BARFIELD v. ESTATE OF BARFIELD, 51884-4-I (Wash.App. 5-12-2003)

SHAR BARFIELD, a single person, Respondent, v. ESTATE OF CLYDE C. BARFIELD and BEVERLY BARFIELD-LUCAS, Personal Representative of the Estate, Appellant.

No. 51884-4-IThe Court of Appeals of Washington, Division One.
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 02-2-34252-3 Judgment or order under review Date filed: 01/14/2003

Counsel for Petitioner(s), Daniel French Clawson, Attorney at Law, 212 Wells Ave S Ste J, Renton, WA 98055-2142.

Counsel for Respondent(s), Preston Lawrence Johnson, Attorney at Law, 33838 Pacific Hwy S Ste B102, Federal Way, WA 98003-6887.

APPELWICK, J.

When a claim against an estate in probate is rejected via certified mail, the claimant has 30 days from the postmark date to file suit against the estate.[1] Because Shar Barfield did not file suit against her grandfather’s estate within 30 days of the postmark on her rejected claim, the superior court erred in denying the estate’s motion for summary judgment. Accordingly, we grant the estate’s motion for discretionary review, accelerate review, and reverse and remand for dismissal of the action.

FACTS
In July 2002, Shar Barfield filed a claim against her grandfather’s estate. She alleged he had orally promised her a quarter of the estate in return for the long-term care she provided him. On October 31, 2002, the personal representative sent Barfield a `Rejection of Creditor’s Claim’ by certified mail. The receipt was postmarked ’10/31/02.’ The rejection letter stated that Barfield `must bring suit against the notice agent in the proper court within thirty days after notification of rejection or the claim will be forever barred.’ The letter arrived at Barfield’s post office sometime during the week of November 4, 2002. On November 8, 2002, Barfield picked up the letter at the post office. She alleged that November 8 was ‘[t]he first time I could get to the post office during regular office hours [.]’ On December 9, 2002, Barfield filed suit against the estate in superior court. The estate and personal representative moved for summary judgment, arguing that Barfield’s suit was untimely, and therefore barred, under RCW 11.42.100(1). The court denied the motion. The estate seeks discretionary review of that decision

DECISION
Denial of a motion for summary judgment is generally not an appealable order, and discretionary review of such orders is not ordinarily granted.[2] The estate argues that discretionary review is warranted under RAP 2.3(b)(1) because the superior court committed an obvious error rendering further proceedings useless. We agree.

Under RCW 11.40.100(1) and 11.42.100(1), rejection of a claim against an estate must be made by personal service or certified mail. When a claim is rejected, the claimant must file suit within 30 days of `notification of rejection’ or the claim is barred.[3] Both RCW 11.40.100(1) and 11.42.100(1) unambiguously state that ‘[t]he date of service or of the postmark is the date of notification.’ In this case, the personal representative sent Barfield’s notice of rejection by certified mail postmarked ’10/31/02.’ Even accepting Barfield’s argument below that the 30-day period must be extended several days under court rules,[4] her suit, filed on December 9, was still untimely.

Barfield argued below, and again in this court, that the 30-day period commences upon actual receipt of the rejection notice. But that argument is not supported by any relevant authority[5] and, as discussed above, is contrary to the plain meaning of the statute.[6] We conclude that the superior court committed obvious error in denying the estate’s motion for summary judgment and that reversal is necessary to avoid a useless trial.

The estate requests attorneys fees on appeal under RCW 11.96A.150(1), which authorizes a superior or appellate court to award fees `in its discretion.’.

We decline to award fees on appeal. The estate’s request for fees in the superior court may be taken up on remand.

Reversed and remanded for proceedings consistent with this opinion.

GROSSE and BAKER, JJ., concur.

[1] RCW 11.40.100; RCW 11.42.100.
[2] DGHI Enters. V. Pac. Cities, Inc., 137 Wn.2d 933, 949, 977 P.2d 1231
(1999).
[3] RCW 11.40.100(1); RCW 11.42.100(1)
[4] See Estate of Toth, 138 Wn.2d 650, 981 P.2d 439 (1999) (holding that CR 6(e), which adds three days to a prescribed period for responding after notice by mail, does not apply if an event other than the receipt of notice triggers the prescribed response period).
[5] Although our review of the case law disclosed cases containing language favorable to Barfield, those cases are distinguishable because the statutes at issue did not expressly state that notification of rejection by certified mail occurs on the date of the postmark. See Van Duyn v. Van Duyn, 129 Wn. 428, 432, 435, 225 P. 444, 227 P. 321 (1924) (noting that former probate statutes regarding notice of rejected claims were `wholly silent upon the question of when the notification is complete;’ holding that notification was not complete `until a reasonable time for the transmission and receipt of the notice . . . elapsed.’); Robel v. Highline Pub. Sch. Dist. 401, 65 Wn.2d 477, 398 P.2d 1 (1965) (applying Van Duyn to statutes relating to notification of nonrenewal of teacher contracts); Grasser v. Blakkolb, 12 Wn. App. 529, 530 P.2d 684
(1975) (following Robel and Van Duyn); CHG Int’l, Inc. v. Platt Elec. Supply, Inc., 23 Wn. App. 425, 427, 597 P.2d 412 (1979) (materialmen’s statute).
[6] See In re Marriage of McLean, 132 Wn.2d 301, 307, 937 P.2d 602 (1997) (statute allowing notice of support modification proceedings by personal service or `any form of mail requiring a return receipt’ did not require actual receipt of notice sent by certified mail; `If the Legislature had intended to require evidence of actual delivery, it could have said so expressly.’); Estate of Toth, 138 Wn.2d at 657 (dismissing will contest as untimely and noting that `factual inequities do not justify circumventing a clear rule articulated by the Legislature.’).