Heather J.E.L. Benedict, V. James A. Mickelson

• Court: Court of Appeals of Washington
• Decided: July 19, 2022
• Docket: 54775-9
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

July 19, 2022

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II HEATHER J.E.L. BENEDICT, a single No. 54775-9-II individual, consolidated with No. 55764-7-II Appellant,

v.

JAMES A. MICKELSON, a single individual, UNPUBLISHED OPINION

Respondent.

KENYON E. LUCE, a married individual, LUCE & ASSOCIATES, P.S., a Washington State professional services corporation,

Respondents Below.

VELJACIC, J. – This matter is one of several initiated by Heather Benedict concerning her

deceased mother’s, Leeanna Mickelson’s, estate.1 In the current matter, Benedict appeals the trial

court’s CR 12(b)(6) dismissal of her declaratory judgment action to invalidate her parents’

community property agreement (CPA) and the court’s subsequent order denying her CR 60 motion

1 See Benedict v. Kitsap Bank, No. 54483-1-II (currently pending before this court); In re Estate of Mickelson, No 80893-1-I (Wash. App. Ct. Apr. 19, 2021) (unpublished), http://www.courts.wa.gov/opinions/; Mickelson v. McArthur, No. 52485-6-II (Wash. App. Ct. June 9, 2020) (unpublished), http://www.courts.wa.gov/opinions/; In re Estate of Mickelson, No. 76955-3-I (Wash. Ct. App. Sept. 24, 2018) (unpublished), http://www.courts.wa.gov/opinions/; and In re Estate of Mickelson, No. 49056-1-II (Wash. Ct. App. Oct. 24, 2017) (unpublished), http://www.courts.wa.gov/opinions/. 54775-9-II / 55764-7-II

to vacate the court’s dismissal order. Benedict also appeals the court’s award of attorney fees and

costs as sanctions to Benedict’s father, James Mickelson, based on CR 11 and RCW 4.84.185.

We affirm the trial court’s order dismissing Benedict’s declaratory judgment action, the

court’s order denying Benedict’s motion to vacate the court’s dismissal order, and the court’s

award of attorney fees and costs to James2 as sanctions.

FACTS

Leeanna and James entered into a CPA3 in 2011, which provided that if the surviving

spouse survived the other by 30 days, then all of the decedent’s property transferred to the

surviving spouse. Leeanna died in May 2012. James survived her, as did the couple’s four

children, one of which is Benedict.

In May 2016, Benedict, acting pro se, filed a petition in Pierce County Superior Court

seeking a determination that her mother died without a will. In re Estate of Mickelson, No 80893-

1-I, slip op. at 2 (Wash. Ct. App. Apr. 19, 2021) (unpublished),

http://www.courts.wa.gov/opinions/. James moved for dismissal. He did not dispute that there

was no will but argued that Benedict’s proceeding was unnecessary because James and Leeanna

had executed a CPA in 2011, under which Leeanna’s assets vested in James, as the surviving

spouse, upon her death. Id. The trial court agreed with James that there was no legal basis for

Benedict’s petition and dismissed it. Id. This court affirmed the dismissal. Id. at 6.

2 Leeanna and James Mickelson are referred to by their first names to avoid confusion. No disrespect is intended. 3 A community property agreement is a “will substitute” that requires no court administration. Wilkes v. O’Bryan, 98 Wn. App. 411, 414-15, 989 P.2d 594 (1999).

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Benedict, pro se, continued to file various petitions and motions in an attempt to inherit a

portion of her mother’s estate. Courts have consistently dismissed her actions and imposed

sanctions for frivolous filings and vexatious litigation.

In 2018, Benedict filed the underlying declaratory judgment action, requesting a

determination that the CPA between James and Leeanna was invalid or void. In March 2020,

James filed a motion to dismiss under CR 12(b)(6) and a motion for sanctions under CR 11. James

argued that Benedict had already raised the issue of the CPA’s validity in four prior superior court

cases, all of which were either dismissed or Benedict was dismissed as an improper party. In three

of those cases, CR 11 sanctions were imposed against Benedict.

On April 1, 2020, Benedict presented an ex parte motion to compel arbitration and to strike

James’s CR 12(b)(6) motion to dismiss, which the trial court granted without a response from

James. James filed a motion to vacate the arbitration order because it was not agreed upon by the

parties as Benedict falsely alleged. The court granted his motion and vacated its April 1 order. A

hearing on James’s CR 12(b)(6) motion was scheduled for April 17, 2020.

