In Re The Estate Of Marguerite Sammann

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FILED
4/26/2021
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of
MARGUERITE SAMMANN,

ANNA J. ARMSTRONG, as Personal
Representative of the Estate of Robert
M. White, and BARBARA J. COSTER,
Administrator of the Estate of
Marguerite Sammann,

Respondents,
V.
NADENE M. SAMMANN, as Personal
Representative of the Estate of

Marguerite Sammann,

Appellant.

DIVISION ONE

No. 81072-3-I

UNPUBLISHED OPINION

Dwyer, J. — Nadene Sammann appeals from a superior court order on

revision adopting a commissioner’s order in her mother’s probate proceedings.

We affirm.

Marguerite Sammann and her daughter Nadene Sammann have a long

history of litigation related to Marguerite’s' two siblings, Robert and Rosemarie

White. Beginning in 2009, during guardianship proceedings for Robert,

Marguerite and Nadene pursued litigious and frivolous filings that led the superior

court to award attorney fees and monetary sanctions in favor of the personal

1 Members of the Sammann and White families are referred to by their first names to

avoid confusion. No disrespect is intended.

No. 81072-3-I/2
2
representative of Robert’s guardianship estate, respondent Anna Armstrong.2
Robert died in 2013. Since then, multiple courts have entered monetary
judgments against Marguerite and Nadene for filing meritless lawsuits related to
Robert’s probate estate.3 Rosemarie died in 2015. Nadene is the personal
representative of Rosemarie’s estate. Both Rosemarie’s and Robert’s estates
are being administered in the Pierce County Superior Court.
Marguerite died on April 10, 2017, and her will was thereafter admitted to
probate in the King County Superior Court. Nadene is the sole beneficiary of
Marguerite’s estate. Marguerite’s estate is a beneficiary of both Robert’s and
Rosemarie’s estates. Due to the various monetary judgments entered against
Marguerite’s estate, no distributions are expected from Robert’s estate.
Marguerite’s estate has received a distribution of $45,000 from Rosemarie’s
estate. The only other asset in Marguerite’s estate is its interest in Marguerite’s
real property in Seattle, a home in which Nadene currently resides.
Nadene was initially approved as the personal representative of
Marguerite’s estate and granted nonintervention authority. However, Armstrong
2 Courts have also issued orders precluding further filings from Nadene in various
circumstances. Division Two of this court prohibited Marguerite and Nadene from filing further
appeals of orders arising in Robert’s guardianship proceeding. See Order Denying Motion to
Modify and Prohibiting Petitioners From Filing Further Appeals, In re Guardianship of Robert M.
White, No. 41149-1-II (Wash. Ct. App. June 16, 2011). Our Supreme Court has refused to
entertain further filings from Nadene until she provides proof of payment of the sanctions it
previously imposed. See Ruling Denying Review and Awarding Sanctions, In re Guardianship of
Robert M. White, No. 86281-8 (Wash. Sup. Ct. Sept. 23, 2011).
3 The parties have not provided exhaustive documentation about the various judgments.
Relevant here, the King County Superior Court entered summary judgment against Marguerite’s
estate in favor of Robert’s estate for $150,935.57 and attorney fees of $5,047.50 with 12 percent
interest per annum. The superior court also calculated the interest to date in 2018 as $7,856.72.
Respondent Armstrong informs us that this judgment “is based upon the total of 7 judgments
entered against Marguerite.” As of late 2019, Armstrong’s counsel calculated the total judgments
entered against Marguerite’s estate to amount to approximately $196,000.

