                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             May 8, 2018

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 GABRIEL   E.     GOURDE                       and                    No. 49983-5-II
 CHARBONNEAU D. GOURDE,

                                Appellants,

           v.
                                                             ORDER GRANTING MOTION
 ANN L. GANNAM,                                                    TO PUBLISH

                                Respondent.

        Respondent, Ann L. Gannam, moves to publish the court’s February 21, 2018 opinion.

The court has determined that the opinion in this matter satisfies the criteria for publication. It is

now

        ORDERED that the motion to publish is granted and the opinion’s final paragraph

reading:

                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.

is deleted. It is further

        ORDERED that this opinion is published.

        PANEL: Jj. Worswick, Bjorgen, Melnick.

        FOR THE COURT:




                                                               Melnick, J.
                                                                                           Filed
                                                                                     Washington State
                                                                                     Court of Appeals
                                                                                      Division Two

                                                                                    February 21, 2018

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    GABRIEL   E.     GOURDE                  and                  No. 49983-5-II
    CHARBONNEAU D. GOURDE,

                               Appellants,

         v.

    ANN L. GANNAM,                                         UNPUBLISHED OPINION

                               Respondent.

        MELNICK, J. — This case arises from a declaratory judgment action to interpret Daniel A.

Gourde’s will. Gabriel E. and Charbonneau D. Gourde, Daniel Gourde’s sons, appeal from the

trial court’s order granting summary judgment to Ann L. Gannam, the personal representative (PR)

of the estate.

        We conclude that the trial court did not err by granting Gannam’s summary judgment

motion because the Gourdes’ case is precluded by res judicata. We affirm.

                                             FACTS

I.      DEATH AND PROBATE OF DANIEL GOURDE

        Daniel A. Gourde died on June 10, 2014.       In his will, he identified his two sons,

Charbonneau D. Gourde and Gabriel E. Gourde,1 and his stepson, Andrew L. Wilson, as family

members. Daniel named Ann L. Gannam as his PR and directed that she have “full power and




1
  We refer to the Gourdes individually by their first names, and Charbonneau and Gabriel
collectively as “the Gourdes” for clarity. We intend no disrespect.
49983-5-II


authority to administer and distribute [his] estate in the manner herein provided without further

court intervention.” Clerk’s Papers (CP) at 12.

       Daniel’s will bequeathed his real property to Gannam as follows:

                In the event that ANN L. GANNAN [sic] is residing in my home located at
       . . . Chapman Road, Castle Rock, Washington, at the time of my death, I bequeath
       to her the right to reside there at her expense. In lieu of rent, she shall pay all
       expenses of upkeep, property taxes, fire insurance, all utilities, repairs and routine
       maintenance, keeping the property in good condition, reasonable wear and tear
       expected.
                This bequest will terminate upon the death of ANN L. GANNAN [sic], or
       if she abandons the property for a period of six consecutive months, whichever first
       occurs.

CP at 10. In this section of the will, “my home” was underlined by hand and “the house” was

handwritten above it. CP at 10. The will bequeathed the rest of the estate to be divided with 42.5

percent to each of Gabriel and Charbonneau and 15 percent to Wilson. Wilson accepted $17,400

from the Gourdes in exchange for his interest in the Chapman Road property. As a result, the

Gourdes held the future interest in the property after the expiration of Gannam’s life estate.

       On June 20, 2014, the Cowlitz County Superior Court admitted Daniel’s will to probate.

The court appointed Gannam as the PR of the estate and listed Daniel’s heirs as Gannam,

Charbonneau, Gabriel, and Wilson. On June 25, 2015, Gannam filed a declaration of completion

of probate, stating that the administration of Daniel’s estate was complete.

       On July 1, Gannam deeded the real property to herself by PR deed. The Gourdes then

objected to the declaration of completion of probate. They argued that the deed conveying the

property to Gannam failed to include the clause from the will providing that Gannam would lose

her interest in the property if she abandoned it. They demanded “an accounting as authorized by

RCW 11.68.110(2).” CP at 60. In a letter attached to their objection, they stated that they would

withdraw their objection if Gannam would re-record the deed and include the language they



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49983-5-II


proposed. They also stated that they would “not contest anything further if the deed [was] re-

recorded to reflect the language in the Will.” CP at 72.

