Opposition Brief — Stein v. Robison

‘me Court, U.S.

xs TILED

JUN 3 2

No. 01-1634

Supreme Court of the Unite

JOHN KENNETH STEIN,

Petitioner,

WILLIAM PD. ROBISON, as trustee under the

Last Will and Testament of Nicholas Stein;

CHRISTOPHER WELCH, as personal representative of

the estate of Nicholas Stein; JOHN STEIN; TAMARA STEIN ,

Respondents.

On PETITION FoR A Writ OF CERTIORARI TO

THE WASHINGTON COURT OF APPEALS

Division Two

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Bruce Colven

Counsel of Record

Ben Shafton

MORSE & BRATT

1111 Main Street, 6" Floor

Vancouver, WA 98666

(360) 699-4780

Attorneys for Respondents

Curry & TAYLOR @ (202) 393-4141 © HTTPY/UssCINFO.cOM

TABLE OF CONTENTS

Re I isis cesiaisiasiassdsiiinbanisbrbiianemioasininendsatieninas

TABLE OF AUTHORITIES .............ccsscssscesssosssosssseees Wascecossecebconinedaccecs

I. CERTIORARI SHOULD BE DENIED BECAUSE THE

COURT OF APPEALS’ DECISION RESTED ON STATE

II. THE SUPREME COURT SHOULD DENY REVIEW OF

PETITIONER'S DUE PROCESS CLAIM BECAUSE IT

WAS NOT RAISED BELOW............:..cccsssssssssscssessecesseseseceees

If]. PETITIONER’S FULL FAITH AND CREDIT ARGUMENT

APPENDIX

EXCERPTS FROM ORDER APPROVING FINAL ACCOUNT

AND DIRECTING DISTRIBUTION .............ccscsssssosssssssesssscsesesesees

EXCERPTS FROM BRIEF OF APPELLANT CONSISTING OF

TABLE OF CONTENTS, TABLE OF AUTHORITIES,

ASSIGNMENTS OF ERROR, AND ISSUES PERTAINING TO

bbb bb bd ph bh haba barbara ritiriitiiiititiiitiiiititii tt

a

8

ii

EXCERPTS FROM REPLY BRIEF CONSISTING OF TABLE

OF CONTENTS AND TABLE OF AUTHORITIES........................ lla

EXCERPTS FROM PETITION FOR REVIEW TO INCLUDE

TABLE OF CONTENTS, TABLE OF AUTHORITIES, ISSUES

PRESENTED, AND EXCERPTS FROM ARGUMENDT................. 23a

iii

TABLE OF AUTHORITIES

CASES

ADAMS V. ROBERTSON, 520 U.S. 83, 137 L.ED.2p 203, 117

sie pny es eat gf eT 8

AMERICAN LEGION V. WALLA WALLA, 116 WN.2D 1, 7, 802

4 pte cece eae ste Be Re ERO 9

CAMPBELL V. LOUISIANA, 523 U.S. 392, 140 L.ED. 561, 118

pepe in cs, say, ETE 8

CHRISTIANSON V. COLT INDUSTRIES, 486 U.S. 800, 100

L.ED.2D 811, 108 S.CT. 2166 (1988)Q0.....ccscssesssssosssssssssseseee... 10

COLEMAN V. THOMPSON, 501 U.S. 722, 115 L.Ep.2p 640,

oe ge ecg oy ae. 5, ill IEA SE St ae a ae 7

COWICHE CANYON CONSERVANCY V. BOSLEY, 118 WN.2D

801, 809, 828 P.2D 549 (1992) oo......ccccecsssssessssssssssssessesseeseecoosss, 8

CUSTIS V, UNITED STATES, 511 U.S. 485, 128 L.Ep.2p 517,

sda et Seat yeas, aT CE 9

DANIELS V. UNITED STATES, 532 U.S. 374, 149 L.Ep.2p 590,

eg cite chspasteite cng, CE EES 9

DURFEE V. DUKE, 375 U.S. 106, 11 L.Ep.2p 186, 84 S.CT.

OD idiciiiitciccindsittiniin ns pectenvenbbeceinaiesesssesisate 10

FIRE PROTECTION DISTRICT V. YAKIMA, 122 WN.2D 371,

387, S58 P2D 245 (1993) ......osseccccccsscoccncessecssssessessovcosscesoseecosss., 8

FOLSOM V. COUNTY OF SPOKANE, 111 WN.2D 256, 263-4,

759 P.2D 1196 (1988) :

HARRIS V. REED, 489 U.S. 255, 103 L.ED.2D 308, 109 S.Cr.

1038 (1989) ......... mm

iv

IN RE ESTATE OF STEIN, 78 WN.APP. 251, 896 P.2p 740

SGP chcieiitniddlnsiadinisicnansicniaii

MICHIGAN V. LONG, 463 U.S. 1082, 77 L.ED.2D 1201, 103

AS PI istic tiie Licaiaiinieasliiganiicbatiigs, 5 hee

OOSTRA V. HOLSTINE, 86 WN.APP. 536, 543, 937 P2p 195

UIP ical dnnsalinS ible 3

SCHMIDT V. CORNERSTONE INVESTMENTS, 115 WN.2D 148,

WO, FO me AA I sissies cininsists lice drschreenenstciics,

STATE V. MANTHIE, 39 WN.APP. 815, 826 FN.1, 696 P2p 33

CR aii hiecehiiiacin echo iitelcedishnhtcihdibaliniledctsaiiedissciauidsicsdk

WEST V. WHITE, 92 OR.APP. 401, 758 P.2p 424 (1988),

AFFIRMED, 307 OR. 296, 766 P.2D 383 (1988) ............c.cessesses0.

WINCHESTER V. STEIN, 86 WN.APP. 458, 937 P.2p 618

(1997), AFFIRMED IN PART AND REVERSED IN PART ON

OTHER GROUNDS, 135 WN.2D 838, 959 P.2D 1077 (1988).......

STATUTES

eID iititicsiiicninianinintisiinliatnisiiss alee k cn

ocak ecctata ip OR NR TET CAN ONE TR

The late Nicholas Stein (Mr. Stein) was a farmer in

Clark County, Washington, which is part of the Portland,

Oregon, Metropolitan area. John Kenneth Stein (Petitioner)

is the son of Nicholas Stein. John Stein and Tamara Stein

(the grandchildren) are Petitioner’s adult children and Mr.

Stein’s grandchildren.

Mr. Stein was possessed of significant assets. These

included approximately one hundred and twenty acres of

farmland and various securities valued in excess of $700,000.

Toward the end of his life, Mr. Stein’s health was

failing. His long time attorney, Ned Hall, was appointed as

Mr. Stein’s limited guardian. A number of issues arose

concerning Mr. Stein’s property. One involved an action to

set aside the transfer of a real estate contract from Mr. Stein

to Petitioner on the basis of fraud and undue influence. Mr.

Hall represented Mr. Stein’s interests. Thelma Lund, who was

a friend of Mr. Stein, testified against Petitioner. The contract

was ultimately set aside.