No. 81072-3-I/3
3
petitioned the superior court to remove Nadene as the personal representative
because Nadene had failed to disclose the existence of the monetary judgments
against Marguerite, rejected the valid creditor’s claims of Robert’s estate, and
allegedly evaded service of legal documents. The superior court found that
Nadene had misrepresented the solvency status of Marguerite’s estate.
Accordingly, the superior court granted the petition, removed Nadene as the
personal representative of Marguerite’s estate, and appointed respondent
Barbara Coster as personal representative.
Title to Marguerite’s property is clouded. When Marguerite’s husband
died in 1986, Marguerite transferred his community property interest in the
property to herself. Marguerite then transferred her interest in the property into a
trust with herself as trustee and Nadene as the beneficiary. Between 1987 and
2002, Marguerite recorded multiple quit claim deeds to transfer partial interests in
the property from the trust to Nadene. After many, but not all, of these transfers,
Nadene then transferred the partial interests she had received into a trust with
herself as trustee and Marguerite as the beneficiary. Nadene also filed a
document entitled “Declaration of Homestead” in 1999, but it is unclear whether
she had any recognized ownership interest in the property at that time.
Nadene has also asserted conflicting claims about ownership. On appeal,
she claims to own 100 percent of the property. But in 2017, Nadene filed a
declaration in the Pierce County Superior Court that stated she owned half of the
property and Marguerite owned the other half.

No. 81072-3-I/4
4
Based on the recorded documents, Marguerite’s estate, Marguerite’s trust,
Nadene, and Nadene’s trust may all have an interest in the property. If some or
all of the transfers prove to be valid, it is possible that Marguerite’s estate actually
owns little to no interest in the property. Given the convoluted nature of the
transfers, a quiet title action will likely be necessary to ascertain ownership of the
property—unless all of the parties can negotiate an agreement.
Coster filed a petition for instructions in the King County Superior Court on
August 30, 2019 and set a hearing for September 17, 2019. The petition
requested that the court authorize Coster to (1) execute a quit claim deed that
would transfer any interest Marguerite’s estate may have in the property to
Nadene, (2) use any remaining funds to partially satisfy the monetary judgments
against Marguerite held by Robert’s estate, and (3) close the estate.
Both Nadene and Armstrong objected to the petition. Nadene alleged that
the petition suffered from various procedural defects and requested that Coster’s
requests be denied or modified. Because Robert’s estate is a creditor of
Marguerite’s estate, Armstrong objected to closing Marguerite’s estate prior to
resolving the still-pending creditor’s claim. Armstrong also requested that the
court direct Coster to sell any interest that Marguerite’s estate retained in the
property to Robert’s estate for $5,000.
Coster filed an amended request for relief on September 11, 2019. The
amended request for relief urged denial of Armstrong’s request that Marguerite’s
estate’s interest in the property be sold to Robert’s estate. Instead, Coster asked
the court to enter an order that directed her to take one of three actions: (1)

No. 81072-3-I/5
5
transfer any interest in the property to Nadene as originally proposed, (2) transfer
any interest in the property to Robert’s estate to be set off against the monetary
judgments that the estate owns against Marguerite, or (3) obtain a litigation title
report concerning the property before taking further action. Coster
recommended that the third option be ordered.
All parties appeared for a hearing on September 17, 2019 in front of a
superior court commissioner. Prior to the hearing, the parties attempted to
negotiate an agreement to resolve the various contested issues. Although the
exact details of this negotiation are disputed, the record indicates that the parties
reached an agreement as to the entry of a proposed agreed order. However,
Nadene claimed that she wanted to consult with an attorney before signing the
order. For their part, Coster and Armstrong did not want to further delay the
proceedings. As a compromise, the parties agreed to include a provision that
would provide Nadene a 30-day period to consult with an independent attorney
about the order at her discretion and petition the commissioner to review the
terms of the order.
On the record, the commissioner discussed the terms of the proposed
order with the parties. The commissioner then asked whether Nadene had any
questions about what she had heard. Nadene replied, “No. My only concern is
the nine-month period to pay it off.” To address her concern, Coster and
Armstrong consented to an 11-month period for Nadene to satisfy the obligations
set forth. The parties then agreed to draft the order and return for entry of the
order by the commissioner.

