                                                                                                     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


                                                    DIVISION II


    In re the Estate of:                                                            No. 45917 -5 -II


    ANITA D. TUTTLE,


                                        Deceased.                              UNPUBLISHED OPINION


    DAISY ANDERSON; DOREEN HUNT; and
    SHARON HORAN,


                                        Appellants,


            V.




    PATRICIA          HICKLIN,             as       personal

    representative of the Estate of Anita D. Tuttle,


                                         Respondent.


           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 that the 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 of the

Trust   and   Estate Dispute Resolution Act ( TEDRA),        chapter   11. 96A RCW.   We hold that ( 1)


Hicklin did not waive 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 four months later, Anderson, Horan, and Hunt, each of whom 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 September 23,

2013 and obtained orders directing the clerk of the Clallam County Superior Court to issue

Hicklin citations requiring her to appear on October 4, 2013 and show cause why the trial court

should not declare the December 2009 will invalid.2




2 A citation was " equivalent to a civil summons, conferring personal jurisdiction over a party to a
will contest."   In   re   Estate of Kordon, 157 Wn. 2d 206, 210, 137 P. 3d 16 ( 2006). The legislature

                                                       V
No. 45917 -5 -II



         Hicklin answered Anderson' s petitions, asserting as affirmative defenses the trial court' s

 lack   of personal ... [        and] subject matter jurisdiction" 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

 that the 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 direct Anderson to note the " matter[ s] for a trial setting, for trial 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 under the will contest statutes and under TEDRA, this really should be set for trial 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 that the 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 court to 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 for the 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


personal jurisdiction, insufficiency of process and service of process, 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 her with a copy of the 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 of Tuttle' 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 or was estopped from asserting the

affirmative defenses raised in the motion to dismiss. Hicklin contends she did not waive the


affirmative defenses and that the doctrine of equitable 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 of Ecology      v.   Campbell & Gwinn,




                                                                M
No. 45917 -5 -II



LLC, 146 Wn. 2d 1, 9, 43 P. 3d 4 ( 2002).                     Common law waiver 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 apply the doctrine of

equitable estoppel for an abuse of discretion. 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 of the


show cause hearing in her. answer constituted a motion to dismiss for insufficiency of process

under CR 12( b)( 4) and that Hicklin' s request that the trial court not resolve the petitions on their


merits at the show cause hearing constituted a motion to strike under CR 12( f),citing the clerk' s

minutes of the 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 of defenses to " a claim for relief' made " in any

pleading." 3    The rule lists a number of affirmative 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 if one is required, except that the following defenses
        may     at   the option of the pleader be                made       by   motion: (    1) lack of jurisdiction over
        the    subject matter; ( 2)     lack       of jurisdiction 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 to join a party under rule 19.
        A motion making any of these defenses shall be made before pleading if a further
        pleading is permitted. No defense or objection is waived by being joined 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   to
No. 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                  of jurisdiction over     the' person," CR


12( b)( 2), "   insufficiency    of process,"         CR 12( b)( 4),         and "   insufficiency   of service of process."   CR


12( b)( 5).


          In the interests of judicial 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 a party to assert all possible CR 12( b) defenses in a single motion;

any defense      not asserted     in the     motion     is   waived unless otherwise provided               in CR 12( h). CR


12( h)( 1) specifically provides that the affirmative defenses of "lack of jurisdiction over the

person ...       insufficiency    of process, [       and] insufficiency of service of process" are among those

waived if not 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 at the trial any defense in law
          or fact to that claim for relief.


4 CR 12( g) provides that
               A party who makes a motion under this rule may join with it any other
          motions      herein    provided       for   and     then      If a party makes a
                                                                     available        to the party.

          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)   hereof on any of the grounds there stated.


                                                                        ON
No. 45917 -5 -II



otherwise the trial court had a statutory obligation to determine the will contest at the 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 court to strike out " any insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter" from a pleading. While the minutes of the show cause

hearing record Hicklin' s request as a motion to strike the hearing, CP at 25, neither party, nor the
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 not the type of request 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 of CR 12, they did not trigger the consolidation provisions

of   CR 12( g).   King v. Snohomish County, 146 Wn.2d 420, 427, 47 P. 3d 563 ( 2002).

Consequently, Hicklin did not waive 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 a petition or answer, the initial
           hearing must be a hearing on the merits to resolve all issues of fact 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) If the initial hearing is not a hearing on the merits or does not result in
           a resolution of all issues of fact and all issues of law, the court may enter any order
           it deems appropriate, which order may ( a) resolve such issues as it deems proper,
            b) determine the scope of discovery, and ( c) set a schedule for further proceedings
           for the prompt resolution of the matter.



