No. 49056-1-II
___________________________________________________________
COURT OF APPEALS, DIVISION II
OF THE STATE OF WASHINGTON
___________________________________________________________
In re the Estate of Leeanna R. Mickelson
HEATHER MICKELSON,
Appellant,
v.
JAMES MICKELSON,
Respondent.
___________________________________________________________
APPEAL FROM THE PIERCE COUNTY SUPERIOR COURT
Commissioner Mary E. Dicke, Civil
Division A
Case Number:16-4-00861-8
___________________________________________________________
BRIEF OF APPELLANT
___________________________________________________________
Heather
Mickelson
801
Dexter Avenue North
Seatte,
Wa 98109
(253)
209-7434
Hmickelson2003@gmail.com
Daughter
of Decedent, Pro Se
TABLE OF CONTENTS
Page
Rules and
Statutes………………………………………………...…………….i
A. Assignments of Error…………………………………………....……..1
B. Statement of the Case…………………………………………………1-2
C. Summary of Argument ………………………………………………….2
D. Argument…………………………………………………….………..2-4
E. Conclusion………………………………………………………..……..4
F. Certificate
of Service……..……………………………………………..5
COURT OF APPEALS RULES
RAP 2.2(a)(3)…………………………………………………………………….1
RAP 2.2(a)(1)…………………………………………………………………….1
WASHINGTON STATE STATUTES
RCW
11.28.340 Order of adjudication of intestacy and heirship…………………2
RCW 5.48.060 Replacement of lost or destroyed probate
records…………….….2
RCW 40.16.020 Injury to and misappropriation of record……………………….2-3
Washington CR 5(d)2 Failure to Serve………………….………………………..4
PIERCE COUNTY LOCAL RULES
Pierce County Local Rule
(PCLR) 7(a) 4 Failure to Serve…………………….…4
A. ASSIGNMENTS OF ERROR
1.
Whether
the lower court did err in failing and refusing to restore a lost probate order.
2.
Whether
the lower court did err in entering a void order of dismissal.
3.
Whether
the lower court did err in not applying sanctions against Respondent for not
following the statutory scheme.
B. STATEMENT OF THE CASE
In
late October 2011, Leeanna R. Mickelson (Descendent) was diagnosed with
terminal lung cancer. On November 3,
2011 she and James Mickelson (Respondent), visited Luce & Associates law
firm with the intention to execute her last will and testament. On May 1, 2012, the Descedant passed away in
Pierce County and since, no one has come forward with the will she had intended
to write. On May 16, 2016, the Pierce
County Superior Court signed an Order of Adjudication of Intestacy and Heirship
which triggered the four month waiting period for a final order of the same and
giving all heirs time to provide evidence to the contrary, i.e. by submitting a
will if one existed.
Rather than follow the prescribed Washington
State statutory scheme for probate, the Pierce County Superior Court clerk’s
office had contact with Luce & Associates, PC and somehow the signed Order
was destroyed. Subsequently, Luce &
Associates, PC moved for dismissal of the entire probate at a hearing which was
not noted correctly.
On June 8, 2016, the Pierce County
Superior Court entered an order restraining any party from doing anything with
the probate assets. Despite the numerous
opportunities to restore the lost probate order, Pierce County Superior Court
failed to restore the destroyed order. The
Pierce County Superior Court then entered a void order purporting to dismiss
the entire probate. Because the probate order
was lost, an appeal based on RAP 2.2(a)(3) was filed in attempt to restore the
lost order. Subsequently, when the
Pierce County Superior Court entered a void order dismissing the probate
action, a second appeal was filed based on RAP 2.2(a)(1).
