                                                                                                     FILED
                                                                                             uCURT
                                                                                                     OF APPEALS
                                                                                                   DIVISION II
                                                                                            20111 JUL 22 ABM10 : 20
    IN THE COURT OF APPEALS OF THE STATE OF WASH NQT S N
                                                                                                         SilInTON
                                               DIVISION II                                  0 Y\


In re the Estate of:                                                    No. 44246 -941


CATHERINE HENINGTON,


                                   Deceased.


                                                              PUBLISHED IN PART OPINION




        MELNICK, J. —         Richard Wills, the personal representative ( PR) of Catherine Henington' s


estate, challenges the trial court' s order closing the estate and distributing its assets to her heirs.

He argues that the trial court erred when it ( 1) denied three creditor' s claims as time barred and


 2) failed to withhold a reserve for paying taxes and penalties. Additionally, both Mr. Wills and

the respondent, Roy Henington, the decedent' s estranged husband, seek attorney fees on appeal.

In the published part of this opinion, we hold that the filing of creditor' s claims did not toll the

statute of limitations; however, because there is insufficient evidence in the record regarding the

exact nature of the claims, we remand to the trial court to determine whether they are time

barred. In the unpublished part of this opinion, we hold that the trial court erred when it failed to

withhold a reserve because insufficient evidence existed to show that all the taxes had been paid.

We remand for the trial court to reconsider the creditor' s claims and whether taxes are owed.


We do not award attorney fees to either party on appeal.

                                                   FACTS


        Ms. Henington died testate on March 15, 2008, at which time she and her husband, Roy

Henington, were estranged. Ms. Henington' s will left her entire estate, with the exception of Mr.

Henington'   s   share   of   the community property, to the daughter    she   had   with   Mr. Henington.
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Initially appointed as the PR, Mr. Henington subsequently had his attorney, Mr. Wills, succeed

him as the PR.


           Mr. Wills    published a probate notice     to   creditors on      April 2, 2008.     On May 15, 2008, the

estate received three creditor' s claims from Leonard Bradley, Ms. Henington' s father: one from

2003 for $9,446. 12 that Ms. Henington had been paying off before her death, one from 2008 for

 4, 000,     and another      from 2008 for $ 300.   Mr. Wills took           no action on     these   claims.   The estate


also received two creditor' s claims from Ford Motor Company, both of which were rejected, and

a creditor' s claim from Evergreen Bank, which the estate paid.


           The Internal Revenue Service ( IRS) also sent the PR notice that Ms. Henington had not

paid   her   personal   income taxes for the four      years      before her death.      Consequently, the estate paid

Ms. Henington'         s personal   income taxes     and   the    estate' s   taxes.    Mr. Henington wanted to file


joint returns, so Mr. Wills sent the returns to Mr. Henington for his signature. Mr. Henington did

not   reply,   so   Mr. Wills eventually filed the joint          returns without       Mr. Henington' s     signature.    A


few months later, Mr. Henington signed the returns and filed them with the IRS.


           In August 2012, Mr. Wills filed in the trial             court a "   Final Report & Account & Petition


for Distribution."        Clerk' s Papers at 4. The petition alleged that the estate was insolvent and that


it   should    be   closed.    It requested fees for Mr. Wills' s services as PR and asked the court to


reserve some of the estate to pay any outstanding IRS liabilities that may come due. The petition

then stated that any remaining money should be first used to pay Mr. Bradley' s creditor' s claims

and the balance should be split between Mr. Henington and Mr. and Ms. Henington' s daughter.

           The      superior    court   commissioner    closed       the   estate      and   found that Mr.       Bradley' s

creditor' s    claims were       time barred and that       all   amounts     due to the IRS had been            paid.    The




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commissioner further ordered that Mr. Wills' s fees be paid out of the estate' s assets and the


remainder distributed evenly between Mr. Henington and Mr. and Ms. Henington' s daughter.

          Mr. Wills filed a motion for revision of the commissioner' s order, arguing that Mr.

Bradley' s creditor' s claims were not time barred and that the commissioner erred when he found

that the       estate   had    paid   all    amounts        due to the IRS.              Mr. Wills also      sought additional


compensation         for his   services as personal representative.                 The trial court denied the motion for


revision    but increased Mr. Wills'                s   fees    by $    10, 000.   Mr. Wills appeals the denial of Mr.


