Dorothy Helm, V. Krystyan Calhoun ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
October 15, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DOROTHY HELM, an individual, No. 57878-6-II
Appellant,
v.
KRISTYAN CALHOUN and JAMES UNPUBLISHED OPINION
CALHOUN, wife and husband; THOMAS
PARKER and SUSAN PARKER, husband and
wife; and SENIOR AVENUES LLC, d/b/a
SENIOR AVENUES,
Respondents.
VELJACIC, A.C.J. — Dorothy Helm1 appeals the trial court’s summary judgment orders
dismissing her Consumer Protection Act (CPA) claim against Kristyan Calhoun and all of her
claims against Parker.2 Helm also appeals the mid-trial dismissal of her civil conspiracy claim
against Calhoun, several evidentiary rulings during trial of her remaining civil conspiracy and
breach of fiduciary duty claims against Calhoun, the denial of her motion for new trial, several
jury instructions, and the trial court’s award of attorney fees to Calhoun.
1
Helm is also referred throughout the record via her maiden name Dorothy O’Dell. However, we
will refer to her as “Helm.” No disrespect is intended.
2
Although Thomas and Susan Parker are both named parties in the present suit, we will refer to
both as “Parker.” No disrespect is intended.
57878-6-II
Helm argues that the trial court erred when it (1) excluded a portion of Helm’s deposition,
(2) when it excluded evidence of a prior property transaction between Calhoun and Parker (the
Sorenson transaction), and (3) when it admitted Helm’s medical records. She further asserts the
trial court erred in barring evidence regarding Calhoun’s professional background and the Certified
Professional Guardian (CPG) Standards of Practice (SOPs), and in giving and denying several jury
instructions. Finding no error, we affirm.
FACTS
I. BACKGROUND
In 2005, Helm purchased two investment properties, one on Feigley Road and one on
Rhapsody Drive, in Kitsap County for $177,500 and $117,000, respectively.
Ten years later, following a move to South Dakota, Helm was involuntarily committed to
the South Dakota Human Services Center (SDHSC)3 following a five-day mental health crisis.
While at SDHSC, Helm was diagnosed with an unspecified neurocognitive disorder,
schizoaffective bipolar fade—“a severe [and] persistent mental illness,” hypothyroidism,
hyperlipidemia, a history of transient ischemic attack, and essential tremor. 3 Rep. of Proc. (RP)
at 1263. Helm also showed signs of memory deficits, so her treatment team wanted her, following
discharge, to live in a facility that would provide medication management, transportation, and
financial management.
3
The SDCS is an involuntary commitment facility that takes in adults transferred from the adult
acute psychiatric or geriatric nursing home program. See
https://dss.sd.gov/docs/behavioralhealth/HSC/program/Psychiatric_Rehabilitation_Program.pdf
(last visited Sept. 24, 2024).
2
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In 2016, social worker Jennifer Luke-Anderson, who was part of Helm’s care team at
SDHSC, began reaching out to facilities in Washington that might help Helm move back to
Washington in order to be close to family. Unfortunately, none of the facilities she contacted could
meet Helm’s needs. However, one suggested Luke-Anderson reach out to Senior Avenues4 and
its director, Kristyan Calhoun.
Following the advice, Luke-Anderson reached out to Senior Avenues and Calhoun in
November 2016. Luke-Anderson testified that Calhoun had a lot of knowledge about facilities in
the area. She then met with the other members of Helm’s care team, who decided that Senior
Avenues and Calhoun could assist them in getting Helm back to Washington and into a place
where her needs would be met.
II. POWER OF ATTORNEY AND SERVICE AGREEMENT
Following conversations between Helm, Calhoun, and Luke-Anderson regarding Helm’s
history, desires, and priorities, a power of attorney (POA) was recommended. However, Luke-
Anderson stated the POA was neither required nor was it a stipulation of discharge. Calhoun and
Luke-Anderson stated discharge planning included discussion of moving back to Washington,
taking her car and some other belongings with her, and the sale of her properties. Luke-Anderson
then reached out to an attorney in South Dakota, Heather LaCroix, to assist in the drafting and
execution of the POA.
LaCroix testified that she met with Helm. LaCroix drafted the POA using “typical” POA
language, which granted the attorney-in-fact broad powers. 3 RP at 1377. She also testified that
she alone determined that Helm was competent to sign without looking at her medical records or
4
Senior Avenues was a geriatric case management company Calhoun owned. The company
offered Guardian Ad Litem, power of attorney, trustee, and probate services along with some
court-appointed special services such as CPG. However, Calhoun retired her CPG license in 2021.
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talking with Luke-Anderson. LaCroix testified that because the POA granted Calhoun the power
to sell property, she expressly advised Helm of that fact when reviewing the document with Helm.
Helm signed the POA on December 16, 2016. The POA granted Calhoun the power to
“sell, either at private sale or public auction, any and all property, real or personal” Helm owned.
Clerk’s Papers (CP) at 29. It also allowed Calhoun to “make all necessary arrangements for [Helm]
at any hospital, hospice, nursing home, convalescence home, or similar establishment and to assure
that all of [Helm’s] essential needs are provided for at such facility.” CP at 31. That same day,
LaCroix faxed a signed copy of the POA to Calhoun.
On January 3, 2017, Calhoun faxed over a Geriatric Care Management Service Agreement
(agreement) she drafted for signature. The agreement contained the following provision:
Kristyan Calhoun will act as the power of attorney for Ms. Helm O’Dell. Kristyan
will coordinate the transfer of Ms. Helm O’Dell’s vehicle being moved to Yakima
Washington. Kristyan and her staff at Senior Avenues will coordinate a move from
South Dakota to Yakima. Kristyan will address the properties being liquidated to
fund Ms. Helm-O’Dell’s care costs at the least restrictive alternative possible.
Kristyan will coordinate with staff to meet Ms. O’Dell in S. Dakota and to facilitate
the move.
CP at 35, 185 (emphasis added). The agreement also outlined a fee schedule. Helm signed the
agreement. Calhoun testified that she had no idea of the circumstance under which Helm signed
the agreement or on what day exactly but received it the next day.
III. SALE OF THE PROPERTIES
Calhoun called Thomas Parker, a licensed real estate broker in Yakima, regarding an onsite
visit of Helm’s properties in Kitsap County. Parker also invests in property. Being unfamiliar
with that county’s market, Parker referred Calhoun to a Kitsap County broker named Beth Allen.
4
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During the phone call, Calhoun stated that she would be driving to the Rhapsody Drive
property to do an onsite visit. Parker met Calhoun at the property, which he described as “a dump.”
3 RP at 1047. After knocking on the door twice and being allowed inside by the tenant’s son,
Parker described the inside of the property as “rough inside,” “trashed,” and “smell[ed] of pot.” 3
RP at 1048-49. There were problems with the septic system, along with other habitability
concerns. Parker also took pictures of the outside of the property.
Allen visited and conducted a comparative market analysis (CMA) on the Rhapsody
property. Allen e-mailed the CMA and discussed the marketability of the Rhapsody property in
an e-mail chain that included Parker. Allen noted she valued the property at $40,000 to $50,000.
Allen noted she did not have anyone interested in the property as of yet before listing and
recommended it be “scraped.” 4 RP at 1518. Calhoun told Allen not to list the property. Allen
testified she was unaware that Parker may be interested in the property.
Around January 19, 2017, Parker e-mailed Calhoun regarding the Rhapsody Drive
property. Parker offered $26,000 for the property, but Calhoun declined because it was too low.
Parker then made a $28,000 all-cash, as-is offer for the property. Parker testified at his deposition
that he made the offer because he wanted it as an “investment property.” CP at 255.
On January 20, Calhoun spoke again with Helm about her move to Washington and what
that entailed. That same day, Calhoun, signed the purchase and sale agreement as attorney-in-fact,
accepting Parker’s $28,000 offer for the Rhapsody property. Calhoun expressed that she was
happy with the ultimate offer given the scenario and the need to remove the debris from the
property as Allen recommended. The transaction closed and Parker took title by warranty deed
dated February 1, 2017. At the time of the sale, the Rhapsody property had a Washington State
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Section 8 Housing tenant, Kevin Loop. However, Loop stopped paying his portion of the rent,
even after the property sold, and Parker kept him as a tenant.
Calhoun and Parker also testified that Parker previously completed other transactions with
Senior Avenues and Calhoun. Specifically, three months prior to the Rhapsody transaction, Parker
was the buyer in the Sorenson transaction—a court ordered transfer from Calhoun to Parker.
However, the court barred evidence of that transaction, finding it irrelevant and prejudicial because
it was not ER 404(b) evidence, as Calhoun was serving as a court-appointed personal
representative of the estate, the Department of Social and Health Services (DSHS) approved the
sale, and the court oversaw settlement of the estate.
