Estate Of Robert C. Cannon, V. P. Koichi Yagi Aka Peter Yagi

• Court: Court of Appeals of Washington
• Decided: April 24, 2023
• Docket: 84093-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ESTATE OF ROBERT C. CANNON, No. 84093-2-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION

P. KOICHI YAGI, AKA PETER YAGI,

Appellant.

MANN, J. — P. Koichi Yagi appeals an order determining that his creditor’s claim

against the estate of Robert Cannon (Estate) is time-barred and unenforceable. Yagi

contends that the trial court erred by (1) asserting jurisdiction, (2) finding that no

payments were made on a promissory note, (3) not allowing more time for discovery, (4)

awarding attorney fees to the Estate, and (5) removing a lis pendens on the Estate’s

property. Finding no error, we affirm.

I.

Henry Cannon is the sole surviving heir of his deceased brother, Robert Cannon.

On November 10, 2021, Henry1 was appointed as the administrator of the Estate and

granted nonintervention powers in King County Superior Court.

On that same day, Yagi petitioned for letters of administration in Thurston County

Superior Court. Yagi asserted that he was a secured creditor to the Estate based on his

1 We use first names of Cannon family members when referring to them individually to avoid

confusion and intend no disrespect. No. 84093-2-I/2

ownership of a deed of trust related to a loan to Robert which was on file with the King

County Recorder’s Office. He also claimed that the Estate owed him $386,971.18 as of

September 2021, “with monthly interest accruing at $5,804.57 or $190.84 per day, in

addition to collection costs and attorney’s fees.” Days later, Yagi filed a motion for order

nunc pro tunc to correct the filing date of his petition for letters of administration to

November 8, 2021. Yagi did not provide the Estate with notice of these filings and the

Thurston County Superior Court did not enter any orders on Yagi’s petition or motion.

On November 17, 2021, Yagi filed a pro se motion in the King County probate

action to vacate Henry’s appointment as the Estate’s administrator. There, Yagi

claimed that there was a conflict of interest or appearance of bias because Henry had

worked for “the Courts of King County” for 30 years until his retirement. Yagi said that

he was “a major creditor in the referenced estate.” But he failed to properly note the

motion for a hearing, and the trial court never heard or ruled on the motion.

One of the Estate’s primary assets is a house in Renton, Washington. When

Henry tried to sell the house in February 2022, he discovered that Yagi had recorded a

deed of trust (deed) against the house securing a $45,000.00 promissory note. The

deed, made in March 2008 between Robert as grantor and Yagi as beneficiary, stated:

“The entire balance of the promissory note secured by this Deed of Trust, together with

any and all interest accrued thereon, shall be due and payable in full on September 10,

2008.” A promissory note, also made in March 2008, required Robert to pay interest at

a rate of 18 percent on any unpaid principal after the September 2008 due date.

On March 3, 2022, the Estate commenced the present action in King County

Superior Court, seeking a petition under the Trust and Estate Dispute Resolution Act

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(TEDRA)2 to declare Yagi’s claim to a promissory note secured by the deed time-barred

under the six-year statute of limitations for written contracts and thus, unenforceable.

Around the same time, Yagi completed a “request for information” summarizing

his claims of what the Estate owed as to the deed and promissory note as follows: (1)

$45,000.00 in principal; (2) $376,804.59 in interest, accrued between September 11,

2008 and March 10, 2022; and (3) $7,150.00 in attorney and collection costs. In total,

Yagi claimed he was owed $428,954.59. On March 16, 2022, Yagi filed a lis pendens

notifying the public that he was a creditor of the Estate with interest in the Renton

“property which may be subject to judgment and execution by reason” of the deed. 3

On March 28, 2022, Yagi answered the Estate’s petition and moved to dismiss.4

He claimed that King County Superior Court lacked subject matter jurisdiction and was

not the proper venue because he had commenced competing probate proceedings in

Thurston County Superior County first. He continued asserting that King County

Superior Court would be biased in favor of the Estate. He also alleged that he “never

claimed” the principal amount remained $45,000.00 and said Robert had made

payments to him. Yagi attached a declaration to this answer, which shows a smattering

of dates, interest rates, dollar amounts, and purported payments.

