                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 24, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 IN THE MATTER OF THE ESTATE OF                                      No. 49056-1-II
 LEEANNA RUTH MICKELSON

 HEATHER MICKELSON,

                                Appellant,

        v.

 JAMES A. MICKELSON,                                          UNPUBLISHED OPINION

                                Respondent.


       LEE, J. — Heather Mickelson appeals the superior court’s order of dismissal and seeks to

restore a “lost order” finding that her mother died intestate. She argues that (1) the superior court

erred in refusing to restore the lost probate document because the finding that her mother died

intestate was undisputed; (2) the superior court entered a void order of dismissal in her case

because (a) notice of the hearing was never served to potential beneficiaries of her mother’s estate;

and (b) this court had exclusive jurisdiction over her case when the superior court entered its order

of dismissal; and (3) the superior court erred in refusing to impose CR 11 sanctions against her

father and opposing counsel for filing frivolous pleadings. We affirm the superior court’s order of

dismissal.
No. 49056-1-II


                                              FACTS

A.     BEFORE APPEAL

       Leeanna Ruth Mickelson1 died in Pierce County on May 1, 2012. She was survived by her

husband, James A. Mickelson, and four adult children. Four years after Leeanna died, her

daughter, Heather Mickelson, filed a petition for adjudication of intestacy and heirship under RCW

11.28.110.

       On May 16, 2016, Mickelson appeared pro se in superior court asking the court to enter an

order of intestacy for her deceased mother and for a temporary injunction to preclude her father

from selling her deceased mother’s assets.2

       At the May 16 hearing, Mickelson handed the superior court an order of intestacy for the

court’s signature. The superior court informed Mickelson that the court needed a declaration

verifying that there was indeed a search for a will and that no will was found before the court

would sign the order of intestacy. Mickelson informed the court that she had an e-mail from their

family attorney stating that they did not have an original copy of her mother’s will and an e-mail

from her father, in which he stated that her mother did not have a will. Mickelson explained that

four hours after their family attorney sent his e-mail, the family attorney told her that they had




1
  Many individuals involved in this case share the last name Mickelson. For clarity, this opinion
refers to the appellant by her last name and all others with the same last name by their first names.
No disrespect is intended.
2
  Mickelson’s purpose in seeking the orders was to prevent her father from selling their family
home in Cabo San Lucas, Mexico. Mickelson believed the order of adjudication of intestacy would
ensure the house passed to her instead of her father because Mexican law provides that intestate
succession passes to the decedent’s children, not the spouse.


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No. 49056-1-II


made a mistake and that her mother did not actually have a will. Mickelson also confirmed that

her parents had a community property agreement, but no will.

       The superior court told Mickelson that although Mickelson had filed a declaration for

disbursements, she needed to file an amended declaration providing the e-mail from the attorney’s

office stating that there was no will before the court would sign the order of intestacy. The court

gave Mickelson back her petition and said, “And then let’s file the amended declaration with the

e[-]mail from the attorney’s office and sign the order.” Verbatim Report of Proceedings (VRP)

(May 16, 2016) at 5. The superior court then signed an order setting a hearing date of June 13 for

Mickelson’s request for a temporary injunction.

       The next day, on May 17, Mickelson returned to superior court claiming that she went to

the clerk’s office “to obtain copies of [the court’s] signed order, the order apparently was lost, and

the clerk had accidentally shredded it.” VRP (May 17, 2016) at 2. Mickelson asked the court to

re-sign the order and provide her with a certified copy. The court did not sign the order presented.3

       Mickelson returned to superior court later that day and presented the court with another

petition for adjudication of intestacy to sign. The court informed Mickelson that this was the same

document she had asked the court to sign twice previously and that the court was not going to sign

any document. The court pointed out to Mickelson that the clerk’s office had directed Mickelson




3
  The superior court told Mickelson that the clerk’s office had actually contacted the superior court
the day before. The court advised Mickelson that “I think you’re proceeding in the wrong manner.”
VRP (May 17, 2016) at 2. When Mickelson asked about the letters of intestacy, the court informed
her, “Yeah. I don’t think this is the correct procedural avenue. And I think the clerk’s office has
told you that.” VRP (May 17, 2016) at 2.


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No. 49056-1-II


as to what process she needed to follow. The court ruled that once Mickelson followed the clerk’s

instructions, the court would sign her petition.

