FILED JUNE 4, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
RIGHT NOW HEATING, COOLING & ) PLUMBING, LLC, d/b/a Trademark ) No. 41137-1-III Heating & Cooling, a Delaware limited ) liability company, ) ) Respondent, ) ) PUBLISHED OPINION v. ) ) ESTATE OF GERALD D. HALL, by and ) through LEALA WALDO, as the Personal ) Representative of the Estate of Gerald D. ) Hall, ) ) Appellant. )
STAAB, C.J. — Under RCW 11.40.051(1)(b)(i)-(ii), a “reasonably ascertainable”
creditor of a decedent that does not receive actual notice of probate is allowed “24
months after the decedent’s date of death” to present its claims. On the other hand, a
creditor that is not reasonably ascertainable must present its claims “within four months
after the date of first publication of notice” to creditors.
Leala Waldo, the personal representative (PR) of the “Estate of Gerald D. Hall,”
(Estate) rejected a creditor’s claim submitted by Right Now Heating, Cooling &
Plumbing LLC, as untimely. Right Now filed a complaint against the Estate, asserting No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
claims for breach of contract and unjust enrichment. On summary judgment, the trial
court concluded that Right Now was a reasonably ascertainable creditor, that its claim
was timely, and that it was entitled to judgment as a matter of law on both its claims for
breach of contract and unjust enrichment.
We reverse both the trial court’s grant of summary judgment in favor of Right
Now and its denial of the Estate’s motion for summary judgment. The undisputed
evidence shows that the PR conducted a reasonable review of the decedent’s
correspondence and financial records and thus she is presumed to have exercised
reasonable diligence. In the exercise of reasonable diligence, the PR did not and could
not discover any claims by Right Now. Thus, it is presumed that Right Now is not a
reasonably ascertainable creditor. Right Now fails to raise a material issue of fact
sufficient to defeat summary judgment. Right Now has not presented clear, cogent, and
convincing evidence sufficient to overcome the presumption and demonstrate that it was
a reasonably ascertainable creditor. Because Right Now was not a reasonably
ascertainable creditor, its notice of claim was untimely.
BACKGROUND
In June 2023, prior to his passing, Gerald D. Hall entered into a home
improvement agreement with Home Depot (Agreement) for the purchase and installation
of a gas furnace. The contract defined several terms. The “Agreement” was defined, in
part, as “the Home Improvement Agreement between You and Home Depot.” Clerk’s
2 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Papers (CP) at 99. The “a Provider” was defined as “an independent contractor,
authorized by Home Depot, and its employees, agents, and subcontractors.” CP at 99.
The customer’s responsibilities included “a) Payment: You agree to pay Home Depot in
full for the Services pursuant to the terms of this Agreement.” CP at 99.
The contract price and the remaining balance were listed as “$19,335.85.” CP at
96. The Agreement further provided: “No funds should be made payable to Service
Provider; however, Service Provider may collect Customer’s payments made payable to
Home Depot.” CP at 96.
Hall provided his physical address as the “Job Site Address” and “Customer
Address”; the Agreement did not call for a mailing address. The Agreement identified
Trademark Mechanical as the Service Provider that would deliver and install the furnace.
Right Now does business as Trademark Mechanical.
Right Now delivered and installed the furnace; it then requested payment from
Hall. Hall spoke with a representative of Right Now over the phone and explained that
payment was delayed because he was waiting for Home Depot to issue him a new credit
card. According to Right Now, it sent letters requesting payment to Hall’s physical
address on July 13 and July 17, 2023. Hall passed away on July 19, 2023.
3 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Hall’s daughter opened probate proceedings and was appointed PR of the Estate.
She published a notice to creditors in a local newspaper on August 24, 2023.
