Robert H. Bosone v. Ann Longinotti ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Vulnerable Adult No. 76777-1-1
Petition for (consolidated with
No. 76816-6-1)
ROBERT J. BOSONE.
DIVISION ONE
ROBERT J. BOSONE, Jr.,
UNPUBLISHED OPINION
Appellant/Cross Respondent
FILED: March 18, 2019
V.
ANN LONGINOTTI,
Respondent/Cross Appellant
APPELWICK, J. — Robert "Bobby" Bosone filed a VAPO naming Ann
Longinotti as respondent. Ann filed a guardianship action in favor of her father
Robert"Buzz" Bosone.1 She also petitioned for a vulnerable adult protection order
(VAPO) naming her brother Bobby as respondent. The trial court dismissed both
VAPO° petitions and ordered the parties to address their concerns via the
guardianship action. The trial court also awarded costs to Bobby related to Ann's
substitution of counsel during the proceedings. Bobby appeals dismissal of his
VAPO petition. Ann appeals and Bobby cross appeals the cost award. We affirm
1 For convenience and clarity, this opinion refers to the elder Robert Bosone
as "Buzz," the younger Robert Bosone as "Bobby," and Buzz's daughter as "Ann."
No. 76777-1-1/2
dismissal of the VAPO petition and remand for a hearing regarding the basis of the
cost award.
FACTS
Buzz is 90 years old and has two living children: his son Bobby and his
daughter Ann. While in good health, Buzz gave Bobby a durable power of attorney.
In 2015, after a fall Buzz developed dementia. In January 2016, Buzz
moved to Ashley Gardens, an assisted living facility in Mount Vernon. Ann and
Bobby began to jointly manage their father's affairs. Conflict soon followed.
In 2016, Ann filed a VAPO petition against Bobby alleging financial
mismanagement. Following an evidentiary hearing in late 2016, Ann voluntarily
moved to dismiss her petition. The trial court granted the motion. That VAPO
petition is not at issue in this appeal.
On January 19, 2017, Ann filed a second VAPO petition against Bobby.
The petition alleged that Bobby had compromised Buzz's health by removing him
from Ashley Gardens and returning him to his home in Anacortes under Bobby's
supervision. The following day, Ann also filed a guardianship petition. On January
27, Bobby filed a VAPO petition alleging that Ann had engaged in financial
impropriety regarding Buzz's assets. The court entered temporary orders of
protection on both VAPO petitions. Buzz was returned to Ashley Gardens.
On February 1, 2017, the parties convened for an evidentiary hearing
regarding Ann's VAPO petition against Bobby. Ann was represented by her
counsel David Neubeck. Bobby was represented by his counsel Tom Seguine.
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No. 76777-1-1/3
Neubeck began by requesting a continuance on Ann's VAPO petition
hearing:
Our position is, your Honor, we'd like to have the temporary order
continued. We filed a guardianship in this matter, and we would like
to have the Guardian Ad Litem cross appointed, make an
investigation as part of the guardianship and VAPO matter, and
report back to the Court on that.
We feel the restrictions, at this point, are not onerous. They
just require supervised visitation for Mr. Bobby Bosone, as well as
there are some restrictions on his finances and we can clarify those
for the Court.
Seguine asserted that the terms of the temporary order were onerous. Neubeck
responded that the temporary VAPO restrictions should remain in place pending
appointment of a guardian ad litem (GAL)for Buzz.
The trial court ruled that it would keep the temporary VAPO order in place
pending proceedings in the guardianship action:
Well, what I'm wondering is about relaxing those conditions, keeping
this order at some level in place just to, one, make sure that senior
Bosone stays at Ashley Gardens until a guardianship can at least be
explored or not. And if he's willing to agree to that, the Court does
need to keep jurisdiction in order to keep that order in place and then
I would be happy to look at possibly loosening the visitation
requirements, assuming that the father's in a facility where there's
other folks around.
. . . I'm only talking about continuing a temporary order, not
making a finding that that order has a valid basis and then letting the
guardianship have some time to explore. Because the allegation, at
least, was that he was trying to move this man out of there and
potentially risking his health.
