In Re The Matter Of Thomas J. Winter v. Morris A. Winter ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THOMAS J. ) No. 76465-9-I (Consolidated
WINTER, a vulnerable adult: ) with No. 79860-0-I, 78060-3-I;
) Linked with No. 79860-0-I)
MORRIS A. WINTER, )
) DIVISION ONE
Appellant, )
) PUBLISHED OPINION
v. )
)
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES, on behalf of )
THOMAS J. WINTER, )
)
Respondent. )
)
HAZELRIGG, J. — In 2015, the Department of Social and Health Services
sought and obtained a Vulnerable Adult Protection Order (VAPO) on behalf of
Thomas J. Winter against his brother, Morris A. Winter. Morris1 did not seek review
of this order. Morris now seeks review of multiple orders denying motions to vacate
the VAPO on various grounds. Because the court did not abuse its discretion or
misinterpret the Abuse of Vulnerable Adults Act2 in denying the motions to vacate,
we affirm. However, we vacate the order awarding attorney fees to Thomas
because RCW 74.34.130 does not provide a legal basis for the award to a party
who was not the petitioner in the VAPO action.
1 For clarity, Thomas Winter and Morris Winter will be referred to by their first names. No
disrespect is intended.
2 Chapter 74.34 RCW.
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Morris also seeks modification of the clerk’s ruling dismissing a linked
appeal for failure to file his opening brief timely. Because the clerk had a valid
basis to dismiss and Morris has not shown that the ends of justice demand
reinstatement of the appeal, the motion to modify is denied.
FACTS
2015 Issuance of Vulnerable Adult Protection Order
In 2015, the Department of Social and Health Services (DSHS) filed a
petition for a Vulnerable Adult Protection Order (VAPO) on behalf of Thomas
Winter. DSHS sought a VAPO against Thomas’ brother, Morris Winter, alleging
that Morris had threatened Thomas’ dog, Becky, and refused to return the dog to
Thomas, which caused Thomas additional stress and anxiety and exacerbated his
physical symptoms.
Thomas is over 60 years old and has advanced Parkinson’s disease. He
resides in a skilled nursing facility because he is not able to manage his own care.
The petition was supported by the declaration of the Community Nurse Consultant
for Adult Protective Services (APS), who reviewed Thomas’ medical records during
an investigation of a report alleging that Morris was taking funds from Thomas
through undue influence. She found multiple instances in which Thomas told his
medical providers that Morris had threatened Becky. She asserted Thomas had
found a foster home for Becky where he would be able to visit her but Morris
refused to turn over the dog. Attached to the petition was a consent to receipt of
protective services, which indicated that Thomas consented to assistance with a
protection order.
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On June 25, 2015, the court entered a VAPO restraining Morris from
“committing or threatening to commit acts of abandonment, abuse, neglect, or
financial exploitation against the vulnerable adult” for five years. The order
included a finding that “Respondent committed acts of abandonment, abuse,
neglect and/or financial exploitation of the vulnerable adult.” The order also
required Morris to turn over Becky to the APS nurse or the investigating Bellevue
Police detective immediately. It did not include any restraints on contact between
the brothers. Morris surrendered Becky to APS the day after the VAPO was
entered. He did not file a motion for reconsideration or an appeal of this order.
2016 CR 60(b) Motion to Vacate
On June 24, 2016, Morris moved to vacate the VAPO under CR 60(b). He
argued that the portion of the order requiring him to surrender the dog had been
satisfied and that Thomas had recanted his prior allegations of abuse. Thomas
filed a response through his independent counsel opposing the motion to vacate.
DSHS also opposed the motion.
A commissioner of the superior court denied the motion in part and granted
it in part. The court entered findings of fact that Thomas did not recant, but had
subsequently re-confirmed, his statements regarding Morris’ threats to his dog and
that he continued to be a vulnerable adult in need of protection from Morris. The
court concluded that Morris did not have standing to bring a motion under chapter
74.34 RCW and had not shown fraud, mistake, or misconduct justifying relief under
CR 60.
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Morris filed a motion for reconsideration under CR 59, which was denied.
He also moved for revision of the commissioner’s order under RCW 2.24.050. The
superior court denied the motion for revision after a hearing in January 2017. On
“de novo review of the record, on the merits[,]” the court denied the motion to
vacate under CR 60. In its oral ruling, the court made clear that it did not believe
Thomas had recanted the allegations of mental abuse and “[i]f anything, I have
Thomas reiterating that Morris was threatening towards his dog in a way that
alarmed Thomas.”
In considering the equities, the court noted that “the return of the dog is only
a part of the problem” and that “the consequences that Morris has suffered directly
from, apparently because of the customs issue,” were not so inequitable as to
prevent the order from having prospective application. The court stated that it was
not inequitable for the protection order “to have the intended effect” after a “fully
litigated hearing before a commissioner where there were disputed allegations of
mental abuse.” Regarding CR 60(b)(11), the court found that there was “nothing
in this record that indicates that there was some critical piece of factual information
that the commissioner was missing” when the VAPO was entered. In its written
order, the court also noted that it viewed the motion as untimely and that Morris
did not have standing under RCW 74.34.163 to bring a motion to vacate.
Through his independent counsel, Thomas moved for an award of attorney
fees and costs incurred in responding to the motions to vacate, for reconsideration,
and for revision. The court granted the motion, concluding that Thomas was the
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prevailing party and the award constituted necessary relief for his protection under
RCW 74.34.130. DSHS was not involved in the attorney fee request or award.
