IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Guardianship of:
ELLA NORA DENNY, an incapacitated DIVISION ONE CT-
person.
No. 70312-9-1 ^
RICHARD DENNY and THOMAS (consol. with No. 70610-1-1) L
ANDERSON,
Appellants, UNPUBLISHED OPINION
OHANA FIDUCIARY CORPORATION,
FULL GUARDIAN OF THE ESTATE
AND LIMITED GUARDIAN OF THE
PERSON OF ELLA NORA DENNY,
Respondent. FILED: August 1,2016
Dwyer, J. — This is the second appeal from proceedings in the
management of the limited guardianship of Ella Nora Denny. The appellants,
one purporting to act as Mrs. Denny's "next friend," raise several issues related
to the guardianship court's approval of the guardian's third annual report and
related orders. Finding no error in the superior court's continued management of
Mrs. Denny's guardianship or its supervision of the appointed guardian, we
affirm.
No. 70312-9-1 (consol. with No. 70610-1-l)/2
I
The circumstances supporting the establishment of Mrs. Denny's limited
guardianship in 2009 and what transpired in the guardianship prior to the events
underlying this appeal are known to the parties and, additionally, are set forth in
our opinion from the first appeal in this matter. See In re Guardianship of Denny,
No. 69117-1 (consolidated with No. 69610-6-1) (Denny I).
This appeal concerns three orders entered by the superior court. The
April 1, 2013 order approved the third annual report of the guardian, Ohana
Fiduciary Corporation. The May 23, 2013 order denied Richard Denny's1 motion
for reconsideration of the April 1, 2013 order and awarded attorney fees to the
guardianship estate, payment of which was assessed as Richard's responsibility.
The June 26, 2013 order approved the amount ofattorney fees requested by
Ohana and granted Ohana's request to restrict Richard from filing new pleadings
until he paid outstanding attorney fee judgments he owed the guardianship
estate.
The Guardian's Third Annual Report is Approved
On April 1, 2013, the superior court convened a hearing to consider
Ohana's third annual report, which covered the period January 1, 2012 through
December 31, 2012. The superior court considered over 300 pages of
documentary evidence and competing arguments from three attorneys—one
each for Richard, Marianne Zak (Mrs. Denny's daughter), and Ohana.
The issues addressed at the April 1, 2013 hearing included:
1Richard Denny is referred to by his first name to avoid confusion. He is Mrs. Denny's
son.
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1. Guardianship Court's Authority. Richard orally objected to the superior
court's ruling on the third annual report when issues relating to the second
annual report were on appeal. The superior court overruled Richard's objection,
ruling that it had ongoing authority over Mrs. Denny's guardianship and that
approval of the third annual report did not affect the issues on appeal.
2. Caregiver Budget. Richard objected to a live-in companion caregiver
for Mrs. Denny being paid for by the guardianship estate. The superior court
overruled Richard's objection based on Mrs. Denny's documented needs.
3. $100,000.00 Bond. Richard requested that the superior court consider
whether Ohana's $100,000 bond was adequate in light of the fact it managed the
checking account for Denny Resources LLC (DR LLC) and made aggregate
distributions from the LLC to Mrs. Denny totaling approximately $333,000 in
2012, as reflected in the guardian's annual report. The superior court approved
Ohana's management of DR LLC and distribution of LLC income in 2012. The
superior court found that the $100,000 bond was adequate.
4. Estate Planning Attorney Fees. Richard objected to the fees requested
by attorney Timothy Austin for estate planning services rendered to Mrs. Denny.
The superior court approved the fees.
5. Accusations Against Marianne. Richard objected to Ohana's decision
not to pursue a protection order against his sister, Marianne, after Mrs. Denny
tested positive for cocaine in December 2012. The superior court concluded that
Ohana's response was appropriate and that the guardian properly addressed the
risk to Mrs. Denny by hiring a 24-hour live-in caregiver.
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6. Marianne's Request to Sanction Richard. Marianne requested that the
superior court sanction Richard for accusing her of wrongdoing without an
evidentiary basis. The superior court declined to impose sanctions but warned
Richard's attorney not to file pleadings without conducting a reasonable
investigation.
7. Request for Discovery. Richard's attorney asked permission to conduct
discovery. The superior court denied the request, finding "[tjhere is nothing here
that warrants a trial."
8. Conflict of Interest. Richard requested that the superior court remove
Ohana's attorney, Thomas Keller, because of an alleged conflict of interest.2 The
superior court denied this request, finding there to be no conflict of interest.