Calhoun sought out Allen in listing Helm’s second property—Feigley Road. Allen
conducted a CMA on the property, which valued it at around $125,000. She listed the property in
May for $124,950. Allen noted the property was vacant at the time of listing. Allen received the
first offer from Marshall Consulting, an all-cash offer, at $125,000. However, that fell through.
The second offer Allen received was from Lun Zang for $125,000. However, his offer came with
contingencies and after an inspection , which showed septic system issues and a need for redesign
of the drain field. Nevertheless, Zang ultimately purchased the property in June 2017 at a reduced
price of $116,000.5 Calhoun also signed off on this sale as attorney-in-fact.
IV. DISCHARGE AND PROCEDURAL HISTORY
SDHSC discharged Helm in August 2017. At that time, Helm did not express regret over
the sale of her properties. With Calhoun’s help and funds from the sale of the properties, Helm
moved into a facility in Yakima.
5
In 2022, following repairs including new floors, paint, and septic system, the Feigley Road
property was sold for $300,000.
6
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On November 19, 2018, Helm filed suit in Kitsap County against Calhoun, Senior
Avenues, and Parker. In her complaint, Helm alleged that Calhoun’s sale of the Rhapsody Drive
property was a breach of fiduciary duty, which Parker participated in, and that Calhoun and Parker
conspired to breach Calhoun’s fiduciary duty and violate the Washington CPA.
On July 29, 2019, Parker filed a CR 12(b)(6) motion to dismiss for failure to state a claim
upon which relief could be granted; it was denied. On February 28, 2020, Parker filed a motion
for summary judgment to dismiss Helm’s claims against them. Following a response from Helm
and a subsequent reply from Parker, the trial court dismissed with prejudice Helm’s claims against
Parker.
In March 2020, Helm’s attorney filed a motion to appoint a litigation guardian ad litem
(LGAL). The petition noted that Helm was incapacitated and could no longer assist her attorney
in the preparation of her case. Seven months later, following an investigation, the court granted
the motion and appointed a LGAL.
In November 2020, Calhoun filed a motion to compel and for sanctions resulting from
alleged discovery violations. The trial court held a hearing after which it continued trial to April
2021 to permit Calhoun to complete discovery. The court also limited evidence of Helm’s mental
or physical condition unless submitted within 30 days, and ordered that Helm could not offer
testimony at trial, even if competent, unless Calhoun had the opportunity to depose her prior to
trial.
In January 2021, Helm moved for partial summary judgment pertaining to the breach of
fiduciary and CPA claims against Calhoun. The trial court denied the motion. The following
month, Calhoun moved for partial summary judgment on all but the breach of fiduciary duties
regarding the Rhapsody Drive property. The trial court granted Calhoun’s motion for partial
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summary judgment with respect to the CPA claim only, leaving the civil conspiracy claim and the
breach of fiduciary duty claim.
In March 2021, Calhoun moved to strike Helm’s declaration and deposition testimony,
which Helm relied on for the competing summary judgment motions. Calhoun argued the
deposition and declaration were part of a guardianship proceeding in Yakima County and,
therefore, were inadmissible in the case at hand. Further, Calhoun argued that given Helm’s
incapacitated state, Calhoun had no opportunity to impeach the deposition testimony regarding the
issues in this suit. The trial court granted the motion to strike Helm’s deposition and declaration.
Helm moved for reconsideration; it was denied.
In the summer of 2021, Calhoun made two CR 68 offers to Helm, both of which were
declined by Helm’s LGAL. The case proceeded to trial.
V. TRIAL
The trial began on August 31, 2022, and lasted for four weeks—until September 22.
Calhoun, Luke-Anderson, Parker, LaCroix, and Loop all recounted the aforementioned facts via
their testimony at trial. The trial court allowed exhibit 108—a synopsis of Helm’s hospital stay.
The trial court also heard testimony from two expert witnesses—William Dussault and
Daniel Smerken on behalf of Helm and Calhoun, respectively. Smerken, a professional fiduciary
in care management, testified regarding fiduciary duties under the agreement Helm signed.
Specifically, Smerken stated that the agreement between Calhoun and Helm was typical and
provided some specific actions for Calhoun to take without continuously going back to Helm for
instructions. He noted that such actions were in the paragraph on page two, which granted Calhoun
the authority to “address the liquidation of the properties.” 4 RP at 1782. Smerken added that it
is not always the primary duty of the attorney-in-fact to maximize the profit from the sale of a
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property, the duty is to maximize the interest of the principal which is distinct. For example, he
continued, with older individuals, at times, there is a specific need, and their assets are what pay
for their long-term care, and therefore, it is in their interest to have that need met by utilizing the
resources at hand, which often does not maximize profit. Smerken also stated that if there are any
limitations to POAs, they are in the POA documentation or under the Uniform Power of Attorney
Act (UPOAA). So, he said, if the document provides the power to sell property, that fiduciary can
sell it for whatever they want and whenever they want. Consequently, according to Smerken,
unless Helm revokes the POA, the agent retains the authority granted under the document,
including the power to sell property.
Additionally, Smerken testified that CMAs, instead of appraisals, are good in determining
general value and what a property should be listed at to attract buyers, given that they are a good
example of what is happening in real-time with the market. Smerken opined that because CMAs,
unlike appraisals, do not cost money, they are a good option for clients who do not have the
financial resources to pay for an appraisal. Therefore, he did not think it was unreasonable for a
fiduciary to not place a property on the market, depending on the client’s situation.
During cross-examination, Helm tried to impeach Smerken, noting his testimony as
contradictory to the SOPs for CPGs. The trial court ruled that the CPG SOPs may not be raised.
Helm’s expert witness, Dussault, an attorney, testified that he reviewed the POA and
agreement in question along with LaCroix’s deposition and e-mails between Luke-Anderson and
Calhoun. Based on his review, Dussault testified that the duties of a fiduciary “exist based on the
agreement between the two individuals,” as well as those “based on the statute under which [the
agreement] is established.” 3 RP at 1134. In other words, Dussault stated that fiduciary duties are
typically created in two ways. The first is “by some agreement between the parties,” which can
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be written—such as a POA or trust document—or “by the Court appoint[ing] someone,” or “by
general operation of law.” 3 RP at 1135. Dussault highlighted that in Helm’s case, the duties
Calhoun owed her were created under the POA she signed. And that although there is a general
common law regarding POAs, the agreement prevails. However, he then stated that no matter
what the agreement states, the POA cannot just go out and sell whatever property they want; they
still need to confer with the principal, and if they agree to sell, the POA has to maximize value.
Nevertheless, Dussault opined that Calhoun did not follow the accepted general practices
of a fiduciary.6 This is because Calhoun (1) failed to communicate effectively to determine Helm’s
wishes before acting, (2) did not maximize the value of assets nor did she get an evaluation of the
property to maximize value, and (3) did not follow the terms of the agreement because she did not
conduct an active investigation of Helm’s eligibility for government benefits or whether benefits
were consistent with her wishes.
Dussault added that when a POA sells the property, getting an appraisal is the “standard”
and the “best thing you can get” because it establishes the value of the property without an agent,
commission, or brokerage fee. 3 RP at 1157.
At the closing of Helm’s case-in-chief, Calhoun moved for judgment as a matter of law
pursuant to CR 50 regarding the breach of fiduciary duty and civil conspiracy claims. The court
granted the CR 50 motion and dismissed the civil conspiracy claim only, stating its basis as
insufficient evidence. Only the claim of breach of fiduciary duty went to the jury.
6
Following an objection by Calhoun’s attorney, the trial court limited Dassault’s testimony and
instructed Dussault and counsel to use the term “generally accepted practices of fiduciaries”
instead of “standard of care.” See 3 RP at 1127-31, 1228, 1230-1232.
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Both parties offered proposed jury instructions.7 The trial court extensively discussed the
proposed jury instructions. Ultimately, the jury found in Calhoun’s favor.
Calhoun then moved for an award of fees and costs under the Trust and Estate Dispute
Resolution Act (TEDRA), using CR 68 offers of judgment as evidence to support her motion.
Following oral argument, the court awarded attorney fees and costs to Calhoun in the amount of
$84,530.04. Helm appeals.
ANALYSIS
I. CLAIMS AGAINST CALHOUN
A. Summary Judgment
Helm argues that the trial court erred in granting Calhoun’s motion for partial summary
judgment. She argues there are issues of material fact regarding the CPA claim. She notes that
Calhoun’s motion for partial summary judgment address only three out of the five elements for a
CPA claim.