Morris filed a notice of appeal seeking review of the January 2017 denial of
the motion for revision. He filed a second notice of appeal seeking review of the
order awarding attorney fees and costs to Thomas. The appeals of these two
orders were consolidated for review by this court.
2017 Settlement Agreement in King County Superior Court No. 15-2-22589-8 SEA
Before any briefing had been submitted, Morris and Thomas filed a joint
motion to stay the appeal in this court to facilitate ongoing settlement negotiations.
In a notation ruling, the clerk of this court granted the stay. The parties were
involved in negotiations to settle a separate case that Thomas had brought against
Morris and his wife, Cheryl. DSHS was not involved in that case. The superior
court appointed a litigation guardian ad litem (LGAL) in that case with the authority
“to make decisions related to the procedure of the litigation so long as not involving
a waiver of a substantial right of Thomas.” The court found that:
[Thomas] can sometimes be capable of generally expressing his
interests and guiding his attorney of record as to representation, but
is in need of protection and assistance during times of incapacity and
inability to express his interests, particularly when there is a dosage
change in the medication provided to him as treatment for his
Parkinson’s disease.
In July 2017, Thomas entered into a CR 2A agreement with Morris and
Cheryl to settle the lawsuit. The agreement contained the following provision
concerning the VAPO:
Tom agrees to cooperate fully with efforts to fully vacate the VAPO
order and finding (Case No. 15-2-14162-7) and have the APS finding
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(Docket No. 03-2016-LIC-00149) dismissed with a goal of clearing
Morris’ name. Tom and his attorneys agree to immediately instruct
Talmadge law firm to withdraw their NOA and not participate on
Tom’s behalf. The brothers agree to notify Jennifer Boharski and
DSHS APS that there is a settlement in the civil matter and that the
brothers have reconciled, including all issues surrounding the dog
Becky. The brothers further agree to request that DSHS APS vacate
the VAPO finding and order and APS finding.
In the LGAL’s summary report, he stated that he reviewed the CR 2A with
Thomas and believed Thomas understood all of its terms. The LGAL asserted that
he was familiar with the case and believed the settlement was reasonable,
appropriate, and in Thomas’ best interest “so he could stop the expense of the
litigation in terms of both money and time, and possibly health, and get on with his
life.” He also stated that he did not believe any of the participants in the mediation
would have continued with negotiations if there was any concern about Thomas’
ability to participate in the process.
On October 22, 2017, Thomas amended the consent to receipt of protective
services that he had signed in 2015, stating:
I[,] Thomas J. Winter[,] hereby revoke all authorization and consent
for APS or its agents to provide services related to the matters
involving Morris Winter and myself . . . . I further request APS and its
agents to support vacating the protection order (VAPO) and its
findings that APS sought against Morris Winter on my behalf and
dismiss all findings under any and all APS investigations regarding
Morris Winter and myself because APS and other misinterpreted
records and statements which led to VAPO findings and APS
investigation findings that are inaccurate.
Thomas and his independent counsel both signed the statement.
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2017 Agreed Application to Vacate
On November 8, 2017, Morris and Thomas filed an “agreed application
under RCW 74.34.163” to vacate the VAPO in superior court. At the time he filed
the application, Thomas had not been adjudicated incapacitated under chapter
11.88 RCW. Thomas submitted a declaration stating that he no longer wished for
the VAPO to remain in place. Morris and Thomas argued that keeping the order
in place against Thomas’ wishes would restrict his liberty and autonomy interests.
They also argued that DSHS lacked statutory authority to oppose the application.
DSHS opposed the application. It argued that its response was permitted
because it was a party to the action as the initial petitioner on Thomas’ behalf and
because it had “ongoing concern for him.” It argued that the VAPO should remain
in place because Thomas remained a vulnerable adult in need of protection, as
evidenced by a July 2017 psychological evaluation conducted by Dr. Janice
Edwards and filed in the separate case between Thomas and Morris. Dr. Edwards
concluded that Thomas was subject to influence, particularly from Morris, and did
act under undue influence by Morris. DSHS also argued that Morris did not have
authority to bring a motion to vacate under RCW 74.34.163 and that the VAPO did
not impose any restriction on the brothers’ relationship.
Morris filed a reply and a declaration of Dr. Bennett Blum, who stated his
opinion that Thomas was vulnerable to being unduly influenced but that Morris did
not unduly influence him. Dr. Blum also listed several methodological problems
with Dr. Edwards’ report and opined that there was no evidence to conclude that
Thomas lacked capacity to enter into the settlement agreement. He asserted that
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leaving an unwanted protection order in place could harm the relationship between
the brothers and could cause psychological harm to Thomas.
At the hearing on the application to vacate the VAPO, DSHS requested that
the reply be stricken because Thomas had not joined in the reply and Morris did
not have statutory authority to bring the motion himself. The commissioner heard
from Thomas, who made references to some financial difficulties and Morris’
management of his assets. When the commissioner asked for clarification,
Thomas’ independent counsel made the following statement to the court:
I’m in a difficult ethical situation. And at the time that he signed
the CR 2-A, his guardian ad litem in that action, Craig Coombs[,] and
I believed that he had the capacity to make that decision.