Eight months after the PR first published notice to creditors, Right Now submitted
a creditor’s claim to the Estate for the total amount of the Agreement. The PR denied the
claim as untimely and Right Now filed a complaint against the Estate, alleging that Hall
had entered into a contract with Right Now as the authorized dealer for Home Depot and
breached the contract by failing to pay Right Now for services rendered. The complaint
also claimed damages under a theory of unjust enrichment.
Before the close of discovery, Right Now moved for summary judgment on its
claims. The Estate opposed the motion and requested the court grant summary judgment
in favor of the Estate, dismissing Right Now’s claims. The PR submitted a declaration to
establish due diligence in searching and reviewing the decedent’s correspondence:
[P]osting legal notice of my father’s death in newspapers, contacting my father’s cell phone provider, paying the bill and cancelling services, contacting his credit cards which were discovered either via mail or found in his personal possessions. These bills were resolved as well, and those accounts were subsequently cancelled or closed. [I] sent Notice to creditors to nine different companies, including Home Depot Credit Services.[1] I also contacted utility companies to pay any remaining balances and cancel services. I had my father’s mail forwarded to my North Carolina address as stated above and responded to any and all correspondence received on behalf of my father. If anything from “Right Now” or
1 The Estate argues that Home Depot had notice of probate and failed to bring a creditor’s claim. However, it appears Home Depot Credit Services was identified and notified based on the decedent’s credit card statement; Home Depot U.S.A., Inc. was the entity that was party to the Agreement.
4 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
“Trademark Mechanical” had been in his papers to be found, I would have included them in the mailings.
CP at 116-17.
The PR also explained that she had not checked Hall’s mailbox for mail because
Hall used a post office box and had not received mail at his physical address for many
years prior to his passing. She further declared that she was unaware of the Agreement
until she received the documents from Right Now after it submitted its claim.
Right Now submitted evidence of its efforts to collect payment and declared that
the letters it sent the week prior to Hall’s passing were not returned as undeliverable.
Following a hearing, the trial court granted Right Now’s motion for summary
judgment. The court awarded Right Now the amount owed under the Agreement; it also
awarded costs, attorney fees, and pre- and post-judgment interest.
The Estate appeals.
ANALYSIS
The Estate contends the court erred by granting summary judgment in favor of
Right Now because its claims were time barred and Right Now failed to present clear,
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FILED JUNE 4, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
RIGHT NOW HEATING, COOLING & ) PLUMBING, LLC, d/b/a Trademark ) No. 41137-1-III Heating & Cooling, a Delaware limited ) liability company, ) ) Respondent, ) ) PUBLISHED OPINION v. ) ) ESTATE OF GERALD D. HALL, by and ) through LEALA WALDO, as the Personal ) Representative of the Estate of Gerald D. ) Hall, ) ) Appellant. )
STAAB, C.J. — Under RCW 11.40.051(1)(b)(i)-(ii), a “reasonably ascertainable”
creditor of a decedent that does not receive actual notice of probate is allowed “24
months after the decedent’s date of death” to present its claims. On the other hand, a
creditor that is not reasonably ascertainable must present its claims “within four months
after the date of first publication of notice” to creditors.
Leala Waldo, the personal representative (PR) of the “Estate of Gerald D. Hall,”
(Estate) rejected a creditor’s claim submitted by Right Now Heating, Cooling &
Plumbing LLC, as untimely. Right Now filed a complaint against the Estate, asserting No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
claims for breach of contract and unjust enrichment. On summary judgment, the trial
court concluded that Right Now was a reasonably ascertainable creditor, that its claim
was timely, and that it was entitled to judgment as a matter of law on both its claims for
breach of contract and unjust enrichment.