Petitioner was quite frustrated by these

developments. By 1987, he had engaged “hit men” to cause

Mr. Hall and Ms. Lund to have “accidents”. Thelma Lund was

killed during that year, and attempts were made on Mr. Hall’s

life.

Mr. Stein died in 1987, in a Vancouver, Washington,

nursing home. At the time of his death, two wills were in

existence. He had executed the first in 1984. It left ten

percent (10%) of his gross estate to Thelma Lund. The

remainder was to be divided equally between Petitioner and

the grandchildren. The grandchildren’s shares were to be

placed in trust.

2

Petitioner procured a will slightly more than four

months before Mr. Stein’s death. It left $10,000.00 to Ms.

Lund; $50,000.00 to each of the grandchildren; and virtually

everything else to Petitioner. The grandchildren have always

claimed that Mr. Stein was not competent to execute this

later will or that it was procured by Petitioner’s fraud or

undue influence.

. Shortly after Mr. Stein’s death, Petitioner commenced

a probate proceeding in the Circuit Court of the State of

Oregon for Multnomah County (Portland). He obtained

access to certain securities that his father owned that had

been held within his father’s guardianship. These were

physically located at a bank in Portland. He deposited these

securities in an account in his own name, not in the name of

his father’s estate. He then borrowed against this account to

purchase a residence for his spouse. He also placed some

cash into a bank account in his own name.

The Circuit Court became concerned about

Petitioner’s actions as personal representative and issued an

order impounding the assets in December of 1987. In April of

1988, it removed Petitioner as personal represeniative on its

own motion.

Meanwhile in March of 1988, Mr. Stein’s 1984 will was

admitted to probate in the Superior Court for the State of

Washington for Clark County. By the end of the year, the

Multnomah County Circuit Court closed its interest in Mr.

Stein’s estate. It approved the final account of the successor

personal representative and directed that all assets under his

control be delivered to Mr. Stein’s Washington personal

representative. These included what was left of the proceeds

of the securities. Significantly, the Circuit Court specifically

found that Mr. Stein was a resident and inhabitant of the

State of Washington at the time of his death.

By the end of 1988, criminal charges had been filed

against Petitioner in connection with the death of Ms. Lund

3

and the attempts on Mr. Hall’s life. He was arrested and

confined in the Clark County jail. He was also served with

process in a wrongful death action filed on behalf of Marlene

Winchester as personal representative of Ms. Lund’s estate.

He immediately executed assignments of his share of his

father’s estate to his spouse.

During 1989, the personal representative obtained

court approval to liquidate the securities. These were used to

pay administrative expenses, estate taxes, and certain claims

against Mr. Stein’s estate. The court also approved use of a

portion of these funds to pay Petitioner's attorney’s fees in

connection with the criminal charges that were pending. He

was also allowed monies for living expenses and for the

purchase of a computer. By January of 1991, the proceeds of

the securities had been virtually exhausted. Petitioner had

received a total of $149,600.00 in payments by that time.

In 1991, the criminal case went to trial. Petitioner was

convicted of Attempted First Degree Murder and First Degree

Burglary in connection with the attempts to kill Mr. Hall. He

was acquitted, however, of conspiracy and murder charges in

connection with Thelma Lund’s death.

The wrongful death action also went to trial in 1991.

Ms. Lund’s personal representative obtained a judgment

against Petitioner in the amount of $4 million with interest of

twelve percent (12%) per annum. Petitioner appealed but

made no attempt to supercede the judgment. The judgment

was ultimately affirmed. Winchester v. Stein, 86 Wn.App.

458, 937 P.2d 618 (1997) affirmed in part and reversed in

part on other grounds, 135 Wn.2d 838, 959 P.2d 1077 (1988).

The Lund estate sought execution of its judgment. It

levied on Petitioner’s share of his father’s estate. By that

time, Mr. Stein’s real property was the estate’s only

substantial asset. At a sheriff's sale, the Lund estate bid

$600,000.00 of its judgment to obtain Petitioner’s interest in

the real property. This was less than the amount of interest

4

that had accrued on the judgment. Therefore, the principal

was not reduced by the sale.

Ultimately, the sheriff's sale was confirmed and a

sheriff's deed was issued to the Lund estate. All believed that

the execution sale had the effect of conveying Petitioner’s

entire interest in Mr. Stein’s estate to Ms. Winchester as

personal representative of Thelma Lund’s estate.

Meanwhile, the probate proceedings continued.

Petitioner moved to admit the 1987 will to probate. The

grandchildren contested the validity of the will. The trial

court determined that the 1984 will would prevail. Petitioner

appealed and obtained a reversal. The Court of Appeals

ordered a will contest to determine the validity of the 1987

will.

After the mandate was returned, the Lund estate

sought partial distribution of Petitioner’s share of his father’s

estate on the basis of the sheriff's deed it had received.

Petitioner’s spouse objected and produced the assignments

that had been given to her in 1988. The Lund estate then

petitioned to avoid the assignments as _ fraudulent

conveyances. The matter was tried and the assignments were

held to be fraudulent conveyances, which were then voided.

The grandchildren then obtained an order depriving

Petitioner of standing in the probate action and substituting

the Lund estate in his stead as the real party in interest. This

was based upon the execution sale and the fraudulent

conveyance of Petitioner’s interest in the estate to his spouse.

This development allowed the grandchildren to reach

a settlement with the Lund estate on the distribution of Mr.

Stein’s estate. It was agreed that the 1984 will was the only

valid will of Nicholas Stein. The grandchildren would

receive two-thirds of the net estate less previous partial

distributions, which would be placed in a testamentary trust.

The Lund estate would receive Petitioner’s one-third share

5

less partial distributions made to him, his creditors, or for his

benefit. The personal representative retained certain funds

pending final closure of the estate.

This settlement was approved by the court on March

5, 1998. Petitioner objected to these motions. He did not

argue, however, that the Lund estate had not executed on all

of his interest in his father’s real property. He also did not

request a stay of consideration of the settlement until the

ay: - 2al of his criminal conviction had been decided.

In 1999, the Court of Appeals of the State of

Washington reversed Petitioner’s criminal conviction. He

then moved to vacate the judgment that the Lund estate had

obtained against him. Ultimately, a settlement was reached.

The Lund estate was allowed to keep everything it had

obtained ix: the settlement with the grandchildren together

with its share_-of what had yet to be distributed. In return, the

Lund estate stipulated to an order purporting to vacate its

judgment “ab initio,” to void the previous sheriff's sale, and to

dismiss its case against Petitioner with prejudice. Mr. Stein’s

personal representative and the grandchildren were not

parties to this stipulation. The trial judge in the wrongful

death suit entered the stipulated order but interlined the

language that voiding of the sheriff's sale was “subject to

further review.”

In short, Petitioner allowed the Lund estate to retain

everything it had received in its settlement with the

grandchildren in exchange for an order voiding the judgment.

The Lund estate was not required to disgorge anything.

Mr. Stein’s personal representative then petitioned to

close the estate and to make final distribution in accordance

with the settlement between the grandchildren and the Lund

estate. Petitioner’s standing was restored such that he was

allowed to present argument in support of his position.