9. Counsel for Mrs. Denny. Richard objected to the superior court ruling
on the third annual reportwithout appointing counsel for Mrs. Denny. The
superior court overruled this objection and noted that this was one of the issues
on appeal.
After considering the documentary evidence and competing arguments at
the April 1, 2013 hearing, the superior court entered the "Order Approving Third
Annual Report of Limited Guardian of the Person and Full Guardian ofthe Estate
and Authorizing Payment of Fees, Costs and Other Expenses."3
Richard moved for reconsideration of the April 1, 2013 order, asserting
that the superior court lacked authority under RAP 7.2 to rule on Ohana's third
2Richard had previously made the same allegation only to withdraw it. On June 6, 2012,
Richard represented to the superior court through his attorney: "Richard withdraws the objection
that Mr. Keller or [Ohana] have a conflict of interest."
3The superior court incorporated its oral ruling into the written order entered April 1,
2013.
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annual report due to the pendency of the first appeal (Denny I). Ohana filed a
response at the request of the superior court. Marianne responded separately
that Richard's "delays and multiple appeals are not in the best interest of Ella
Nora Denny" and expressed "grave concerns about the extent to which he may
be manipulating and influencing their mother."
The superior court denied the motion for reconsideration and ordered
Richard to reimburse the guardianship estate for the attorney fees incurred
responding to his motion. The superior court made 17 additional unchallenged
findings of fact in support of its ruling, including that
[tjhere was a lack of candor to the Court in the failure to disclose
the Court of Appeals Notation Ruling.'4' There was a lack of
diligence in arguing that the April 1, 2013 Order changed the March
29, 2012 Order. The Motion to Reconsider review of the
Guardian's Third Annual Report was not in Mrs. Denny's best
interests, as the role of the Superior Court is to oversee the
Guardian's conduct.
The Superior Court Ordered Richard to Stop Filing New Pleadings Until
He Paid Attorney Fee Judgments Owed to the Guardianship Estate
On June 26, 2013, the superior court conducted a hearing to consider
Ohana's petition to approve the amount of its fees and to prohibit Richard from
filing additional pleadings in the guardianship until he paid the outstanding
attorney fee judgments he owed the guardianship estate.
After considering the evidence and competing arguments, the superior
court awarded the guardianship estate a judgment of $10,355.98 against
Richard, and prohibited Richard from filing any more pleadings until the new
4The Notation Ruling referred to in the superior court order was our commissioner's
notation ruling of March 6, 2013, which stated, in pertinent part: "The guardianship of Ms. Denny
is ongoing, and the trial court will continue to enter orders."
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judgment of $10,355.98 and prior judgment of $9,338.44 were paid.
II
A preliminary matter in this appeal is what to make of briefs filed in Mrs.
Denny's name by Thomas Anderson, who purports to be acting as Mrs. Denny's
"next friend."
Anderson is the son of Mrs. Denny's brother, Martin Anderson, from whom
Mrs. Denny wished to keep information about her guardianship. Anderson first
attempted to involve himself in the ongoing management of Mrs. Denny's
guardianship in April 2012. At that time, he filed with the guardianship court, inter
alia, a motion to modify Mrs. Denny's guardianship and replace Ohana as
guardian. The guardianship court dismissed Anderson's motion without a
hearing and awarded Ohana reasonable attorney fees (assessed against
Anderson) for its related efforts. The court also ordered Anderson to post a
nonresident security bond. Anderson never posted a security bond but,
nevertheless, continued for some time to file pleadings in the guardianship case.
However, Anderson was not a party to any ofthe orders herein on appeal.
In the first appeal in this case, we concluded that Anderson's motion to
modify the guardianship, which was the only potential basis for his involvement in
the ongoing guardianship proceedings, was properly dismissed. Having so
concluded, and without any separate argument from Anderson as to why he
should nevertheless have been permitted to act as Mrs. Denny's next friend on
appeal, we declined to address the other issues that Anderson attempted to raise
in that case as Mrs. Denny's "next friend."
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As in Denny I. Anderson offers us no argument regarding why he is
entitled to act as Mrs. Denny's "next friend" on appeal. Rather, he simply
declares himselfto be acting in that position in briefs that he filed in her name.
We, once again, reject Anderson's unsolicited and improper attempt to involve
himself in the ongoing guardianship of Mrs. Denny and decline to address the
issues that he attempts to raise herein.
