in Washington courts appear in chapter 4.12 RCW. RCW4.12.030 identifies grounds for changingthe venue ofan action, including "[t]hatthe county designated in the complaint is not the proper county." RCW 4.12.030(1). Where a motion for change ofvenue on the basis thatthe

14No. 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." RCW4.12.060. As our Supreme Court recently observed in Ralph, "RCW4.12.030(1) contemplates that actions will inevitably be filed in the wrong county and RCW4.12.060 authorizes moving an improperly filed action 'to the county where the action oughtto 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, pursuantto the provisions ofrule 12, requests that the trial be held in the proper county and files an affidavit ofmerits." CR 82(b). At least two Washington cases have held, directly or indirectly, that "theproper 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 ofa claim that the executor contended had been pursued by improperly asserting an action in the existingprobate rather than filing a separate civil action. The facts in McWhorter were more compelling than those in the present case-unlikethe venue ofan action, which can be wrong but is subject to waiver

or correction, the procedure followed in McWhorter was unquestionably wrong under existing case law requiringthe commencement ofa 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 'IBank, 48 Wn.2d 188, 190,292P.2d 203 (1956)). Still, this court held 15No. 31805-2-111; cons. 

### wiNo. 31809-5-111 Porter v. Boisso

that the superior court was "theproper court" and whatever mistakes had been made, the claim had beenpursued in the superior court: [Former] RCW 11.40.60 requires that suits upon rejected claims be brought "in the proper court" within 30 days ofnotice ofrejection. The "propercourt" 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 thejurisdiction 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 "shouldhave been brought in superior court for Grant county, the probate forum, instead ofbeing instituted in superior court for Chelan county." Id. Itrejected 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, "theproper court" in which aperson having a claim against a decedent is to bring suit is the superior court. The estate argues that even if"theproper court" underthe nonclaim statute is the superior court, "judicial admissions" estop Mr. Porter from arguing thatjurisdiction was proper in Pierce County. Resp't's Br. at 30. Itpoints specifically to the "Order Transferring Venue and Jurisdiction to Kittitas County," and its finding that the "action 16No. 31805-2-111; cons. 

### wiNo. 31809-5-111 

### Porter v. 

### Boisso [is] ofa nature thatrequires change ofvenue andjurisdictionto Kittitas County." Br. of Resp't at 30. Itrelies on

### Mukilteo RetirementApartments v. 

### Mukilteo Investors LP, 176 Wn. App. 244, 256 n.8, 310 P.3d 814 (2013). 

### Mukilteo RetirementApartments deals withjudicial admissions that are made in a party's answer, are neverdeletedby amendment, and are the basis on which a case is tried. Itis clearly inapposite. More importantly, language in the Pierce County court's order is not inconsistent with the position Mr. Porter was taking atthe time. While it is

now clear from the Supreme Court's decision in

### Ralph that the Pierce County court was nottransferringjurisdiction, the concept oftransferringjurisdiction was consistentwith Mr. Porter's beliefin 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 matterjurisdiction. Until abrogated by

### Ralph, Washington decisions hadheld 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" itsjurisdiction 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 thepropercourt. 

### Ill. Conclusion andattorney fees Forthe foregoing reasons, the trial court erred in treating Mr. Porter as having failed totimely bring suitunderthe nonclaim statute and in quietingtitle in the Pierce 17No. 31805-2-III; cons. 

### wiNo. 31809-5-III Porter 

### v. Boisso County properties in the Boisso estate. Itnecessarily erred in applying itsjudgment in the probate action as collateral estoppel and, on that basis, dismissingthe claims ofMr. Porterthat had been transferred to Kittitas County by the Pierce County Superior Court. The court's finding that the estate was the prevailingparty in the probate proceeding for purposes ofawarding attorney fees was an abuse ofdiscretion. Bothparties request an award ofattorney fees on appeal under RCW 11.96A.150. The estate additionally requests an award offees underRAP 18.9, which authorizes us to require a party to pay the opposingparty's reasonable attorney fees and costs ifan 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, tobe awarded to any party: (a) From any party to the proceedings; (b) from the assets ofthe estate ortrust involved in the proceedings; or (c) from any nonprobate asset that is the subject ofthe proceedings. The court may orderthe 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 underthis 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 eitherparty. We vacate the finaljudgments in both actions; reverse the trial court's orders clearingtitle, dismissing Mr. Porter's complaint with prejudice, and awarding attorney

18No. 31S05-2-III; cons. 

### wiNo. 31S09-5-II1 Porter 

### v. Boisso

fees and costs to the estate; and remand for further proceedings consistentwith this OpinIOn.

# dz~,d?**Siddowa~'** WE CONCUR:

19No. 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% interestrate. Current rate with good credit is around 7.25%

People I'vetalked to say owner who holds the paper should ask 2-3% above bank rate, to help coverthe risk. I'm asking 8.25%

The yearly interest will be $8819.00 monthly it will be $734.33 so you'll need topay $734.33 interest a month plusprincipal. I'vebeen taking all money given to me offthe 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 interestplus

20No. 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 offprincipal 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