         On June 1, James filed a motion to dismiss Mickelson’s petition for adjudication of

intestacy with prejudice under CR 12(b)(6) and to award attorney fees and impose CR 11 sanctions

against Mickelson. On June 2, James filed an amended motion.4 James argued that Mickelson

failed to state a claim upon which relief may be granted because he and his wife executed a

community property agreement, which immediately vested all identified property in him as the

surviving spouse. He further argued that because the community property agreement was public

record and in effect at the time Leeanna died, Mickelson filed her petition to harass him and bypass

her mother’s wishes.

         On June 3, Mickelson appeared in superior court and asked that “an order re: Adjudication

of Intestacy and Heirship [] be signed.” Clerk’s Papers (CP) at 22. The court declined to sign the

order. On June 7, Mickelson again presented an order of adjudication of intestacy and heirship in

to the court. The court again did not sign the order.

         On June 13, Mickelson filed a notice of appeal, seeking review of the “decisions of the

Superior Court to shred an order signed by the commissioner on May 16, 2016, refuse to correct

the shredding and reenter an order finding that [her] mother died without [sic] dated June 3, 2016

and then on June 7, 2016.” CP at 17. We sent a letter to Mickelson on June 29, informing her that

she had filed her notice of appeal prematurely and that she first needed to obtain a final order from

the superior court.



4
    This motion was identical to the June 1 motion.



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No. 49056-1-II


B.     AFTER NOTICE OF APPEAL FILED

       On June 17, the superior court held a hearing on James’s motion to dismiss. The court

ruled that the community property agreement controlled, and thus, there was no basis for a probate.

The court granted James’s motion for dismissal, ruling that there was no legal basis for

Mickelson’s petition to move forward. However, the court reserved ruling on James’s request for

CR 11 sanctions against Mickelson.

       Mickelson then filed a motion, asking the superior court to hold James in contempt for

disposing of the assets of the estate. Mickelson claimed that the superior court’s order of dismissal

entered on June 17, was void because this court had jurisdiction over the case on that date.

Mickelson later filed declarations indicating that her sister never received notice of the June 17

motion hearing. On July 11, the superior court denied Mickelson’s motion, ruling that its prior

order of dismissal stands. CP at 33.

       On October 21, the parties appeared before the superior court on James’s motion to

continue a hearing date in the case. Mickelson did not appear at this motion hearing, but her sister,

Gale McArthur was present. During this hearing, the superior court noted that McArthur was not

listed as a party in any of the pleadings in the case. Although McArthur’s brothers had previously

appeared and argued against Mickelson’s position, they also were not listed as parties in the case.

       On November 14, Mickelson presented a petition in King County Superior Court, asking

the court to grant her order adjudicating intestacy. The King County Superior Court signed and

filed an “Order Adjudicating Intestacy and Heirship” finding her mother died intestate.

       On November 18, the parties again appeared before the Pierce County Superior Court.

Mickelson asked the court to “match” the King County court ruling and change the venue of her



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No. 49056-1-II


case to King County. VRP (Nov. 18, 2016) at 8. Mickelson told the court that the issue on appeal

was to seek reinstatement of the court’s intestacy order from May 16, and to vacate the superior

court’s order of dismissal from June 17, 2016 because it was void. Mickelson again argued that

the court’s order of dismissal was void because not all parties were served notice of the hearing

and because the appellate court had jurisdiction over the case. Mickelson also argued that the court

should have granted sanctions against James on June 17 for not serving the parties.

       We notified Mickelson, by letter dated July 18, 2017, of our decision to review her case

and set the matter for September 15 for consideration.

                                            ANALYSIS

A.     PETITION TO RESTORE THE LOST ORDER OF INTESTACY

       Mickelson contends that the superior court erred in refusing to restore the superior court’s

order signed on May 16, 2016, finding her mother died intestate. Because the superior court was

not required to restore the document upon Mickelson’s motion and because the record does not

show that the superior court ever signed this order, we disagree.

        1. Standard of Review

       When a superior court exercises its discretion in a case where it had the right to exercise

such discretion, we will not disturb the holding absent a clear showing of abuse of discretion. In

re St. Martin’s Estate, 175 Wash. 285, 289, 27 P.2d 326 (1933) (affirming the superior court’s

appointment of an administrator of the estate who was not the person selected and agreed upon by

the petitioners). This is a rule of general application; thus, it extends to matters involving probate.

Id.; see In Re Estate of Black, 153 Wn.2d 152, 171-72, 102 P.3d 796 (2004) (reviewing a probate

court’s refusal to hear all challenges to the validity of a will at a probate proceeding under an abuse



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No. 49056-1-II


of discretion standard). A superior court abuses its discretion when its ruling is “manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.” DeLong v. Parmelee,

157 Wn. App. 119, 164, 236 P.3d 958-59 (2010), dismissed on remand, 164 Wn. App. 781, 267

P.3d 410 (2011).