Ill
In his second assignment of error,5 Richard contends that "[t]he superior
court erred by entering the April 1, 2013 order contrary to RAP 7.2(a)." This is
so, he asserts, because his appeal in Denny Idivested the guardianship court of
authority to enter further orders. We disagree.
RAP 7.2(a) provides, in pertinent part, that after review is accepted, "the
trial court has authority to act in a case only to the extent provided in this rule."
Subsections (c)-(l) of the same rule identify circumstances in which a trial court
may enter rulings after appellate review has been accepted. At least one of
these subsections authorizes each of the superior court's challenged rulings.
First, pursuant to RAP 7.2(e), the superior court has authority to hear and
determine "postjudgment motions authorized by the civil rules, the criminal rules,
or statutes." Herein, consideration of the petition to approve Ohana's third
annual report was authorized by RAP 7.2(e) because Ohana's petition was a
postjudgment motion required—not simply authorized—by statute, specifically
the mandatory annual review process for guardianships. See RCW 11.92.040(2)
5Richard's first assignment of error is addressed below.
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(review for guardianships of the estate); RCW 11.92.043(2) (review for
guardianships ofthe person). While the cited rule requires the permission ofthe
appellate court prior to the entry of a trial court decision that will change a
decision being reviewed by the appellate court, not even Richard argues that the
April 1, 2013 order changed any ofthe orders that were on appeal at the time.
Second, pursuant to RAP 7.2(i), "[t]he trial court has authority to act on
claims for attorney fees, costs and litigation expenses." The portion ofthe April
1, 2013 order that approved Ohana's attorney fees, costs, and litigation
expenses fell within RAP 7.2(i).
Third, pursuant to RAP 7.2(1), "the trial court retains full authority to act in
the portion of the case that is not being reviewed by the appellate court." The
April 1, 2013 order was permissible under RAP 7.2(1) because it concerned the
latest annual reports required by RCW 11.92.040(2) and .043(2), not the prior
annual reports that were subject to appeal. Accord Town of Ruston v. Wingard,
70 Wn.2d 388, 390, 423 P.2d 543 (1967) (appeal from order finding defendant in
contempt for violating a permanent injunction did not divest trial court of authority
to enter later order to show cause after subsequent act of contempt).
In short, for the various reasons set forth above, the superior court's order
did not violate RAP 7.2.
Indeed, the superior court was acting as required. By statute, guardians
are "at all times . . . under the general direction and control ofthe court making
the appointment." RCW 11.92.010. The Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act, chapter 11.90 RCW, provides that "a
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court that has appointed a guardian or issued a protective order consistent with
this chapter has exclusive and continuing jurisdiction over the proceeding until it
is terminated by the court or the appointment or order expires by its own terms."
RCW 11.90.240: accord In re Guardianship of Gaddis, 12Wn.2d 114, 125, 120
P.2d 849 (1942) ("[A] superior court which has once properly acquired jurisdiction
over the administration of an incompetent's estate cannot divest itself of that
jurisdiction until such time as the conditions requiring the guardianship have
ceased.").
This is consistent with the constitutional role of the superior court to act as
the "superior guardian" and protect the person and estate of incapacitated
persons. In re Guardianship of Lamb, 173 Wn.2d 173, 184, 190, 265 P.3d 876
(2011); In re Guardianship of Decker, 188 Wn. App. 429, 451, 353 P.3d 669,
review denied, 184 Wn.2d 1015 (2015). By contrast, the Court of Appeals'
constitutional role is to review the decisions made by the lower courts, not to
replace them as factfinders. SeeWash. Const, art. IV §30(3); RCW 2.06.030;
RAP 1.1(a).
Contrary to Richard's contention, it was proper for the superior court to
continue managing Mrs. Denny's guardianship even after Richard initiated an
appeal from several of its earlier orders.
IV
Richard's first assignment of error asserts that "[t]he superior court erred
in ruling concerning the rights retained by Ms. Denny in its 2009 order without
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allowing her to retain counsel to advocate on her behalf."6 We disagree.
Washington's guardianship statutes, which are designed to comply with
the requirements of due process, guarantee counsel for persons who are alleged
to be incapacitated and for persons already subject to a guardianship when "the
rights and interests of.. . [the] adjudicated incapacitated person cannot
otherwise be adequately protected and represented." RCW 11.88.045(1 )(a).