We reverse both the trial court’s grant of summary judgment in favor of Right
Now and its denial of the Estate’s motion for summary judgment. The undisputed
evidence shows that the PR conducted a reasonable review of the decedent’s
correspondence and financial records and thus she is presumed to have exercised
reasonable diligence. In the exercise of reasonable diligence, the PR did not and could
not discover any claims by Right Now. Thus, it is presumed that Right Now is not a
reasonably ascertainable creditor. Right Now fails to raise a material issue of fact
sufficient to defeat summary judgment. Right Now has not presented clear, cogent, and
convincing evidence sufficient to overcome the presumption and demonstrate that it was
a reasonably ascertainable creditor. Because Right Now was not a reasonably
ascertainable creditor, its notice of claim was untimely.
BACKGROUND
In June 2023, prior to his passing, Gerald D. Hall entered into a home
improvement agreement with Home Depot (Agreement) for the purchase and installation
of a gas furnace. The contract defined several terms. The “Agreement” was defined, in
part, as “the Home Improvement Agreement between You and Home Depot.” Clerk’s
2 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Papers (CP) at 99. The “a Provider” was defined as “an independent contractor,
authorized by Home Depot, and its employees, agents, and subcontractors.” CP at 99.
The customer’s responsibilities included “a) Payment: You agree to pay Home Depot in
full for the Services pursuant to the terms of this Agreement.” CP at 99.
The contract price and the remaining balance were listed as “$19,335.85.” CP at
96. The Agreement further provided: “No funds should be made payable to Service
Provider; however, Service Provider may collect Customer’s payments made payable to
Home Depot.” CP at 96.
Hall provided his physical address as the “Job Site Address” and “Customer
Address”; the Agreement did not call for a mailing address. The Agreement identified
Trademark Mechanical as the Service Provider that would deliver and install the furnace.
Right Now does business as Trademark Mechanical.
Right Now delivered and installed the furnace; it then requested payment from
Hall. Hall spoke with a representative of Right Now over the phone and explained that
payment was delayed because he was waiting for Home Depot to issue him a new credit
card. According to Right Now, it sent letters requesting payment to Hall’s physical
address on July 13 and July 17, 2023. Hall passed away on July 19, 2023.
3 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Hall’s daughter opened probate proceedings and was appointed PR of the Estate.
She published a notice to creditors in a local newspaper on August 24, 2023.
Eight months after the PR first published notice to creditors, Right Now submitted
a creditor’s claim to the Estate for the total amount of the Agreement. The PR denied the
claim as untimely and Right Now filed a complaint against the Estate, alleging that Hall
had entered into a contract with Right Now as the authorized dealer for Home Depot and
breached the contract by failing to pay Right Now for services rendered. The complaint
also claimed damages under a theory of unjust enrichment.
Before the close of discovery, Right Now moved for summary judgment on its
claims. The Estate opposed the motion and requested the court grant summary judgment
in favor of the Estate, dismissing Right Now’s claims. The PR submitted a declaration to
establish due diligence in searching and reviewing the decedent’s correspondence:
[P]osting legal notice of my father’s death in newspapers, contacting my father’s cell phone provider, paying the bill and cancelling services, contacting his credit cards which were discovered either via mail or found in his personal possessions. These bills were resolved as well, and those accounts were subsequently cancelled or closed. [I] sent Notice to creditors to nine different companies, including Home Depot Credit Services.[1] I also contacted utility companies to pay any remaining balances and cancel services. I had my father’s mail forwarded to my North Carolina address as stated above and responded to any and all correspondence received on behalf of my father. If anything from “Right Now” or
1 The Estate argues that Home Depot had notice of probate and failed to bring a creditor’s claim. However, it appears Home Depot Credit Services was identified and notified based on the decedent’s credit card statement; Home Depot U.S.A., Inc. was the entity that was party to the Agreement.
4 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
“Trademark Mechanical” had been in his papers to be found, I would have included them in the mailings.
CP at 116-17.
The PR also explained that she had not checked Hall’s mailbox for mail because
Hall used a post office box and had not received mail at his physical address for many
years prior to his passing. She further declared that she was unaware of the Agreement
until she received the documents from Right Now after it submitted its claim.