C. SUMMARY OF ARGUMENT
On May 16, 2016, the Pierce County
Superior Court signed an Order of Adjudication of Intestacy and Heirship which disappeared
within the Court and was never filed with the clerk’s office. The Pierce County Superior Court clerk’s
office had contact with Luce & Associates, PC and somehow the signed Order
was destroyed. Subsequently, Luce &
Associates, PC moved for dismissal of the entire probate at a hearing which was
not noted correctly. One June 17, 2016,
the Pierce County Superior Court then entered a void order purporting to
dismiss the entire probate. Despite the numerous opportunities to restore the
lost probate document, Pierce County Superior Court failed to restore the
destroyed order.
D. ARGUMENT
1. The lower court did err in failing and
refusing to restore the lost order.
Petitioner filed a Petition for
Adjudication of Intestacy and Heirship and on May 16, 2016 the Court signed the
order, pursuant to RCW 11.28.340. The
trial court stated:
Let’s file the amended declaration
with the email from the attorney’s office and sign the order.
(Verbatim transcript of proceedings May 16, 2016, pg 5, line 23-25)
On May 17, 2016, there was some
communications between the court clerk’s office and Respondent’s attorney’s
office and then the order disappeared in violation of law. Causing a signed Court Order to be destroyed
by the Respondent’s attorney is something that seems to need no real authority
to have it restored or the legal system is indeed corrupt. The action of
destroying records violates RCW 40.16.020:
Injury to and misappropriation of record. Every officer who shall mutilate, destroy, conceal,
erase, obliterate, or falsify any record or paper appertaining to the officer's
office, or who shall fraudulently appropriate to the officer's own use or to
the use of another person, or secrete with intent to appropriate to such use,
any money, evidence of debt or other property intrusted to the officer by
virtue of the officer's office, is guilty of a class B felony and shall be
punished by imprisonment in a state correctional facility for not more than ten
years, or by a fine of not more than five thousand dollars, or by both.
After numerous requests to restore
the lost Order by Petitioner, the Court failed to replace the destroyed probate
Order (CP pg 12-13), allowed under RCW 5.48.060:
Replacement of lost or destroyed probate records. In case of
the loss or destruction by fire or otherwise of the records, or any part
thereof, of any probate court or superior court having probate jurisdiction,
the judge of any such court may proceed, upon its own motion, or upon
application in writing of any party in interest, to restore the records,
papers, and proceedings of either of said courts relating to the estates of
deceased persons, including recorded wills, wills probated, or filed for
probate in such courts, all marriage records and all other records and
proceedings, and for the purpose of restoring said records, wills, papers, or
proceedings, or any part thereof, may cause citations or other process to be
issued to any and all parties to be designated by him or her, and may compel
the attendance in court of any and all witnesses whose testimony may be
necessary to the establishment of any such record or part thereof, and the
production of any and all written or documentary evidence which may be by him
or her deemed necessary in determining the true import and effect of the
original records, will, paper, or other document belonging to the files of said
courts; and may make such orders and decrees establishing such original record,
will, paper, document or proceeding, or the substance thereof, as to him or her
shall seem just and proper.
The citizens of the State of
Washington must be able to put more faith in their legal system than this where
a law firm can so distort a statutory scheme for their own benefit at the
expense of the integrity of the laws designed by the legislature for the
administration of probate cases.
It is no mystery why Luce &
Associates, PC might use their prowess to manipulate the very Superior Court
for their client’s interests, but this is without any need for authority, based
on common sense, corrupt and inappropriate.
The influential power of Luce & Associates, PC in Pierce County is
clear when the Presiding Judge cannot even figure out that an Order was
destroyed that needs to be restored for the integrity of the Court and legal
system generally. At this point,
procedurally, only Court of Appeals Division II has the authority to make the
corrections by entering an Order that the decedent died intestate. This is not a fact which is disputed and this
is not a fact which a Superior Court should be prevented from making by a law
firm.