Nonetheless, the trial court approved the final report and

allowed all administration costs. It decreed that the

6

grandchildren would receive two-thirds of what remained

with the other third going to the Lund estate.

Il. ARGUMENTS RAISED BY PETITIONER BELOW.

John Kenneth Stein asks for a writ of certiorari so that

the Supreme Court may consider two issues: whether the

due process clause of the Fourteenth Amendment to the

United States Constitution requires a civil judgment and

derivative rights to be set aside when the jury hearing the

case considered felony convictions that were later reversed

as violative of due process; and whether a decision by the

Multnomah County Circuit Court order should be afforded

full faith and credit. He has raised the second issue at every

stage of the proceedings. The first, however, has not been

fairly argued or presented.

The due process issue was not presented to the trial

court in the probate proceeding. In his opening brief to the

Court of Appeals, petitioner assigned error to the approval of

the settlement between the Lund estate and the

grandchildren. He did not raise his due process claim as an

issue to be presented and did not discuss it in his opening

brief. After the respondents submitted their brief, petitioner

did not raise his due process claim in his Reply Brief although

he did allude to the fact that his criminal conviction had been

reversed. Petitioner moved for reconsideration after the

Court of Appeals rendered its decision. His motion for

reconsideration hints at a due process concern at Page 6.

There is no argument or citation to authority, however.

Petitioner also sought review of the Court of Appeals’

decision by the Washington Supreme Court. He argued that

review should be accepted to relieve him of the

consequences of his reversed criminal conviction. This

argument was also not accompanied by any authority.

Since this issue did not appear to have been raised

below, it was not addressed by the personal representative or

the grandchildren in their appellate briefing. As petitioner

7

concedes, the Court of Appeals did not decide this issue.

Petition for Writ of Certiorari, p. 35.

Washington Rules of Appellate Procedure require

that tables of authority be submitted in an opening brief, a

reply brief, and petition for review to the Supreme Court.

The indexes in these briefs and pleadings that petitioner

submitted do not contain any reference to the due process

clause of Fourteenth Amendment to the United States

Constitution.

f

I. DECISION BY THE COURT OF APPEALS.

This case was decided by the Court of Appeals of the

State of Washington. Petitioner sought review by the

Supreme Court, which was denied. The decision of the Court

of Appeals clearly rests on a Washington rule of appellate

procedure. The decision contains no reference to the United

States Constitution, any other issue of federal law or

procedure, or any precedent decided by a federal court.

THE COURT OF APPEALS’ DECISION RESTED

ON STATE LAW,

The Supreme Court has long held that it will not

consider an issue of federal law on direct review from a

judgment of a state court if that judgment rests on a state-law

ground that is independent of the merits of the federal claim

and is an adequate basis for court’s decision. Michigan v.

Long, 463 U.S. 1032, 77 L.Ed.2d 1201, 103 S.Ct. 3469 (1983);

Harris v. Reed, 489 U.S. 255, 103 L.Ed.2d 308, 109 S.Ct. 1038

(1989); Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640,

111 S.Ct. 2546 (1991).

8

In this case, the Court of Appeals rested its decision

on a rule of appellate procedure. It declined to overturn a

settlement reached between the Lund estate and the

grandchildren because of petitioner’s failure to raise one of

his issues before the trial court. The opinion does not

mention federal law or constitutional claims in any way.

Since the decision was clearly based on Washington State

law, the Supreme Court should not accept review.

The Supreme Court will not consider a petitioner’s

federal claim unless that claim was either addressed by or

properly presented to the state court that rendered the

decision sought to be reviewed. Adams v. Robertson, 520

U.S. 83, 137 L.Ed.2d 203, 117 S.Ct. 1028 (1997); Campbell v.

Louisiana, 523 U.S. 392, 140 L.Ed. 551, 118 S.Ct. 1419 (1998).

Petitioner concedes that the Court of Appeals did not

specifically address this due process issue. That means that

he bears the burden of demonstrating that he properly

presented the issue to the Court of Appeals. This is a burden

he cannot carry.

In Washington, all issues and matters for

consideration by the appellate court must be raised in the

opening brief. An issue will not be considered if it is argued

for the first time in a reply brief. Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992); Fire Protection District v. Yakima, 122 Wn.2d 371,

397, 858 P.2d 245 (1993). This rule applies even to errors of

constitutional magnitude. State v. Manthie, 39 Wn.App. 815,

826 fn.1, 696 P.2d 33 (1985); Oostra v. Holstine, 86 Wn.App.

536, 543, 937 P.2d 195 (1997). Furthermore, all issues raised

on appeal — including constitutional issues — must be

supported by argument and citations to legal authority or

they will not be considered. RAP 10.3(a)(5); Schmidt v.

Cornerstone Investments, 115 Wn.2d 148, 160, 795 P.2d 1143

9

(1990); American Legion v. Walla Walla, 116 Wn.2d 1, 7, 802

P.2d 784 (1991).

Petitioner's due process argument was not advanced

in his opening brief. He makes allusion elsewhere to the

reversal of his criminal conviction because of a failure of due

process. He presented, however, no cogent argument or

citation to authority as to how he was denied due process by

the probate decree from which he appealed In fact, the due

process clause of the Fourteenth Amendment to the United

States Constitution — the bedrock of his argument — was

not even cited in his briefs or his petition for review to the

Washington Supreme Court. For these reasons, the —

Court should not take review of this issue. <——

In any event, the arguments petitioner advances are

not supported by the cases he cites. He has referred to

Custis v. United States, 511 U.S. 485, 128 L.Ed.2d 517, 114

S.Ct. 1732 (1994) and Daniels v. United States, 532 U.S. 374,

149 L.Ed.2d 590, 121 S.Ct. 1578 (2001) to support his

contention. In both cases, however, the Supreme Court ruled

that a criminal defendant could not challenge the

constitutionality of prior convictions in a federal sentencing

proceeding or on a motion made under 28 U.S.C. §2255 unless

he could demonstrate a violation of a right to counsel. These

cases suggest, in opposition to petitioner's argument, that a

person may not be protected from all collateral consequences

of the denial of due process related rights.

TI. PETITIONER'S FULL FAITH AND CREDIT

ARGUMENT LACKS MERIT.

Mr. Stein’s estate contained both securities and real

estate. Petitioner contends that disposition of the securities

is governed by Oregon law because they were located in

Oregon after his father’s death and because the 1987 will was

initially admitted to probate in the Circuit Court for

Multnomah County. He then urges application Oregon

abatement rules to obtain a portion of the value of those

10

securities. It is conceded that he has raised this argument

throughout the proceedings. This argument fails, however,

because the Circuit Court had no jurisdiction over the

securities in Nicholas Stein’s estate.

Washington is obviously required to give full faith and

credit to the judgments of sister states. That means that a

foreign judgment must be given the same recognition it

would receive in the state of rendition. If the rendering state

had no jurisdiction, the judgment need not be respected and

is considered a nullity. Durfee v. Duke, 375 U.S. 106, 11

L.Ed.2d 186, 84 S.Ct. 242 (1963).