The right to counsel after an adjudication of incapacity also exists where
fundamental liberty interests are at stake such as commitment to an institution,
electroshock therapy, psychosurgery, or psychiatric procedures that restrict
freedom of movement. See RCW 11.92.043(5).7
The April 1, 2013 order did not involve any issues that implicated the right
to appointed counsel. The order pertained to a routine annual report under RCW
11.92.040(2) and .043(2). Neither Washington's guardianship statutes nor due
process require the appointment of counsel for such an occasion. The superior
court's approval of the third annual report did not deprive Mrs. Denny of
constitutionally-protected liberty or property interests. Ohana did not request or
receive any expansion of its authority or any restriction of Mrs. Denny's retained
rights, and the order maintained the status quo in the guardianship that had been
established in 2009.
6Richard asserted essentially the same claim in Denny I. It is, therefore, addressed in a
somewhat abridged manner herein.
7See also In re Guardianship of Haves. 93 Wn.2d 228, 234, 608 P.2d 635 (1980)
(requiring independent guardian ad litem before superior court may grant a petition for
sterilization based on the "fundamental right to procreate"); In re Guardianship ofK.M., 62 Wn.
App. 811, 817, 816 P.2d 71 (1991) (independent counsel required because of the "gravity and
finality of an authorization to sterilize"); and In re Guardianship of Ingram, 102 Wn.2d 827, 689
P.2d 1363 (1984) (independent counsel appointed where the guardian sought authority to remove
the ward's larynx).
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Nevertheless, Richard contends that, because Mrs. Denny was permitted
to engage Austin for matters related to the distribution of her estate, she should
have been given independent counsel in the guardianship. However, the
exception permitting Mrs. Denny to retain court-approved counsel for estate
planning services was included in the order establishing her guardianship in
2009.
When the guardianship was established, the superior court limited Mrs.
Denny's right to engage counsel. Among the restrictions imposed on Mrs. Denny
in the 2009 order was termination of her right to enter into a contract and "to sue
or be sued other than through a guardian." Notwithstanding the general
prohibition on her right to contract, the 2009 order expressly preserved Mrs.
Denny's right to engage in estate planning with Austin, her longtime attorney for
such matters. In 2012, Mrs. Denny's cognitive functioning was reevaluated, and
she was found to be more impaired than when the guardianship was established.
Thereafter, the superior court reaffirmed that Mrs. Denny did not have the
capacity to engage counsel, except for the previously authorized estate planning
purposes. To change this provision of the guardianship order, Richard was
required to file a petition to modify the guardianship under RCW 11.88.120,
which he did not do, in anticipation of the third annual report.
The superior court did not err by approving the third annual report without
appointing counsel for Mrs. Denny.
V
In his third assignment of error, Richard contends that "[t]he superior court
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erred by ruling that Denny Resources LLC is not a guardianship asset." He also
contends that the superior court should have considered that Ohana manages
the DR LLC checking account in reviewing the adequacy of the $100,000 bond.
We disagree on both accounts.
Facts specific to this issue:
Guardianship Bond and Unblocked Accounts
Ohana maintains several unblocked accounts related to Mrs. Denny's
guardianship. In August 2012, Ohana petitioned to transfer the balance of two
blocked accounts into an unblocked account for the payment of taxes, attorney
fees, and other expenses. The superior court approved this request without
opposition after notice to Richard. As of December 31, 2012, Ohana held
$73,686.85 in unblocked accounts for Mrs. Denny.
Ohana's bond has been $100,000 since the guardianship was established
in 2009.
DRLLC
Prior to the guardianship, Mrs. Denny owned three apartment buildings
that she transferred into three separate limited liability companies, LLC A, LLC B
and LLC C, one LLC for each property. These three LLCs are owned by a fourth
LLC, DR LLC, which was also created by Mrs. Denny prior to the guardianship.
DR LLC has 14 million membership units, composed of 140,000 "A" units
that have voting rights, and 13,860,000 "B" units that have no voting rights. Mrs.
Denny once owned all 14 million units but, prior to the guardianship, she gave
500,000 "B" units to the Ella Nora Denny Family Trust (the Trust). Also prior to
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the guardianship, Mrs. Denny sold another 4,500,000 "B" units to the Trust in
exchange for a $4,500,000 promissory note.
The Trust is an irrevocable trust, and Mrs. Denny's children, Richard and
Marianne, are the co-trustees. The order that appointed Ohana guardian in 2009
expressly stated that assets of the trusts are not part of the guardianship estate.