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No. 76777-1-1/4
Seguine moved to deny the motion for a continuance, stating that he was ready to
proceed with the hearing. The court decided to allow the hearing to proceed:
Well, like I said, I thought that perhaps by loosening things that that
would be satisfactory on a short term basis until we got a
guardianship looking into it. But, Mr. Seguine, but if you're strongly
objecting to that, I'll be happy to hear this hearing in a little while.
Both parties presented evidence at the hearing, but were unable to finish, so the
court ordered a recess. The court reissued the temporary VAPO orders, with
modifications to allow the parties to visit Buzz at Ashley Gardens.
Stephen Schutt was subsequently appointed guardian ad litem (GAL) for
Buzz.
On March 1, 2017, Neubeck and Seguine appeared for another hearing on
Ann's VAPO petition against Bobby.2 Neubeck, noting that the VAPO issues were
inextricably intertwined with the guardianship issues, moved for a continuance so
that all three matters could be heard by the same trial court judge with Buzz's GAL
present. Neubeck also indicated that a continuance was appropriate because Ann
had retained a new attorney to defend against Bobby's VAPO petition, but he was
not able to be present that day.
Seguine agreed that it made sense to have one judge hear all three matters.
But, he opposed the continuance, arguing that Bobby would be prejudiced by
further delay. The court agreed that the guardianship issues were "very much
intertwined" with issues raised in the VAPO petitions. Therefore, the court
made several references to an additional hearing on February 8,
2 Seguine
2017. No transcript of that hearing appears in the record before us in this appeal.
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No. 76777-1-1/5
suggested "do[ing] what we're trying to do today, and that's combine all the cases,
and they are so intertwined and spend one day perhaps on dealing with all of it
and getting rulings on all of them and a plan going forward." The court granted
Ann's motion for a continuance regarding Bobby's VAPO petition, but allowed the
hearing to proceed regarding Bobby's defense against Ann's VAPO petition. The
parties agreed to reissue the temporary VAPO orders. All three actions were
subsequently preassigned to the same judge.
On March 14, 2017, Neubeck filed a notice of withdrawal and substitution
of counsel indicating that Douglas Shepherd would replace him as counsel for Ann
in litigating her VAPO petition against Bobby. On March 20, 2017, Shepard
entered a notice of appearance as counsel for Ann.
On March 27, 2017, the parties appeared for a third evidentiary hearing.
Present at the hearing were Bobby and his counsel Seguine, Ann and her counsel
Shepherd, and Schutt the GAL for Buzz. Shepherd informed the trial court that he
had substituted for Neubeck in all three matters. The trial court was surprised to
hear that Neubeck had withdrawn from defending Ann against Bobby's VAPO
petition mid-trial without the court's permission:
THE COURT: How can you do that mid-trial? Did Mr.
Neubeck not inform you that we were three quarters of the way
through trial?
MR. SHEPHERD: Yeah, he did.
THE COURT: I've never seen that done before. The Court
has to excuse someone mid-trial with the Court's permission. I don't
think the attorneys can just say here you take the ball. How can you
possibly know -- have you got a transcript?
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No. 76777-1-1/6
MR. SHEPHERD: There's a transcript.
THE COURT: Have you read the entire transcript?
MR. SHEPHERD: No, I have not. I'm aware of it, though.
THE COURT: I'm more concerned about Mr. Neubeck not you
at this point. But how does he just walk away from a trial, mid-trial
and say take it from here?
MR. SHEPHERD: I don't think he wanted to be involved from
the beginning, Your Honor.
THE COURT: Well, that's a different issue. I don't know if he
can just -- I mean we've taken combined more than one day's worth
of testimony after all is said and done or at least a full day's worth of
testimony, and we haven't completed witnesses. I know that your
client wished to have you on her case that her brother brought
against her. But I never for a moment thought that Mr. Neubeck was
just going to not show up.
Shepherd informed the court that he had moved in the guardianship
proceeding to appoint a medical examiner and an attorney for Buzz, and to convert
the VAPO proceedings into the guardianship:
. . . I believe that with the filing of the guardianship and with
the appointment of the Guardian ad Litem everything should be
stayed until we get a report back to properly appoint a medical
examiner, and we have a hearing as to what there should be, an
independent guardian of the person of the estate. If there's some
claims, which have been advanced and testified to as regards to
missing money those belong to the 88-year-old man not either one
of these children. So I'm wondering procedurally how to get here.