Oregon limits its probate jurisdiction over the

property of a non-domiciliary. By statute, the will of a non-

domiciliary can operate only on property in Oregon. ORS

113.065(1). Oregon has construed this statute to hold that it

lacks jurisdiction to admit to probate the will of a non-

domiciliary who has no real property in Oregon. Personal

property in Oregon is not sufficient to vest Oregon courts

with probate jurisdiction. West v. White, 92 Or.App. 401, 758

P.2d 424 (1988), affirmed, 307 Or. 296, 766 P.2d 383 (1988).

Nicholas Stein owned no Oregon real property at the

time of his death. The Multnomah County Circuit Court

found that he was a resident of the State of Washington at

that time. This means that Oregon had no probate

jurisdiction over his estate. Therefore, the Circuit Court

order on which petitioner relies is void for lack of jurisdiction

and need not be respected by Washington courts.

It is true that a contrary decision was reached by

Washington’s Court of Appeals in its earlier decision

concerning this estate. In re Estate of Stein, 78 Wn.App. 251,

896 P.2d 740 (1995). That portion of the Court of Appeals’

decision was incorrect and need not be credited as the law of

the case. Christianson v. Colt Industries, 486 U.S. 800, 100

L.Ed.2d 811, 108 S.Ct. 2166 (1988); Folsom v. County of

Spokane, 111 Wn.2d 256, 263-4, 759 P.2d 1196 (1988).

11 -

CONCLUSION

This matter was clearly decided on a state law basis.

For that reason alone, the petition for certiorari should be

denied. Furthermore, petitioner’s due process claim was

neither presented nor decided below. This means it should

not be considered by the Supreme Court. In any event, the

claims petitioner seeks to waive have no merit. On these

bases, the Supreme Court should deny the petition for

certiorari.

RESPECTFULLY SUBMITTED this 31" day of May, 2002.

BRUCE COLVEN

Counsel of Record

BEN SHAFTON

Morse and Bratt

1111 Main St., Suite 600

Vancouver, WA 98666

; Telephone : 360-699-4780

Facsimile : 360-699-4839

Attorneys for Respondents

la

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

Department of Probate

No. 8708-91751

IN THE MATTER OF THE ESTATE OF

NIICHOLAS A. STEIN, Deceased.

ORDER APPROVING FINAL ACCOUNT

AND DIRECTING DISTRIBUTION

This matter coming on to be heard upon the petition

of RICHARD E. PAUL, administrator C.T.A. of the above

entitled estate, for an order approving the final account on

file herein; and

IT APPEARING TO THE COURT, That at the time of

his death said NICHOLAS A. STEIN was a resident and

inhabitant of the State of Washington, as more particularly

appears from the affidavit of Christopher D. Welch, on file

herein; that as the estate of said decederit should properly be

probated in the State of Washington rather than the State of

Oregon, a. final account was filed herein;

***

IS FURTHER ORDERED, That the residue of said

estate be paid and distributed to CHRISTOPHER D. WELCH,

personal representative of the Estate of NICHOLAS A. STEIN,

deceased, in the State of Washington, for final settlement and

distribution as may be determined by the Courts of that State.

***

DATED this 30th day of November, 1988.

Lee Johnson, Judge

2a

No. 24899-9-II

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

Regarding the Estate of Nicholas A. Stein

JACK STEIN,

Appellant,

Vv.

CHRISTOPHER WELCH, personal representative,

WILLIAM D. ROBISON, testamentary trustee,

JOHN STEIN and TAMI STEIN,

Respondents.

BRIEF OF APPELLANT

Thomas Cline

Attorney for Appellant

5308 Ballard Avenue N.W.

Seattle, Washington 98107

(206)789-2777

3a

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ....:..ssssssssssssssscccccsssssssssssssscsscssssosoen ii

ASSIGNMENTS OF ERROR ouessssssssssssssscssscscssssssssccescesenessssssssee 1

ISSUES PERTAINING TO ASSIGNMENTS OF ERROR........... 1

STATEMENT OF THE CASE..essssssssssssssssccsssssssscccsccccessssnsssssssees 3

SUMMARY OF ARGUMENT ....sscssscsssssssssssssseesassessssersseenee 14

IIE. iciiivscisnciattsjuieileinaanbislcteailaimaeannans 16

I. THE WILL CONTEST SHOULD BE SET FOR TRIAL

BECAUSE THE LUND ESTATE LACKED CAPACITY

TO AGREE TO A SETTLEMENT .............:-s0scesessseneesees 16

Il. THERE SHOULD BE A TRANSFER TO JACK STEIN

FROM THE TESTAMENTARY TRUST TO ACCOUNT

FOR THE OREGON PERSONAL PROPERTY............ 24

A. IT IS THE LAW OF THIS CASE THAT THE OREGON

PROPERTY BE DISTRIBUTED ACCORDING TO THE

B. THE OREGON COURT EXERCISED LAWFUL

JURISDICTION OVER SECURITIES FOUND INSIDE

THE VAULT OF AN OREGON BANK...............0s0seese0es 26

C. ABATEMENT STATUTES REQUIRE A

REDISTRIBUTION TO ACCOUNT FOR JACK

STEIN’S RIGHTS IN THE OREGON PROPERTY ......38

Il. IT WAS AN ABUSE OF DISCRETION TO RETAIN

WELCH AFTER HE HAD BEEN FIRED FROM HIS

CIVIL SERVICE POSITION ...........scscsscssssssssscssssserereeeers 41

IV. JACK STEIN SHOULD BE AWARDED HIS

ATTORNEY'S FEES ON APPEAL..............s:ssccesesssseeeees 44

CONCLUSION .........:0ceecesseessssesssssenssnseensensnsnsnssnssnnsnnsnnsnnasnsenennnes 45

5a

TABLE OF AUTHORITIES

WASHINGTON SUPREME COURT

Bellinger v. West Coast Telephone Co.,

54 Wn.2d 576, 343 P.2d 189 (1959) ...........ccccceceereencenseeeeseeenenenes 36

In re Breese’s Estate, 51 Wn.2d 302,

317 P.2d 1065 (1967) .....c..ceccscorcsccsecsecsccsccecsecsesscesecesosssess 27, 34, 38

California v. State Tax Commission,

55 Wn.2d 155, 346 P.2d 1006 (1959) ............ccceseceseseeseneeeeenenenes 33

In re Clayson Estate, 26 Wn.2d 253,

OB P. 410 CRBBL) ncceccecccccscsccescecsscsesesecccsscscesssssocsenssssessssesssnseses 27, 29

Desimone v. Spence, 51 Wn.2d 412,

BIB PBA GUD CIBBT) axcercrccrcescerecnscescsececescrccscscessensscecssnsscsssonsnecseses 18

Dimmel v. Morse, 36 Wn.2d 344,

BIB PBA BBE CIGD) ncccccccccrsccesessecesscscsccsss-<cescscnscssssscsccsnssnssesssenses 22