       Gannam filed a “corrected personal representative deed” that mirrored the language of the

original but added a clause providing for abandonment of the property. CP at 7. The corrected

deed read:

                THE UNDERSIGNED GRANTOR, ANN L. GANNAM, the duly
       appointed and qualified Personal Representative of the Estate of DANIEL A.
       GOURDE, appointed by the Cowlitz County Superior Court in Probate Cause No.
       14-4-00152-3, which Court entered an Order of Solvency dated June 20, 2014,
       being authorized to settle said estate without the intervention of any court, and not
       in her individual capacity, hereby GRANTS, CONVEYS and QUIT CLAIMS to
       ANN L. GANNAM, a single woman, for her lifetime or until she abandons the
       property, whichever is sooner, according to Article IV of the decedent’s Last Will
       and Testament (a true and accurate copy of which is attached as Exhibit A hereto),
       then to CHARBONNEAU D. GOURDE and GABRIEL E. GOURDE, married
       men each to their separate estates, all of the decedent’s interest in real property
       situate in Cowlitz County, Washington, and more particularly described as follows:
                [Metes and bounds of the property]
                SUBJECT TO and TOGETHER WITH easements, restrictions and
       reservations of record.

CP at 7.

II.    CURRENT DECLARATORY JUDGMENT ACTION

       On May 24, 2016, the Gourdes filed a declaratory judgment action seeking a declaration

of the respective parties’ rights to the Chapman Road property. They alleged that the corrected

PR deed was in conflict with the language of the will because Daniel had intended to bequeath

only the right to reside in the house to Gannam, intending the remainder of the real estate to

immediately pass to Gabriel and Charbonneau through the residual estate.

       The parties filed cross motions for summary judgment. Gannam argued that the Gourdes’

arguments were barred by res judicata, estoppel, and waiver.




                                                4
49983-5-II


       The trial court denied the Gourdes’ motion for summary judgment and granted

Gannam’s. The Gourdes appeal.

                                            ANALYSIS

       We review an order for summary judgment de novo, performing the same inquiry as the

trial court. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). In doing so, we draw

“all inferences in favor of the nonmoving party.” U.S. Oil & Refining Co. v. Lee & Eastes Tank

Lines, Inc, 104 Wn. App. 823, 830, 16 P.3d 1278 (2001). “Summary judgment is proper if the

record shows that no genuine issue of material fact exists and that the moving party is entitled to

judgment as a matter of law.” U.S. Oil & Refining Co., 104 Wn. App. at 830.

I.     RES JUDICATA

       Gannam contends that res judicata precludes the Gourdes’ request for a declaratory

judgment because “[t]he time to challenge the interpretation of the Will was during the

administration of the estate—not eight months after the estate was closed.” Br. of Resp’t at 8. She

argues that the Gourdes could have raised all these arguments during the probate and, because they

did not, are now precluded from doing so in a separate action. We agree.

       A.      LEGAL PRINCIPLES

       “Under the doctrine of res judicata, no party may relitigate ‘claims and issues that were

litigated, or might have been litigated, in a prior action.’” Martin v. Wilbert, 162 Wn. App. 90, 94,

253 P.3d 108 (2011) (quoting Pederson v. Potter, 103 Wn. App. 62, 69, 11 P.3d 833 (2000)). The

doctrine “‘puts an end to strife, produces certainty as to individual rights, and gives dignity and

respect to judicial proceedings.’” Martin, 162 Wn. App. at 94-95 (internal quotations omitted)

(quoting Marino Prop. Co. v. Port. Comm’rs, 97 Wn.2d 307, 312, 644 P.2d 1181 (1982)).




                                                 5
49983-5-II


“Whether an action is barred by res judicata is a question of law that the court reviews de novo.”

Martin, 162 Wn. App. at 94.

        The “threshold requirement of res judicata is a final judgment on the merits in the prior

suit.” Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). The doctrine

then applies “‘where a prior final judgment is identical to the challenged action in (1) subject

matter, (2) cause of action, (3) persons and parties, and (4) the quality of the persons for or against

whom the claim is made.’” Martin, 162 Wn. App. at 95 (internal quotations omitted) (quoting

Lynn v. Dep’t of Labor & Indus., 130 Wn. App. 829, 836, 125 P.3d 202 (2005)). Res judicata

applies “‘not only to points upon which the court was actually required by the parties to form an

opinion and pronounce a judgment, but to every point which properly belonged to the subject of

litigation, and which the parties, exercising reasonable diligence, might have brought forward at

that time.’” Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 329, 941 P.2d 1108 (1997) (quoting

Golden v. McGill, 3 Wn.2d 708, 720, 102 P.2d 219 (1940)).