Calhoun responds that Washington courts have routinely declined to apply the CPA to
matters involving professional judgment. Calhoun also argues that because all five elements under
a CPA must be proven to establish a claim, the fact that she attacked only three elements of a CPA
claim does not defeat her summary judgment motion. We agree that the trial court did not err in
granting summary judgment to Calhoun on the CPA matter.
7
Calhoun concedes that her proposed instructions were not part of the record provided to this
court. However, Calhoun submitted her proposed instructions as an appendix to her response brief,
pursuant to RAP 10.3(a)(8), which provides that a party may provide jury instructions to this court
in the appendix of a brief in accordance with RAP 10.4(c).
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A motion for summary judgment shall be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” CR 56(c). When determining whether a genuine issue of material fact exists, we consider
all the evidence in the light most favorable to the nonmoving party. Vargas v. Inland Wash., LLC,
194 Wn.2d 720, 728, 452 P.3d 1205 (2019).
If the defendant moves for summary judgment and shows “an absence of evidence to
support the plaintiff’s case,” then the burden shifts to the plaintiff “to set forth specific facts that
rebut the moving party’s contentions and show a genuine issue of material fact.” Zonnebloem,
LLC v. Blue Bay Holdings, LLC, 200 Wn. App. 178, 183, 401 P.3d 468 (2017). The plaintiff
“‘may not rely on speculation, argumentative assertions that unresolved factual issues remain, or
in having its affidavits considered at face value.’” Martin v. Gonzaga Univ., 191 Wn.2d 712, 722,
425 P.3d 837 (2018) (quoting Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721
P.2d 1 (1986)). The party must offer more than conclusory statements. SentinelC3, Inc. v. Hunt,
181 Wn.2d 127, 140, 331 P.3d 40 (2014).
If a reasonable person could reach only one conclusion based on the evidence presented,
then summary judgment is proper. Vargas, 194 Wn.2d at 728. We review summary judgment
orders de novo, “‘engaging in the same inquiry as the trial court.’” Id. (quoting Afoa v. Port of
Seattle, 176 Wn.2d 460, 466, 296 P.3d 800 (2013)). “We may affirm on any basis supported by
the record.” Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233 (2016).
A CPA claim requires the plaintiff to show an “‘(1) unfair or deceptive act or practice; (2)
occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her
business or property; [and] (5) causation.’” Klem v. Wash. Mut. Bank, 176 Wn.2d 771, 782, 295
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P.3d 1179 (2013) (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105
Wn.2d 778, 780, 719 P.2d 531 (1986)). A claimant must establish all five elements to prevail.
Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 74, 170 P.3d 10(2007).
Helm fails to meet the first element under the CPA. She argues that the sale of the
Rhapsody property without obtaining an appraisal or exposing it to the market nor consulting with
her prior to selling and obtaining express consent to do so constituted an unfair or deceptive act or
practice. Further, Helm asserts that because she signed a POA and Calhoun signed property sale
documents as attorney-in-fact, that made her a de facto trustee of her properties.
Helm relies on Allard v. Pac. Nat’l Bank, 99 Wn.2d 394, 663 P.2d 104 (1983), for the
proposition that our Supreme Court expressly requires a trustee holding real property to obtain an
appraisal or expose the property to the market and failure to do so constitutes a breach of fiduciary
duty. But Calhoun was not a trustee. Because Helm has provided no authority supporting her
allegation that we should apply Allard to attorneys-in-fact, we decline to do so.
Additionally, Helm cannot establish an issue of material fact. She does not dispute that
she signed the POA and service agreements. Because we hold herein that the service agreement
provision relating to the liquidation of property is unambiguous, both documents instruct Calhoun
to liquidate the properties in order to fund the move from South Dakota and Helm’s care.
Consequently, Helm cannot show that Calhoun’s actions constituted an unfair or deceptive practice
under the CPA. Accordingly, we affirm the trial court’s grant of partial summary judgment on the
issue.
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B. Pretrial Evidentiary Ruling
Helm identifies five evidentiary rulings she claims were erroneous. She argues that she
was prejudiced because the trial court’s rulings reduced her case over time to a single claim and
excluded her “most powerful evidence.” Br. of Appellant at 2. Helm also argues that the trial
court should have allowed evidence of the Sorenson transaction, ambiguity in the service
agreement, professional SOPs for CPGs, and evidence of Calhoun’s professional background.
Finally, she argues that the court should not have allowed her medical records to be admitted. We
disagree.
We review a trial court’s evidentiary rulings for an abuse of discretion, deferring to the
trial court’s judgment unless no reasonable person would agree. Saldivar v. Momah, 145 Wn.
App. 365, 394, 186 P.3d 1117 (2008). A trial court abuses its discretion when its decision is
manifestly unreasonable or it bases its decision on untenable grounds. Mayer v. Sto Indus., Inc.,
156 Wn.2d 677, 684, 132 P.3d 115 (2006). “‘[E]videntiary error is grounds for reversal only if it
results in prejudice.’” Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 99, 469 P.3d 339(2020) (alterations on original) (quoting City of Seattle v. Pearson, 192 Wn. App. 802, 817, 369
P.3d 194 (2016)). An error is prejudicial if the outcome of the trial would have been materially
affected had the error not occurred. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120(1997).
1. Ambiguity in Service Agreement
Helm argues that the trial court erred by barring any argument regarding the wording of
the service agreement relating to the sale of the properties. Specifically, she argues that the service
agreement was ambiguous in regards to the section stating Calhoun would “‘address the
properties.’” Br. of Appellant at 53 (quoting CP at 35). Helm argues the word “address” has
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multiple meanings, therefore making it unclear whether the agreement noted whether Calhoun
would either “deal with” the properties or “discuss the properties and take action later based on
the discussion” with Helm or if she would “entrust the care of the properties to another.” Br. of
Appellant at 53 (emphasis in original).
Calhoun counters that the service agreement clearly specified that Calhoun would act as
POA for Helm and coordinate her move from South Dakota to Washington to a setting that was
the least restrictive possible. Notably, Calhoun argues that she took the wording to state she was
to liquidate the properties to fund Helm’s care and the costs of moving. Further, Calhoun argues
that one cannot introduce vagueness or ambiguity in a contract by simply asserting that it could be
interpreted in different ways. Therefore, Calhoun argues, there must be some evidence that the
agreement or section is subject to more than one interpretation by the parties, not just an inference
or allegation that the parties could potentially interpret it differently. We agree that the contract is
unambiguous.
Contract interpretation is a question of law and is reviewed de novo. Dave Johnson Ins.,
Inc. v. Wright, 167 Wn. App. 758, 769, 275 P.3d 339 (2012). “It is a fundamental precept of
contract law that contracts must be interpreted in accordance with all of their terms.” Storti v.
Univ. of Wash., 181 Wn.2d 28, 38, 330 P.3d 159 (2014). “The touchstone of contract interpretation
is the parties’ intent.” Tanner Elec. Co-op. v. Puget Sound Power & Light Co., 128 Wn.2d 656,
674, 911 P.2d 1301 (1996). “[A] court’s primary goal is to ascertain the parties’ intent at the time
they executed the contract.” Int’l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274,
282, 313 P.3d 395 (2013). But a court does “not interpret what was intended to be written but
what was written.” Hearst Commc’ns v. Seattle Times, 154 Wn.2d 493, 504, 115 P.3d 262 (2005).
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Courts view the contract as a whole and give words their ordinary meaning. Viking Bank v.
Firgrove Commons 3, LLC, 183 Wn. App. 706, 713, 334 P.3d 116 (2014).
A contract is ambiguous if it is uncertain or is subject to two or more reasonable
interpretations. Id. An interpretation of the contract that gives effect to all provisions is preferred
to an interpretation that renders a provision ineffective. Kiona Park Estates v. Dehls, 18 Wn. App.
2d 328, 335, 491 P.3d 247 (2021). If a provision in the contract is subject to two possible
constructions, one of which would make the contract unreasonable and the other of which would
make it reasonable, courts adopt the reasonable interpretation. Berg v. Hudesman, 115 Wn.2d 657,
672, 801 P.2d 222 (1990).
But when a contract is plain and unambiguous, a person who has signed without reading it
is nevertheless bound by its terms so long as there was reasonable opportunity to examine the
contract in as great a detail as the person signing cared, and the contracting party has failed to do
so for personal reasons. McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989).
At summary judgment, contract interpretation may be determined as a matter of law “when
the only dispute relates to the legal effect of language in a written contract.” George D. Poe &
Co. v. Stadium Way Props., 7 Wn. App. 46, 49, 498 P.2d 324 (1972). Interpretation of a contract
provision is a question of law when the interpretation does not rely on the use of extrinsic evidence
or only one reasonable inference can be drawn from the extrinsic evidence. Go2Net, Inc. v. C I
Host, Inc., 115 Wn. App. 73, 85, 60 P.3d 1245 (2003).