On January 4, 2012, Mrs. Denny executed an assignment whereby the
DR LLC promissory note was gifted back to the Trust. Mrs. Denny's ownership
share of the DR LLC units was and remained at the time of the third annual
report 64.29 percent. The Trust owned the other 35.71 percent of the DR LLC
units, which were outside the scope of Mrs. Denny's guardianship.
DR LLC Income Reported to the Superior Court
From the date of its appointment through 2011, Ohana collected all ofthe
income from DR LLC and reported that income to the superior court.8 These
reports were approved by the superior court after notice to Mrs. Denny's children,
including Richard. With the express approval of the superior court, all of the LLC
income was paid to the guardianship estate, even though Mrs. Denny owned
only 64.29 percent of the units, in lieu of interest payments on the promissory
note. Beginning in January 2012, when the promissory note was gifted back to
the Trust, the Trust's share ofthe DR LLC income was distributed to the trustees
of the Trust (Richard and Marianne), rather than to Mrs. Denny's guardianship
estate.
Ohana, as full guardian of Mrs. Denny's estate, which owned 64.29
8These reports included the initial inventory report, the interim report, the first annual
report, and the second annual report.
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percent of the outstanding units of DR LLC, appointed itself to manage DR LLC.
Contrary to Richard's assertion that his "written objections and his counsel's
arguments . . . alerted the superior court that [Ohana] had appointed itself
manager of Denny Resources LLC," Br. of Appellant (Richard Denny) at 15,
Ohana reported this election, along with the functions performed by Ohana as
LLC manager, to the superior court in 2012 and again in the third annual report
filed in 2013. Ohana's management of the DR LLC and distribution of the DR
LLC income were expressly approved by the superior court in the order
approving the second annual report (which was on appeal in Denny I).
As manager of the DR LLC, Ohana maintains an LLC bank account,
receives the rent distributions from the property management company, pays
LLC administrative fees, and makes distributions from the LLC bank account to
the Trust and to Mrs. Denny's guardianship account. Because Mrs. Denny
continues to own 64.29 percent of DR LLC, Ohana transfers that percentage of
the cash out of the DR LLC account to the guardianship operating account each
month. Because the Trust (managed by Richard and Marianne outside the
guardianship) owns the other 35.71 percent of DR LLC, Ohana takes the Trust's
35.71 percent share of the DR LLC cash and divides it evenly between Richard
and Marianne, payable to them as the co-trustees.
The total funds distributed in this manner from the DR LLC to the
guardianship estate between January 1, 2012 and December 31, 2012 was
$333,330.96. This total was reported to the superior court in the third annual
report, as well as anticipated distributions for 2013. Distributions from the DR
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LLC were used along with Mrs. Denny's other monthly income to pay her
substantial expenses.
At the end of 2012, there was approximately $51,000 in undistributed
income in the DR LLC account, of which 64.29 percent, or approximately
$32,788, was Mrs. Denny's share. The other 35.71 percent of the undistributed
income, totaling approximately $18,212, belonged to the Trust, was not subjectto
the superior court's oversight or the guardianship bond, and was subjectto the
control and protection ofthe co-trustees, Richard and Marianne. The total of the
unblocked guardianship accounts totaled $73,686.85 as of December 31, 2012.
Thus, the total of the unblocked guardianship accounts, combined with Mrs.
Denny's share of the DR LLC account, was approximately $106,475.85. The
superior court found that the guardian's $100,000 bond was adequate to protect
against the guardian's defalcation with regard to thesefunds.
A
Richard first contends that the superior court erred by ruling that DR LLC
is not a guardianship asset.
"A limited liability company is a statutory business structure that is like a
corporation in that members of the company are generally not personally liable
for the debts or obligations of the company and like a partnership in that it can be
classified as a partnership for tax purposes and therefore avoid double taxation."
Chadwick Farms Owners Ass'n v. FHC, LLC. 166 Wn.2d 178, 186-87, 207 P.3d
1251 (2009) (internal quotations marks omitted). Limited liability companies are
"entirely creatures of statute." Chadwick, 166 Wn.2d at 187. The Washington
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Limited Liability Company Act defines members' ownership interests as follows:
The only interest of a member that is transferable is the member's
transferable interest. A transferable interest is personal property.
A member has no interest in specific limited liability company
property.