Seguine argued that dismissing Bobby's VAPO petition at this point in the
proceedings would be prejudicial to his client. He asserted that there was no need
to appoint counsel or obtain a medical examination because Buzz, while
competent, had appointed Bobby to manage his affairs. He further argued that
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No. 76777-1-1/7
Ann's VAPO petition should be dismissed with prejudice, voluntarily or not,
because her new counsel was not ready to proceed.
Schutt opined that no further medical testimony was needed to establish
that Buzz is incompetent. He asserted the need to appoint someone to make
medical and financial decisions for Buzz. Schutt recommended that the court
appoint Joel Bernardo.3
The trial court questioned whether, in light of the guardianship action, there
was any benefit in maintaining the VAPO petitions:
THE COURT: My question to you, Mr. Seguine, is now that I
have all three matters before me in a sense dismissal or even a ruling
on the vulnerable adult protection orders has very little weight while
the guardianship is still pending. In other words, it trumps all of those
and has the ability for restraining orders within it. And so I'm not sure
it makes sense to proceed on those. In other words, what possible
benefit, disposition, or remedy is available in the vulnerable adult
petition, either one that isn't available under the guardianship?
MR. SEGUINE: Well, I mean the problem here is, I guess it's
a defensive kind of thing, Your Honor, but he's been under --
THE COURT: Oh, agreed. If it's dismissed then there's no
binding agreement against him that he's done anything wrong. If his
against hers is dismissed then there's no finding that she's done
anything wrong, and we look at the best interest of the father through
the guardianship. . . .
. . I'm just wondering, regardless of any ruling, the
* guardianship is still there. And this is a man, and I guess it could be
argued with the power of attorney, who doesn't need a guardian, and
that's probably your position. But I also think that perhaps just the
taking him home without proper notice and attempting to care for him,
I'm not saying that he was harmed by that, but that procedure alone
3 Bernardo was appointed in Buzz's trust as the arbitrator/mediator of any
disagreements between Bobby and Ann regarding the trust. Schutt believed
appointing Bernardo might help diffuse the tension between Bobby and Ann.
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No. 76777-1-1/8
could raise the question of does this man need someone else looking
out for him?
Financially we haven't gotten into those on either side of
whether either one of the children is abusing the trust or not
financially. And I would think the guardianship could also look at that.
.. . I am just trying to look at what benefit in going forward on
either one of these [VAPO petitions] and maybe we just agree to
dismissals of both and focus on the guardianship and outcome for
their father and any protections that may or may not be necessary.
Seguine was "troubled" by the court's proposal. Shepherd reiterated that
these issues should be resolved within the guardianship, with an independent
person appointed to decide whether any claims regarding misconduct of the
children should be brought.
The trial court dismissed both VAPO petitions and ordered that matters
relating to concerns raised in the petitions be resolved in the guardianship action:
Mr. Seguine, I do not feel I can go forward on the petition that we've
taken a day's worth of testimony today. And I don't think it's
prejudicial to your client for me to dismiss that with prejudice and end
that process. I don't see any prejudice at all to your client. In fact, I
do see that as a victory, if we want to call it, because the attorney of
record mid-trial has decided to bow out. Or we call it the overriding
authority of the guardianship that I believe all of the issues can be
resolved under and all of the protections can be granted if any are
necessary.
I am,therefore, dismissing Cause Number 17-2-00071-2, Ms.
Longinotti's petition against her brother, Bobby Bosone. And I don't
see any reason for your client in the vulnerable adult protection
petition 17-2-00113-1 to go forward against her for the same
reasons. All of the necessary protections and/or remedies are
available under the guardianship. And in terms of use of assets, and
time, and resources it seems to me that we should simply focus on
the guardianship, and I will dismiss that case as well at this time with
prejudice. And I will appoint an attorney, and I'll allow the current
attorneys and Guardian ad Litem to discuss if they can come to an
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No. 76777-1-1/9
agreement as to someone who can be appointed for Mr. Bosone,
Buzz, Senior, and hopefully in a very limited cost to simply take a
quick review of the situation and agree to most things. Then if they
wish, get involved in recommendations for the guardianship if any.