Estate of Grady, 79 Wn.2d 41,

GBB PDO BEG COTA) ncececsceccessscensssscccesccsreccscsscescsnnessesssvesescssosessonsd 33

Folsom v. County of Spokane,

111 Wn.2d 256, 759 P.2d 1196 (1988) .............sccecrcerseeseereeneenees 25

Fuller v. Ostruske, 48 Wn.2d 802,

BBS PDE GBB (RBBB) naccorsesserccsccscsccscceseesecceccsccsccscssscccessacesoscessessons 36

Higgins v. Nethery, 30 Wash. 239,

TOP. GBD (IBGE) ancororacccsccccscecesescecescscscescsceseenenasccsssscessssenesesseceeneee 27

In re Lioyd’s Estate, 185 Wash. 61,

52 P.2d 1269 (1936) —— we 20, 32-33

Lutheran Day Care v. Snohomish County,

119 Wn.2d 91, 829 P.2d 746 (1992) .........c-cececcesereeeesereseesenenenenees 24

6a

In re Lyon's Estate, 175 Wash. 115,

26 P.2d G15 (1933) .....-susssveseseesnsersvsrsessnecrnecnsesrsssnnecnnccnssnnssnessenes 32

Miebach v. Colasurdo, 102 Wn.2d 170,

GRE P.2d 1074 (1984) .....ssessecsessssesessnsensensenssnnennsensenssnnsensnnsnnsensees 22

Rader v. Stubblefield, 43 Wash. 334,

In re Rowley’s Estate, 178 Wash. 460,

35 P.2d BA (1934) ..n..oescsssrseerecsneesssrncenscnnsenscnsccnscnnscenscnscenseassensess 27

Singly v. Warren, 18 Wash. 434,

B1 P. 1066 (1898)..........:sssscsssessseesenesenesesnenensenensees satiaieiieiuniauaunianin 22

Washburn v. Beatt Equipment Co.,

120 Wnr.2d 246, 840 P.2d 860 (1992).........--srsrrsesrnsererrsrssersenenns 21

WASHINGTON COURT OF APPEALS

Estate of Elmer, 91 Wn. App. 785,

959 P.2d 701 (1998) .....-sessecseesscsssenssnssnsensensensrnssnennsenennsensensessenes 44

Estate of Stein, 78 Wn. App. 251,

BOG P.2d 740 (1995) .....ssececesserserssssseneesenennsnsneenenennsnsnsesseees 11,26,34

State v. Stein, 94 Wn. App. 616,

972 P.2d BOB (1999) .....-s-svecessecessessesseneenssenssnsnesnsnnensessncenssees 13, 21

Winchester v. Stein, 86 Wn. App. 458, 937

P.2d 618 (1997), aff'd in part, rev'd in part,

135 P.2d 835, 959 P.2d 1077 (1998).....-..--+++++ sconnessccnnneseeenee 20-2 1

OTHER CASES

Eidman v. Martinez, 184 U.S. 578,

22. S.Ct. 515, 46 P.2d 697 (1902) ....0--s--srsevesversernsnnsnsrsrnseneers 34-35

7a

Farmers Loan & Trust Co. v. Minnesota,

280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371

(1930)........cscsscssssssssesesesseresecsrscssssessnsnsssssenensecacssssensnsacensees 30-31, 35

Thomas Kay Woolen Mill Co. v. Sprague,

259 F. 338 (D. Or. 1919) .......ccssecssereressseseerssesserersenesseeeneesees 28-29

In re Vilas’ Estate, 166 Or. 115,

110 P.2d 940 (1941) ........ccccsccsssssseseessecsressssseesssseseetesssenes 29-30, 38

REVISED CODE OF WASHINGTON

RCW 6.21.080 .0........cscsscssssssssssssscsrcsrserssessessssscnssecsesssssnsesencenseneess 18

RCW 6.21.070 .0.......cccecsocsscossscsscsccsccsccsccersecsesssssssscsccsosssssserscssseass 20

RCW 6.21.130..........ccccsocssssrsscsscsccsccsscersecsscssssrsnssssscssssossccsecescesenes 23

RCW 11.04.250 ..........cscscscsssssssssseccsesscsrsesssssssscesscsseseseecerenes 19-20

RCW 11.10.010.............cccsscescsccsscsccercersecescssssssecssssscossecsersesees 39-40

RCW 11.16.060 sadsianiaibtesianeccnsisnitsanbanaptinbeeniniabensiosensiesscnwessensiassonessaiene 28

RCW 11.28.250........cccsrsscsscsssssccscsscsssersscercsssessesssssesssessessssesecsenes ps

RCW 11.96.140..........ocsecsscorcsrsorsccsccsccscsscsecsosssssnsnssessssessossssessorsees 45

RCW 62A.8-102 ........sescsscsssssssscsseseccescsrensssssccenssssessssessssenseeceneas 37

RCW 62A.8-112 .........sccccssccrcssssscesssssscercersesessesscssesssessssssseseeseseess 37

RCW 62A.8-317 .......cccccccossscscsssssssssscssccsessssesssssossrscsscssssessssescersars 37

WASHINGTON SESSION LAWS

1939 Wash. Laws, Ch. 100 ..........scseeenssrsessessessrsessnseseenenees 35-36

8a

OREGON REVISED STATUTES

Se I indhssssnnsunhtolecsncictticiiandoadiasaacaniaiaaanabiaaa 37

I I aiesinietcntibaasiteiisse mina. 37

Sr iistcteeniectinceeth ciasdeetntiptceicctoni cle rachideetnadshiomiinidieee 37

i chicconashenssncticapssccresiantaacaslisscaeiaataicinescasacelsteaiacs 30

I i acdcteaias adatadipehsihstiand ahiadaainecerwignibatinnamiaaee 39

I RC ante 40

9a

ASSIGNMENTS OF ERROR

The Superior Court erred (1) when it denied Jack

Stein’s motion to revoke administration of the 1984 will; (2)

when it denied Jack Stein’s motion to remove the

administrator; (3) when it refused to set a date for trial of the

will contest; (4) when it substituted the Lund Estate for Jack

Stein as real party in interest; (5) when it partially distributed

the estate; (6) when it approved an agreement among the

administrator, the Stein grandchildren, and the Lund Estate

for settlement of the estate; (7) when it refused to rescind its

approval of the settlement after it restored standing to Jack

Stein; (8) when it refused to abate the distribution to the

testatmentary trust; and (9) when it entered a final decree

distributing the estate according to the 1984 will.

ISSUES PERTAINING TO ASSIGNMENTS OF ERROR

1. Did the Oregon probate court have subject matter

jurisdiction over certificated securities in the custody of an

Oregon bank on the date of Nicholas Stein’s death?

2. Was it an abuse of discretion to permit the

administrator to retain his office after the Superior Court had

been advised of his firing from a civil service job for

fraternizing with cocaine users and defrauding a jeweler?

3. Should the Superior Court have completely

substituted the Lund Estate for Jack Stein as real party in

interest when its sheriff's deed describes only about one-half

_of the devised real property?