        B.      FINAL JUDGMENT

        Gannam argues that the declaration of completion she filed as PR to Daniel’s estate

“became the equivalent of a final judicial decree” pursuant to RCW 11.68.110(2). Br. of Resp’t

at 9.

        “A superior court’s order closing an estate is a final judgment that precludes a litigant from

bringing claims in a collateral action that could have been brought in the probate proceeding.”

Martin, 162 Wn. App. at 92. RCW 11.68.110(2) provides that a declaration of completion by a

PR with nonintervention powers shall “be the equivalent of the entry of a decree of distribution . .

. for all legal intents and purposes.” However, a declaration of completion does not close the

estate, discharge the PR, or have the effect of a decree of distribution if “an heir, devisee or legatee



                                                   6
49983-5-II


has petitioned the court . . . for an accounting.” In re Estate of Ardell, 96 Wn. App. 708, 714, 980

P.2d 771 (1999); RCW 11.68.110(2).

       Gannam filed the declaration of completion and then distributed the estate, quitclaiming

the Chapman Road property to herself. The Gourdes filed their objection to Gannam’s declaration

of completion within 30 days, as required by RCW 11.68.110(2). In their objection, they

demanded an accounting, “as authorized by RCW 11.68.110(2).” CP at 60. Although RCW

11.68.110(2) can turn a declaration of completion of probate into the equivalent of a binding court

order, it does not do so if an “heir, devisee, or legatee” of the decedent petitions the court for an

“order requiring an accounting . . . within thirty days.”

       In a letter accompanying their objection to the declaration of completion of probate, the

Gourdes stated that they would “not contest anything further if the deed is re-recorded to reflect

the language in the Will.”2 CP at 72. Gannam acceded to their demand and re-recorded the deed

including their requested language. The withdrawal of the Gourdes’ objection thus resulted in

Gannam’s declaration of completion ending the probate and amounting to a final judgment in the

probate of Daniel’s will. RCW 11.68.110(2).

       C.      SAME SUBJECT MATTER

       Gannam argues that “[b]oth actions concern the administration of the decedent’s Will” and

that the Gourdes declaration judgment action is “essentially a continuation of the original probate

action.” Br. of Resp’t at 11.




2
  By objecting to Gannam’s original PR deed, the Gourdes acknowledged their understanding that
they could challenge Gannam’s actions as PR. By promising “not [to] contest anything further” if
Gannam would add their proposed abandonment language, they effectively waived their other
challenges to the PR deed. CP at 72.


                                                  7
49983-5-II


       Although a probate action is “ostensibly in rem, it may have res judicata effect in a later in

personam tort action.” Hadley v. Cowan, 60 Wn. App. 433, 440, 804 P.2d 1271 (1991). Further,

“claims [that] are stated differently” may “nevertheless involve the same subject matter.”

Kuhlman v. Thomas, 78 Wn. App. 115, 124, 897 P.2d 365 (1995).

       In Martin, the trial court in the first probate action had entered distribution orders of the

estate on motion of the PR. 162 Wn. App. at 95. One of the heirs objected and the court ruled as

to the “various alleged misdeeds” of the PR. Martin, 162 Wn. App. at 95. Res judicata precluded

a later claim to part of the estate on the basis of the same “various alleged misdeeds” because they

constituted the same subject matter. Martin, 162 Wn. App. at 95.

       Here, the subject matter of the probate case and the present case concerns the appropriate

distribution of Daniel’s estate. The Gourdes do not challenge any part of Daniel’s will; rather they

seek interpretation of the PR deed that Gannam issued after the estate had closed. However,

because the deed references Daniel’s will, the present case would also require us to interpret

provisions of the will. Both cases implicate the proper interpretation and resolution of Daniel’s

will and thus concern the same subject matter.