But I can't see continuing on the other matters at this point in time.
Seguine objected to dismissal of Bobby's VAPO against Ann, arguing that Bobby
had a right to be heard just as Ann was. The court clarified that Bobby's allegations
against Ann would be heard in the guardianship action:
What I want to make clear is that I'm not dismissing his allegations
against his sister in terms of the guardianship. They will all still be
heard, if necessary. So when you say I'm dismissing his case you
are correct. But I'm not dismissing his concerns. I'm putting them in
another venue if you will, or another cause number to be discussed
there.
The court specified that testimony and evidence taken during the VAPO
evidentiary hearings would be made part of the record in the guardianship
proceeding. The court also ordered appointment of an attorney for Buzz.
Bobby subsequently moved for an award of attorney fees and costs
totaling $29,605 pursuant to RCW 4.84.185, CR 11, chapter 11.96A RCW,
chapter 74 RCW, CR 41, or CR 40. The trial court awarded $5,000 in costs to
Bobby based on Neubeck's unannounced withdrawal.
Ann appealed the cost award. Bobby appealed dismissal of his VAPO
against Ann and cross appealed the amount of the cost award.
DISCUSSION
I. Vulnerable Adult Protection Order
Bobby argues that the trial court erred by dismissing his VAPO petition
against Ann. We review a trial court's decision to grant or deny a protection order
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No. 76777-1-1/10
for abuse of discretion. See In re Vulnerable Adult Petition for Knight, 178 Wn.
App. 929, 936, 317 P.3d 1068 (2014). A trial court abuses its discretion when its
decision is based on untenable grounds or is manifestly unreasonable. Johnson
v. Horizon Fisheries, LLC, 148 Wash. App. 628, 636, 201 P.3d 346 (2009).
Bobby asserts that the dismissal was unreasonable and unfair because Ann
forced him to defend himself against her allegations in two hearings, whereas
Bobby was denied the same opportunity to present evidence against her. But, the
purpose of the VAPO and guardianship statutes is to protect the interests of
vulnerable adults, not the interests of those who seek to manage their care. "The
real party at interest in a guardianship proceeding is the alleged incapacitated
person and it is the trial court's duty to ensure that his interests are protected." In
re Guardianship of Matthews, 156 Wash. App. 201, 210, 232 P.3d 1140 (2010).
Similarly, "[t]he abuse of vulnerable adults act, chapter 74.34 RCW, was enacted
in 1995 to provide protection and legal remedies to vulnerable adults living in the
community but dependent on others for their care." Cummings v. Guardianship
Servs. of Seattle, 128 Wash. App. 742, 749, 110 P.3d 796(2005). "Both the Act and
the guardianship statutes are concerned with the personal and financial health of
vulnerable adults." Knight, 178 Wash. App. at 939. Here, the trial court reasonably
determined that Buzz's interests would be best served via the guardianship
proceedings, rather than via competing VAPO petitions between warring siblings.
Bobby's concerns about being deprived of an opportunity to advance his
allegations against Ann are also unfounded. The trial court expressly stated that
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No. 76777-1-1/11
Bobby will be able to bring these allegations in the guardianship proceeding. And,
the court stated that the testimony and evidence from Ann's dismissed VAPO
proceeding would be included in the record for the guardianship proceeding.
Bobby objected to the guardianship. His preferred outcome in these
proceedings was to have Ann's VAPO petition against him dismissed and a VAPO
entered against Ann, thereby allowing him to manage Buzz's affairs without Ann's
interference under the durable power of attorney granted to him while Buzz was
competent. Dismissal of the VAPO petitions may have deprived Bobby of the
opportunity to 'seek this preferred outcome. But, it did not force him to waste
resources or deprive him of his day in court. There is no prejudice.