On April 15, 2020, Benedict filed a motion to strike an allegedly late reply filed by James

in support of his motion to dismiss. In her motion, Benedict stated that James’s motion to dismiss

was “noted [for] hearing [on] April 17, 2020 at 9:00 A.M.” Clerk’s Papers (CP) at 6. Benedict

filed numerous declarations prior to the April 17 hearing.

Benedict was scheduled to appear via phone for the April 17 hearing. On the morning of

the hearing, the trial court could not contact her. The transcript of the hearing shows that the court

attempted to reach Benedict on the phone twice, but she did not answer. The court noted that

Benedict confirmed that she would be appearing on the phone, but then was unreachable. It was

later learned that there was a mix up with the court’s phone lines.

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On April 17, 2020, the trial court dismissed Benedict’s declaratory judgment action

because Benedict failed to provide a reason why the CPA should be set aside. The court also

dismissed based on res judicata because the validity of the CPA had already been decided. The

court referenced Benedict’s multiple prior superior court actions, and this court’s opinion in In re

Estate of Mickelson, No. 49056-1-II, slip op. at 6 (Wash. Ct. App. Oct. 24, 2017) (unpublished),

http://www.courts.wa.gov/opinions/. The court also imposed sanctions for vexatious litigation and

filing a frivolous action under CR 11 and RCW 4.84.185. Sanctions were imposed as an award of

attorney fees and costs to James. James’s attorney argued that James had spent considerable funds

defending against Benedict’s multiple lawsuits, which essentially raised the same issues “over and

over again.” Report of Proceedings (RP) (Apr. 17, 2020) at 22.

Benedict appealed the trial court’s order dismissing her motion for declaratory judgment.

While her appeal was pending, Benedict filed a motion in superior court to vacate the trial court’s

April 17, 2020 order, arguing she was denied an opportunity to be heard due to the phone line mix

up. On April 16, 2021, the superior court denied her motion to vacate and her subsequent motion

for reconsideration, concluding the outcome of the hearing would not have been any different if

Benedict had appeared. Benedict appealed these subsequent orders. This court consolidated the

two matters.

ANALYSIS

Benedict contends that she was denied due process because she was not afforded notice

and an opportunity to be heard before the trial court dismissed her declaratory judgment action.

She argues in the alternative that the Uniform Declaratory Judgment Act, chapter 7.24 RCW

provided sufficient grounds to not dismiss her action. Lastly, Benedict contends that the trial court

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erred in ordering attorney fees and costs as sanctions. We disagree with all of Benedict’s

contentions for the reasons set forth below.

As an initial matter, James argues that Benedict’s appeal must be dismissed for failure to

provide more than bare assertions to support her assignments of error and for failure to provide

proper citation to the record and to relevant legal authority as required under RAP 10.3(a)(4) and

(6).4 We may decline to address issues in a brief if a party fails to comply with the briefing

standards set forth in RAP 10.3. See Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn.

App. 609, 620, 1 P.3d 579 (2000) (appellate court declined to address arguments where there was

no assignment of error as required under RAP 10.3(g)). However, if the appellant attempts to

comply with RAP 10.3 and their arguments are clear and the record is adequate, we may exercise

our discretion and reach the merits of the appellant’s arguments. Id. at 613-14. We exercise our

discretion and reach Benedict’s arguments.

I. LEGAL PRINCIPLES

Courts may dismiss a complaint under CR 12(b)(6) for “failure to state a claim upon which

relief can be granted.” Dismissal is appropriate only if no set of facts consistent with the complaint

would entitle the plaintiff to relief. Jackson v. Quality Loan Serv. Corp. of Wash., 186 Wn. App.

838, 843, 347 P.3d 487 (2015). We review a trial court’s decision to dismiss under CR 12(b)(6)

de novo. San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831 (2007).

4 James also appears to argue that we should not consider certain clerk’s papers in our record that Benedict cites to in her opening brief. But a commissioner of this court has already denied James’s request that Benedict’s brief be stricken for citing to these clerk’s papers. James did not file a motion to modify the commissioner’s ruling.