RCW 25.15.246(1) (emphasis added). The Act defines "transferable interest" as
"a member's or transferee's right to receive distributions of the limited liability
company's assets." RCW 25.15.006(19).
Mrs. Denny's ownership of64.29 percent ofthe DR LLC units gives her a
transferable interest in the company—namely, a right to receive 64.29 percent of
DR LLC distributions. However, Mrs. Denny's ownership of units and associated
rights did not convert the corporation into a guardianship asset.
The superior court correctly ruled that the DR LLC is not a guardianship
asset.
B
Richard also argues that the superior court erred by failing to consider the
funds Ohana distributed as manager of the DR LLC, including the funds
distributed to the trust administered by Richard and Marianne, in setting Ohana's
bond amount. We disagree.
The guardianship bond operates as collateral security for the proper
discharge of the duties imposed on the guardian by statute. Dickman v.
Strobach, 26 Wash. 558, 560, 67 P. 224 (1901). RCW 11.88.100 provides, in
relevant part:
Before letters of guardianship are issued, each guardian or limited
guardian shall. . . , unless dispensed with by order of the court as
provided in RCW 11.88.105, file a bond ... in such sum as the
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court may fix, taking into account the character of the assets on
hand or anticipated and the income to be received and
disbursements to be made.
(Emphasis added.) The guardianship bond may be dispensed with, or reduced,
to the extent that liquid assets and securities are in blocked accounts, RCW
11.88.105, or if the assets of the guardianship estate are valued at less than
$3,000. RCW 11.88.100: accord In re Estate of Treadwell v. Wright, 115 Wn.
App. 238, 249, 61 P.3d 1214 (2003).
Ohana's guardianship bond was originally set at $100,000. It was not
reduced despite the fact that income distributions to Mrs. Denny declined with the
court-approved gift of the LLC promissory note to her children's Trust. In support
of prior annual reports, Ohana presented substantial information about DR LLC
and Ohana's role as manager, which also never resulted in any change to the
original $100,000 bond. In 2013, at the request of Richard, the superior court
again reviewed the adequacy of the $100,000 bond. After considering and
evaluating Richard's concerns about Ohana serving as LLC manager, the
superior court found that the $100,000 bond remained adequate to protect Mrs.
Denny's interests. Richard did not assign error to this finding, which was, in any
event, supported by substantial evidence.
As explained above, the nature of Mrs. Denny's interest in the DR LLC is
the right to receive 64.29 percent of the DR LLC distributions, not a 64.29
percent ownership interest in the real property assets of the LLC. Richard
improperly conflates the two when he argues that "Ms. Denny's 64% has a
market value of nearly $6.5 million." Br. of Appellant (Richard Denny) at 15.
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Mrs. Denny's share of the undistributed DR LLC account, coupled with the
unblocked guardianship accounts, represents the unblocked "assets on hand."
These totaled $106,475.85. Under these facts, the superior court did not err in
finding the $100,000 bond adequate, "taking into account the character ofthe
assets on hand or anticipated and the income to be received and disbursements
to be made." RCW 11.88.100.
VI
Richard's fourth assignment oferror states that "[t]he superior court erred
in approving [Ohana]'s failure to report to the court material events concerning
Ms. Denny's welfare." Br. of Appellant (Richard Denny) at 2. Richard's
complaints are not properly before this court because he fails to assign error to
any of the superior court's findings of fact, contrary to RAP 10.3(g), fails to
provide a "separate concise statement" of each claimed error by the trial court,
contrary to RAP 10.3(a)(4), and fails to provide this court with any legal authority
to support his arguments, contrary to RAP 10.3(a)(6). "'Where no authorities are
cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found none.'"
State v. Logan. 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting DeHeer
v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). We
decline to further address this claim of error.
VII
In his fifth assignment of error, Richard contends that "[t]he superior court
erred in admonishing and threatening Richard's counsel with sanctions for
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inquiring about alleged incidents that relate to Ms. Denny's welfare." Br. of
Appellant (Richard Denny) at 3. Under the same assignment, he also contends
that the court improperly denied his oral request to conduct discovery. We
disagree on both accounts.
A trial judge has the authority and the responsibility to control litigants who
threaten to impede the orderly conduct of legal proceedings. See CR 11; Yurtis
v, Phipps, 143 Wn. App. 680, 693, 181 P.3d 849 (2008); RCW 2.28.010(3).