Bobby also contends that there is no basis in the civil rules that would allow
the court to "convert" VAPO petitions into a guardianship proceeding. We
conclude that dismissal of both VAPO petitions was appropriate in light of the
factual and procedural situation manifest in this case at the March 27, 2017
hearing. Ann initially filed her VAPO petition against Bobby contemporaneously
with the guardianship petition. The vulnerable adult protection act provides
immediate relief in the form of an emergency temporary order of protection during
pendency of an action to establish a guardianship. RCW 11.88.045(5). Filing
these actions at the same time is a common strategy. See Knight, 178 Wash. App.
at 939.
By the time the March 27, 2017 hearing convened, the parties had agreed
that the same trial court judge would hear all three matters. For the first time in the
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No. 76777-1-1/12
proceedings, the procedural dilemma created by the competing VAPO petitions
and the parallel guardianship proceeding came into sharp relief. This dilemma
was exacerbated by the unexpected departure of Neubeck as counsel for Ann.
Under the circumstances, the trial court's solution of dismissing both VAPO
petitions and allowing the parties to litigate their concerns about Buzz's care via
the guardianship proceeding was eminently reasonable.
Bobby further contends that the dismissal was procedurally flawed because
Ann failed to file a written motion to dismiss with notice pursuant to CR 7(b)(1).
But, that rule expressly provides that motions shall be made in writing "unless
made during a hearing or trial." Id. Ann's motion to dismiss both VAPO petitions,
raised at the hearing, does not compel us to reach a different result.
II. Cost Award
Ann argues that the trial court had no legal basis to award costs to Bobby.
She does not separately challenge the amount awarded. Bobby argues that the
cost award was proper, but asserts that the trial court erred in refusing to award
the full amount requested. Washington courts follow the American rule in not
awarding attorney fees as costs unless authorized by contract, statute, or
recognized equitable exception. City of Seattle v. McCready, 131 Wash. 2d 266, 273-
74, 931 P.2d 156 (1997). We review the legal basis for an award of fees or costs
de novo. McConnell v. Mothers Work, Inc., 131 Wash. App. 525, 531, 128 P.3d 128
(2006).
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No. 76777-1-1/13
Bobby's motion for attorney fees and costs proposed five alternative bases
for an award: RCW 4.84.185, CR 11, RCW 11.96A.150, CR 40(d), and CR 41(d).
The trial court stated that its $5,000 cost award was premised on Neubeck's
unauthorized failure to appear at the March 27, 2017 hearing:
But the one issue, and 1 think I was pretty clear on the last
hearing when it happened was Mr. Neubeck was attorney of record
for Ms. Longinotti. We were in the middle of a trial, he simply did not
show up for the continuation of that trial where perhaps additional
witnesses were going to be called, and suddenly Mr. Shepherd is put
in the position of representing her.
In my -- and I hate judges that do this -- but in my 36 years of
practice in the criminal system and the justice system and the bench,
I have never seen an attorney without court's approval simply not
show up in the middle of trial and hand it off to someone who was
not even present during the testimony. And that action forced my
hand, which may or may not have been going in the same direction,
to say let's incorporate that into the guardianship. Let's make sure
we fully vet these issues, but we could not possibly complete that
trial without counsel who started the trial being present.
And for that reason and that reason alone, not Mr. Shepherd
but Mr. Neubeck who never has reappeared or asked the Court to
sign an order removing him from the case, the Court is imposing
$5,000 costs from Ms. Longinotti to Mr. Bosone Jr. for that delay and
that very unusual procedure.
The trial court specified that Ann's VAPO petition was filed in good faith,
that the award was not based on anyone being a prevailing party and that the
VAPO statute did not provide a basis for the award. The court also found that
Seguine's "documentation of [his] time and [his] fees is legitimate." The court,
however, expressly declined to specify its legal basis for the cost award:
So except for the $5,000 costs and whatever label you want
to put on those for forcing this court to terminate the trial and
incorporate it into the guardianship because of failure of Mr. Neubeck
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No. 76777-1-1/14
to appear at the hearing, and I believe Ms. Longinotti had some
responsibility in that, those will be the only costs awarded.
There may be a valid basis to award fees or costs to Bobby. However, the
record before us is insufficient to permit appellate review of the basis of the award
or the reasonableness of the amount awarded. Accordingly, we remand to the trial
court to specify its basis for the award as well as the amount awarded and to make
any necessary findings.
Affirmed and remanded.
WE CONCUR:
ife"vil
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