According to Washington State’s statutory
scheme, the only response[1] to
the adjudication of intestacy is the production of a will within the four month
notice period. The statute does not call
for any other response. According to RCW
11.28.340
Order of adjudication of testacy or intestacy and heirship—Entry—Time limitation—Deemed final decree of distribution, when—Purpose—Finality of adjudications. Unless, within four months after the entry of the order adjudicating testacy or intestacy and heirship, and the mailing or service of the notice required in RCW 11.28.330 any heir, legatee or devisee of the decedent shall offer a later will for probate or contest an adjudication of testacy in the manner provided in this title for will contests, or offer a will of the decedent for probate following an adjudication of intestacy and heirship, or contesting the determination of heirship, an order adjudicating testacy or intestacy and heirship without appointing a personal representative to administer a decedent's estate shall, as to those persons by whom notice was waived or to whom said notice was mailed or on whom served, be deemed the equivalent of the entry of a final decree of distribution in accordance with the provisions of chapter 11.76 RCW.
2. The lower court did err in entering a
void order of dismissal of a probate action.
As part of their legal strategy to
take all of the assets of the estate for their client, Luce & Associates,
PC instigated a hearing which was not properly noted due to the fact that the
parties were not served according to the rules leaving the Court with no real
authority to have the dismissal hearing in the first place. Consequently, the order entered was void and
meaningless.
Respondent swears up and down that
proper notice was given but the record reflects that no notice was given to any
of the heirs according to the requirements of the local rules. Even though counsel for Respondent has made
claims that he properly noted the motion the transcript of proceedings wherein
he claims to have made the proper notices reveals that this is not true (CP pg
36).
Furthermore, because the matter was
already subject to a Notice of Appeal based on RAP 2.2(a)(3) the Commissioner
did not have permission to dismiss an entire probate even if the hearing had
been properly noted which is was not (CP pg 28-29).
Consequently, the Court of Appeals
should determine that the probate was not dismissed and that the status of the
case is that of a final finding of intestacy.
It makes no sense to dismiss a probate if there is a decedent. The matter should be resolved and closed but
not dismissed.
3. The lower court erred in not applying
sanctions against Respondent for not following the statutory scheme.
Luce & Associates failed to serve
all heirs before the June 17, 2016 and no valid Certificate of Service was
filed with the clerk before the hearing (CP pg 36). The Respondent’s attorney states:
For the record, Your Honor, I’m going
to provide the Petitioner that Notice of the Hearing on the 17th”
(Verbatim Transcript of Proceedings, June 8, 2016, pg 7, line 19-21)
Daughter of the decedent, Gale
McArthur, was never served notice of the hearing (CP pg 36) nor the final
outcome of the void Order. Respondent’s
motion for dismissal should not have been heard and terms should have been
imposed upon the Respondent, pursuant to county and state rules:
Pierce
County Local Rule 7(a) 4: Failure to File or Serve - Sanctions. If the
motion, supporting documents and Note for Motion Docket are not filed with the
clerk, the court may strike the motion.
No motion shall be heard unless proof of service upon the opposing party
is filed or there is admission of such service by the opposing party. The court may also, in its discretion, impose
terms upon the offending party.
Washington CR
5(d)2(2) Failure to Serve - Sanctions.
The effect of failing to file a complaint is governed by rule 3. If a party
fails to file any other pleading or paper under this rule, the court upon 5
days' notice of motion for sanctions may dismiss the action or strike the
pleading or other paper and grant judgment against the defaulting party for
costs and terms including a reasonable attorney fee unless good cause is shown
for, or justice requires, the granting of an extension of time.
E. Conclusion
The Pierce County Superior Court
Order of Adjudication of Intestacy and Heirship is res judicata despite the
corrupt destruction of the same and this Court should uphold that ruling. Similarly, the Pierce County Superior Court
order dismissing the probate is void and should be reversed. Sanctions should be imposed against the
Respondent for not serving all parties.
Dated this January 4, 2017 in Seattle, Washington.
Respectfully
submitted,
_/s/ Heather
Mickelson_______
Heather
Mickelson
Appellant
[1] A
Community Property Agreement is not an issue on appeal. A collateral separate action is being brought
forward to question the validity of this Agreement.
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