In re Estate of L'Amarca

In the Matter of the Estate of: JOSEPH L'AMARCA Decedent.

No. 52049-4-II

Court of Appeals of Washington, Division 2

January 13, 2020

UNPUBLISHED OPINION

LEE A.C.J.

Teresa L'Amarca appeals the superior court's order dismissing with prejudice her Trust and Estate Dispute Resolution Action (TEDRA) petition. She argues that (1) findings of fact were not supported by substantial evidence (2) the trial court erred in concluding that the personal representative of the estate (PR), Jeannie L'Amarca, did not fail to fulfill her fiduciary duty as PR of the estate (3) the trial court erred in concluding that Joseph L'Amarca, Jr. (Junior) did not commit common law fraud when he filed a creditor's claim; (4) the trial court erred in rejecting Teresa's^[1] argument that a constructive trust was created in the property transferred to Junior to satisfy his creditor's claim; and (5) the trial court erred in awarding attorney fees to Junior and Jeannie.

We hold that (1) challenges to the trial court's findings of fact fail, (2) the trial court did not err in concluding that Jeannie did not fail to fulfill her fiduciary duty as PR of the estate, (3) the trial court did not err in concluding that Junior did not commit common law fraud when he filed a creditor's claim, (4) the trial court did not err in rejecting Teresa's argument that a constructive trust was created, and (5) the trial court did not err in awarding attorney fees to Junior and Jeannie. Accordingly, we affirm.

FACTS

This TEDRA petition involves a dispute over whether Junior owns the property located at 3311 Bridgeport Way, University Place, Washington (Bridgeport property) or whether the Bridgeport property is an asset of Joseph J. L'Amarca Sr.'s (Senior) estate.

A. History of the Property

Junior had contracted to purchase the Bridgeport property in 1988 from Tony Trunk. Senior, Junior's father, lived on the property from 1993 to 2016. While he lived there, Senior made the payments to Trunk pursuant to Junior's contract with Trunk. Trunk gave Junior a statutory warranty deed for the Bridgeport property in 2006, after the purchase contract between Junior and Trunk had been fulfilled.

1. HELOC

In 2003, Senior took out a home equity line of credit (HELOC) on the Bridgeport property, claiming to own the property. In fact, Junior owned the property at that time, but Junior was not a signatory on the HELOC. At some point, Junior later became aware of the HELOC and protested.

2. 2004 Deed/Assignment

A Deed and Purchaser's Assignment of Real Estate Contract allegedly signed by Junior on October 28, 2004, (2004 Deed/Assignment) quitclaimed the Bridgeport property to Senior. This document also assigned Junior's real estate contract with Trunk to Senior. The 2004 Deed/Assignment was notarized by Douglas Sulkosky, an attorney. However, Junior claims he never signed the 2004 Deed/Assignment and that the signature on the deed was not his. Sulkosky had no recollection of notarizing the 2004 Deed/Assignment.

3. 2006 Statutory Warranty Deed

In 2006, after Junior paid off the real estate contract, Trunk gave Junior a statutory warranty deed. Trunk "unambiguously" understood that the he sold the Bridgeport property to Junior in 2006. Verbatim Report of Proceedings (VRP) (April 30, 2018) at 177.

4. Simultaneous Recording of the Deeds

Both the 2004 Deed/Assignment and the 2006 statutory warranty deed were recorded on October 13, 2006. Junior did not know who recorded the 2004 assignment.

B. Junior's Creditor's Claim

Senior died testate. Senior's Will left his entire estate to his two daughters, Teresa L'Amarca and Jeannie L'Amarca. The trial court found that the estate was solvent and appointed Jeannie as the PR of the Estate with nonintervention powers.^[2]

Junior filed a creditor's claim with supporting documentation, asserting that Bridgeport property belonged to him and that he had never signed the 2004 Deed/Assignment that purported to assign the Bridgeport property to Senior. Jeannie, as PR of the estate, reviewed Trunk's declaration, listened to a phone conversation between Junior and Sulkosky, reviewed Sulkosky's declaration, and reviewed the contract between Trunk and Junior. After her review, Jeannie, as PR of the estate, accepted Junior's creditor's claim and signed a settlement agreement with Junior, quitclaiming the Bridgeport property to Junior.

Teresa filed a civil suit in superior court against Junior, alleging fraud. The superior court dismissed Teresa's civil suit under Civil Rule 12(b)(6).