       D.      SAME CAUSE OF ACTION

       To determine whether the present case and a prior action involve the same cause of action

for res judicata, we consider:

       (1) whether the rights or interests established in the prior judgment would be
       destroyed or impaired by the prosecution of the second action; (2) whether
       substantially the same evidence is presented in the two actions; (3) whether the suits
       involved infringement of the same right; and (4) whether the two suits arise out of
       the same transactional nucleus of facts.

Ensley v. Pitcher, 152 Wn. App. 891, 903, 222 P.3d 99 (2009). These factors “are analytical tools;

it is not necessary that all four factors be present to bar the claim.” Ensley, 152 Wn. App. at 903.



                                                 8
49983-5-II


          The original probate proceeding determined the parties’ respective rights to Daniel

Gourde’s property. Gannam’s interest in the Chapman Road property, as established by the

probate of Daniel’s will, could be destroyed by the prosecution of this declaratory judgment action.

          The “‘substantially the same evidence’ factor requires analysis of whether the evidence

necessary to support each action is identical.” Ensley, 152 Wn. App. at 903. In this case, the PR

deed and Daniel’s will are the only evidence to support the Gourdes’ claim. These documents

were both at the heart of the probate as well. Although the deed did not exist at the time Gannam

filed the declaration of completion, the Gourdes evidently had notice of the deed because they

challenged it on other grounds.

          Both cases involve determining the parties’ respective rights to the Chapman Road

property and arise out of the same “transactional nucleus of facts,” Daniel’s death and the proper

distribution of his estate.

          The Gourdes attempt to distinguish the causes of action, arguing that the probate was “for

the purpose of distributing the estate,” and this case is “for the purpose of interpreting a Corrected

Personal Representative Deed after distribution of the estate had taken place.” Br. of Appellant at

14-15. Aside from failing to provide any citation or support, their argument ignores the factors we

consider in determining whether two claims involve the same cause of action. If the Gourdes took

issue with the deed, RCW 11.68.110(2) gave them the authority as heirs to challenge it during the

probate, which they did regarding Gannam’s exclusion of the abandonment clause.

          Considering the Ensley factors, we conclude that the two cases involve the same cause of

action.




                                                  9
49983-5-II


       E.      SAME PARTIES

       Gannam contends that the parties in this case are all the heirs that were “parties” to the

probate action. She concedes that a probate action does not have named parties, but contends that

the Gourdes, as heirs to the estate, were “unquestionably interested parties” and “had the right to

file motions and objections.” Br. of Resp’t at 12-13. The Gourdes argue that Gannam was not a

party to the probate action, since she only participated in the probate in the capacity of PR.

       A probate action in rem may nonetheless act as res judicata upon a later in personam

proceeding because “the distinction between in rem and in personam may be somewhat artificial.”

Hadley, 60 Wn. App. at 440. Although “[a] probate proceeding for a final accounting names no

one as defendant,” notice of the proceeding “‘brings interested parties to court, nonetheless.’”

Hadley, 60 Wn. App. at 440 (quoting Di Mauro v. Pavia, 492 F. Supp. 1051, 1062 (D. Conn.

1979)). In Hadley, the court concluded that a tort action for wrongfully influencing a will was

precluded because it had not been raised during the probate. 60 Wn. App. at 441-43. Like the

parties in Hadley, the Gourdes were parties to the probate action in this case because they received

notice of the probate as heirs.

       For the persons to be “of the same quality, the parties in the collateral action must be bound

by the judgment in the prior proceeding.” Martin, 162 Wn. App. at 97. Additionally:

       The nature of a probate proceeding makes the final order closing the estate binding
       as to all parties claiming an interest in the estate. “[O]rders and decrees of
       distribution made by superior courts in probate proceedings upon due notice
       provided by statute are final adjudications having the effect of judgments in rem
       and are conclusive and binding upon all the world as well.”

Martin, 162 Wn. App. at 97 (quoting Ryan v. Plath, 18 Wn.2d 839, 857, 140 P.2d 968 (1943)).

Because the probate proceeding was binding “upon all the world,” the parties to this case are bound

by it. Ryan, 18 Wn.2d at 857.



                                                 10
49983-5-II


        Because the Gourdes’ declaratory judgment claim is precluded by res judicata, we do not

address the parties’ remaining arguments.

        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 the public record in accordance with RCW

2.06.40, it is so ordered.




                                                          Melnick, J.

We concur:




        Worswick, J.




        Bjorgen, C.J.




                                              11