        2. Refusal to Restore the “Lost” Order

       In arguing that the superior court was required to restore its order granting her petition for

adjudication of intestacy, Mickelson relies on RCW 5.48.060. Under RCW 5.48.060, a probate

court may restore records, papers, or proceedings relating to the estates of deceased persons upon

its own motion, or upon application in writing of any party in interest. The court may also make

such order or decree establishing such original record, “as to him or her shall seem just and proper.”

RCW 5.48.060.

       RCW 5.48.060 does not require a superior court to restore every lost probate record as

Mickelson contends. Rather, it vests a probate court with the discretion to restore lost proceedings

to the extent the court deems just and proper. RCW 5.48.060.

       Mickelson relies on the superior court’s May 16, 2016 comment “[a]nd then let’s file the

amended declaration with the e[-]mail from the attorney’s office and sign the order” to argue that

the superior court signed the order on May 16, 2016. VRP (May 16, 2016) at 5; Br. of Appellant

at 4. But when read in the context of the entire proceeding, it is clear the superior court was telling

Mickelson that the court would sign an order of intestacy after Mickelson provided the necessary

documentation showing her mother died intestate.           The superior court repeatedly directed

Mickelson to file the e-mail from her family attorney stating that her mother did not have a will.

The superior court clarified this ruling the next day when it again told Mickelson that the court



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No. 49056-1-II


would not sign her order of intestacy and that Mickelson needed to follow the probate clerk’s

instructions. Instead of providing the superior court with the required documentation, Mickelson

continued to present another petition seeking an order of adjudication of intestacy or motions

asking the superior court to reinstate the “lost” order of intestacy. VRP (May 17, 2016) at 2. Thus,

the record shows that the superior court never signed an order finding Mickelson’s mother died

intestate.

        Given that the superior court did not sign Mickelson’s order of adjudication of intestacy on

May 16, 2016, the superior court did not abuse its discretion in refusing to reinstate such order in

subsequent court proceedings.

B.      THE ORDER OF DISMISSAL WAS NOT VOID

        Mickelson argues that the superior court’s June 17, 2016 order granting James’s motion to

dismiss was void because not all parties were served notice of the court proceeding and because

this court had exclusive jurisdiction over the case. We disagree.

         1. Service on Mickelson’s Siblings

        Mickelson’s argument that the superior court’s order dismissing her petition was void

because her siblings were not served with notice of the hearing is without merit. Service is required

to be made on parties to an action. CR 5(a). Mickelson did not name her siblings as parties in her

petition. Although they appeared at hearings, Mickelson’s siblings never filed a joinder or moved

to intervene in the case. Thus, Mickelson’s siblings were not parties to the action.5 Because



5
  Mickelson relies on Pierce County Local Rule 7(a)(4) to argue that because all heirs are parties,
they must be served notice of court proceedings. Mickelson fails to provide any legal authority
supporting her argument that all potential heirs to her mother’s estate automatically became parties
to her petition for an order finding her mother died intestate. Therefore, we decline to make such


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No. 49056-1-II


Mickelson’s siblings were not parties, we hold that James was not required to provide them with

notice of the hearing on his motion to dismiss Mickelson’s claim.

          2. The Superior Court had Jurisdiction

          Mickelson also claims that this court had exclusive jurisdiction over the case as soon as

she filed a notice of appeal on June 13, 2016. This argument is without merit.

          After Mickelson filed her notice of appeal on June 13, we sent a letter to her on June 29,

stating that her appeal was prematurely filed. The trial court retains full authority to act in a case

before review is accepted by the appellate court.6 RAP 7.1. Mickelson was not notified that we

had accepted review of her case until July 18, 2017. Thus, the superior court had jurisdiction to

dismiss her case at the June 17, 2016 motion hearing.

C.        REFUSAL TO IMPOSE SANCTIONS

          Mickelson argues that the superior court erred in failing to impose sanctions against

James’s attorneys because they filed pleadings with “no real merit other than to distract the Court.”

Br. of Appellant at 7. We disagree.

           1. Standard of Review

          We review a superior court’s decision to impose or deny CR 11 sanctions for an abuse of

discretion. Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720, 745, 218 P.3d 196 (2009).

A superior court abuses its discretion only when it bases a ruling on untenable or unreasonable




a holding. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where
no authorities are cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found none.”).
6
    The exceptions to this rule do not apply in this case. See RAP 7.1.