Right Now submitted evidence of its efforts to collect payment and declared that
the letters it sent the week prior to Hall’s passing were not returned as undeliverable.
Following a hearing, the trial court granted Right Now’s motion for summary
judgment. The court awarded Right Now the amount owed under the Agreement; it also
awarded costs, attorney fees, and pre- and post-judgment interest.
The Estate appeals.
ANALYSIS
The Estate contends the court erred by granting summary judgment in favor of
Right Now because its claims were time barred and Right Now failed to present clear,
cogent, and convincing evidence to establish the prima facie elements of its claims.
Right Now argues the court properly determined it was a reasonably ascertainable
creditor—thus its claims were not time barred—and further contends the undisputed
evidence entitled it to summary judgment.
5 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
A. Standard of review
We review orders on summary judgment de novo. Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080 (2015). Summary judgment is appropriate only if there are no
genuine issues of material fact and the moving party is entitled to judgment as a matter of
law. Id.; CR 56(c). “Questions of fact may be determined as a matter of law ‘when
reasonable minds could reach but one conclusion.’” Owen v. Burlington N. & Santa Fe
R.R. Co., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005) (quoting Hartley v. State, 103
Wn.2d 768, 775, 698 P.2d 77 (1985)). “If reasonable minds can differ, the question of
fact is one for the trier of fact, and summary judgment is not appropriate.” Id.
When reviewing a civil case in which one of the burdens of proof is clear, cogent,
and convincing evidence, we “‘must view the evidence presented through the prism of
the substantive evidentiary burden.’” Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d
807 (2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986)). Thus, we must determine “whether, viewing the evidence in
the light most favorable to the nonmoving party, a rational trier of fact could find that the
nonmoving party supported his or her claim with clear, cogent, and convincing
evidence.” Id.
B. Reasonably ascertainable creditor
“Whether a creditor is reasonably ascertainable has significant implications
regarding the time within which that creditor must present its claims to the estate.” In re
6 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Est. of Fitzgerald, 172 Wn. App. 437, 446, 294 P.3d 720 (2012). “Where a creditor is
determined to be reasonably ascertainable, the creditor is allowed 24 months from the
decedent’s date of death to present its claims.” Id.; see RCW 11.40.051(1)(b)(ii). “If, on
the other hand, a creditor is not reasonably ascertainable, the creditor must present its
claims within four months after the date of first publication of notice to creditors.” Id.;
see RCW 11.40.051(1)(b)(i).
A reasonably ascertainable creditor is a creditor that “the [PR] would discover
upon exercise of reasonable diligence.” RCW 11.40.040(1). The PR is deemed to have
exercised reasonable diligence “upon conducting a reasonable review of the decedent’s
correspondence, including correspondence received after the date of death, and financial
records, including personal financial statements, loan documents, checkbooks, bank
statements, and income tax returns, that are in the possession of or reasonably available to
the [PR].” RCW 11.40.040(1). If the PR conducts the required review, two
presumptions arise under RCW 11.40.040(2). First, the PR “is presumed to have
exercised reasonable diligence to ascertain creditors of the decedent.” RCW
11.40.040(2). Second, “any creditor not ascertained in the review is presumed not
reasonably ascertainable.” Id.; see Fitzgerald, 172 Wn. App. at 445. “These
presumptions may be rebutted by clear, cogent, and convincing evidence.” RCW
11.40.040(2).
7 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
The first question under the statutory framework is whether the PR of Hall’s
Estate conducted a reasonable review. While reasonableness is typically a question of
fact, it can be resolved “ʻas a matter of law where reasonable minds could come to only
one conclusion.’” Kiemle & Hagood Co. v. Daniels, 26 Wn. App. 2d 199, 220, 528 P.3d
834 (2023) (quoting Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 924, 296 P.3d
860 (2013)). Here, the PR submitted a declaration setting forth the steps she took to
review Hall’s correspondence and financial records. Right Now does not dispute the
sufficiency of this review other than to argue that a reasonable review should also include
searching a decedent’s mailbox. The PR explained that she did not check the decedent’s
physical mailbox because the decedent had not received mail at that address for many
years.