Since that time[,] without revealing attorney-client
confidences, I’ve had some difficulty in being convinced that my
client understands what he signed and what’s going forward. He did
sign the CR 2-A, and at the time that he signed it, I believed that he
had the capacity to do so. Since that time[,] I’m not convinced that[,]
as his attorney and on his behalf, I can actually state what his wishes
actually are. And so I don’t deny signing the CR 2-A on his behalf. I
don’t deny that he really, really would love to have a real relationship
with his brother. I understand Morris Winter’s position that as long as
the VAPO is in place, that’s not likely.
I did not see Dr. Blum's report until Monday morning, and I did
not have the opportunity to review the pleadings in the report with my
client, and that’s why I did not sign the reply.
Even as you can tell from this morning, I’m just not sure that
my client is in a position to give me the authority to sign anything on
his behalf at this point in time.
The guardian ad litem in the litigation was not appointed in this
matter and he has taken the position that it exceeds the scope of his
authority to take a position in this matter. So it’s—I’m very sorry to
present this case to you in this status, Your Honor.
The superior court commissioner denied the application to vacate. The
commissioner noted in his oral ruling:
I found it disappointing when Thomas Winter addressed the
Court that his focus was on the events surrounding the writing of a
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check, the management of the assets from his perspective, and
where that’s left him. I didn’t hear from him an application this
morning to vacate this order.
As such, I’m going to deny the relief requested. And I’m going
to point out that even arguendo that Thomas signed these pleadings
earlier, it’s not clear to me that he has the capacity to make that
decision in this case today. And it’s not clear to me that he wants that
in this case today.
Morris moved to revise the commissioner’s order denying the application.
Thomas did not join in the motion for revision in writing or at the hearing on the
motion. When the superior court asked at the hearing whether Thomas was joining
in the motion, his counsel stated, “I feel like I do not have a client who is able to
give me direction.” The court asked, “I know you did not at the time, but do you
now have concerns about Thomas’s capacity at the time of the CR 2-A?” Thomas’
counsel responded in the affirmative. She indicated that she was receiving
inconsistent directions from Thomas:
My problem, with a client who has very diminished capacity
and fluctuating capacity, is that . . . where my directives from my
client have been mutually exclusive—so, for example, in the
appellate pleadings I gave the example of, you know, it’s okay if I say
I want to lose weight and I eat a cookie while I’m saying it. But to
have a client telling me “I want you to help me lose weight, and I want
you to get me some cookies,” that’s where I am.
The court denied the motion for revision for four “independent reasons,
which each stand on their own:”
1. Thomas Winter is not present asking the court to revise[,]
2. Thomas Winter does not appear to be able to adhere to the CR
2A[,]
3. The court has significant concerns regarding Thomas Winter’s
capacity to enter the CR 2A, his declaration and now[,]
4. The failure of the parties to include the State in the negotiations.
The court articulated some of its reservations in its oral ruling:
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I would settle for Tom Morris [sic] telling us clearly now, which
is not many moons after the CR 2-A agreement, that he wants it, the
underlying order, vacated. I mean, he got that question directly, and
he was unable to say that. He was repeating his worries about his
assets to the commissioner. Nor has he joined in this revision. And
his attorney is letting me know clearly she doesn’t have the ability to
rely on his direction. It’s not even clear that he’s giving her any
direction here. She’s not joining in this revision, so that’s what I have
here is a record that really doesn’t satisfy me that he has decided
that he wants this order vacated. I have indications he did, but that’s
about as much as I’ve got.
Morris appealed the denial of the motion for revision. The appeal was
consolidated with the stayed proceedings in this court and a new briefing schedule
was set. Morris’ appellate counsel withdrew before the opening brief was
submitted.
2018 Motion to Vacate
Meanwhile, in superior court, Thomas filed another motion to vacate the
VAPO under RCW 74.34.163 through his special settlement administrator. Morris
joined in support of Thomas’ motion. On March 8, 2019, the trial court denied
Thomas’ motion to vacate the VAPO. Morris filed another notice of appeal. This
court declined to consolidate the new appeal with the pending appeal, but linked
the two cases for disposition.
The clerk of this court granted two extensions of time for filing the opening
brief and indicated in the second extension that “if the opening brief is not filed by
11-27-19, the appeal will be dismissed without further notice.” On November 27,
2019, Morris filed a motion to extend time for filing his opening brief until December
2, 2019 because, although his brief was “substantially complete,” “a computer
software malfunction has just been discovered that is corrupting elements of the
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opening brief electronic file.” On December 2, 2019, Morris’ former appellate
counsel informed the clerk’s office that he had heard from Cheryl that Morris was
hospitalized for a medical emergency. Former counsel stated that he had a copy
of the incomplete opening brief and could transmit it to the court at the court’s
direction. The clerk of the court dismissed the linked appeal because “the
conditions of the 10-18-19 ruling have not been met.” Morris filed a motion to
modify the clerk’s ruling dismissing the appeal. The clerk of this court referred the
motion to this panel of judges for consideration.
ANALYSIS
I. 2016 CR 60(b) Motion to Vacate
Morris contends that the trial court erred in declining to revise the ruling
denying his motion to vacate, finding his motion untimely, and finding that he
lacked standing under RCW 74.34.163. He also argues that the court erred in
awarding attorney fees under RCW 74.34.163 to Thomas for his independent
counsel’s response to this motion.
A. CR 60(b)
A commissioner’s actions are subject to revision by a superior court judge.