4. Did the Lund Estate itself retain standing after the

administrator had sold the entirity of the devised real

property to third parties?

5. Should the Superior Court have partially

distributed all but a small portion of the estate without first

conducting the will contest mandated by this Court?

10a

6. Should the Superior Court have approved an

agreement for settlement of the estate without insisting upon

Jack Stein’s consent or, at the very least, affording him notice

and an opportunity to be heard?

7. Even if the Superior Court proceeded correctly

when it adopted the 1984 will, should it nevertheless have

given full faith and credit to Oregon’s adoption of the 1987

will and abate the share of the testamentary trust to account

for personal property, found in Oregon, that was consumed

by estate administration?

8. When, after this Court reversed Jack Stein’s

criminal convictions, the Lund Estate agreed to vacate its

judgment ab initio and rescind the sheriff's sale, should the

Superior Court have rescinded the agreed settlement to

which the Lund Estate had stipulated in Jack Stein’s stead?

9. Should Jack Stein be awarded his attorney's fees

on this appeal?

lla

No. 24899-9-II

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

Regarding the Estate of Nicholas A. Stein

JACK STEIN,

Appellant,

Vv.

/

CHRISTOPHER WELCH, personal representative,

WILLIAM D. ROBISON, testamentary trustee,

JOHN STEIN and TAMI STEIN,

Respondents.

REPLY BRIEF

Thomas Cline

Attorney for Appellant

5308 Ballard Avenue N.W.

é Seattle, Washington 98107

(206)789-2777

12a

TABLE OF CONTENTS

TABLE OF AUTHORITIEG..............ccsscsssseseesensessesssnsssnserenneneenees iii

RESTATEMENT OF ISSUES ...........scssssssseseseessenesensereenenenees ees

ARGUMEDNT..........ccccecssssssssccsssscsscssssceeacencnssscsasscsssssnssnsensensnseneens 2

I. APPELLANT GAVE AMPLE AND TIMELY NOTICE

OF HIS CONTINUING INTEREST IN THIS ESTATE

_ AND SHOULD HAVE BEEN ALLOWED TO RETAIN

STANDING AT ALL TIMEG...........cccccssssssssssessseenssssrensees 2

Il. THE ORDER VACATING THE WRONGFUL DEATH

JUDGMENT IS PRESUMPTIVELY VALID AND NOT

SUBJECT TO COLLATERAL ATTACK............cssesesseeees 4

Ill. | THE DOCTRINE OF JURISDICTIONAL FINALITY

PRECLUDES COLLATERAL ATFACK UPON THE

OREGON PROBATE DECREES ............sssssssssesesseseseeees 8

IV. THE DECEDENT INTENDED TO ALLOCATE THE

BURDEN OF ESTATE TAXES PRO RATA................ 20

7. STATUTES IN EFFECT ON THE DATE OF DEATH

REQUIRE THAT ESTATE TAXES AND THE COSTS

OF ADMINISTRATION BE SHARED PRO RATA...... 23

A. THE 1965 REVISION OF THE PROBATE CODE

ABROGATED THE DOCTRINE THAT ONCE

BURDENED PERSONAL PROPERTY WITH THE

COST OF ESTATE ADMINISTRATION..............0::0:++ 23

B. THE ALLOCATION OF ESTATE TAXES IS

GOVERNED BY THE UNIFORM ESTATE TAX

APPORTIONMENT ACT .........::.scsssssesssssrseesssersesnnensenes 25

VI. WELCH CONCEALED AN ADJUDICATION BEARING

ON HIS FITNESS AND BREACHED HIS DUTY OF

Pe EIIY sniiciliatintnistalocssisddittasiaiaatinsisiasintsaeninidimbentanaentnnansso’ 27

14a

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Article 4, Section 1.........cccssesesesesssnesenssesnsnsensensenenesnananesnenes 14, 19

UNITED STATES SUPREME COURT

Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242,

11 L.Ed.2d 186 (1963)..........cscscsccsresnssnssnesssnssnsesennsnssnennenees 14-16

Kremer v. Chemical Construction Corp., 456 U.S. 461, 102

S.Ct. 1883, 72 L.Ed.2d 262 (1982)......ssserersnserenereensneenenenes 18-19

Lawrence v. Chater, 516 U.S. 163, 116 S.Ct. 604,

116 S.Ct. 611, 133 L.Ed.2d 545 (1996).......sssesererenenenenenenes 8n.5

Underwriters Assurance. Co. v. North Carolina

Guaranty Ass’n., 455 U.S. 691, 102 S.Ct. 1349,

71 L.Ed.2d 547 (1982).......ccccccssereensesssssnssessssrssnsensnennenenees 16-18

United States v. Munsingwear, Inc., 340 U.S. 36,

71 S.Ct. 104, 95 L.Ed. 36 (1950)......sssessrerserersesenensessnenanssnneesees 7

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513

U.S. 18, 115 S.Ct. 386, 180 L.Ed.2d 233 (1994).......serernereeneers 7-8

WASHINGTON SUPREME COURT

Levas’ Estate, 33 Wn.2d 530, 206 P.2d 482 (1949)........s-:veses0+ 22

Marriage of Himes, 136 Wn.2d 707,

965 P.2d 1087 (1998) .........cecsseccssersenssssesessessnrensenenensnssnsnnsnsnaneres 7

Nielson v. Spanaway General Medical Clinic,

135 Wr.2d 255, 956 P.2d 312 (1998)..sscecscssssssssseesssssseesssseee 5-6

15a

Winchester v. Stein, 135 Wn.2d 835,

EEE IPT STITT csintinnichieondastnnsisenninatsseeineseinabanisnnneaesnisatinenennd 4

WASHINGTON COURT OF APPEALS

Estate of Elmer, $91 Wn. App. 785,

I ci catnhsdtslipsinhdnetndilineeaiiiahil 22

State v. Forhan, 59 Wn. App. 486,

EE ET REN 13

State v. Stein, 94 Wn. App. 616,

RET ER ne ern 4-5

OREGON CASES

Estate of Summers, 49 Or. App. 5,

cal nana sideline liiddniinbaenienbcacelbisnbesan 10

Martin v. Kenworthy, 92 Or. App. 697,

|, E CE ETNa NTT Re 10

Thomas Kay Woolen Mill Co. v. Sprague,

ITIL, SOIL, III dncisecissinsnstnsnsngnionssnencsccsnsnnnesnetaconnentensice 13

In re Vilas’ Estate, 166 Or. 115, 110 P.2d 940 (1941) 13 West

v. White, 92 Or. App. 401, 758 P.2d 424 (1988),

affirmed, 307 Or. 296, 766 P.2d 383 (1988) .........ccssscesssees0e- 12-13

UNITED STATES CODE

TN ER NE 14, 18

REVISED CODE OF WASHINGTON

BIT We DARD cecacccscscesceccserencecssesssccsnscsssssenssneqassescesssossosossesconssoess 4