The undisputed evidence demonstrates that the PR’s examination of Hall’s records
was reasonable. The reasonableness of the review considers the steps taken by the PR
from the PR’s perspective in light of the circumstances. See RCW 11.40.040(1). Since
the undisputed evidence here demonstrates that the decedent did not receive mail at his
physical mailbox, the PR’s failure to check the mailbox for records does not undermine
the reasonableness of the PR’s review. Because the PR’s review was sufficient and
reasonable, the statute presumes the PR exercised reasonable diligence. See id.
8 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
The next question is whether Right Now’s claims were ascertained during the
exercise of reasonable diligence. RCW 11.40.040(2). Right Now argues that its claims
were ascertained because the PR discovered a copy of the Agreement. The PR disputes
this claim, but for purposes of evaluating the Estate’s motion for summary judgment, we
assume that she found a copy of the Agreement.
“[A] party seeking to establish a claim against an estate for services rendered to
the decedent during [their] lifetime has the burden of proving an express or implied
contract to pay for the services, and the evidence to support such claim must be clear,
cogent, and convincing.” Richards v. Pac. Nat. Bank of Wash., 10 Wn. App. 542, 543,
519 P.2d 272 (1974). Here, the Agreement clearly provides that the parties to the
contract are the decedent and Home Depot. Right Now is identified as only a service
provider. The Agreement required the decedent to pay Home Depot for the services and
specifically prohibited the decedent from paying the Service Provider directly. Even
assuming the PR discovered the Agreement during her review of the decedent’s records,
the Agreement did not and would not provide clear, cogent, and convincing evidence of a
contract claim by Right Now because Right Now was not listed as either a party or payee
to the Agreement.
9 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Nor would discovery of the Agreement provide notice of Right Now’s claims for
unjust enrichment.2 An unjust enrichment claim is based on an implied contract between
parties. Lavington v. Hillier, 22 Wn. App. 2d 134, 143, 510 P.3d 373 (2022). “The cause
of action allows a plaintiff to recover for the value of a benefit the defendant retained
even though there is no formal contractual relationship, based on equity and fairness.”
Id. at 143-44.
Discovery of the Agreement would not give notice of an implied contract with
Right Now. To the contrary, the Agreement informed the decedent that Right Now
would be paid by Home Depot. The Agreement also recognized that if Home Depot did
not pay, the Service Provider could file notice of a mechanic’s lien on the decedent’s
property. Had Right Now filed a notice of lien on the decedent’s property, it would have
provided notice to the PR of Right Now’s claim for unjust enrichment. But claims that
are not evident from the decedent’s records are not considered readily ascertainable. See
Fitzgerald, 172 Wn. App. at 451 (ascertainable claims by one creditor did not alert PR to
potential claims by a different unnamed creditor).
2 While unnecessary to our resolution of this case, the trial court erred by granting summary judgment to Right Now on its claims for unjust enrichment and breach of contract. A claim for unjust enrichment cannot coexist with a claim for breach of contract on the same set of facts. Chandler v. Wash. Toll Bridge Auth., 17 Wn.2d 591, 603-04, 137 P.2d 97 (1943). Because the claims were asserted on the same set of facts, the trial court’s rulings are incompatible.
10 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Since Right Now’s claims were not ascertained through the PR’s exercise of
reasonable diligence, there is a presumption that Right Now is not a reasonably
ascertainable creditor. To overcome this presumption, Right Now must present clear,
cogent, and convincing evidence that it was reasonably ascertainable. On summary
judgment, we consider whether, viewing the evidence in the light most favorable to Right
Now, a rational trier of fact could find that Right Now demonstrated by clear, cogent, and
convincing evidence that it was a reasonably ascertainable creditor. See Woody, 146 Wn.