RCW 2.24.050. A party may move for revision of a commissioner’s order within
ten days. Id. If no motion is filed within ten days, the commissioner’s ruling
becomes the order of the superior court. Id. On revision, the superior court reviews
the commissioner’s findings of fact and conclusions of law de novo based on the
evidence and issues presented to the commissioner. Id.; Faciszewski v. Brown,
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187 Wn.2d 308, 313 n.2, 386 P.3d 711 (2016). After the superior court has decided
the motion for revision, any appeal is from the superior court’s decision, not the
commissioner’s. Faciszewski, 187 Wn.2d at 313 n.2.
A trial court’s decision on a CR 60(b) motion to vacate a judgment or order
is within the court’s discretion. Martin v. Pickering, 85 Wn.2d 241, 245, 533 P.2d
380. “Where the decision or order of the trial court is a matter of discretion, it will
not be disturbed on review except on a clear showing of abuse of discretion, that
is, discretion manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775(1971) (superseded by statute on other grounds by, Seattle Times Co v. Benton
County, 661 P.2d 964, 99 Wn.2d 251 (1983)). The superior court’s factual findings
are reviewed for substantial evidence. Sunnyside Valley Irrig. Dist. v. Dickie, 149
Wn.2d 873, 879, 73 P.3d 369 (2003). Substantial evidence is that which is
“sufficient to persuade a rational fair-minded person the premise is true.” Id.The court may grant relief from a final judgment, order, or proceeding for a
number of reasons, including:
(4) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
...
(6) The judgment has been satisfied, released, or discharged, . . . or
it is no longer equitable that the judgment should have prospective
application;
...
(11) Any other reason justifying relief from the operation of the
judgment.
CR 60(b). A CR 60(b) motion is not a substitute for appeal and does not allow a
litigant to challenge the underlying judgment. Bjurstrom v. Campbell, 27 Wn. App.
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449, 451, 618 P.2d 533 (1980). “[A]n unappealed final judgment cannot be
restored to an appellate track by means of moving to vacate and appealing the
denial of the motion.” State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002).
1. CR 60(b)(4)
A party seeking to vacate a judgment under CR 60(b)(4) must establish by
clear and convincing evidence that the fraudulent conduct or misrepresentation
caused the entry of the judgment such that the losing party was prevented from
fully and fairly presenting its case or defense. Lindgren v. Lindgren, 58 Wn. App.
588, 596, 794 P.2d 526 (1990). Clear and convincing evidence is that which shows
the ultimate fact in issue to be highly probable. Douglas Nw., Inc. v. Bill O’Brien &
Sons Const., Inc., 64 Wn. App. 661, 678, 828 P.2d 565 (1992). “The rule is aimed
at judgments which were unfairly obtained, not at those which are factually
incorrect.” Peoples State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056(1989).
Morris highlighted multiple instances in medical records submitted to the
court in which medical providers noted Thomas’ paranoia, confusion, and
admissions that he fabricates information. He also argued that Thomas’
accusations had spawned two separate APS investigations and two criminal
investigations, but stated that all the allegations had been found to be almost
entirely unsubstantiated.
Morris also submitted an excerpt of Thomas’ deposition testimony taken in
connection with the separate civil case between the brothers that, he argued,
showed Thomas recanting his story about the dog. During the deposition, Thomas
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was asked whether Morris had ever said anything about Becky that he considered
threatening and Thomas said, “Yes.” When asked to elaborate, Thomas
responded:
Morris said, [“]If you do anything to stop the litigation,[”] or something
like that, and I took that to mean Becky would be harmed if I didn’t
stop. That was the brunt of the conversation . . . . I took it—he looked
at Becky, and Becky was in a sweater in the hot weather, and she
was supposed to get a break to go pee, and Brian had to remind my
brother as we were leaving to let Becky go pee.
Thomas said that Morris told him he would do whatever he needed to do to protect
himself, just like Thomas would. When asked if Morris had made any other
comments that Thomas considered a threat to Becky, he responded, “Not directly.”
Counsel asked if there were any other indirect threats, and Thomas responded
that he had not had much interaction with Morris since that time. Thomas also
reiterated some of his concerns about Becky’s health when she was living with
Morris.
Considering the evidence as a whole, substantial evidence supported the
superior court’s conclusion that Thomas had not recanted his prior allegations of
mental abuse. Thomas did not directly contradict any of his previous statements
and confirmed that he considered Morris’ words about Becky to have been
threatening. Morris did not show that it was highly probable that the VAPO had
been obtained through fraud, and the court did not abuse its discretion in denying
relief based on CR 60(b)(4).
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2. CR 60(b)(6)
Morris argues that the order was partially satisfied when he returned the
dog and that it would be inequitable for the restraint portion of the VAPO to remain
in effect.
A proceeding to vacate a judgment is equitable in nature “and the relief
sought or afforded is to be administered in accordance with equitable principles
and terms.” White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968).3 In deciding
these motions, the court should exercise its discretion to ensure that the
substantial rights of the parties are preserved and “justice between the parties be
fairly and judiciously done.” Id.Although the commissioner ruled that Morris had satisfied paragraph 10 of
the VAPO and granted the motion for relief in part under CR 60(b)(6), the superior
court did not indicate that any portion of the motion for relief was granted on the
written denial of revision. In its oral ruling, the court noted that “the return of the
dog is only part of the problem.” The court did not make an explicit ruling as to
whether paragraph 10 of the VAPO was satisfied, but stated that “[t]he fact the dog
went back then doesn’t mean the dog shouldn’t stay out of Morris’ custody, and be
in Thomas’ control for the period ordered in the initial order.” The court implied
that an order stating that paragraph 10 had been satisfied “is likely to lead to further
alarm and upset for Thomas who’s still clearly and deeply attached to his dog and
upset about her.”
