[WSBAPT] in personum jurisdiction under TEDRA

[Eric Nelsen]

Arg. I don't think this issue has been addressed in a reported case yet, but I know I've had discussions with other attorneys about it being a potential problem in TEDRA proceedings. This might be an appealable issue.

I think the TEDRA statutes, and especially the notice-by-mail rules in RCW 11.96A.110<https://app.leg.wa.gov/RCW/default.aspx?cite=11.96A.110>, impliedly assume that no more than in rem jurisdiction is necessary to resolve a TEDRA matter. I think it could be argued that .110 does not establish personal jurisdiction over any party so served, even those residing in-state, much less out of state.

I think it's a stretch to think that our appellate courts would interpret .110 as a combined in-state and long-arm statute that establishes personal jurisdiction. Even CR 4(d)(4) allowing service by mail to create personal jurisdiction is constrained to the circumstances where a person could otherwise be served by publication under RCW 4.28.100<https://app.leg.wa.gov/RCW/default.aspx?cite=4.28.100>. Those are pretty limited circumstances and the typical TEDRA matter doesn't fit well within them.

But in rem jurisdiction would mean that the Court can only redirect or reallocate assets, and can't enter a judgment directly against a party (other than the PR). So if the party is entitled to a share of an estate, the court could impose an offset against their share, but couldn't impose a judgment in excess of the amount they otherwise would receive from the estate.

That in turn implies more broadly that any TEDRA judgment purporting to place a personal obligation on a party lacks the necessary jurisdiction. That probably includes attorney fees under RCW 11.96A.150.

For this reason, when initiating a TEDRA it might be prudent to selectively serve some parties with service of process under Ch. 4.28 RCW<https://app.leg.wa.gov/RCW/default.aspx?cite=4.28> rather than by mail under .110.

However-personal jurisdiction is also a waivable defense, and I don't see many TEDRA parties raise jurisdictional issues in their initial filings. From Washington Civil Procedure Deskbook (WSBA) (3d ed. 2014) Chapter 12.6:

Prior to the adoption of the civil rules, if a defendant entered a general notice of appearance, it waived its right to assert the defense that the court lacked jurisdiction over it. DiBernardo-Wallace v. Gullo, 34 Wn.App. 362, 364, 661 P.2d 991 (1983). That is no longer the case. Defendants who enter a general notice of appearance retain the ability to argue that the court does not have jurisdiction over them. Id. However, CR 12(h)(1) requires that this affirmative defense be made by motion or in the answer or else it is waived. In re Schneider, 173 Wn.2d 353, 362, 268 P.2d 215 (2011). Engaging in discovery that relates to the defense will not result in waiver. Crouch v. Friedman, 51 Wn.App. 731, 735, 754 P.2d 1299 (1988). Whether engaging in discovery that does not relate to the defense will waive the defense, even if properly asserted, is not definitively answered by the reported cases.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Shannon Jones
Sent: Thursday, June 1, 2023 4:02 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] in personum jurisdiction under TEDRA

Listmates, Is there no authority for in personam jurisdiction under TEDRA of an out-of-state "party" as defined under TEDRA but WA's long arm statute? The asset involved is an investment account. The deceased lived in WA. The asset was claimed by the surviving spouse as part of the mandated family support award with notice to a potential beneficiary who resides outside WA. The asset was unclaimed when the beneficiary was served with the TEDRA petition, it was still in decedent's name. Before the hearing, the beneficiary took control and possession of the asset. The court granted the family support award based on the proceeding being "in rem," and ordered beneficiary to return the asset to the surviving spouse. Beneficiary continues to claim the court had no "in personam" jurisdiction, appealing the court order.

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Shannon R. Jones | Attorney
Campbell Barnett PLLC
Direct:  253.848.3515
Office: 253.848.3513| Fax: 253.845.4941
317 South Meridian
Puyallup, WA 98371
shannonj at campbellbarnettlaw.com<mailto:shannonj at campbellbarnettlaw.com>
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