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CR 60(b) allows a party to challenge a judgment for a number of reasons, including when

the judgment is void. A judgment can be void when a party was denied due process. In re

Marriage of Ortiz, 108 Wn.2d 643, 649, 740 P.2d 843 (1987). Generally, a decision to grant or

deny a motion to vacate a judgment under CR 60(b) is within the trial court’s sound discretion and

will not be disturbed unless the trial court exercised its discretion on untenable grounds or for

untenable reasons. In re Marriage of Hughes, 128 Wn. App. 650, 657, 116 P.3d 1042 (2005).

However, courts have a mandatory, nondiscretionary duty to grant relief from void judgments.

Ahten v. Barnes, 158 Wn. App. 343, 350, 242 P.3d 35 (2010). Therefore, we review de novo a trial

court’s decision to vacate a void judgment. Id.

CR 11 provides that all pleadings filed with a court constitute a certification by a party or

its attorney that the pleading is well grounded in fact and warranted by existing law or a good faith

argument for the extension, modification, or reversal of existing law or the establishment of new

law. A trial court may impose sanctions for lack of compliance with CR 11. Loc Thien Truong v.

Allstate Prop. & Cas. Ins. Co., 151 Wn. App. 195, 208, 211 P.3d 430 (2009).

In addition, RCW 4.84.185 allows a trial court to impose attorney fees and costs against a

non-prevailing party in any civil action the court finds to be “frivolous and advanced without

reasonable cause.” A lawsuit is frivolous under RCW 4.84.185 “if, when considering the action

in its entirety, it cannot be supported by any rational argument based in fact or law.” Diaz v. N.

Star Trustee, LLC, 16 Wn. App. 2d 341, 364, 481 P.3d 557, review denied, 198 Wn.2d 1002

(2021). “We review a trial court’s ruling on a motion for CR 11 sanctions and for attorney fees

under RCW 4.84.185 for abuse of discretion.” Id.

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II. DUE PROCESS

Benedict contends that the trial court’s April 17, 2020 order is void because she was not

provided notice or an opportunity to be heard, which violated her due process rights. James

responds that the issue of lack of notice is improperly raised for the first time on appeal. Generally,

an issue not raised in the trial court may not be raised for the first time on appeal unless the claimed

error is a manifest error affecting a constitutional right. RAP 2.5(a). While James is correct that

Benedict’s due process argument raised below focused on the alleged denial of her right to be

heard and not notice, we exercise our discretion to reach the merits of her argument on appeal. See

In re Dependency of A.N.G., 12 Wn. App. 2d 789, 796, 459 P.3d 1099 (2020) (court reached due

process argument raised for first time on appeal).

Due process of law requires adequate notice and an opportunity to be heard. Olympic

Forest Prod., Inc. v. Chaussee Corp., 82 Wn.2d 418, 422, 511 P.2d 1002 (1973). The

reasonableness of the notice provided is determined by the totality of the circumstances. Herring

v. Texaco, Inc., 161 Wn.2d 189, 198, 165 P.3d 4 (2007). And a party’s opportunity to be heard

must be meaningful in time and manner. In re Guardianship of Cornelius, 181 Wn. App. 513,

530, 326 P.3d 718 (2014).

Here, Benedict filed a declaratory judgment action, requesting a declaration that the CPA

between James and Leeanna was invalid or void. This was an issue that had been previously

decided. Mickelson, No. 49056-1-II, slip op. at 6. In March 2020, James filed a CR 12(b)(6)

motion to dismiss based on this fact. On April 1, 2020, Benedict presented an ex parte motion to

compel arbitration and to strike James’s CR 12(b)(6) motion to dismiss, which the trial court

granted and then later vacated because Benedict falsely alleged that arbitration was agreed upon

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by the parties. The trial court then scheduled a hearing on James’s CR 12(b)(6) motion for April

17, 2020.

Based on the above, Benedict clearly had actual notice of the motion and hearing. Benedict

had notice of the hearing as evidenced by her April 15, 2020 motion to strike the hearing on

James’s CR 12(b)(6) motion, which stated the matter was “noted [for] hearing [on] April 17, 2020

at 9:00 A.M.” CP at 6. Additionally, given the subject matter of James’s CR 12(b)(6) motion, a

motion rooted in his assertion that Benedict had raised these same issues multiple times in the past,

this actual notice was also adequate under the principles of due process. We are unpersuaded by

Benedict’s argument that she failed to receive adequate notice.

Benedict also argues that she did not have an opportunity to be heard. While there was

allegedly a mix up with the phone lines for Benedict, she still does not show how she was denied

an opportunity to be heard. First, she was provided an opportunity when the matter relating to the

validity of the CPA was first decided in 2016. But more pointedly here, Benedict filed numerous

pleadings. The right to be heard must be in meaningful manner. Cornelius, 181 Wn. App. at 530.