Bradley' s creditor' s claims and the failure to set aside a reserve for unpaid taxes.

                                                                ANALYSIS


I.        CREDITOR' S CLAIMS


          Mr. Wills argues that the trial court erred when it dismissed Mr. Bradley' s creditor' s

claims    as    time barred.      We hold that the mere filing of a creditor' s claim in a probate case,

without any further action by the claimant or the PR, does not toll the statute of limitations.

          In order to resolve this case, we rely on inter -related statutes from chapter 4. 16 RCW and

chapter     11. 40 RCW.        In so doing, we find that the meaning of each of the applicable statutes is

plain on its face.



            Statutory    interpretation involves               questions of    law that   we review   de   novo.   In construing

a statute,     the   court's objective           is to determine the legislature' s intent."               State v. Jacobs, 154


Wn.2d 596, 600, 115 P. 3d 281 ( 2005) (                    citation omitted). "` [       I] f the statute' s meaning is plain on

its face, then the court must give effect to that plain meaning as an expression of legislative

intent. '      Jacobs, 154 Wn.2d            at   600 ( quoting     Dep' t    of Ecology    v.   Campbell & Gwinn, LLC, 146


Wn.2d 1 , 9 - 10, 43 P. 3d 4 ( 2002)). "[               T] he   plain   meaning is ...    derived from what the Legislature



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has said in its enactments, but that meaning is discerned from all that the Legislature has said in

the statute and related statutes which disclose legislative intent about the provision in question."

Campbell & Gwinn, 146 Wn.2d at 11.


           RCW 4. 16. 200      provides: "   Limitations on actions against a person who dies before the


expiration of the time otherwise limited for commencement thereof are as set forth in chapter

11. 40 RCW."         A creditor must then follow the claims procedures established in chapter 11. 40


RCW or be forever barred from making a claim or commencing an action against the decedent.

However, if the       claim or action   is barred   by   other applicable statutes,          it   cannot   be   pursued. "   An


otherwise applicable statute of limitations applies without regard to the tolling provisions of
                      1
RCW 4. 16. 190. "         RCW 11. 40. 051( 2).


           Contrary to the PR' s argument, when read together, this statutory scheme does not state
                                                                                       2
that the   filing   of a creditor' s claim   tolls the   statute of     limitations.       Rather, it affirmatively states

that limitations     on actions   apply to   chapter     11. 40 RCW: Claims Against Estate. RCW 4. 16. 200;


RCW 11. 40. 051( 2).         Therefore, we hold that the statute of limitations is not tolled by the mere
                                                            3
filing   of a creditor' s    claim against     an estate.           Tolling occurs when an action is commenced

against an estate. RCW 4. 16. 170.




1
    RCW 4. 16. 190, which tolls the statute of limitations for personal disability, is inapplicable to
the present case.


2
    We do recognize that the legislature has the power and authority to include tolling provisions in
statutes and, in fact, has done so. See RCW 4. 92. 110 and RCW 4. 96. 020( 4).


3 We are not deciding whether the statute of limitations is tolled when the parties take action on
the claim and petition the court pursuant to RCW 11. 40. 080( 2).
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           In so ruling, we note that neither the PR nor Mr. Bradley acted on the claims after they

were     filed in    May    2008.      The PR did         not at   any time     allow or reject         the    claim.    Mr. Bradley did

not serve written notice on                the PR     or petition     the court       for   a   hearing   on    the   matter.    See RCW


11. 40. 080( 2).      Approximately four years of inaction elapsed before the court declared the claims

time barred.


           In the present case, Mr. Bradley complied with the time limits of RCW 11. 40. 051 for

filing    a   creditor' s     claim.       However, we are unable to determine from the trial court record


whether        the   statute    of   limitations has        run.     The applicable statute of limitations depends on


whether       the loans     were     made    pursuant      to oral   or written contracts.              RCW 4. 16. 040, . 080. Here,


the parties do not agree on the nature of the contracts underlying the loans. Because Mr. Bradley

did not have a chance to fully present his creditor' s claims to the court, there is insufficient

evidence        in the   record       to   determine       which     statute     of    limitations       applies.       Accordingly, we
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remand        for the trial    court to    determine the         actual statute of     limitations        on   the   creditor' s claims.