3 Although the Washington Supreme Court made this statement in reference to a motion
to vacate a default judgment, Division Three of this court has applied this principle in the context of
a CR 60(b) motion to vacate a judgment that was not obtained by default. See In re Marriage of
Hardt, 39 Wn. App. 493, 496, 693 P.2d 1386 (1985).
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The superior court declined to vacate paragraph 10 of the order even
though Morris had surrendered the dog in accordance with the VAPO. Substantial
evidence supported the court’s finding that Thomas remained attached to his dog
and upset about his perception of the treatment she received from Morris. Morris
did not identify any adverse effect that this particular portion of the order, standing
alone, had caused. The court did not abuse its discretion in declining to vacate
paragraph 10 of the order when the balance of the equities did not weigh in favor
of vacation.
Morris also argues that the VAPO should have been vacated under CR
60(b)(6) because it was no longer equitable that the restraint against abuse should
have prospective effect. The catch-all portion of CR 60(b)(6) “was designed to
deal with problems arising under a judgment that has continuing effect, where a
change in circumstances after the judgment makes it inequitable to enforce the
judgment.” Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 438, 723 P.2d
1093 (1986).
Morris argued below that it would be inequitable for the order to remain in
place because APS had issued a decision finding Morris guilty of mental abuse of
a vulnerable adult based on the VAPO and that decision could lead to collateral
reputational and professional consequences. Morris stated that he was appealing
the APS decision. He also asserted that he was subject to long delays when
attempting to reenter the United States at the Canadian border and was told he
would continue to experience problems crossing the border while the VAPO was
in effect. He argued that these consequences made enforcement of the order
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inequitable, relying again on the argument that Thomas had recanted his prior
allegations of mental abuse.
As noted above, substantial evidence supported the superior court’s finding
that Thomas had not recanted the allegations that gave rise to the VAPO. The
court weighed the consequences of the VAPO that Morris was experiencing
against the prior court’s unchallenged finding that Morris had committed acts of
abuse against Thomas and found that it was not inequitable for the order to remain
in effect. The court did not abuse its discretion in making this determination.
3. CR 60(b)(11)
Finally, Morris contended he was entitled to relief under the catch-all section
of CR 60(b), which allows the court to vacate an order for “[a]ny other reason
justifying relief.” CR 60(b)(11). Although the language of the rule is broad, this
provision is “reserved for situations involving extraordinary circumstances not
covered by any other section of CR 60(b).” In re Marriage of Furrow, 115 Wn. App.
661, 673, 63 P.3d 821 (2003). Such circumstances “must relate to ‘irregularities
extraneous to the action of the court or questions concerning the regularity of the
court’s proceedings.’” Id. at 674 (quoting In re Marriage of Yearout, 41 Wn. App.
897, 902, 707 P.2d 1367 (1985)).
[A]n irregularity is regarded as a more fundamental wrong, a more
substantial deviation from procedure than an error of law. An
irregularity is deemed to be of such character as to justify the special
remedies provided by vacation proceedings, whereas errors of law
are deemed to be adequately protected against by the availability of
the appellate process.
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Id. at 674 (quoting Philip A. Trautman, Vacation and Correction of Judgments in
Washington, 35 Wash. L. Rev. 505, 515 (1960)). Division Two of this court has
stated that this provision “supports vacation of a default order and judgment that
is based upon incomplete, incorrect or conclusory factual information.” Caouette
v. Martinez, 71 Wn. App. 69, 78, 856 P.2d 725 (1993).
Morris based his argument under this subsection primarily on the same
grounds as his previous arguments: asserting that Thomas had recanted his
allegations and emphasizing the collateral consequences of the VAPO to Morris.
The superior court did not find any indication that the commissioner was missing
any key factual information at the time the VAPO was entered and found that the
circumstances resulting from the entry of the VAPO were foreseeable and not
extraordinary. Again, the court did not err in finding that Thomas did not recant
and that the consequences to Morris did not justify vacation of the order. Morris
did not claim any other extraordinary circumstances justifying relief. Based on the
record before it, the superior court did not abuse its discretion in denying the motion
to vacate the VAPO under CR 60(b).
B. Alternative Grounds
Morris argues that the court’s notes that it viewed the motion as untimely
and that he did not have standing to bring a motion to vacate the VAPO under
RCW 74.34.163 require reversal. The court denied the CR 60(b) motion on the
merits. It did not deny the motion based on untimeliness or lack of statutory
standing. Morris fails to explain why any error in deciding these issues requires
reversal when the court considered and denied the motion on the merits, nor does
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he provide any citation to authority in support of these arguments. Passing
treatment of an issue, lack of reasoned argument, or conclusory arguments without
citation to authority are not sufficient to merit judicial consideration. West v.
Thurston Cty., 168 Wn. App. 162, 187, 275 P.3d 1200 (2012). We decline to
consider these issues.4
C. Attorney Fee Award Under RCW 74.34.130
Morris argues that Thomas was not entitled to an award of attorney fees
under RCW 74.34.130 because he was not the petitioner in the VAPO action.