Washington follows the objective manifestation theory of contract interpretation, under
which the subjective intent of a contract is irrelevant if intent can be determined by the actual
words used. In re the Marriage of Watanabe, 199 Wn.2d 342, 354, 506 P.3d 630 (2022).
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Here, the relevant language of the contract provides:
Kristyan Calhoun will act as the power of attorney for Ms. Helm O’Dell. Kristyan
will coordinate the transfer of Ms. Helm O’Dell’s vehicle being moved to Yakima
Washington. Kristyan and her staff at Senior Avenues will coordinate a move from
South Dakota to Yakima. Kristyan will address the properties being liquidated to
fund Ms. Helm-Odell’s care costs at the least restrictive alternative possible.
Kristyan will coordinate with staff to meet Ms. O’Dell in S. Dakota and to facilitate
the move.
CP at 35 (emphasis added). When viewing the contract provision as a whole, the trial court’s
interpretation is reasonable because it clearly states that Calhoun, as POA, was to coordinate
Helm’s move and care cost from South Dakota to Washington, which included the properties being
liquidated to fund such move and care.
Moreover, Helm failed to provide evidence showing ambiguity of the service agreement
provision. The trial court did not restrict Helm from later arguing ambiguity if she provided some
evidence in support, but she did not. Accordingly, the trial court did not err.
2. Helm’s Deposition
Helm argues that the excerpt from her deposition from her guardianship case in Yakima
County, stating she told Calhoun not to sell her properties, was admissible under ER 804(b)(1).
Specifically, she argues that the testimony was given as a witness in a deposition in another
proceeding, which is not excluded by the hearsay rule “‘if the party against whom the testimony
is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross
or redirect testimony,’” and Calhoun had such an opportunity when taking the deposition in
question Br. of Appellant at 44-45 (quoting ER 804(b)(1)). We disagree.
ER 804 provides exceptions to the rule against hearsay when the declarant is unavailable.
One of those exceptions is for “Former Testimony” by the declarant. ER 804 (b)(1) (emphasis
omitted). The rule states:
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(b) Hearsay Exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of
the same or a different proceeding, or in a deposition taken in compliance with law
in the course of the same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
ER 804(b)(1) (emphasis added).8 In addition, a deposition is admissible if the witness resides out
of the county more than 20 miles from the site of the trial. CR 32(a)(3).
Here, the other party—Calhoun—was unable to develop Helm’s testimony in relation to
the claims at issue in the case presently before us for review (whether Calhoun breached her
fiduciary duty when selling Helm’s properties) because the deposition was a part of an entirely
different case, a guardianship case brought by Calhoun.9 The guardianship case concerned
whether Helm lacked capacity stemming from her poor physical health and mental health
diagnosis. The issues here are different—related to fiduciary duties and alleged conspiracy to
commit unlawful acts—illustrating that Calhoun would not have had opportunity at the deposition
to question Helm on issues relevant here yet unrelated to the guardianship proceeding.
Additionally, exclusion of the deposition followed Calhoun’s motion to strike based on the
trial court’s prior discovery sanction, which Helm did not appeal, and which ordered:
[Helm] cannot offer testimony at trial, even if competent, unless [Calhoun] has had
the opportunity to depose her prior to trial. If [Helm’s] attorney learns that [Helm]
has become competent, he shall immediately advise [Calhoun’s] attorney. Despite
8
A declarant is unavailable if she is absent from the proceedings and the proponent was not able
to procure their attendance, including due to an existing physical or mental illness or infirmity.
ER 804(a)(4), (5). Here, Helm was unavailable due to being deemed incapacitated and unable to
assist in her defense, and because Calhoun was unable to depose her on the matters at issue before
trial.
9
The Yakima superior court dismissed Calhoun’s guardianship petition on April 19, 2019. As
part of the dismissal, Calhoun was ordered to resign as representative payee of Helm’s social
security benefits, and the POA and service agreement were revoked and terminated.
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any discovery cutoffs stated above, [Calhoun] shall have the right to depose [Helm]
if she becomes competent prior to trial.
CP at 542. Therefore, for the deposition to be admissible, Calhoun must have been afforded the
opportunity to cross-examine and develop Helm’s testimony on the assertions raised in this case—
violation of the CPA, civil conspiracy, and breach of fiduciary duty under a POA, in order for the
deposition to be admissible under ER 804(b)(1). This did not occur. The deposition excerpt
provided to the trial court in support of Helm during summary judgment proceedings was not
developed in that manner regarding the claims at issue in the case before us for review. But
additionally, Calhoun was not provided the opportunity to depose Helm prior to trial, as required
by the discovery order. Her testimony was therefore inadmissible even in the form of a prior
deposition. Accordingly, the trial court properly excluded the excerpt testimony from Helm’s
deposition from the guardianship proceedings.
C. Mid-Trial Evidentiary Rulings
1. Sorenson Transaction
Next, Helm argues that the trial court should have allowed evidence regarding a similar
sale between Helm and Parker—the Sorenson transaction—to show motive or a common scheme
or plan. Helm relies on State v. DeVincentis for the proposition that the trial court “need only find
that the prior acts show a pattern or plan with marked similarities to the facts in the case before it”
be admissible under ER 404(b). Br. of Appellant at 46 (quoting 150 Wn.2d 11, 13, 74 P.3d 119(2003)).
Calhoun responds that the trial court correctly excluded evidence of the Sorenson
transaction because Helm would be offering it to argue that Calhoun had a propensity for selling
undervalued properties to Parker, which is a violation of ER 404(b). Calhoun further argues that
Helm failed to show how the Sorenson transaction between her and Parker would have bearing on
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the issue of whether she breached her fiduciary duty as it was an entirely different sale, at a
different time, in a different county, under different circumstances, and was court and DSHS
authorized. Lastly, Calhoun argues that the only other purpose for the possible inclusion of the
Sorenson transaction could be under ER 406 (habit, routine practice), but that argument fails for
the same reasons. We agree.
We review the exclusion of evidence under ER 404(b) for abuse of discretion.
DeVincentis, 150 Wn.2d at 17. A trial court abuses its discretion if its decision is based on
untenable grounds or untenable reasons. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230
P.3d 583 (2010).
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence of a person’s prior misconduct is admissible only when the party seeking to admit
the evidence (1) demonstrates by a preponderance of the evidence that the misconduct occurred,
(2) identifies the purpose for the evidence’s admission, (3) establishes the evidence’s relevance to
proving an element of the charged crime, and (4) weighs the evidence’s probative value against its
prejudicial effect. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012). A party seeking
to introduce evidence under ER 404(b) has the burden of proving the first three of these elements,
and we presume that evidence of prior misconduct is inadmissible. Id. Regarding the fourth
element, the trial court should balance the probative value of the evidence against its prejudicial
effect on the record before using its discretion to admit evidence under ER 404(b). State v.
Gogolin, 45 Wn. App. 640, 645, 727 P.2d 683 (1986).
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Under ER 406, relevant evidence is admissible to prove behavior in conformity with habit
on a particular occasion. ER 406 provides:
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or routine practice.
Notably, our Supreme Court defined habitual behavior in Washington State Physicians Insurance
Exchange & Association v. Fisons as “‘semi-automatic, almost involuntary and invariabl[y]
specific responses to fairly specific stimuli.’” 122 Wn.2d 299, 325, 858 P.2d 1054 (1993)
(alteration in original) (quoting ER 406 cmt. 1).
The trial court did not abuse its discretion when it excluded evidence regarding the
Sorenson transaction. Although Helm provides the similarity of Parker buying property at a lower
price than market value from Calhoun and Senior Avenues, she also concedes that the Sorenson
transaction was different because Calhoun was a court-appointed trustee of Sorenson’s estate and
both DSHS and the court overseeing the settlement of the estate approved the sale—making the
Sorenson transaction factually different from the case at hand. Therefore, Helm fails to show how
the Sorenson transaction shows a “pattern or plan with marked similarities to the facts in the case
before it.” DeVincentis¸ 150 Wn.2d at 13. Accordingly, the probative value of this inadmissible
evidence cannot be deemed to outweigh the prejudicial effect required for it to be admissible under
ER 404(b).
Next, regarding ER 406, the court stated:
Under 406, it has to be routine or practice. It has to be routine or habit that would
be such that you can’t even pick out a specific property. This is what they always
do—they always have their—25 different examples of properties that were subject
to—that were sold for undervalue to the same person from her. I’ve got one other
sale that we’re talking about—it’s one sale. And that’s not sufficient under 406.
....
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And the other [Sorenson transaction] was signed off by the Court and signed off by
DSHS.
.....