App. at 22. Unlike our focus on what constitutes a reasonable review from the PR’s
perspective, this step in the framework also considers what steps Right Now took to make
itself known as an ascertainable creditor.
We conclude that the evidence presented by Right Now fails to demonstrate that a
rational trier of fact could find that Right Now was a reasonably ascertainable creditor.
The only steps Right Now took to give notice of its claim consisted of phone calls with
the decedent and two letters mailed in quick succession to the physical address shortly
before the decedent’s passing. Nothing in this record suggests that phone calls with the
decedent would put the PR on notice of a claim. Nor is there any evidence that the two
letters actually succeeded in giving notice to the PR. Although Right Now contends that
its letters were not returned, Right Now does not indicate that it did anything to follow up
when it received no response from the decedent.
11 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
Not only did Right Now fail to show evidence of actual notice to the PR, but its
efforts fall short of demonstrating clear, cogent, and convincing evidence that it was
reasonably ascertainable. As the Agreement between Home Depot and the decedent
suggested, one of the most effective ways for a service provider (or subcontractor) to give
notice to a property owner of its claim is to give notice of the right to claim a mechanic’s
lien pursuant to chapter 60.04 RCW.3 But even under this chapter, notice to the
homeowner of a potential lien must be provided by certified or registered mail or
personal delivery. RCW 60.04.031(1). While we do not hold that a Service Provider is
required to file notice of a lien in order to provide notice under RCW 11.04.040, we
recognize that a creditor’s notice of its claim by way of certified or registered mail or
3 During argument on the competing motions, the superior court commented that the Estate’s argument that Right Now could have filed notice of a potential mechanic’s lien on the property was essentially a concession that Right Now was a party to the contract. This is a misstatement of the law and directly contradicted by the statute. The mechanic’s lien chapter provides protection for subcontractors who do not contract directly with a property owner and ensures that they are paid. See Int’l Com. Collectors, Inc. v. Mazel Co., 48 Wn. App. 712, 714, 740 P.2d 363 (1987) (“In private projects rather than the materialmen, laborers or contractors being relegated to actions against their employers or contractors, another remedy is provided by giving a lien to those entitled to one against the property itself—which means in effect against the owner of the property who, however, may not have contracted with any of the parties entitled to a lien.”); RCW 60.04.031(3) (“Persons who furnish professional services, materials, or equipment in connection with the repair, alteration, or remodel of an existing owner-occupied single- family residence or appurtenant garage: . . . (b) Who do not contract directly with the owner-occupier or their common law agent shall give notice of the right to claim a lien to the owner-occupier.” (Emphasis added.))
12 No. 41137-1-III Right Now Heating, Cooling & Plumbing, LLC v. Waldo, et al
personal delivery is much more compelling evidence that a creditor was reasonably
ascertainable when there is no contract between a subcontractor and the property owner.
We hold that the undisputed evidence shows that the PR conducted a reasonable
review of the decedent’s correspondence and financial records, which raises the
presumption that the PR exercised reasonable diligence. We also conclude that through
her exercise of reasonable diligence, the PR did not discover or would not discover the
existence of Right Now’s claim against the Estate and thus it is presumed that Right Now
was not a reasonably ascertainable creditor. Right Now fails to overcome this
presumption with clear, cogent, and convincing evidence that it was a reasonably
ascertainable creditor. Because it was not a reasonably ascertainable creditor, its notice
of claim was untimely. Since we conclude that Right Now’s claim was untimely, it is
unnecessary to determine the merits of its claims for contract damages and unjust
enrichment.
We reverse the trial court’s order granting Right Now’s motion on summary
judgment. In addition, we reverse the trial court’s order denying the Estate’s motion for
summary judgment and remand with instructions to enter judgment in favor of the Estate.
_________________________________ Staab, C.J. WE CONCUR:
_________________________________ _________________________________ Hill, J. Murphy, J.