Herein, Richard asked for authority to conduct discovery in his written
objections to Ohana's third annual report. He repeated his request at the April 1,
2013 hearing after, in response to Marianne's motion requesting that he be
sanctioned, the court cautioned him about filing materials without conducting
reasonable investigation.9 The superior court denied the request for discovery,
finding that "[t]here is nothing here that warrants a trial." When Richard
nevertheless repeated the request, the superior court responded:
This guardianship is proceeding apace as it should, with the
exception of the intermeddling of Mr. Denny. And the Court sees
absolutely no problem with the progress ofthe guardianship.
This finding was incorporated into the superior court's written order.
The superior court did not sanction Richard's attorney but, instead,
cautioned him not to make further unfounded allegations. Richard does not
explain why such a remark is appealable but, in any case, the trial court's
admonishment is amply supported by the record.
9In response to Ohana's petition regarding the drug overdose, Richard filed pleadings
accusing his sister of drugging their mother, abusing drugs, cheating on her husband, and
wanting their mother to die, which provoked Marianne to request the sanctions against Richard
that the superior court denied.
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The superior court also did not err in finding that Richard had not
established good cause to conduct discovery. Discovery in guardianship cases
is governed by RCW 11.96A.115, which provides as follows:
In all matters governed by this title, discovery shall be permitted
only in the following matters:
(1) A judicial proceeding that places one or more specific
issues in controversy that has been commenced under RCW
11.96A.100, in which case discovery shall be conducted in
accordance with the superior court civil rules and applicable local
rules; or
(2) A matter in which the court orders that discovery be
permitted on a showing of good cause, in which case discovery
shall be conducted in accordance with the superior court civil rules
and applicable local rules unless otherwise limited by the orderof
the court.
There is no right to discovery in matters governed by TEDRA10 unless a judicial
proceeding has been filed placing one or more specific issues in controversy.
Otherwise, parties must establish good cause to engage in discovery. See ln_re
Estate of Fitzgerald, 172Wn. App. 437, 447, 294 P.3d 720 (2012) (deferring to
trial court's refusal to grant a continuance to conduct discovery in a TEDRA
matter).
Substantial evidence supports the trial court's findings that Richard did not
establish good cause to conduct discovery. No evidence in the record supported
Richard's request to "investigate Ohana's accounts and Ms. Denny's living and
care situation." With regard to the LLC's finances, as co-trustee, Richard
received monthly reports from the property manager relating to the DR LLC
income and distributions. Furthermore, the superior court found no deficiencies
with Ohana's annual reports, which were timely filed pursuant to RCW
10 Trust and Estate Dispute Resolution Act, chapter 11.96A RCW
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11.92.040(2) and .043(3), and included information about Mrs. Denny's living and
care situation. Moreover, from the record in this case, it is reasonable to infer
that, if Richard were authorized to conduct discovery, the cost to Mrs. Denny
would be substantial, the superior court and appellate courts would become
mired in discovery disputes, and there would be no discernible benefit to Mrs.
Denny or her estate.
Richard fails to demonstrate that the superior court erred either by
cautioning his attorney or by denying the oral request to conduct discovery. No
appellate relief is warranted.
VIII
Richard's sixth assignment of error states his contention that "[t]he
superior court erred by ordering Richard to file no further pleadings with the court
until he pays judgments that he has appealed." Br. of Appellant (Richard Denny)
at 3. Again, we disagree.
As noted above, superior courts have the "inherent power to control the
conduct of litigants who impede the orderly conduct of proceedings." Yurtis, 143
Wn. App. at 693; seealso RCW 2.28.010(3). Acourt, therefore, has discretion to
place reasonable restrictions on any party who abuses the judicial process. In_re
Marriage of Giordano, 57 Wn. App. 74, 78, 787 P.2d 51 (1990) (approving
moratorium upon party filing any motions pending resolution of trial).1 11
11 The court in Shutt v. Moore articulated the public policy justification ofthis authority:
"'[Judicial resources are finite. Time taken to consider frivolous claims is time not available to
legitimate litigants. Baseless litigation furthermore burdens the judicial support services....
Responsible litigants should not be prejudiced by delays socaused, nor should public treasury
bear the costs.'" 26 Wn. App. 450, 456, 613 P.2d 1188 (1980) (quoting Hanson v. Goodwin, 432
F. Supp. 853, 857 (W.D. Wash. 1977)).
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"The welfare of incompetent persons and the care of their property are
objects of particular care and attention on the part of the courts.'" Shelley v.