; 16a

One GEREN AR ORT ee NT 45

et ella 3

Oh I cs sineiiicicbinesidsasmiaiohiseeiaedaalia 21

EOE i. iisineaniniilndilniadaaisatonnnnh 23-24

ell a 5 hil sikatiaaiadeomiantil 23-24

cet ik ai ss sinpinsniensnscibinnhdindstnoniiataats 23-24

erent ah Mi OU _rnsecndasinnsGileceielaecaaelil 24-25

ee I. scommiasaomslantabonieieanoenbie 25

seem i cieniascneleaiibntslaialone 25

WASHINGTON SESSION LAWS

1965 Wash. Laws, Ch. 145 .........sccsesseesseneseesnecseesensensnssensnesees 23

SUPERIOR COURT CIVIL RULES

nc a ulaieananninniliaels 1,68

OREGON REVISED STATUTES

eS eae eae CRATES 10-11, 19

ee meen aoe eae Pete 10

ORS 118.010 .............c.csccscsscssssssrsesesensenssssnessssnsnscensensersnsacsensoes 14

'

t

e

A

:

i

é

;

i

4

‘

t

Zz

,

4

b

%

Pi

=

b

i

A

{

i

4

4

:

17a

SECONDARY AUTHORITIES

T. Atkinson, Handbook of the Law of Wills

(BE OG. 19GB) .ncaccacesacesasaecsosescecccscncesoenersesesescosecseecsnenssosscssesssssaesees 21

W. Bowe & D. Parker, Page on the Law of Wills

(TeV. ©08, 1962) .....s..rscccrsossesscsrsesecccsorececscscssescesesscsereossessceseasecs 21-22

Restatement (Second) of Judgments § 73 (1982)... 6

E. Scoles and E. Halbach, Decedents’ Estates

eed Trwantes CBG OR, NOTE) asiaescenseaicrsesnaccasssenssassasnsoncsccnsesscssnnsconiice 27

Washington Probate Practice and Procedure

(J. Steincipher ed. 1966)...............cscccccersscesscsssssssserscsessesecserees 24

18a

No. 24899-9-II

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

Regarding the Estate of Nicholas A. Stein

JACK STEIN,

Appellant,

Vv.

CHRISTOPHER WELCH, personal representative,

WILLIAM D. ROBISON, testamentary trustee,

JOHN STEIN and TAMI STEIN,

Respondents.

APPELLANT'S MOTION TO RECONSIDER

UNPUBLISHED OPINION

Thomas Cline

Attorney for Appellant

5308 Ballard Avenue N.W.

Seattle, Washington 98107

(206)789-2777

19a

IDENTITY OF MOVING PARTY

Appellant Jack Stein seeks the relief designated

below.

RELIEF REQUESTED

Appellant requests that this court reconsider its

unpublished opinion of February 15, 2001 and reverse the

Superior Court decisions to which he has assigned error.

Appéllant requests, in the alternative, that this court

revise its opinion to make a complete disposition of the

arguments presented to this court for its consideration.

ARGUMENT

Thirty-five days after the oral argument, this court

issued a seven-page opinion that concluded its review of a

fourteen-year probate case, a case involving substantial

public interest, complex legal issues, large sums of money,

and a party who has spent the past twelve years in prison as a

result of a process that—in the opinion of this court and the

federal district court—has been plagued with constitutional

errors at the trial and appellate levels.

Jack Stein disagrees, of course, with the court's

opinion; but he is more concerned with what the opinion has

left unsaid. The opinion upheld the settlement agreement

reached by Jack Stems adversaries in the Superior Court but

did not dispose of each alternative argument as to why that

is void. Your appellant has argued, of course, that

the agreement is void because he retained an interest in his

father’s estate which escaped execution and sale and

remained, therefore, a necessary party to any settlement. But

he also argues there has been a failure of the Lund Estate's

apparent interest in this estate insofar as its judgment has

been infected with the same constitutional errors which led

to a reversal of his felony convictions. These matters have

been fully briefed. It is fair neither to Jack Stein nor to the

20a

appellate process to enter a decision without fully addressing

these alternative arguments.

Jack Stein urges this court to take the occasion of this

motion to issue a more complete opinion. He is not asking for

an academic exercise. He certainly intends, if there is no

change in the outcome of this case, to file a petition for

further review. A more thorough discussion of the issues

would better enable the Supreme Court to consider the merit

of your appellant’s claims.

Jack Stein will soon be called upon to explain to the

Supreme Court why, in his opinion, this court has erred. But

this present motion is directed to the Court of Appeals, and it

is never a comfortable task to attribute error to one’s

audience. It may be helpful simply to state that your

appellant, at the very least, asks this court to pause for a

moment, consider the gravity of its decision, and grant him

the dignity of jousting with a visible opponent.

I. THE OPINION SHOULD EXPLAIN WHY THE

PROBATE SETTLEMENT SURVIVED THE RULE 60

ORDER IN THE WRONGFUL-DEATH CASE

This division of the Court of Appeals has been a nexus

for the various criminal, civil, and probate cases involving

Jack Stein. It would be tempting to consider these cases in

isolation from one another, but justice requires that we do

otherwise.

Z2la

dormant because constitutional errors had interrupted the

appellate process. Some years later, at the direction of the

. federal district court, his appeal was reinstated. Eventually,

the convictions against Jack Stein were reversed.

The reversal triggered a negotiation process. Jack

Stein believed, on good authority, that the wrongful-death

judgment was void. When a jury in a civil action enters a

substantial judgment against a defendant after becoming

aware of multiple felony convictions against him, the

unfairness of the resulting judgment cannot be seriously

questioned when those convictions are later reversed.

The willingness of the Lund Estate to negotiate with

Jack Stein demonstrates an awareness of its dilemma. Given

the apparent bad feelings between those parties, the

negotiation must have been the epitome of an arm’s length

transaction. Eventually, the parties arrived at a stipulation to

vacate the wrongful-death judgment ab initio and to rescind

the sale by the Clark County Sheriff of a portion of Jack

Stein’s real-property interest in this estate.

This court has not yet addressed why, in its opinion,

the Rule 60 order fails to accomplish what, by its plain

meaning, it purports to do. The Stein grandchildren have

argued that the order was the result of a collusive stipulation.

But Jack Stein’s right to bring his Rule 60 motion was

triggered by the reversal of his criminal convictions. He had

no power to control the outcome or timing of his criminal

appeal.

No Washington case appears to have addressed this

precise Rule 60 issue. It would be appropriate therefore to

consider what the federal courts have done. See Warren,

Little & Lund, Inc. v. Max J. Kuney Co., 115 Wn.2d 211, 215,

796 P.2d 1263 (1990). It is the rule in federal court that a

judgment is fully extinguished if the party seeking to vacate

that judgment does so for reasons outside of his or her

control. Compare U.S. Bancorp Mortgage Co. u. Bonner Mall

Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)

22a

with United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct.

104, 95 L.Ed. 36 (1950). See Reply Brief at 7-8.

Insofar as the triggering event for the Rule 60

motion—the outcome of the criminal appeal—was indeed

outside of Jack Stein’s control, the wrongful-death judgment

and the sheriffs sale upon which it was based are without

lawful effect. They can be the source of no alleged right or

interest by anyone who is not a bona fide purchaser.