No. 81072-3-I/6
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After conferring, the parties drafted and reviewed the proposed order. The
finalized order provided that Nadene “shall consult with an independent attorney
at her discretion and may petition this court to review the terms of this order upon
the filing of a proper notice of hearing within thirty (30) days of entry of this
order.” The commissioner entered the order that afternoon.
Nadene filed a “Petition to Vacate” the agreed order on October 17, 2019.
Therein, Nadene argued that the order should be vacated on various grounds:
(1) fraudulent inducement, (2) unconscionability, (3) violations of public policy, (4)
lack of consideration, (5) breach of fiduciary duty, and (6) violations of the
Consumer Protection Act, chapter 19.86 RCW.
The parties appeared before the same commissioner on November 4,
2019. During the hearing, the commissioner noted that the agreed order “was
very unusual in [Nadene’s] favor” because it gave her an additional 30 days to
consult with an attorney to review the order’s terms and “have effectively a do-
over.” Nadene appeared at the hearing pro se. She presented no evidence to
the commissioner to demonstrate that she had either retained or consulted an
attorney regarding the September 17 order. The commissioner found that there
was no basis to vacate the September 17 order and denied Nadene’s petition.
On November 14, 2019, Nadene sought revision of the commissioner’s
decision. Nadene filed multiple declarations in the superior court. Nadene also
asserted, for the first time, that she had actually consulted with independent
counsel. After oral argument on January 3, 2020, the superior court adopted the
commissioner’s decision as the decision of the court.

No. 81072-3-I/7
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Nadene appeals.
II
“On revision, the superior court reviews both the commissioner’s findings
of fact and conclusions of law de novo based upon the evidence and issues
presented to the commissioner.” State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d
132 (2004). The superior court cannot accept new evidence. RCW 2.24.050; In
re Marriage of Lyle, 199 Wn. App. 629, 632, 398 P.3d 1225 (2017). In all other
respects, a motion for revision is on equal footing to all other matters on the
court’s docket. Lyle, 199 Wn. App. at 632. We review the superior court’s
decision, not the commissioner’s. Ramer, 151 Wn.2d at 113.
Unchallenged findings of fact are verities on appeal. In re Estate of Little,
9 Wn. App. 2d 262, 274, 444 P.3d 23 (citing In re Estate of Jones, 152 Wn.2d 1,
8, 93 P.3d 147 (2004)), review denied, 194 Wn.2d 1006 (2019). We uphold
challenged findings of fact when the findings are supported by substantial
evidence. Jones, 152 Wn.2d at 8. “Substantial evidence is evidence that is
sufficient to persuade a rational, fair-minded person of the truth of the
finding.” Jones, 152 Wn.2d at 1. We review conclusions of law de novo. Jones,
152 Wn.2d at 8-9.
III
We must first address whether this appeal is properly taken. Respondent
Armstrong asserts that Nadene is precluded from prosecuting this appeal by an
order of Division Two of this court. But Armstrong does not cite to such an order.
Instead, Armstrong cites to a declaration from counsel that contains similar

No. 81072-3-I/8
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assertions, a letter from our Supreme Court, and statements uttered by Nadene
during the superior court hearing. These references to the record do not
establish the existence of an appellate court order that precludes Nadene from
prosecuting this appeal, nor do they establish that this appeal falls within the
scope of any such order.
Armstrong did not ask us to take judicial notice of the record in other
proceedings to prove that the purported order exists. We note that the Rules of
Evidence allow courts to take judicial notice of adjudicative facts on appeal,
whether or not judicial notice is requested by a party, subject to the restrictions in
RAP 9.11 on the consideration of additional evidence on review. See ER
201; Spokane Research & Defense Fund v. City of Spokane, 155 Wn.2d 89, 98,
117 P.3d 1117 (2005). “A judicially noticed fact is one that is not subject to
reasonable dispute because it is either ‘(1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.’” In re
Adoption of B.T., 150 Wn.2d 409, 414, 78 P.3d 634 (2003) (quoting ER 201(b)).
However, appellate courts are not permitted to take judicial notice of records in
other proceedings that are “independent and separate,” even if the proceedings
are between the same parties. B.T., 150 Wn.2d at 415.
As the party seeking relief, it is Armstrong’s burden to establish the
existence of the order, its scope and effect, the factual basis for concluding that
this appeal—or certain issues raised in this appeal—falls within the ambit of the