In the Estate’s reply, Henry declared that he formerly worked for the King County

Department of Adult and Juvenile Detention, retired in 2010, and had no relationship

with any judicial officers of the King County Superior Court.

2 Chapter 11.96A RCW. 3 A lis pendens may be filed “any time after an action affecting title to real property has been

commenced.” RCW 4.28.320. 4 He also filed a copy of this pleading on March 29, 2022. There is no discernable difference

between the two pleadings.

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On April 1, 2022, a trial court commissioner heard argument on the Estate’s

TEDRA petition.5 Initially, the commissioner rejected any notion of bias given that

Henry had formerly worked for King County. The commissioner determined that Robert

never paid Yagi any money and, thus Robert would have been in default of the

promissory note as of September 10, 2008. And because Yagi did not file suit on or

before September 10, 2014, the commissioner concluded that the promissory note and

deed were time-barred and not enforceable. Finally, the commissioner awarded the

Estate its attorney fees and costs “pursuant to RCW 11.96A.250” in an amount to be

determined later and directed Yagi to dismiss the action he filed in Thurston County

Superior Court.6

Yagi moved to revise the commissioner’s ruling, but a trial court judge denied his

motion in a May 2022 order. Yagi timely appealed the commissioner’s ruling and the

judge’s order denying revision.

Meanwhile, in June 2022, Yagi moved to stay the trial court’s order pending

resolution of appeal and, separately, the Estate sought an order to release the lis

pendens. In a July 2022 order, the trial court granted Yagi’s request for a stay

“conditioned” upon his “posting a supersedeas bond or cash with the King County

Superior Court in the amount of $237,000.00 on or before July 20, 2022, as required by

RAP 8.1.” It also ruled that, in the event the supersedeas bond or cash was not timely

deposited, Yagi’s motion for stay would be denied and the Estate would be able to sell

5 Yagi also filed a surreply that same morning but the commissioner did not consider it because

such pleadings are “not allowed under the rules.” See King County Local Civil Rule 7(b)(4)(E). 6 In compliance, Yagi subsequently dismissed the Thurston County action.

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the property “free and clear” of the deed and lis pendens. Yagi did not appeal the lis

pendens order and he failed to post a bond or other security.7

II.

Yagi raises several issues on appeal, which we address in turn.

A.

First, Yagi contends that the trial court’s TEDRA orders are void for lack of

subject matter jurisdiction and improper venue. We disagree.

Whether a court has subject matter jurisdiction is a question of law reviewed de

novo. In re Guardianship of Wells, 150 Wn. App. 491, 499, 208 P.3d 1126 (2009).

“Subject matter jurisdiction refers to a court’s ability to entertain a type of case, not to its

authority to enter an order in a particular case.” Buecking v. Buecking, 179 Wn.2d 438,

448, 316 P.3d 999 (2013). “The term ‘subject matter jurisdiction’ is often confused with

a court’s ‘authority’ to rule in a particular manner.” In re Marriage of Major, 71 Wn. App.

531, 534, 859 P.2d 1262 (1993). “A tribunal lacks subject matter jurisdiction when it

attempts to decide a type of controversy over which it has no authority to adjudicate.”

Marley v. Dep’t of Lab. & Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994).8 A court

has subject matter jurisdiction where it has authority to decide “the type of controversy

involved in the action.” Shoop v. Kittitas County, 108 Wn. App. 388, 393, 30 P.3d 529

(2001).

7 Instead, in August 2022, Yagi filed a motion in this court to stay removal of the lis pendens

pending appeal, arguing that the trial court erred in requiring a supersedeas bond and speculating as to the bond amount. A commissioner of this court denied Yagi’s motion and explained the grounds for doing so. A panel of judges later denied Yagi’s motion to modify the commissioner’s ruling. 8 Marley was superseded by statute on other grounds as recognized by Birrueta v. Dep’t of Lab.

& Indus., 186 Wn.2d 537, 549, 379 P.3d 120 (2016).