Morris also argues that the amount of fees imposed was unreasonable. DSHS
acknowledges that it did not participate in the attorney fee request or award and
does not argue the issue in its brief. Thomas’ independent counsel did not file a
brief in this appeal.
Appellate courts apply a two-part review to attorney fee awards. Gander v.
Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012). First, we review de novo
whether a legal basis exists for awarding attorney fees. Id.; Niccum v. Enquist, 175
Wn.2d 441, 446, 286 P.3d 966 (2012). We review a discretionary decision to
award or deny attorney fees and the reasonableness of any attorney fee award for
an abuse of discretion. Gander, 167 Wn. App. at 647; In re Marriage of Freeman,
4 Morris also lists as an issue pertaining to his assignment of error to this ruling whether
the superior court exceeded the scope of review allowed by RCW 2.24.050 when it discussed the
allegations of financial exploitation in its oral ruling. He does not argue this issue in his brief. “An
assignment of error that is not argued in the brief cannot be considered.” Sepich v. Dep’t of Labor
& Indus., 75 Wn.2d 312, 319, 450 P.2d 940 (1969). We decline to consider this issue in the absence
of argument.
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169 Wn.2d 664, 676, 239 P.3d 557 (2010); Rettkowski v. Dep't of Ecology, 128
Wn.2d 508, 519, 910 P.2d 462 (1996).
When determining the meaning of a statute, the court’s objective is to
ascertain and carry out the legislature’s intent. Dep’t of Ecology v. Campbell &
Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). “When possible, the court
derives legislative intent from the plain language enacted by the legislature,
considering the text of the provision in question, the context of the statute in which
the provision is found, related provisions, amendments to the provision, and the
statutory scheme as a whole.” Columbia Riverkeeper v. Port of Vancouver USA,
188 Wn.2d 421, 432, 395 P.3d 1031 (2017).
“In Washington, ‘[a]ttorney fees may be recovered only when authorized by
statute, a recognized ground of equity, or agreement of the parties.’” Niccum, 175
Wn.2d at 446 (alterations in original) (quoting Perkins Coie v. Williams, 84 Wn.
App. 733, 742–43, 929 P.2d 1215 (1997)). Under the Abuse of Vulnerable Adults
Act (AVA), the court is authorized to “order relief as it deems necessary for the
protection of the vulnerable adult, including . . . [r]equiring the respondent . . . to
reimburse the petitioner for costs incurred in bringing the action, including a
reasonable attorney’s fee.” RCW 74.34.130.
The issue is whether the word “petitioner” as used in this statutory provision
includes the protected vulnerable adult when DSHS petitions for a VAPO on the
vulnerable adult’s behalf. “Petitioner” is not defined in the AVA. When a word is
not defined in a statute, the reviewing court gives the word its usual and ordinary
meaning. State v. Standifer, 110 Wn.2d 90, 93, 750 P.2d 258 (1988). “Petitioner”
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No. 76465-9-I /21
is generally defined as “[a] party who presents a petition to a court or other official
body, esp[ecially] when seeking relief on appeal.” Black’s Law Dictionary (11th ed.
2019).
The AVA provides that a vulnerable adult or an interested person on behalf
of the vulnerable adult may file a petition for a VAPO. RCW 74.34.110(1). DSHS
may file a petition for a VAPO on behalf of and with the consent of a vulnerable
adult. RCW 74.34.150; RCW 74.34.210. Multiple provisions of the AVA draw a
distinction between the petitioner and the vulnerable adult when another party files
the petition on behalf of a vulnerable adult. See RCW 74.34.110(2) (“A petition
shall allege that the petitioner, or person on whose behalf the petition is brought,
is a vulnerable adult.”); RCW 74.34.110(3) (“If the petition is filed by an interested
person, the affidavit or declaration must also include a statement of why the
petitioner qualifies as an interested person.”); RCW 74.34.135(3) (“At the hearing
scheduled by the court, the court shall give the vulnerable adult, the respondent,
the petitioner, and in the court’s discretion other interested persons, the opportunity
to testify and submit relevant evidence.”).
Here, Thomas accepted assistance with a protection order from DSHS, and
DSHS filed the petition for a VAPO on his behalf. The petition was signed by APS
nurse Martha Gagnon as petitioner and Assistant Attorney General Jennifer
Boharski as attorney for petitioner. Although Thomas directed his independent
counsel to respond to the motion to vacate under CR 60(b), DSHS also submitted
a response to the motion.
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No. 76465-9-I /22
Considering the text and context of RCW 74.34.130, it appears that the
legislature did not intend for the word “petitioner” to include the vulnerable adult
when DSHS petitions for a VAPO on the vulnerable adult’s behalf. The AVA
repeatedly distinguishes between a petitioner and the vulnerable adult when the
vulnerable adult does not file a petition for a VAPO on their own behalf. Because
Thomas was not the petitioner in the VAPO proceeding, RCW 74.34.130 does not
provide a legal basis for the award of attorney fees to him. The court erred in
awarding him attorney fees under this statute.5
D. Agreed Application to Vacate the VAPO
When a vulnerable adult who has not been adjudicated fully incapacitated
applies to the court for modification or vacation of a VAPO, “the court shall grant
such relief consistent with RCW 74.34.110 as it deems necessary for the protection
of the vulnerable adult, including dismissal or modification of the protection order.”