The right can be satisfied by the filing of pleadings—it does not entitle a party to actually speak in

court. See id. Benedict’s assertion to the contrary is misplaced.

Considering the totality of the circumstances, Benedict had notice of James’s CR 12(b)(6)

motion hearing and was not denied an opportunity to be heard on the issue of whether her parents’

CPA was valid. For this reason, we hold there was no due process violation.

III. UNIFORM DECLARATORY JUDGMENT ACT (UDJA)

Benedict next argues that her declaratory judgment action should not have been dismissed

under CR 12(b)(6). She asserts that the trial court erroneously required her to show she had a

meritorious claim whereas the UDJA has no such requirement. We disagree.

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The UDJA gives courts the authority “to declare rights, status and other legal relations

whether or not further relief is or could be claimed.” RCW 7.24.010. However, a claim for

relief under the UDJA exists only if there is a “‘justiciable controversy’” or if the dispute

pertains to “‘issues of major public importance.’” League of Educ. Voters v. State, 176 Wn.2d

808, 816, 295 P.3d 743 (2013) (quoting Nollette v. Christianson, 115 Wn.2d 594, 598, 800 P.2d

359 (1990)).

A justiciable controversy is:

(1) . . . an actual, present, and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) involving interests that are direct and substantial, rather than potential, theoretical, abstract, or academic, and (4) of which a judicial determination will be final and conclusive.

Alim v. City of Seattle, 14 Wn. App. 2d 838, 847, 474 P.3d 589 (2020).

Benedict appears to argue that a declaratory judgment action cannot be dismissed under

CR 12(b)(6) for failure to state a claim upon which relief can be granted because under the UDJA

an action can only be dismissed, regardless of its merit, if there is no justiciable controversy.

Benedict asserts this means there is no ability to assess the viability of her claim through the civil

rules; she argues “[a] meritorious claim is not required in order to allege a declaratory judgment

claim.” Appellant’s Br. at 20. But a justiciable controversy under the UDJA requires, among

other things, an “actual” dispute between parties with “genuine” interests. Such requirements

clearly incorporate the concept of a meritorious claim.

Benedict would have us read the UDJA to exclude the civil rules, but such a reading is

erroneous. In fact, the civil rules apply to all civil superior court matters. In re Marriage of

Pennamen, 135 Wn. App. 790, 799, 146 P.3d 466 (2006). Benedict provides no authority to

support her position that declaratory judgment actions cannot be dismissed based on CR 12(b)(6).

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See Ames v. Pierce County, 194 Wn. App. 93, 99, 374 P.3d 228 (2016). Indeed, CR 12(b)(6) is

the appropriate tool to challenge whether a party has pled a sufficiently meritorious justiciable

controversy. In sum, we are unpersuaded by Benedict’s argument that her UDJA claim cannot be

dismissed if it lacks merit because she failed to assert a justiciable controversy.

IV. ATTORNEY FEES AND COSTS AS SANCTIONS

Benedict initially contends that it was improper for the trial court to impose sanctions

because the court failed to cite any legal authority to support its imposition of sanctions. But our

record shows differently. The trial court cited CR 11, for vexatious litigation, and RCW 4.84.185,

for frivolous lawsuit, as the bases of its imposition of sanctions.

Benedict next contends that the trial court abused its discretion in imposing sanctions

because her arguments were made in good faith. Benedict has filed numerous actions, in different

superior courts, advancing the same argument over and over that her mother died intestate, her

parents’ CPA is void, and she should be a beneficiary to her mother’s estate.

The current lawsuit is part of Benedict’s pattern of vexatious and frivolous litigation

activities designed to inherit her mother’s estate even though her parents have a valid CPA. This

basis supports sanctions under CR 11 and RCW 4.84.185. Therefore, we hold that the trial court

did not abuse its discretion in imposing attorney fees and costs as sanctions under CR 11 and RCW

4.84.185.

CONCLUSION

We affirm the trial court’s order dismissing Benedict’s declaratory judgment action, the

court’s order denying Benedict’s motion to vacate the court’s dismissal order, and the court’s

award of attorney fees and costs to James as sanctions.

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A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

Veljacic, J.

We concur:

Lee, P.J.

Price, J.