No. 81072-3-I/9
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order, and (if relying on judicial notice) the applicability of ER 201. Armstrong’s
entreaty fails in all respects.
The request to dismiss this appeal is denied.
IV
Nadene contends that the agreed order was procedurally unconscionable
because her lack of counsel and inability to evaluate yet-to-be-drafted documents
put her in an unfair bargaining position and left her without meaningful choice.
We disagree.
“Procedural unconscionability requires evidence of blatant unfairness in
the bargaining process and a lack of meaningful choice,” as determined in light of
the totality of the circumstances. Riley v. Iron Gate Self Storage, 198 Wn. App.
692, 710, 395 P.3d 1059 (2017). Relevant factors include “(1) the manner in
which the parties entered into the contract, (2) whether the parties had a
reasonable opportunity to understand the terms, and (3) whether the terms were
hidden in a maze of fine print.” Riley, 198 Wn. App. at 710. Our Supreme Court
has stressed that we should not apply these factors “‘mechanically without regard
to whether in truth a meaningful choice existed.’” Torgerson v. One Lincoln
Tower, LLC, 166 Wn.2d 510, 519, 210 P.3d 318 (2009) (internal quotation marks
omitted) (quoting Adler v. Fred Lind Manor, 153 Wn.2d 331, 345, 103 P.3d 773
(2004)).

No. 81072-3-I/10
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Nadene chose to represent herself during these proceedings.4 Before the
September 17 hearing, the parties discussed a potential agreement to resolve
the contested issues. Both parties made compromises to address other parties’
concerns. During the hearing, the commissioner reviewed the proposed
agreement on the record and provided Nadene an opportunity to ask questions.
She had none. The parties then drafted the written agreed order together. Such
circumstances do not indicate that Nadene lacked meaningful choice.5
Furthermore, the 30-day provision in the September 17 order explicitly
provided a mechanism for Nadene to obtain review of the terms of the order after
consulting with independent counsel.6 Had Nadene shown that she consulted
with an attorney—who raised specific concerns about the terms of the order—
Nadene could have relied on this provision to seek to remedy those specific
concerns. However, when Nadene filed her “Petition to Vacate,” she failed to
demonstrate that she had consulted with an attorney. Nadene made no such
assertion in her petition, nor did she introduce any such evidence to the
commissioner. She also appeared pro se at the November 4 hearing.
4 We hold pro se litigants to the same standards as attorneys. Little, 9 Wn. App. 2d at
274 n.4 (citing In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993)).
5 Nadene also asserts that CR 2A supports vacating the September 17 order. Because
CR 2A does not preclude enforcement of agreements that are made in writing or put on the
record, we disagree. In re Marriage of Ferree, 71 Wn. App. 35, 40, 856 P.2d 706 (1993).
6 Armstrong contends that Nadene’s appeal should be dismissed because she failed to
comply with the mandatory requirements of CR 60, which governs motions to vacate. But the 30-
day provision was not superfluous. Instead, it provided a mechanism distinct from CR 60 that
permitted Nadene to consult with an attorney about the terms of the order and—after doing so—
petition the commissioner for review within 30 days. Because the 30-day provision provided a
mechanism distinct from CR 60, Armstrong’s claim is meritless. Respondents also assert that
Nadene could only invoke the 30-day provision through counsel, not while pro se. Such a
requirement is nowhere in the plain language of the order.