This type of situation is actually rather common,

particularly in real estate transactions. It arises when Person

A, believing himself to be the owner of certain real estate,

enters into a contract to sell that property to Person B. It is

later proven, through a chain-of-title analysis, that Person C is

the true owner. The sale from A to B would be void. B’s

ee ee

would have title insurance.

To be utterly forthright, this court should explain why

the very same constitutional orror which has led to a reversal

of Jack Stein’s criminal convictions should not also lead, via

the Rule 60 order, to a complete extinguishment of the

wrongful-death judgment and the judicial sale of Jack Stein’s

interest in his father’s estate. This issue was fully and fairly

brought not simply to the attention of the Superior Court but

also to the attention of this court.

* * *

RESPECTFULLY SUBMITTED this 7th day of March

2001. .

Thomas Cline

Attorney for Appellant

WSBA 11772

23a

No. 24899-9-II

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

Regarding the Estate of Nicholas A. Stein

JACK STEIN,

Appellant,

V.

CHRISTOPHER WELCH, personal representative,

WILLIAM D. ROBISON, testamentary trustee,

JOHN STEIN and TAMI STEIN,

Respondents.

PETITION FOR REVIEW

Thomas Cline

Attorney for Appellant

5308 Ballard Avenue N.W.

‘ Seattle, Washington 98107

(206)789-2777

24a

TABLE OF CONTENTS

ee Oe RATT siaestscsssitsinnsinssntiniidateinisatasbbaaimdaan ii

IDENTITY OF PETITIONER innsiviuanaeananasscessinaeenihihasssidenisabaoadiastiieniel 1

COURT OF APPEALS DECISION .........:c.cscscscssesssescssssssesesesessese 1

ISSUES PRESENTED FOR REVIEW...............ccccccssesssssseseeesesees 1

SEALE RUUee SCO Bits CI i aiinincensnsastnenstensenbnincciiealitbainisisillan 2

ARGUMENT WHY REVIEW SHOULD BE ACCEPTED........ 10

I. REVIEW SHOULD BE ACCEPTED TO ELIMINATE

THE COLLATERAL EFFECTS OF ERROR IN THE

Il. | THE RULE 60 ORDER EXTINGUISHED THE RES

JUDICATA EFFECT OF THE WRONGFUL DEATH

IV. FULL FAITH AND CREDIT REQUIRES A

PROPORTIONATE DISTRIBUTION OF

ADMINISTRATIVE EXPENSEG................ccccecssesesesesees 14

¥. THE COURT OF APPEALS FAILED TO CONSIDER

ISSUES THAT ARE INDEPENDENT OF THE

DEFECT IN THE SHERIFF'S DEED ....................0:000+ 20

Re ss ncsnisienieiadniibapeeikseaedilesadeaaananaisldmiaicaccadiiaal 20

25a

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

II Th esiintictcttnssstccdsseceeveserscsesticceessosetsacces 2, 14, 16-18

UNITED STATES SUPREME COURT

Baker v. Baker, Eccles & Co., 242 U.S. 394,

URIs MII MO OMEN. I CROPS Dasscccececccssensnsasosesecrcsnensnsesasecnscenee 18

Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242,

a I CI I ctcrsctecstesacessneceseecsosscasecasssssssstiscsesecseccseccese 16

Riley v. New York Trust Co., 315 U.S. 343,

62 S.Ct. 608, 86 L.Ed. 885 (1942)..............cccccccscsscssssscsscssseersesees 18

Underwriters Assurance Co. v. North Carolina

Guaranty Ass’n, 455 U.S. 691, 102 S.Ct. 1349,

Ss a scamscensnasononnccas 16-17

U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 115 S.Ct. 386,

TTT stesssecedcnsnncannseconessnsccceosesesconscsiesee 13

UNITED STATES CODE

I tt ETI cat catrtaintateseseeneatanesensnsnesesensieeneersesoeseseneoss 18

WASHINGTON SUPREME COURT

Miebach u. Colasurdo, 102 Wn.2d 170,

i nsiensunnninienn 12

State v. Stein, 27 P.3d 184 (July 12, 2001)................... 2, 5, 10, 13

26a

Vandin v. McCleary Timber Co., 157 Wash. 635,

SE Aw I I iiiliiniceiiiiciiciiceiesslaaiia a 11

Warren, Little, & Lund, Inc. v. Max J. Kuney Co.,

115 Wn.2d 211, 796 P.2d 1263 (1990)............. ficuiniiiidaaiaielinnaibaladihs 13

Winchester v. Stein, 135 Wn.2d 835,

Be ae I EE catebadiceieditstahteaiinininistiiceieiodistieteiceteee 6, 8, 13

WASHINGTON COURT OF APPEALS

Estate of Stein, 78 Wn. App. 251, 896

P.2d 740 (1995), review denied, 128

Ps | RAE Sa eC 4, 6, 9, 10, 14-15

State v. Stein, 94 Wn. App. 616, 972 P.2d

505 (1999), affd, 27 P.3d 184 (Wash. 2001)... ececesecseees 5, 13

REVISED CODE OF WASHINGTON

i Be RENN a TT TER 19

ee A I icipasciiiihdecitistiileslidimiaincigeib ta aca ees. 19

WASHINGTON SESSION LAWS

I as i 19

KANSAS SUPREME COURT

27a

OREGON REVISED STATUTES

ORS 113.075 ....ssssscscssssssssnssnasessseeseescennsssnsnnnnnnnncscscssssosseceeesennennen 17

ORS 116.303-116.383 ...........scsccsccceseseseerescessssssssesssersnsecsrenenssnenens 19

ORS 116.313 .........c.ccccoccoccssscsessesscsesscsesenscsers oudinlinnatiiininastbichanosinieh 19

28a

ISSUES PRESENTED FOR REVIEW

1. Should a will contest be reinstated when the

proponent of one of the wills, as a result of an appellate

decision in a related case, succeeds in vacating a judgment

under which his interest in the estate had been sold to the

judgment creditor who proceeded to settle the will contest

with the adverse party?

2. If Oregon administers a portion of a decedent’s

estate on the basis of one will and Washington administers

the balance of the estate on the basis of another, does the

Full Faith and Credit Clause, U.S. Const. art. IV, § 1, permit

the Washington court, after it gains control of the Oregon

property, to favor the Washington distributees by making a

disproportionate assignment of administrative expenses to

the Oregon property?

* * *

ARGUMENT WHY REVIEW SHOULD BE ACCEPTED

I. REVIEW SHOULD BE ACCEPTED TO

ELIMINATE THE COLLATERAL EFFECTS OF

ERROR IN THE CRIMINAL CASE

Your petitioner stands before this court relieved of the stigma

of criminal conviction but not relieved of the consequences.

Because of a unique pattern of events, the erroneous felony

convictions have been given real collateral effects. Although

your petitioner has diligently undertaken the necessary and

proper steps to undo this injustice, he has been thwarted by

the lower courts. To completely remove the consequences of

error in State v. Stein, it falls upon this court to accept

review.