Teresa then filed a TEDRA petition, alleging that Jeannie and Junior committed fraud on the Estate, were involved in a fraudulent transfer of the Bridgeport property, and intentionally interfered with Teresa's right to an inheritance. Teresa also alleged that Jeannie breached her duty of good faith as PR of the Estate when she quitclaimed the Bridgeport property to Junior and was unfit to serve. Teresa's petition did not claim that the Bridgeport property should be held in a constructive trust. However, she raised a constructive trust argument in her Second Supplemental Memorandum in Support of the Court's Equity and Legal Jurisdiction.

C. Bench Trial

The trial court held a bench trial to determine Teresa's TEDRA petition. In addition to the facts discussed above, the following evidence was presented to the trial court.

1. Evidence Regarding the Deeds and Assignment

Douglas Sulkosky, an attorney and notary public, testified that his notary stamp appears on the 2004 Deed/Assignment. According to Sulkosky, a person came in identifying himself as "Joseph L'Amarca Jr." VRP (April 30, 2018) at 34. His practice was to ask for identification when notarizing a signature of someone he did not know. He did not know Joseph L'Amarca, Jr., so he would have "asked [Junior] for ID." VPR (April 30, 2018) at 34.

Sulkosky represented Senior in a few lawsuits between the years 2004 and 2006. Sulkosky's billings to Senior for legal services rendered show that Sulkosky's invoices were sent to Senior at "P.O. Box 64237." Clerk's Papers (CP) at 339.

In January 2017, Sulkosky received a phone call from Junior saying that there was a dispute over a contract. Junior stated that he had never signed the 2004 Deed/Assignment and asked Sulkosky to prepare a declaration stating that it was not Junior who signed the document.

Pursuant to that conversation, Sulkosky prepared a declaration dated January 2017, which was admitted in trial. The declaration stated that the person who signed the deed was not Senior. Sulkosky's declaration stated that the person who signed the deed was Joseph J. L'Amarca - there was no designation of Junior.

Sulkosky signed another declaration on May 11, 2017, which also was admitted in trial. This declaration noted that he had an appointment in his calendar with Junior on October 28, 2004, and that it his customary practice to review a person's ID before notarizing a signature.

At trial, Sulkosky's testified that his recollection of the 2004 Deed/Assignment preparation was based on an entry in his calendar. He did not have any specific recollection of the transaction. However, he did recall that the person who picked up the 2004 Deed/Assignment the next day was Senior. Sulkosky also testified that he would not know whether the person who signed the deed was Junior or someone else.

Hanz Saenz also signed a declaration that was admitted in trial. Saenz stated that he was in a vehicle with Junior when Junior called Sulkosky on January 24, 2017.

In said conversation, a man by the name of Sulkosky, directed Joey L'Amarca to go to his office to retrieve a Declaration, detailing an event, whereby "Joseph L'Amarca, Sr. went to Sulkosky & purported to be Joseph L'Amarca, Jr. Joey L'Amarca did not ask for said document - rather it was Sulkosky's organic and stern instruction to provide it. In retrospect, it was obvious Mr. Sulkosky realized he had erroneously notarized a document presented by Joseph L'Amarca, Sr., instead of Joseph L'Amarca, Jr.

CP at 1047-48.

Brian Forrest testified that he had a certificate from the International School of Forensic Document Examination (ISFDC), where he learned handwriting identification and how to compare signatures. The program, consisting of online courses, was for two years. The school is not accredited. See CP at 268 (Declaration from ISFDC describing the program and noting that forensic handwriting examination is not "a degree which is offered at any accredited 4-year college-degree programs."). Forrest also did an apprenticeship, in which his mock trials were over the phone. He did not have any in-person apprenticeship training. This was Forrest's first time testifying in court as an expert. Forrest also testified about how he compares signatures. After this foundational testimony, the trial court qualified Forrest as an expert but stated, "[H]ow much weight I give to his testimony is anybody's guess at this point." VRP (April 30, 2018) at 122.

Forrest also testified that he had originally examined for his report only birthday cards signed by Junior and the signature on Junior's settlement agreement for the creditor's claim. The birthday cards only had Junior's first name, not his full signature. Forrest was later given more signatures to review, but he did not update his report.

Forrest compared the 2004 Deed/Assignment to other documents with verifiable signatures of Junior. He also looked at the verifiable signatures of Senior. One of those documents included a signed check from Senior's bank account with a printed address of "P.O. Box 64237." CP at 829. Forrest stated that people's signatures change over time. The comparisons he made were between the 2004 Deed/Assignment and 2017 verified signatures. The...