It is confusing for the jury as far as what this all means in light of the fact that the
Court signed off on it. It does not show habit; it does not show routine practice.
....
There’s not sufficient routine or habit shown to bring it in. Conspiracy does
not need to have a routine practice or habit to be able to show the same either.
2 RP at 631-33. Notably, Helm cites nothing more to lend additional support to her allegations
that this should have been admitted under ER 404 or 406, and instead agrees that the evidence “[is]
not exactly under 406.” 2 RP at 631. And because Helm does not dispute the basis of the court’s
ruling—the fact that this was a transaction where Calhoun was court-appointed as trustee of
Sorenson’s estate and that at the time of the sale both DSHS and the Yakima court approved the
sale of the property—she fails to show that Calhoun’s and Parker’s actions fit within the definition
of habitual behavior under Fisons. Accordingly, the trial court’s determination was not so
unreasonable as to constitute an abuse of discretion.
2. Professional Standards of Practice and Background for CPGs
Next, Helm argues that the trial court’s ruling barring testimony about the qualifications of
Calhoun as a CPG was predicated on an interpretation of the law governing attorneys-in-fact as
contained within the “four corners of the [UPOAA and ch. 11.125 RCW].” Br. of Appellant at 49.
Helm argues and cites to Walker v. Bangs, 92 Wn.2d 854, 607 P.2d 1279 (1979), for the common
law principle, codified in RCW 11.125.140(5), that “[g]enerally, one who holds himself out as
specializing and as possessing greater than ordinary knowledge and skill in a particular field, will
be held to the standard of performance of those who hold themselves out as specialists in that
area.” Br. of Appellant at 50 (quoting Walker, 92 Wn.2d at 860). Therefore, when the trial court
directed Helm’s expert witness to refrain from using “standard of care” and instead use the term
“generally accepted practices of fiduciaries,” she was unable to impeach Calhoun’s expert
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regarding SOPs for CPGs. Finally, Helm argues that the SOPs regarding CPGs should have been
allowed because it would have allowed the jury to learn of the special skills or experience Calhoun
possessed as the only care management firm in central Washington.
Calhoun responds that Helm cannot show that her CPG license and license status were
factors in why she was selected to be POA. Therefore, her CPG license and the standards
pertaining to said license were irrelevant to Helm’s claims. We agree.
Here, the trial court did not err in excluding evidence of the standard of practices for CPG’s.
The issues at trial were whether Calhoun breached her fiduciary duty to Helm as POA, and whether
Parker and Calhoun conspired when purchasing and selling the Rhapsody property. Neither dealt
with Calhoun’s role as a CPG; she was not hired to be one in this case, nor was she acting as one.
Helm offers no other evidence to show Calhoun acted as a CPG when taking on Helm’s case.
Additionally, Helm does not dispute or allege that she did not sign the POA, making Calhoun her
attorney-in-fact. Accordingly, the court did not err when limiting and restricting testimony
regarding CPG standards of care.
3. Helm’s Medical Records
Next, Helm argues that the court erred in admitting exhibit 108 over her objection. She
asserts that the subject passage did not “relate to Helm’s medical condition.” Br. of Appellant at
56. Helm writes the
italicized statements express[ed] opinions which were not even based on first-hand
knowledge of the doctor writing the summary, but on information provided by
unnamed people in ‘Social Work.’ Furthermore, these opinions related to the very
issues before the jury.
Br. of Appellant at 56.
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The passage at issue reads:
Social Work involved her family both here and in Washington state so that
it would be possible to have two properties that she owned sold, she would retain
ownership of her car, which was going to be transferred out to Washington State at
discharge so she would have that. The properties were in disrepair so they had to
be worked on to close out the ownership of the properties so that she would have
sufficient funds, as there were apparent credit difficulties with her credit and so
from what I understand from social work, the properties did have to be sold and
subsequently were.
Ex. 108, at P.009-010.
Here Helm, while not expressly doing so, at least appears to assert inadmissibility based
on (1) lack of first-hand knowledge, (2) possibly hearsay within hearsay, (3) impermissible
opinion, and (4) ultimate issue. However, Helm offers only minimal argument, and provides
authority only regarding opinions in medical records and hearsay. We, therefore, address only
opinions in medical records and hearsay.
Helm cites to Erickson v. Kerr, 69 Wn. App. 891, 851 P.2d 703 (1993), affirmed in part,
reversed in part, 125 Wn.2d 183, 883 P.2d 313 (1994), for the proposition that medical records
are not admissible if they express opinion, conjecture, or speculation. But more accurately, the
Erickson court held it was not an abuse of discretion to exclude medical records containing
opinion, conjecture, or speculation. Id. at 904. Erickson does not stand for the principle for which
Helm cites it. Even so, Helm offers no reasoned analysis on this issue, so her argument fails.
Next, we address Helm’s hearsay objection. Hearsay is a “statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” ER 801(c). There are various exceptions to the rule against hearsay, including
business records and statements made for the purposes of medical diagnosis or treatment. RCW
5.45.020; ER 803(a)(4).
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A business record is:
A record of an act, condition or event, shall in so far as relevant, be
competent evidence if the custodian or other qualified witness testifies to its identity
and the mode of its preparation, and if it was made in the regular course of business,
at or near the time of the act, condition or event, and if, in the opinion of the court,
the sources of information, method and time of preparation were such as to justify
its admission.
RCW 5.45.020. However, “routine records created in the normal course of business may be
inadmissible if they contain conclusions or opinions based on the preparer’s special degree of skill
or discretion.” In re Welfare of M.R., 200 Wn.2d 363, 380, 518 P.3d 214 (2022). If hearsay
evidence is wrongly admitted, we must determine whether the admission was prejudicial or
harmless. In re Welfare of X.T., 174 Wn. App. 733, 739, 300 P.3d 824 (2013). The admission is
not prejudicial “‘unless, within reasonable probabilities, the outcome of the trial would have been
materially affected had the error not occurred.’” Id. at 739 (internal quotation marks omitted)
(quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). Under this standard,
“[t]he improper admission of evidence constitutes harmless error if the evidence is of minor
significance in reference to the overall, overwhelming evidence as a whole.” In re the Dependency
of A.C., 1 Wn.3d 186, 194, 525 P.3d 177 (2023).
We agree that exhibit 108 contains hearsay. However, the trial court admitted it under the
business records exception to the hearsay prohibition and Helm does not explain why that
exception does not apply, asserting only that the records do “not relate to Helm’s medical
condition.” Br. of Appellant at 56. Helm’s bare assertion that it does not relate to Helm’s medical
condition is unavailing. Considering her argument, we must conclude that it fails.
Helm also asserts that the information in the note is “not even based on first-hand
knowledge of the doctor writing the summary, but on information provided by unnamed people in
‘Social work.’” Br. of Appellant at 56. But again, Helm provides no analysis of how these bare
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observations relate to an analysis of the business records statute, RCW 5.45.020. Accordingly, her
argument fails.
As for prejudice, Helm’s argument is lacking. Even if it is hearsay that should not have
been admitted, the error was harmless because the trial court properly determined that Helm’s
mental health issues had been known throughout the trial. Helm’s mental health was the basis for
her involuntary commitment and was why she needed the attorney-in-fact to coordinate her move
and care, ultimately involving Calhoun.
Next, Helm’s argument that the medical records should have been redacted of opinions
lacking first-hand knowledge and statements having potential for undue prejudice is unpersuasive.
Because Helm requested redaction after the entirety of the exhibit was admitted and after both
parties cited and relied on it during witness questioning, she waived her objection on this issue.
See Wolff v. Coast Engine Prods., Inc., 72 Wn.2d 226, 230, 432 P.2d 562 (1967) (“counsel
objecting to the hospital record must point out the portions to which he is objecting, thus giving
the trial court an opportunity to pass upon the question of what should be deleted from the record
at the time it is offered”). Accordingly, the trial court did not abuse its discretion in admitting
exhibit 108.
D. Civil Conspiracy Claim
Next, Helm argues that the trial court erred when orally dismissing her civil conspiracy
claim for insufficient evidence against Calhoun at the close of her case.10 She argues that the jury
10
The trial court also dismissed Helm’s claim of breach of fiduciary duty against Calhoun for
insufficient evidence. But Helm does not raise that in her appeal, so we do not consider it. We do
not consider issues unsupported by argument, authority, and references to relevant parts of the
record. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992).
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could have found that Calhoun entered into an agreement with her friend, Parker, in the financially
exploitative non-market purchase and sale of the Rhapsody property.11
Calhoun responds that the trial court’s dismissal was proper as the only evidence Helm
presented was the fact that Parker bought the home from her following a separate individual being
contracted to do the CMA. Lastly, Calhoun argues that Helm abandoned this argument due to not
providing authority for her assertion as well as for making a conclusory assertion that there was
sufficient evidence for a jury to find civil conspiracy. We agree with Calhoun.