Elfstrom, 13 Wn. App. 887, 889, 538 P.2d 149 (1975) (quoting In re Guardianship
of Mignerev, 11 Wn.2d 42, 49, 118 P.2d 440 (1941): Pottery. Potter, 35 Wn.2d
788, 215 P.2d 704 (1950)). TEDRA codifies the court's broad powers in
guardianship matters to make "any and all manner and kinds of orders . . . that
might be considered proper or necessary in the exercise of the jurisdiction or
powers given or intended to be given by this title." RCW 11.96A.060.
Herein, the unchallenged findings offact establish that the guardianship
court had ordered Richard to reimburse the guardianship estate $9,338.44 for
attorney fees incurred responding to his motion for revision, and that, despite
having the ability to pay it, Richard had not paid this judgment at the time the
superior court considered the guardian's petition to limit Richard's new court
filings. The unchallenged factual findings also establish that Richard's failure to
pay the attorney fee judgment harmed Mrs. Denny financially, that Richard's
"pleadings ha[d] not raised meritorious issues, and ha[d] not benefitted [Mrs.]
Denny." In addition to these findings, the superior court had previously found "a
lack of candor to the Court" and a "lack of diligence" by Richard. The superior
court also had received multiple requests by Marianne to sanction Richard for
false statements in pleadings filed without evidentiary support, and had before it
a record showing that Mrs. Denny's guardianship estate had paid more than
$71,000 in 2012 for litigation-related attorney fees in response to pleadings filed
by Richard and Anderson.
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On this record, the superior court ordered as follows:
This Court has a duty to guard against waste of the ward's assets.
Under this Court's plenary authority, as well as RCW 11.96A.020,
.040, and .060, the Court concludes that Richard Denny should be
prohibited from filing new pleadings in this guardianship until he
pays all judgments, plus accrued interest, entered against him in
this guardianship, except forpleadings relating to any motion for
revision of or appeal of this Order or any pending appeal.
The superior court had before it a "specific and detailed showing ofa
pattern of abusive and frivolous litigation." Whatcom County v. Kane, 31 Wn.
App. 250, 253, 640 P.2d 1075 (1981). The superior court did not deny Richard
all access to the courts, but conditioned new pleadings on his payment of
previously ordered attorney fees and costs.12 The superior court also expressly
exempted motions for revision and appellate pleadings. The superior court did
not abuse its discretion in limiting Richard's new pleadings until he paid
outstanding attorney fee judgments.
IX
Richard's final contention is that he should be awarded reasonable
attorney fees on appeal. Ohana, in turn, contends that it should be awarded
reasonable attorney fees relative to both Richard's and Anderson's appeals.
RAP 18.1 permits attorney fees to be awarded on appeal if applicable law
grants the party the right to recover reasonable attorney fees. RCW 11.96A.150
permits the appellate courts in guardianship, probate, and trust matters to award
attorney fees from any party to any party "in such amount and in such manner as
the court determines to be equitable." RCW 11.96A. 150(1). In determining
12 This is the same remedy authorized by the Rules of Appellate Procedure when a party
fails to pay court-ordered fees. RAP 18.9(a).
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whether to award fees under RCW 11.96A.150, we "may consider any and all
factors . . . deem[ed] to be relevant and appropriate, such as whether the
litigation benefits the estate." Decker, 188 Wn. App. at 451 (awarding guardian
attorney fees on appeal against ward's former attorney who sought to "vindicate"
her due process rights).
As demonstrated above, the arguments made on appeal by both Richard
and Anderson were contrary to established law and, in part, were advanced in a
manner that violated the rules of appellate procedure. Furthermore, the ongoing
litigation is contrary to Mrs. Denny's best interests and acts as a drain on her
estate's resources. Thus, the equities weigh heavily in favor of Ohana's request
and against Richard's.
Accordingly, Richard's request for an award reasonable attorney fees is
denied. Ohana's request is granted. An award in favor ofOhana and against
Richard is appropriate with regard to Ohana's efforts to respond to Richard's
briefing. An award in favor of Ohana and against Anderson is appropriate with
regard to Ohana's efforts to respond to Anderson's briefing as Mrs. Denny's "next
friend". Upon compliance with RAP 18.1, a commissioner of this court will enter
appropriate orders.
Affirmed. .—_ a
We concur:
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In Re The Guardianship Of Ella Nora Denny
Combined Opinion