              On   remand,     the $ 300    claim must       be    allowed.     A     claim     that   does   not exceed $      1, 000 and is


presented in the manner provided in RCW 11. 40. 070 must be deemed allowed and may not be

rejected unless the PR has notified the claimant of rejection of the claim within the later of six

months from the date of first publication or two months from the PR' s receipt of the claim.

RCW 11. 40. 090( 2).              The      statute   is   not   equivocal;      all   claims under $           1, 000 must be accepted


unless     the PR      notifies      the claimant within a           specific    time frame.           Mr. Wills did not notify Mr.

Bradley       that he    was    rejecting this claim            within   the statutory time frame.              Regardless of whether




4
    We are not ruling on whether the statute of limitations has run in the interim, leaving that
determination to the trial court.
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44246 -9 -II



the three -year            year statute of
                    or six -                    limitation     applies,   Mr.   Bradley timely filed   the $ 300 claim.



Therefore, this claim is automatically allowed under RCW 11. 40. 090( 2).

         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.


I.       TAXES


         Mr. Wills argues that the trial court erred when it closed the estate and distributed it to


Mr. Henington and to Mr. and Ms. Henington' s daughter without reserving a portion to pay for

taxes   and    penalties.       Because the evidence does not show that the estate had paid the entire


amount owed in taxes, we agree.


         We      review challenged      findings      of   fact for   substantial evidence.   In re Estate of Jones,

152 Wn.2d 1, 8,        93   P. 3d 147 ( 2004).       Substantial evidence is evidence sufficient to persuade a


rational, fair -
               minded person of the finding' s truth. Jones, 152 Wn.2d at 8.

          The trial court found that, according to the PR, the estate had paid all amounts due to the

IRS     This     finding   is   not supported   by   substantial evidence.        Although Mr. Wills had filed and


paid Mr. and Ms. Henington' s joint income tax returns and the estate' s income tax returns, he

represented to the trial court that he did not have confirmation from the IRS that it had accepted

the   returns.    And he stated that there may be additional taxes because the joint returns were late

and   Mr. Henington         initially failed   to   sign   them.    Thus, the record does not show that the estate


had paid the IRS all amounts due.




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           The PR retains the power to deal with the taxing authority of any federal, state, or local

government and hold a reserve for the payment of any additional taxes, interest, and penalties.

RCW 11. 68. 114 Because it is not clear that the estate has paid all of the taxes, we remand for


the trial court to consider whether additional taxes are owed and, if necessary, to allow Mr. Wills

to establish a reserve for them.


II.        ATTORNEY FEES


           Mr. Wills requests administrative and attorney fees for this appeal. If no compensation is

provided for the PR in the will, then the court may allow such compensation as it deems just and

reasonable,       including       compensation      for   services as an      attorney.     RCW 11. 48. 210.    The PR may

apply to the court at any time for compensation. RCW 11. 48. 210. RCW 11. 96A. 150( 1) gives us

discretion to award attorney fees to any party from any party or from the estate' s assets in an

amount      it deems     equitable.         In awarding attorney fees, we may consider any and all relevant

factors,    including        whether   the litigation       benefits the      estate.   RCW 11. 96A. 150( 1).     Here, the


estate is likely insolvent. We decline to award additional fees on appeal.

           Mr. Henington also requests attorney fees under RAP 18. 9 for responding to a frivolous

appeal.     An appeal is frivolous if it presents no debatable issues upon which reasonable minds


could    differ   and   is   so   lacking   in   merit   that there is   no   possibility   of reversal.   In re Marriage of

Foley,     84 Wn.    App. 839, 847,           930 P. 2d 929 ( 1997).           Here, we reverse the trial court' s order.


Therefore, this appeal is not frivolous and we do not award Mr. Henington attorney fees on

appeal.




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        We remand for the trial court to reconsider Mr. Bradley' s creditor' s claims and whether

taxes are owed. Neither party receives attorney fees on appeal.




We concur:




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