To state a claim for civil conspiracy, the plaintiff must allege that “(1) two or more people
combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by
unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy.”
All Star Gas, Inc. of Wash. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367 (2000). The plaintiff
must demonstrate the existence of the conspiracy by clear, cogent, and convincing evidence.
Corbit v. J. I. Case Co., 70 Wn.2d 522, 529, 424 P.2d 290 (1967). “‘Mere suspicion or
commonality of interests is insufficient.’” All Star Gas, 100 Wn. App. at 740 (quoting Wilson v.
State, 84 Wn. App. 332, 351, 929 P.2d 448 (1996)). And if “‘the facts and circumstances relied
upon to establish a conspiracy are as consistent with a lawful or honest purpose as with an unlawful
undertaking, they are insufficient.’” Puget Sound Sec. Patrol, Inc. v. Bates, 197 Wn. App. 461,
470, 389 P.3d 709 (2017) (internal quotation marks omitted) (quoting All Star Gas, 100 Wn. App.
at 740).
11
Helm also references the Sorenson transaction as further proof that the jury could have
considered. However, as we previously determined exclusion of said evidence was proper, we do
not consider it here.
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Insofar as Helm attempts to show a conspiracy between Parker and Calhoun to accomplish
an unlawful purpose, the only unlawful purpose she expresses is the private “as-is” sale of the
Rhapsody property. She also merely raises evidence that was previously excluded—the Sorenson
transaction, which we have previously noted is irrelevant and dissimilar in circumstance.
Additionally, Parker’s testimony further mentioned that in regard to the Rhapsody property, he did
bargain with Calhoun regarding the purchase price of the property, originally offering $26,000,
which Calhoun rejected. Consequently, the fact that he got a good deal is insufficient to support a
civil conspiracy claim. Accordingly, Helm failed to show clear, cogent, and convincing evidence
that Calhoun and Parker conspired to commit financial exploitation.
E. Jury Instructions
Helm argues that the trial court erred by giving several improper jury instructions and by
failing to give some of her proposed instructions. We disagree.
Jury instructions are generally sufficient if they are supported by the evidence, allow each
party to argue its theory of the case, and inform the trier of fact of the applicable law. Helmbreck
v. McPhee, 15 Wn. App. 2d 41, 57, 476 P.3d 589 (2020). We review a trial court’s instructions
for legal error de novo. Id. Absent legal error, we review instructions for an abuse of discretion.
Id. We also review a trial court’s refusal to give a requested instruction for an abuse of discretion.
Bulzomi v. Dep’t of Lab. & Indus., 72 Wn. App. 522, 526, 864 P.2d 996 (1994). We read jury
instructions as a whole when determining sufficiency. Helmbreck, 15 Wn. App. 2d at 57.
CR 51 governs jury instructions. CR 51(f) provides:
Before instructing the jury, the court shall supply counsel with copies of its
proposed instructions which shall be numbered. Counsel shall then be afforded an
opportunity to make objections to the giving of any instruction and to the refusal to
give a requested instruction. The objector shall state distinctly the matter to which
counsel objects and the grounds of counsel’s objection, specifying the number,
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paragraph or particular part of the instruction to be given or refused and to which
objection is made.
This rule enables the trial court to correct any mistakes in the instructions in time to prevent the
unnecessary expense of a second trial. Estate of Ryder v. Kelly-Springfield Tire Co., 91 Wn.2d
111, 114, 587 P.2d 160 (1978). Failure to object to an instruction in compliance with CR 51(f)
generally precludes appellate review of the instruction. Millies v. LandAmerica Transnation, 185
Wn.2d 302, 310, 372 P.3d 111 (2016). When no party objects to an instruction below, it becomes
the law of the case. Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 917, 32 P.3d 250 (2001).
Specifically, Helm argues the trial court failed to instruct the jury properly in the eight
instances below:
1. Jury Instruction 8—Contract Modification
Jury instruction 8 states:
Once a contract has been entered into, mutual assent of the contracting
parties is essential for any modification of the contract.
To establish a modification, the party asserting the modification must show,
through the words or conduct of the parties, that there was an agreement of the
parties on all essential terms of the contract modification, and that the parties
intended the new terms to alter the contract.
CP at 1664.
Helm argues that jury instruction 8 “presupposes erroneously that the Service Agreement
was a valid, unambiguous, and enforceable contract.” Br. of Appellant at 60. Helm goes on to
assert that the agreement itself did not require mutual assent to cancel it, but instead allowed
cancellation by either party for any reason with notice. She continues that any fiduciary duty
would exist independent of any obligation under the service agreement and that the relationship
was governed by the fiduciary duties, not the contract. Her final point to all this is that the
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instruction allowed the jury to rely on the agreement as controlling, over Calhoun’s fiduciary
duties.
In response, Calhoun argues that the contractual provisions of the agreement assist in
proving that she did not breach her fiduciary duties. She argues that Helm does not analyze why
her cited principles make instruction 8 erroneous. Calhoun asserts that the instruction was
necessary in light of Helm’s attack on the circumstances surrounding the execution of the
agreement, and that considering the whole of the instructions, instruction 8 was not erroneous.
’We agree that instruction 8 was not erroneous.
Helm relies on Yeager v. Dunnavan, 26 Wn.2d 559, 174 P.2d 755 (1946), for the
proposition that the party’s relationship is governed by fiduciary duties, not by any contractual
undertakings in the agreement, necessarily making her claim based in tort and not contract law.
We agree that Yeager held that we decide whether an action is primarily in contract or tort
by examining the essential allegations of the complaint rather than the form or title the plaintiff
adopted or counsel’s or the trial court’s understanding. Id. at 562. And that we consider “the
complaint as a whole, and not by particular words or allegations considered apart from the
context.” Id.But whether the causes of action alleged by Helm sound in tort or contract is beside the
point. Here, while Helm is free to disagree, the contract was relevant to defining the duties
Calhoun owed to Helm. And as set out above, instructions as a whole must be supported by the
evidence, allow each party to argue its theory of the case, and, when read as a whole, properly
inform the trier of fact of the applicable law.
The agreement was admitted into evidence. This supported the giving of instruction 8.
Instruction 8 also allowed Calhoun to argue her theory of the case that the agreement defined her
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duties, contrary to Helm’s theory that she owed fiduciary duties independent of the agreement.
And, when read as a whole, the instruction informed the jury of the applicable law, especially
considering that there were thirteen instructions given—instruction 5 provided a summary of the
case, discussing fiduciary duty without referencing contractual obligations. Instruction 9 recited
statutory duties under a POA without referencing the contract. Instruction 10, in turn, discussed
the agent-principal relationship and obligations. And instruction 11 instructed the jury on how to
decide the case addressing fiduciary duty.
Helm’s other arguments also miss the mark. That instruction 8 goes against the termination
language in the POA is inapposite because termination is not an issue in this case. Additionally,
whether the agreement is controlling over other alleged fiduciary duties, or whether those alleged
duties exist independent of the service agreement are immaterial to whether this jury instruction
was proper. These are theories of the case that Helm was free to put forth and do not inform on
whether the instructions meet the three part analysis under Helmbreck, as set out above.
We conclude that instruction 8 was supported by the evidence, that the instructions as a
whole allowed the parties to argue their theories of the case, and that taken together, they informed
the jury of the applicable law. Instruction 8 was not given in error.
2. Proposed Jury Instruction 10A—Procedural Unconscionability
Helm argues that in light of the trial court providing instruction 8 to the jury, it should have
then also given her proposed instruction 10A regarding procedural unconscionability.
Specifically, Helm argues that the “hallmarks of procedural unconscionability” were present in
respect to the agreement because (1) Helm is a lay person, (2) Calhoun prepared the agreement
herself, (3) there was no discussion regarding the language in the agreement, (4) the language
“blatantly” disregarded Helm’s expectation her properties not be sold, (5) the agreement placed
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the term that purported to allow the sale of the properties deep into the contract and wrapped the
terms in ambiguous language, and (6) Helm had no meaningful choice but to sign the POA and
agreement to be released. Br. of Appellant at 62. We disagree.
Unconscionability is a feature of contract law, which we review de novo. Adler v. Fred
Lind Manor, 153 Wn.2d 331, 344, 103 P.3d 773 (2004); McKee v. AT & T Corp., 164 Wn.2d 372,
383, 191 P.3d 845 (2008). When considering procedural unconscionability, courts look to “(1) the
manner in which the contract was entered, (2) whether [the parties] had a reasonable opportunity
to understand the terms of the contract, and (3) whether the important terms were hidden in a maze
of fine print, to determine where a party lacked a meaningful choice.” Burnett v. Pagliacci Pizza,
Inc., 196 Wn.2d 38, 54, 470 P.3d 486 (2020). Helm presented no evidence justifying her proposed
instruction 10A.