RCW 74.34.163. The parties do not dispute that Thomas was entitled to bring a
motion to vacate under RCW 74.34.163. However, DSHS argues that Morris
lacked standing to move to vacate the VAPO or for revision of the commissioner’s
order denying the motion and that he lacks standing to represent Thomas’ interests
on appeal. We will reach the merits of Morris’ argument, assuming without
deciding that the denial of the application to vacate was properly before the
superior court on revision and is properly before us on appeal.
5
Because we find that there was no legal basis for the award of attorney fees, we do not
reach Morris’ argument that the amount of fees imposed was unreasonable.
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No. 76465-9-I /23
1. Standard of Review
Appellate courts review a superior court’s decision to grant or deny a
petition for a VAPO for abuse of discretion. In re Knight, 178 Wn. App. 929, 936,
317 P.3d 1068 (2014) (published in part). The Washington Supreme Court has
noted in the context of a domestic violence protection order that “[w]hether to grant,
modify, or terminate a protection order is a matter of judicial discretion.” Freeman,
169 Wn.2d at 671. Vacation or modification of a VAPO once entered is also a
discretionary determination and is reviewed for an abuse of discretion.
As stated above, a court abuses its discretion if the exercise of its discretion
is “manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons.” Carroll, 79 Wn.2d at 26. “If the trial court’s ruling is based on an
erroneous view of the law or involves application of an incorrect legal analysis it
necessarily abuses its discretion.” Dix v. ICT Group, Inc., 160 Wn.2d 826, 833, 161
P.3d 1016 (2007). Again, factual findings are reviewed for substantial evidence.
Sunnyside Valley, 149 Wn.2d at 879. “We will not substitute our judgment for the
trial court’s, weigh the evidence, or adjudge witness credibility.” In re Marriage of
Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). We cannot review a fact-
finder’s credibility determinations on appeal. Morse v. Antonellis, 149 Wn.2d 572,
574, 70 P.3d 125 (2003).
2. Evidence and Arguments Considered
Morris raises a number of arguments contending that the superior court
should not have considered the remarks that Thomas and his counsel made in
court, the response submitted by DSHS, or the psychological assessment made
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No. 76465-9-I /24
by Dr. Edwards accompanying the response. It should be noted that the rules of
evidence need not apply in protection order proceedings, including those under
chapter 74.34 RCW. ER 1101(c)(4); Gourley v. Gourley, 158 Wn.2d 460, 467, 145
P.3d 1185 (2006).
Morris argues that the “unsworn statements” of Thomas and his attorney do
not “comply with the requirement for sworn statements in a VAPO proceeding”
found in RCW 74.34.110. That statute requires that a petition for a VAPO “be
accompanied by affidavit made under oath, or a declaration signed under penalty
of perjury, stating the specific facts and circumstances which demonstrate the
need for the relief sought.” RCW 74.34.110(3). He appears to argue that, because
RCW 74.34.163 provides that the court should grant relief on a vulnerable adult’s
motion to vacate “consistent with RCW 74.34.110[,]” all statements submitted at
all stages of a VAPO proceeding must be made under oath. This expansive
reading is not supported by the language of the statutes, and he does not cite any
other applicable authority for it.
He also argues that the court should not have considered these statements
because they were not open to cross-examination or given under oath. A party is
not denied their right to cross-examination when they do not seek to subpoena a
witness or move the court to issue a subpoena. See In re Gourley, 124 Wn. App.
52, 58, 98 P.3d 816 (2004). Morris does not point to any request that Thomas or
his counsel be sworn, request to cross-examine them, or effort to subpoena them,
nor is any such action apparent from the record.
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No. 76465-9-I /25
Morris argues briefly that DSHS should not have been permitted to respond
to the application to vacate the VAPO because Thomas had withdrawn his consent
to receive APS services. DSHS argues that its continuing role in this matter is
“appropriate and necessary for the protection of the vulnerable adult under the
circumstances.” The AVA allows DSHS to seek relief on behalf of a vulnerable
adult with the vulnerable adult’s consent or “[w]hen the department has reason to
believe a vulnerable adult lacks the ability or capacity to consent.” RCW 74.34.150.
In its response to the application to vacate, DSHS stated that it had an “ongoing
concern” for Thomas based on Dr. Edwards’ assessment finding that he had been
unduly influenced by Morris, that he has some dementia, and that his health had
declined between November 2016 and July 2017. Although DSHS did not
explicitly state that it had reason to believe Thomas lacked capacity to consent to
receipt of services or to revoke his prior consent, its continued involvement
appears to be authorized by the statute and the fact that it was a party to the
underlying proceedings.
Finally, Morris argues that the court should not have considered the
“unsworn psychological assessment” of Dr. Edwards. His arguments regarding
Dr. Edwards’ report chiefly concern the credibility or weight to be given to her
conclusions, which we cannot review. Morris has not demonstrated that the court
erred in considering these arguments and evidence.
3. Standard of Proof for Vacation of VAPO
Morris argues that the superior court misinterpreted RCW 74.34.163 and
applied the wrong standard of proof to the motion to vacate. He contends that, to
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properly deny a vulnerable adult’s application to vacate a VAPO, the court must
ensure that clear, cogent, and convincing evidence does not exist showing that the
vulnerable adult requires continuing protection from the restrained person. The
case that Morris cites in support of this contention concerned a VAPO that was
granted against the protected person’s wishes. Knight, 178 Wn. App. at 935–36.