                                                           7
No. 45917 -5 -II



dismiss by failing to consolidate them with the objection or the request to set the case for trial.

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 of trial court jurisdiction, (2) failure
       to establish.facts upon which relief can be granted, and ( 3) manifest error affecting
        a constitutional right.




In considering whether an issue had been raised under this rule, the court in Bennett v. 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 of the nature of the 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 of apprising the court of a common law waiver argument. In addition, counsel' s remarks

included nothing about any reliance by Anderson 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      absence
No. 45917 -5 -II



of any arguable reference to them, we cannot say that Anderson 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 of apprising the court of a common law waiver argument. In addition, counsel' s remarks

included nothing about any reliance by Anderson 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, 141 Wn.2d   at   35.   In the absence of any arguable reference to them, we

cannot say that Anderson 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 that the trial court erred by granting the motion to dismiss,

because she properly served Hicklin based on provisions of TEDRA. 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 of showing proper service of process.

See Streeter- Dybdahl   v.   Huynh, 157 Wn.    App.   408, 412, 236 P. 3d 986 ( 2010).   Further, the party

asserting that a trial court has personal jurisdiction bears the burden of establishing it after a

challenge   to that jurisdiction. 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




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No. 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 basic to any litigation is jurisdiction. 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 of process 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 a will must personally serve the estate' s personal representative with

the petition commencing the will' contest within 90 days of filing 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 of tolling 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 after the date of filing the petition. If, following
           filing, service is not so made, the action is deemed to not have been commenced
           for purposes of tolling the statute of limitations.

     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 existing judicial 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
     existing judicial proceedings.
RCW 11. 96A. 100( 3) prescribes the form the summons required by RCW 11. 96A. 100( 2) must
take.



                                                                   10
No. 45917 -5 -II.



           Once Hicklin challenged the service of process, and consequently the trial court' s

personal jurisdiction over her, Anderson bore the burden of establishing proper service and the

trial   court' s personal   jurisdiction    over   Hicklin. Anderson introduced            no evidence       to   do   so:   no




return of service by the sheriff or a sheriff' s deputy stating that he or she personally delivered the

summonses and petitions to Hicklin, no affidavit of service by a person attesting to personally

delivering the summonses and petitions to Hicklin or properly 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 her burden of proving 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] existing judicial

proceeding[]"       where a proceeding is brought incidental to that existing proceeding. Anderson

argues that this provision excused her from personally serving the summonses and petitions on

Hicklin, because the petition was filed incidentally to the probate of Tuttle' s estate.

The requirement of personal service of the petition on the personal representative arises from

RCW 11. 24. 010, which is not part of TEDRA. 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 of personal service of the petitions on Hicklin as personal




8 Anderson' s attorney argued at the hearing on the motion to dismiss that she had served the
estate' s attorney. Anderson repeats this argument in her briefing. Even if we accepted her
representations as evidence, they fail to establish that Anderson personally served Hicklin. See
Ashcraft     v.   Powers, 22 Wash. 440, 442- 43, 61 P. 161 ( 1900); RCW 4. 28. 080.

                                                                 11
No. 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 of the 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 of the 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 of process requirements, contradicting a long line of Supreme Court,precedent,

recently reaffirmed, that service of process 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 of cases where the courts have excused technical failures to comply with statutory notice

requirements under the doctrine of substantial 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 pursuant to RAP 18. 1( a) and RCW

11. 96A. 150. While citing to those statutory provisions, she offers no argument why attorney

fees are justified. We decline to award fees to Anderson given her failure to justify them.



                                                           12
No. 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 a will is

sustained against a challenge, "       unless it appears that the contestant acted with probable cause and


in   good   faith."   Hicklin contends that we 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 about their behavior betrays a desire to

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 of reasonable attorney fees is warranted under the provision

because Anderson' s petitions have delayed the administration of the 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 or this appeal

to frustrate the closing of Tuttle' s estate. They simply wanted their day in court. Again, we find

an award of fees unwarranted.


                                                 CONCLUSION


            Anderson failed to comply.with the provisions of chapter 11. 24 RCW governing service

of process in will contests. The trial court properly dismissed her petitions challenging the will




                                                          13
No. 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.




                                                      JoE   EN,   A.C. J.

 We concur:




  LSE, J.




 SUTTON, J.




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