Helm presented no evidence that Calhoun was present or facilitated the execution of the
agreement and POA. Additionally, Calhoun testified that she did not know the circumstances
under which Helm executed the documents because Helm was in South Dakota. Testimony at trial
established that the agreement and POA were drafted following conversations between Luke-
Anderson and Calhoun, and Calhoun and Helm. The court did not abuse its discretion when it
refused to give Helm’s requested instruction for procedural unconscionability.
3. Jury Instruction 11—Burden of Proof Regarding Breach of Fiduciary Duty
Helm argues that jury instruction 11 as provided to the jury is incomplete because it failed
to instruct the jury on the relevant law on the SOPs for a CPG under Allard, 99 Wn.2d 394.
Calhoun argues that Helm’s argument on this instruction is another iteration of the same
argument for instruction 5 and her proposed instruction 10A, which are unpersuasive. She argues
that instruction 11 was issued after the court heard arguments from both parties but ultimately
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adopted Calhoun’s version of the instruction. Finally, Calhoun argues that the language used from
the UPOAA in instruction 11 was the same as the one in instruction 9, which Helm agreed to. We
conclude that the jury instructions as a whole, including instruction 11, accurately conveyed the
applicable law to the jury. .
Instruction 11 states:
Plaintiff has the burden of proving each of the following propositions on
her claims of breach of fiduciary duty:
(1) That Ms. Calhoun or Senior Avenues owed a fiduciary duty to Ms. Helm
at the time of the acts in question (this element is not disputed by [Calhoun])
(2) That Ms. Calhoun or Senior Avenues failed to comply with the fiduciary
duty by one or more of the following acts:
a. By acting contrary to Ms. Helm’s instructions or best interest, or
b. By not acting in good faith; or
c. By acting beyond the scope of her authority; or
d. By having a conflict of interest; or
e. By not exercising the care, competence, and diligence ordinarily
exercised by agents in similar transactions;
(3) That Ms. Helm was damaged; and
(4) That the violation of the fiduciary duty was a proximate cause of Ms.
Helm’s damage.
If you find from your consideration of all the evidence that each of these
propositions has been proved, your verdict should be for Ms. Helm. On the other
hand, if any of these propositions has not been proved, your verdict should be for
Ms. Calhoun and Senior Avenues as to this claim.
CP at 1668-69.
The instruction lists the duties Calhoun owed. Whereas Helm was required to show
Calhoun breached as a fiduciary. Because we previously concluded that Calhoun’s duties as a
CPG were not relevant to the claim before the trial court, related SOPs of a CPG are also irrelevant.
Accordingly, the trial court did not abuse its discretion in providing instruction 11 to the jury. The
jury instructions as a whole accurately informed the jury on applicable law.
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4. Helm’s Proposed Jury Instruction 5A—Allard Instruction
Next, Helm argues that the trial court erred when it refused to instruct the jury on the
common law principle that a fiduciary is required to obtain an appraisal or expose the property to
the market before selling it, and failure to do so constitutes a breach of fiduciary duty under Allard.
Calhoun responds that Allard and Helm’s proposed instruction applies to trustees and not
POAs. We agree.
Helm asserts that “Calhoun was acting essentially as a de facto trustee in selling Helm’s
Rhapsody property.” Appellant’s Reply Br. at 48. However, she offers no analysis or authority
to support her assertion that Allard extends to those acting under a POA, which entails its own
statutory duties. We conclude there is no such authority. See DeHeer v. Seattle Post-Intelligencer,
60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“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.”). We decline to extend trustee law to those acting under a POA.
Accordingly, the trial court did not abuse its discretion when refusing to give Helm’s proposed
Allard instruction.
5. Helm’s Proposed Jury Instructions 9 and 10—CPG Standards of Practice
Helm argues that the trial court’s refusal to instruct the jury based on her proposed jury
instructions 9 and 10 outlining CPG’s standards of practice, Calhoun’s duty to consult and defer
to Helm’s decision making, and the standard of care of a fiduciary under Allard was error.
However, we previously concluded that Calhoun’s CPG status and the SOPs relating thereto are
irrelevant, and we decline to extend trustee law to POAs. The trial court did not err.
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6. Helm’s Proposed Jury Instruction 5—Summary of The Claims Containing
Amount for Damages
Next, Helm argues that the trial court’s instruction on damages is incorrect because it
suggests that Calhoun breached her fiduciary duty to Helm only if she sold the properties for an
“inappropriate amount” instead of fair market value. Br. of Appellant at 69. However, she
provides no authority for this proposition, from which we assume there is no such authority. See
DeHeer, 60 Wn.2d at 195.
7. Helm’s Proposed Jury Instruction 6—Fair Market Value
Helm argues that the trial court’s refusal to adopt her proposed instructions regarding fair
market value was error. She relies on Dahl-Smyth, Inc. v City of Walla Walla, 148 Wn.2d 835,
848, 64 P.3d 15 (2003), for the proposition that the general rule for calculating damages for
permanent injury to property is “‘the difference between the market value of the property
immediately before the damage and its market value immediately thereafter.’” Br. of Appellant at
70 (emphasis omitted). Helm further argues that the court’s repeated allowed use of the term “fair
market value” during trial supports her assertion that her proposed instruction should have been
allowed. Br. of Appellant at 70-71. We disagree.
To start with, the Supreme Court in Dahl-Smyth addressed what is to be included in the
calculation of “measurable damages” under the scope of annexation of a utility granted pursuant
to a certificate of public convenience and necessity from the city of Walla Walla. 148 Wn.2d at
840-41. But our circumstances here are different. There is no provision in the UPOAA that
requires calculation of “measurable damages.” The UPOAA states that if the agent is found
liable—which Calhoun was not—the damages are the “amount required to restore the value of the
principal’s property to what it would have been had the violation not occurred.” RCW 11.125.170.
Consequently, Dahl-Smyth is inapposite.
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Finally, the fact that the court allowed the use of the term “fair market value” during trial
does not in itself lend a sufficient basis to provide the jury with an instruction such as the one Helm
proposed. And because Helm offers no authority that says otherwise, her argument necessarily
fails.
8. Helm’s Proposed Jury Instruction 11—Future Damages and Lost Rental
Income
Finally, Helm argues that the trial court erred when it declined to follow Spencer v. Badgley
Mullins Turner, PLLC, 6 Wn. App. 2d 762, 789, 432 P.3d 821 (2018), by refusing to give her
proposed instruction regarding future damages, which included lost rental income.
However, besides a passing citation, Helm fails to show how Spencer is relevant.
Moreover, testimony at trial noted that Loop, the Rhapsody Drive property tenant, did not pay rent.
As for the Feigley property, there was no evidence of a tenant residing at the property at the time
of the sale or after. Therefore, there is no evidence to support an instruction requiring lost rent as
part of damages.
II. CLAIMS AGAINST PARKER
Helm argues that the trial court’s summary judgment dismissal of her claims against Parker
under the CPA, for civil conspiracy, and participation in breach of Calhoun’s fiduciary duty to
Helm was error. We disagree.
As set forth above, we review summary judgment orders de novo, “‘engaging in the same
inquiry as the trial court.’” Vargas, 194 Wn.2d at 728 (quoting Afoa, 176 Wn.2d at 466). Summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c).
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Under the UPOAA,
[a] person that in good faith accepts an acknowledged power of attorney without
actual knowledge that the power of attorney is void, invalid, or terminated, that the
purported agent’s authority is void, invalid, or terminated, or that the agent is
exceeding or improperly exercising the agent’s authority may rely upon the power
of attorney as if the power of attorney were genuine, valid and still in effect, the
agent’s authority were genuine, valid and still in effect, and the agent had not
exceeded and had properly exercised the authority.
RCW 11.125.190(3).
It is undisputed that Helm signed the POA, making Calhoun attorney-in-fact and providing
authority to “sell, either at private sale or public auction any and all property, real or personal” that
Helm owned. CP at 29. Further, in order for Parker to be liable for participating in a breach of
fiduciary duty, Parker must owe Helm a duty. But Helm has not shown that a duty existed. Parker
was not the attorney-in-fact, and had no comparable authority—he merely purchased the home at
a private sale.12
The same goes for Helm’s claim under the CPA. Helm cannot show that Parker and
Calhoun participated in an unfair or deceptive practice. First, Parker testified that he never had
any contact with Helm whatsoever regarding the transaction. Additionally, Parker and Calhoun
both testified that they negotiated the price, with Parker initially offering $26,000 and Calhoun
rejecting the offer.