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No. 49056-1-II


grounds. State v. R.G.P., 175 Wn. App. 131, 136, 302 P.3d 885, review denied, 178 Wn.2d 1020

(2013). “‘A court’s decision is manifestly unreasonable if it is outside the range of acceptable

choices, given the facts and the applicable legal standard.’” State v. Lamb, 175 Wn.2d 121, 127,

285 P.3d 27 (2012) (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362

(1997)).

           2. Imposing CR 11 Sanctions

       Under CR 11, a superior court may impose sanctions to remedy situations “‘where it is

patently clear that a claim has absolutely no chance of success.’” Saldivar v. Momah, 145 Wn.

App. 365, 404, 186 P.3d 1117 (2008) (quoting John Doe v. Spokane & Inland Empire Blood Bank,

55 Wn. App. 106, 122, 780 P.2d 853 (1989)), review denied, 165 Wn.2d 1049 (2009). However,

in doing so, courts “‘must strive to avoid the wisdom of hindsight in determining whether a

pleading was valid when signed, and any and all doubts must be resolved in favor of the signer.”

Id.

       CR 11 addresses two types of filings—(1) baseless filings and (2) filings made for an

improper purpose. West v. Wash. Ass’n of County Officials, 162 Wn. App. 120, 135, 252 P.3d 406

(2011). A filing is baseless if it is “‘(a) not well grounded in fact, or (b) not warranted by (i)

existing law or (ii) a good faith argument for the alteration of existing law.’” Id. (quoting

MacDonald v. Korum Ford, 80 Wn. App. 877, 883-84, 912 P.2d 1052 (1996)). If a party files a

baseless motion, the superior court may impose sanctions upon motion or “upon its own initiative.”

CR 11(a). The superior court is not required to impose sanctions for every CR 11 violation.

Protect the Peninsula’s Future v. City of Port Angeles, 175 Wn. App. 201, 219, 304 P.3d 914,




                                               10
No. 49056-1-II


review denied, 178 Wn.2d 1022 (2013). Also, the court may deny a request for sanctions without

entering findings on whether or not a CR 11 violation occurred. Id.

        Here, Mickelson never filed a motion requesting that the superior court impose sanctions

on James’s attorneys. Instead, it was James that requested the superior court impose CR 11

sanctions against Mickelson for filing a baseless petition for adjudication of intestacy. Therefore,

the basis of Mickelson’s argument is that the superior court erred in not imposing sanctions upon

its own initiative.

        Mickelson contends that James filed pleadings merely to “disrupt the administration of

justice and obstruct the entry of an undisputed fact that the decedent died intestate.” Br. of

Appellant at 7. Specifically, she relies on Norris v. Norris, 95 Wn.2d 124, 129, 622 P.2d 816

(1980), to argue that James’s argument that the community property agreement controlled

distribution of Leeanna’s assets was frivolous.

        Mickelson’s reliance on Norris is misplaced. In Norris, a married couple executed

reciprocal wills, but subsequently created a community property agreement after their friends told

them about its tax advantages. Norris, 95 Wn.2d at 126. After the wife died, the husband elected

to take from the will. Id. Later, the husband tried to claim under the community property

agreement, challenging the validity of the probate of his wife’s will in light of the community

property agreement. Id. at 128. The court held that because the husband accepted benefits under

his wife’s will, he could not later assert rights under their community property agreement. Id. at

133-34.

        Norris is not analogous to this case. This case does not involve a husband’s decision to

first accept benefits under his wife’s will and then later assert his rights under their community



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property agreement. Instead, James argued that Mickelson’s petition should be dismissed because

the community property agreement controlled the distribution of Leeanna’s estate. CP at 65-66.

There is no indication that James’s claim lacked factual or legal basis, or that James’s attorney

failed to inquire into the factual and legal basis for the claim. In fact, the superior court agreed

with James’s argument that the community property agreement controlled when the court granted

James’s motion to dismiss Mickelson’s petition on June 17, 2016. VRP (June 17, 2016) at 7.

        Also, Mickelson’s only evidence that James filed his motion to dismiss for the purpose of

harassing her was the filing of the motion itself. This is not sufficient to show that James filed a

motion for the sole purpose of harassing her. Thus, we reject Mickelson’s argument that the

superior court should have imposed CR 11 sanctions on James’s attorneys upon its own initiative.

        We affirm the superior court’s order of dismissal.

        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.



                                                                         Lee, J.
 We concur:



                    Johanson, P.J.




                     Melnick, J.




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