No. 81072-3-I/11
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On appeal, Nadene contends that she consulted with independent
counsel. She made a similar contention to the superior court in her motion for
revision. However, new evidence is not permitted on revision, nor can new
evidence be introduced on appeal. RCW 2.24.050; RAP 9.1(a); RAP 9.11. Only
the evidence before the commissioner can be reviewed by the superior court
judge or by us. Based on the evidence that Nadene actually presented to the
commissioner, the superior court ruled that there was no basis to vacate the
agreed order. Nadene does not demonstrate error in this ruling.
V
Nadene raises numerous other assignments of error.7 Many of these
alleged errors fall outside the limited scope of the superior court’s decision on
revision. In addition, many of Nadene’s allegations rest on highly argumentative
accounts of actions that took place during the prior history of litigation in related
guardianship and probate proceedings, as well as conclusory assertions about
the intent of the parties, attorneys, and judicial officers. She has not provided
relevant citations to support the majority of her assertions.
The Rules of Appellate Procedure require parties to include a “fair
statement” of the relevant facts in their briefs, with “[r]eference to the record . . .
7 These assignments of error include that the superior court erred in adopting the agreed
order because (1) respondent Armstrong has no standing, (2) Nadene herself owns 100 percent
of the Seattle residence, (3) the order violates public policy, (4) respondents breached their
fiduciary duties by acting for their own benefit, (5) respondents made fraudulent, deceptive, and
coercive misrepresentations, (6) respondents violated the Truth in Lending Act, (7) the superior
court did not enter written findings of fact and conclusions of law, and (8) the terms of the
promissory note and deed of trust do not conform to the terms of the agreed order. We note that
the superior court did not decide whether the terms of the promissory note and deed of trust
comply with the agreed order. Although Nadene alleges discrepancies, that issue was not before
the superior court and it is therefore not before us.

No. 81072-3-I/12
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for each factual statement.” RAP 10.3(a)(5). Parties must also include “citations
to legal authority and references to relevant parts of the record.” RAP 10.3(a)(6).
Nadene has failed to identify evidence in the record supporting many of her
factual allegations, and she has failed to provide citations to authority for many of
her legal arguments. This precludes meaningful review of these alleged errors.
An appellate court has no obligation to search the record to support a party’s
arguments. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828
P.2d 549 (1992). Accordingly, we need not further review these assignments of
error.8
VI
Nadene, despite proceeding pro se, requests an award of attorney fees on
appeal, citing to RCW 11.96A.150 and RAP 18.9.9 Armstrong also requests an
award of attorney fees on appeal, citing to RAP 18.9. We decline both requests.
In estate matters commenced under Title 11 RCW, a court may exercise
discretion to award attorney fees to any party. RCW 11.96A.150. On the other
hand, “RAP 18.9(a) permits an appellate court to award a party attorney fees as
sanctions, terms, or compensatory damages when the opposing party files a
frivolous appellate action.” Advocates for Responsible Dev. v. W. Wash Growth
Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010). An appeal is
8 Nadene filed a “Motion and Declaration in Support of Corrected Reply Brief” on April 19,
2021. The motion is granted. In that brief, Nadene raises additional claims of error that were not
raised in her opening brief, including that respondents breached their RPC 3.3 duty of candor.
Because issues raised for the first time in a reply brief are too late to warrant consideration, we
decline to consider them. See Cowiche Canyon Conservancy, 118 Wn.2d at 809.
9 Nadene also cites to RCW 11.48.210 in her request for attorney fees. This provision
provides for compensation to personal representatives and does not grant Nadene a right to
recover attorney fees in this action. See RCW 11.48.210.

No. 81072-3-I/13
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frivolous only if, considering the entire record, it “presents no debatable issues
upon which reasonable minds might differ” and “is so devoid of merit that there is
no possibility of reversal.” Advocates for Responsible Dev., 170 Wn.2d at 580.
Any doubts about whether the appeal is frivolous are resolved in favor of the
appellant. Advocates for Responsible Dev., 170 Wn.2d at 580.
As to Nadene’s request for an award of attorney fees, a pro se party can
establish no such entitlement. Price v. Price, 174 Wn. App. 894, 905, 301 P.3d
486 (2013) (citing In re Marriage of Brown, 159 Wn. App. 931, 938-39, 247 P.3d
466 (2011)). Moreover, the response briefs filed by the respondents do not
advance frivolous arguments. Finally, nothing about Nadene’s position in this
litigation merits a discretionary award in her favor. For all of these reasons, we
deny her request.
As to Armstrong’s request, Nadene’s assertions on appeal did not totally
lack merit. In particular, we disagree with Armstrong’s assertions concerning
whether this appeal was barred and whether CR 60 controlled the superior
court’s inquiry. We see no reason to award attorney fees.10
10 Coster did not seek an award of attorney fees on appeal.

No. 81072-3-I/14
Affirmed.
1
0.
Lugn,
WE CONCUR:
Cohen, J.
Vulkan 8
14