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Superior courts in Washington “have original jurisdiction” in “all matters of

probate.” W ASH. CONST. art. IV, § 6. TEDRA also provides that the “superior court of

every county has original subject matter jurisdiction over . . . the administration of

estates,” and that they may “appoint personal representatives.” RCW 11.96A.040(1),

(3). The courts’ subject matter jurisdiction “applies without regard to venue,” and “[a]

proceeding or action by or before a superior court is not defective or invalid because of

the selected venue if the court has jurisdiction of the subject matter of the action.” RCW

11.96A.040(4). TEDRA gives superior courts “full and ample power and authority” to

“administer and settle” “[a]ll matters concerning the estates and assets of” deceased

persons. RCW 11.96A.020(1)(a). Under TEDRA, a “matter” includes “any issue,

question, or dispute involving” the determination of “any class of creditors . . . or other

persons interested in an estate,” and “any question arising in the administration of an

estate.” RCW 11.96A.030(2)(a), (c).

In view of this statutory framework, the trial court had subject matter jurisdiction

to adjudicate the Estate’s TEDRA petition. Yagi counters, arguing that the trial court

lacked subject matter jurisdiction because the Thurston County Superior Court obtained

jurisdiction over the Estate first and at the exclusion of the King County Superior Court.

But the record does not support this argument. On the same day that Henry was

appointed as personal representative of the Estate in the King County action, Yagi filed

a request for letters of administration in Thurston County. And beyond Yagi’s initial

filings, the Thurston County Superior Court never entered any orders on those

pleadings.

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Here, the record establishes that probate proceedings of the Estate were first

commenced in King County. And once letters “of administration have been granted in

the state of Washington, all orders, settlements, trials, and other proceedings under this

title must be had or made in the county in which such letters have been granted unless

venue is moved.” RCW 11.96A.050(5). Venue of this TEDRA action therefore was

proper in King County. Accordingly, Yagi’s jurisdiction and venue arguments fail.

B.

Next, Yagi challenges the trial court commissioner’s finding that Robert never

made any payments on the promissory note. The commissioner found: Yagi “claims

that no monies were ever paid as he has claimed the entire principal sum” of

$45,000.00 due on the promissory note. Yagi contends that there is no factual basis to

support this finding. We disagree.

On revision, a superior court judge reviews the commissioner’s findings of fact

and conclusions of law de novo based on the evidence presented to the commissioner.

In re Estate of Wright, 147 Wn. App. 674, 680, 196 P.3d 1075 (2008). We then review

the superior court’s decision, not the commissioner’s, for an abuse of discretion.

Wright, 147 Wn. App. at 680; In re Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d

573 (2010). A court abuses its discretion by exercising its discretion on untenable

grounds or for untenable reasons. Williams, 156 Wn. App. at 27.

In this case, Yagi admitted to completing a March 2022 request for information

claiming that the “Unpaid Principal Balance” Robert owed on the promissory note was

$45,000.00. He contradicted this admission in his answer to the TEDRA petition,

asserting that he “has never claimed that the principal amount is still” $45,000.00 and

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that “payments have been received.” And in support of this assertion, Yagi prepared a

declaration saying Robert made four payments on the promissory note, including:

$1,000.00 in February 2000;9 $500.00 in May 2013; $500.00 in September 2016; and

$250.00 in March 2018. But when asked for proof at the hearing on the TEDRA

petition, Yagi was not able to show the commissioner “any bank records or anything

else” to show that Robert had made payments on the promissory note.

The weight accorded to competing evidence and credibility determinations are

matters solely for the trier of fact and not subject to review. In re Marriage of Burrill, 113

Wn. App. 863, 868, 56 P.3d 993 (2002). The commissioner here rejected the

assertions in Yagi’s declaration and accepted his admissions that the principal balance

on the promissory note remained $45,000.00. Because substantial evidence supported

the commissioner’s finding, the trial court had tenable grounds on which to deny Yagi’s

motion for revision.

C.

Yagi contends that he was entitled to more time to conduct discovery before the

trial court ruled on the TEDRA petition. Again, we disagree.