Division Two of this court held that, “because a contested vulnerable adult
protection order case implicates the vulnerable adult’s liberty and autonomy
interests like a guardianship does, the standard of proof for a vulnerable adult
protection order contested by the alleged vulnerable adult is clear, cogent, and
convincing evidence, as it is with a guardianship.” Id. at 940.
The problem with Morris’ argument is that the superior court in this case
was not convinced that Thomas actually wanted the VAPO vacated. The court’s
decision was based on its assessment of the credibility of Thomas’ declaration
stating that he wanted the VAPO to be lifted. We cannot review this credibility
determination and may only assess whether there was sufficient evidence for the
court’s factual finding that Thomas was not earnestly asking for vacation of the
VAPO.
In his remarks to the commissioner, Thomas did not state that he wanted
the VAPO lifted. His independent counsel stated to the commissioner, “I’m not
convinced that as his attorney and on his behalf, I can actually state what his
wishes actually are.” Dr. Edwards’ report concluded that Thomas is subject to
influence, particularly from Morris. The motion to vacate was presented as a “joint
application” between Thomas and Morris and was prepared by Morris’ attorney.
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No. 76465-9-I /27
There was sufficient evidence in the record to support the court’s finding that
Thomas was not earnestly requesting vacation of the VAPO. The court did not
abuse its discretion in denying the application to vacate.
II. Attorney Fees on Appeal
Morris requests an award of attorney fees on appeal under RAP 18.1.
“Reasonable attorney fees are recoverable on appeal if allowed by statute, rule, or
contract” and properly requested under RAP 18.1. In re Guardianship of Wells, 150
Wn. App. 491, 503, 208 P.3d 1126 (2009). Morris contends that the CR 2A
settlement agreement entered in the separate civil case between Thomas and
Morris provides a basis for the fee request. DSHS was not a party to that
agreement and therefore is not bound by its provisions.
Morris does not identify any other basis for an award of attorney fees on
appeal in his opening brief. In his reply brief, he argues that this court should
impose fees and costs against DSHS as a sanction under CR 11. “An issue raised
and argued for the first time in a reply brief is too late to warrant consideration.”
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549(1992). We decline to consider this argument because it was raised for the first
time in reply. Accordingly, Morris has not shown a basis for an award of attorney
fees on appeal and we deny his request for fees.
III. Motion to Modify Dismissal of Case No. 79860-0
Through counsel appearing for the limited purpose of arguing this motion,
Morris requests that we modify the clerk’s ruling dismissing the appeal in the linked
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case and reinstate the appeal. Both Thomas’ independent counsel and DSHS
oppose modification of the clerk’s ruling.
The court of appeals has the authority to “perform all acts necessary or
appropriate to secure the fair and orderly review of a case.” RAP 7.3. The
appellate court may waive or alter the provisions of any of the rules of appellate
procedure and enlarge time within which an act must be done in order to serve the
ends of justice. RAP 18.8(a). “The appellate court may condition a party’s right to
participate further in the review on compliance with terms of an order or ruling.”
RAP 18.9(a). The clerk of the court of appeals may dismiss a review proceeding
for noncompliance with an order of the court on 10 days’ notice to the parties. RAP
18.9(b).
An aggrieved party may object to the dismissal by a motion to modify the
clerk’s ruling directed to the judges of the court. RAP 17.7(a); RAP 18.9(b). When
a party moves to modify a commissioner’s ruling under RAP 17.7, we review the
ruling de novo. State v. Nolan, 98 Wn. App. 75, 78, 988 P.2d 473 (1999). We apply
this standard to a motion to modify the clerk’s ruling under the same rule.
Morris advances a number of reasons why that reinstatement of the appeal
would serve the ends of justice. He argues that his three motions for extension of
time to file his opening brief “were principally based on unanticipated
circumstances beyond his control” and were not “filed to gain a tactical advantage.”
He also argues that no other party objected to his requests for extension and
therefore “no party has been prejudiced by [his] inability to timely file his opening
brief.” He argues that his appeal “raises several issues of substantial public
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No. 76465-9-I /29
interest, namely a family unit’s right to be free from unwanted and unwarranted
government intrusion; a vulnerable adult’s right to self-determination; and the
public’s right to rely on court-validated contracts with a vulnerable adult.”
Courts hold pro se litigants to the same standards as attorneys. In re
Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Morris received
extensions totaling over three months of extra time to file his opening brief. The
clerk provided him with 40 days’ notice that the appeal would be dismissed if he
did not meet the filing deadline set in the October 18, 2019 notation ruling. The
clerk had a valid basis to dismiss the appeal under RAP 18.9.
We deny the motion to modify the clerk’s ruling dismissing the case because
the clerk had a valid basis to dismiss and Morris has not shown that the ends of
justice demand reinstatement of the appeal.
Affirmed in part, reversed in part. The motion to modify the clerk’s ruling
dismissing the linked appeal is denied.6
WE CONCUR:
6 After oral argument, Morris filed a motion asking this court to take judicial notice of the
superior court’s April 13, 2018 order confirming the CR 2A agreement under ER 201 and RAP 9.11.
Because the order was included in the record of the linked case, No. 79860-0, we deny the motion.
Morris’ request for sanctions is also denied.
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