Moreover, given the mid-trial exclusion of evidence pertaining to the Sorenson transaction,
Helm is unable to show how Parker’s purchase of the property affected other consumers or the
public—a required element of a CPA claim. See Indoor Billboard/Wash., Inc. v. Integra Telecom
12
In conjunction with her breach of fiduciary duty argument, Helm argues that Parker can be liable
for “participating” in a breach if he had knowledge of the breach via the actual value of the property
and did nothing about it. But, as noted, the record is deplete of any evidence that at the time of the
summary judgment he knew of the breach, therefore, there is no evidence that Parker participated
in said breach. Her argument fails.
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of Wash., Inc., 162 Wn.2d 59, 74, 170 P.3d 10 (2007) (holding that a claimant must establish all
five elements to prevail).
Additionally, Parker relied on the POA when making the offer to buy the property and
when going through with the sale. There is no evidence he had knowledge of whether the POA
was valid or if Calhoun was exceeding her authority.
Finally, in regards to the civil conspiracy claim, as previously stated, Helm offered no
evidence showing that the private “as-is” sale of the Rhapsody property was unlawful. Instead,
she raises speculative and previously excluded evidence of the Sorenson transaction as proof of
circumstantial similarities. However, as we previously concluded, evidence of the Sorenson
transaction is irrelevant because it is dissimilar in circumstance. There simply is no evidence of
any agreement.
Accordingly, the trial court did not err when dismissing Helm’s claims against Parker for
insufficient evidence.
III. OTHER ARGUMENTS
A. Reconsideration
Helm argues that the trial court erred in denying her timely motion for reconsideration.
However, she fails to brief this issue in her opening brief, only going into detail in her reply. We
will not consider an issue raised for the first time in a reply brief. Cowiche Canyon Conservancy
v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Accordingly, we decline to consider this
argument.
B Cumulative Error Doctrine
Helm argues the cumulative error doctrine applies because her ability to present her case
was “significantly prejudiced” by the trial court’s several rulings, including summary judgment
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dismissal of five out of six of her original claims. Br. of Appellant at 72. Helm also argues that
the accumulation of errors deprived her of a fair trial and just result, entitling her to a new trial
under CR 59(a)(8) and (9).
As an initial matter, although the cumulative error doctrine is not often applied to civil
proceedings, Division III of this court has noted that there is no case which prohibits consideration
of the doctrine in the civil context. Rookstool v. Eaton, 12 Wn. App. 2d 301, 311-12, 457 P.3d
1144 (2020) (“no case has been cited that prohibits consideration of cumulative error in the civil
context”). Consequently, we briefly address Helm’s argument.
The cumulative error doctrine applies “‘when there have been several trial errors that
standing alone may not be sufficient to justify reversal but when combined may deny a defendant
a fair trial.’” In re Pers. Restraint of Morris, 176 Wn.2d 157, 172, 288 P.3d 1140 (2012) (quoting
State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000)). However, because we previously
determined that the court did not err in its evidentiary rulings nor its granting of summary
judgment, there is no error, and the cumulative error doctrine does not apply. Accordingly, Helm
is not entitled to a new trial.
V. ATTORNEY FEES
A. Attorney Fees at the Trial Court
Helm argues that the trial court erred in awarding Calhoun attorney fees under RCW
11.96A.150 because in doing so it improperly considered evidence of settlement negotiations,
which evidence, she argues, was misleading because it purported to show that Helm made no offers
to settle when in fact she did. We conclude the trial court did not err in awarding attorney fees.
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“Washington follows the American rule ‘that attorney fees are not recoverable by the
prevailing party as costs of litigation unless the recovery of such fees is permitted by contract,
statute, or some recognized ground in equity.’” Panorama Vill. Condo. Owners Ass’n Bd. of Dir.
v. Allstate Ins. Co., 144 Wn.2d 130, 143, 26 P.3d 910 (2001) (quoting McGreevy v. Or. Mut. Ins.
Co., 128 Wn.2d 26, 35 n.8, 904 P.2d 731 (1995)).
CR 68 creates a procedure for defendants to offer settlement before trial. Critchlow v. Dex
Media W., Inc., 192 Wn. App. 710, 717, 368 P.3d 246 (2016). The rule’s purpose is “to encourage
parties to reach settlement agreements and to avoid lengthy litigation.” Id. The rule provides for
an award of costs to a defendant in cases where the defendant made an offer of judgment to the
plaintiff that was larger than the judgment ultimately obtained. Estep v. Hamilton, 148 Wn. App.
246, 259, 201 P.3d 331 (2008).
Additionally, RCW 11.96A.150 grants trial courts the authority to award attorney fees in
any action initiated under Title 11 RCW. Sloans v. Berry, 189 Wn. App. 368, 379, 358 P.3d 426(2015). Under RCW 11.96A.150(1), a court may award fees at its discretion, as it deems equitable,
considering any and all factors it determines to be relevant and appropriate. RCW 11.96A.150(2)
provides
This section applies to all proceedings governed by this title, including but not
limited to proceedings involving trusts, decedent’s estates and properties, and
guardianship matters. This section shall not be construed as being limited by any
other specific statutory provision providing for the payment of costs, including
RCW 11.68.070 and 11.24.050, unless such statute specifically provides otherwise.
This section shall apply to matters involving guardians and guardians ad litem.
(Emphasis added.)
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The standard of review for an award of attorney fees involves a two-step process. Gander
v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012). First, we review de novo whether a
statute, contract, or equitable theory authorizes the award. Id. Second, if such authority exists, we
review for abuse of discretion the amount of the award. Id.Here, we focus on whether the attorney fee award was authorized. The trial court awarded
Calhoun attorney fees under RCW 11.96A.150(1). Helm’s suit arises out of a claim for breach of
fiduciary duty of a POA under the UPOAA, codified within Title 11 at chapter 11.125 RCW.
Helm cites to Humphrey Indus., Ltd. v. Clay St. Assocs., LLC, 170 Wn.2d 495, 508, 242
P.3d 846 (2010), for the proposition that “[e]vidence of settlement negotiations of an underlying
claim is not admissible to prove attorney fees awardable for that claim.” Br. of Appellant at 74.
But Helm misreads Humphrey. There, the court focused on the impropriety of evidence of
negotiation conduct to establish a theory of arbitrary, vexatious, and bad faith litigation. Humphrey
does not stand for the proposition that CR 68 evidence is inadmissible as evidence of attorney fees
under RCW 11.96A.150.
But whether CR 68 evidence is properly considered in awarding fees under RCW
11.96A.150 is immaterial. No showing of bad faith, or a CR 68 offer, is necessary to award
attorney fees under RCW 11.96A.150, which is a broad provision13 anchored only by what the
13
RCW 11.96A.150(1) reads as follows:
Either the superior court or any court on an appeal may, in its discretion, order
costs, including reasonable attorneys’ fees, to be awarded to any party: (a) From
any party to the proceedings; (b) from the assets of the estate or trust involved in
the proceedings; or (c) from any nonprobate asset that is the subject of the
proceedings. The court may order the costs, including reasonable attorneys’ fees,
to be paid in such amount and in such manner as the court determines to be
equitable. In exercising its discretion under this section, the court may consider
any and all factors that it deems to be relevant and appropriate, which factors may
but need not include whether the litigation benefits the estate or trust involved.
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trial court deems equitable.14 We conclude the trial court did not err in awarding attorney fees to
Calhoun.
B. Attorney Fees and Costs on Appeal
Calhoun requests attorney fees on appeal pursuant to RAP 18.1 and costs pursuant to RAP
14.2. We grant Calhoun’s request for attorney fees and costs.
RAP 18.1(a), (b) provides a party the “right to recover reasonable attorney fees or expenses
on review” provided that the party requests the fees in its opening brief and “applicable law” grants
the right to recover. We awards attorney fees to the prevailing party “‘only on the basis of a private
agreement, a statute, or a recognized ground of equity.’” Tedford v. Guy, 13 Wn. App. 2d 1, 17,
462 P.3d 869 (2020) (quoting Equitable Life Leasing Corp. v. Cedarbrook, Inc., 52 Wn. App. 497,
506, 761 P.2d 77 (1988)). Additionally, RCW 11.96A.150(1) grants us discretion to award
attorney fees to any proceeding under the title. RAP 14.2 provides for an award of costs to the
party that substantially prevails on review.
Because Calhoun substantially prevailed on appeal, we grant Calhoun’s request for
reasonable attorney fees and costs on appeal.
CONCLUSION
We affirm the trial court’s orders and award attorney fees and costs to Calhoun on appeal.
14
We can affirm the trial court’s rulings on any grounds the record and the law support. State v.
Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, A.C.J.
We concur:
Glasgow, J.
Price, J.
43