We review a trial court’s discovery rulings in TEDRA proceedings for an abuse of

discretion. In re Estate of Fitzgerald, 172 Wn. App. 437, 447-48, 294 P.3d 720 (2012)

(deferring to the trial court’s refusal to grant a continuance to conduct discovery in a

TEDRA action). Discovery in TEDRA cases is governed by RCW 11.96A.115, which

states:

In all matters governed by this title, discovery shall be permitted only in the following matters:

9 Yagi says the “payment originally referenced as having been made in 2000 rather than 2010

was obviously a typo, as the note originated in 2008.”

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(1) A judicial proceeding that places one or more specific issues in controversy that has been commenced under RCW 11.96A.100, in which case discovery shall be conducted in accordance with the superior court civil rules and applicable local rules; or

(2) A matter in which the court orders that discovery be permitted on a showing of good cause, in which case discovery shall be conducted in accordance with the superior court civil rules and applicable local rules unless otherwise limited by the order of the court.

A trial court “properly denies a continuance request” to conduct discovery under

RCW 11.96A.115 where “the requesting party does not offer a good reason for the

delay in obtaining the desired evidence” or “the requesting party does not state what

evidence would be established through the additional discovery.” Fitzgerald, 172 Wn.

App. at 448.

Here, at the hearing, Yagi informed the trial court that he had “two witnesses”

from whom he had not “had time to get their complete testimony yet,” and orally

requested “a delay of discovery to be able to do that.”10 Yagi did not offer a good

reason why he had not been able to obtain declarations from his witnesses. Moreover,

Yagi failed to inform the court what testimony the witnesses would offer in support of his

claim. Absent these grounds, the trial court properly denied Yagi’s request for a

continuance to conduct discovery. There was no abuse of discretion on this basis.

D.

Yagi challenges the trial court’s decision to award attorney fees to the Estate

under RCW 11.96A.250. The Estate responds that the court’s order contains a

10 In a surreply filed on the morning of the hearing, Yagi identified two witnesses who were

purportedly present when Robert made payments on the promissory note. However, the commissioner did not review the surreply.

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scrivener’s error and refers to RCW 11.96A.250 rather than RCW 11.96A.150(1).11 We

agree that there is a scrivener’s error in the order but see no need to remand for

correction because the issue is moot.12

An issue is moot if “a court can no longer provide effective relief.” Orwick v. City

of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). The Estate concedes that it

forfeited its right to attorney fees in the trial court when it did not file a motion within 10

days of entry of the April 1, 2022 order as required by CR 54(d)(2). Thus, we need not

further address this challenge.

E.

Finally, Yagi claims that the trial court erred by removing the lis pendens.

Because Yagi never appealed this order, the claims he asserts are not properly before

us, and we decline to entertain them.

III.

The Estate requests its attorney fees on appeal under RCW 11.96A.150(1) and

RAP 18.1(a). TEDRA authorizes this court to “order the costs, including reasonable

attorneys’ fees, to be paid in such amount and in such manner as the court determines

to be equitable. In exercising its discretion under this section, the court may consider

any and all factors that it deems to be relevant and appropriate, which factors may but

11 RCW 11.96A.250 concerns the appointment of special representatives for parties in TEDRA

actions who are minors, incapacitated without an appointed guardian, yet unborn or unascertained, and whose identity or address is unknown. It does not govern attorney fees awards. RCW 11.96A.150(1), however, gives courts discretionary authority to award attorneys fees in a TEDRA action. 12 A scrivener’s error is a clerical mistake, which if amended, would correctly convey the trial

court’s intention as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121 (2011). Here, the trial court found that Yagi acted in bad faith by “vastly overstat[ing] the amount due thereby causing [the Estate] to incur attorney fees and costs” to address his claim and court filings. It also found that the Estate was entitled to an award of attorney fees. The record is clear that the court intended to exercise its discretion under RCW 11.96A.150(1). The remedy for a scrivener’s error is remand to the trial court for correction. State v. Makekau, 194 Wn. App. 407, 421, 378 P.3d 577 (2016).

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need not include whether the litigation benefits the estate or trust involved.” RCW

11.96A.150(1). RAP 18.1(a) allows us to award attorney fees on appeal “[i]f applicable

law grants to a party the right to recover reasonable attorney fees or expenses on

review.”

We exercise our discretion and grant the Estate’s request for attorney fees on

appeal, subject to compliance with RAP 18.1(d).

We affirm.

WE CONCUR:

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