In re the Matter of: James Donald Cudmore and John C. Bolliger

FILED
July 12, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Welfare of )
JAMES DONALD CUDMORE, ) No. 32024-3-III
)
Alleged Vulnerable Adult, )
)
V. ) UNPUBLISHED OPINION
)
JOHN C. BOLLIGER, )
)
Appellant. )
SIDDOWAY, J. -Attorney John Bolliger appeals the trial court's entry of an order
of protection preventing him from having contact with a former client, James Cudmore.
He argues that the trial court's findings that his former client was a "vulnerable adult"
and that Mr. Bollinger committed acts of "abandonment, abuse, neglect, and/or financial
exploitation" were not supported by substantial evidence; that the trial court applied the
wrong burden of proof; and that the trial court abused its discretion in awarding attorney
fees. Second Amended Appellant's Br. at 1. We find no error or abuse of discretion and
affirm. 1
1
We deny Mr. Bolliger's January 26, 2016 Mot. for this Appeal, and its 2 Other
"Linked" Appeals, to be Analyzed and Decided at the Same Time. The relief requested
would unnecessarily delay the disposition of this appeal, something our commissioner
could not have anticipated when, in June 2014, she expressed the expectation that Mr.
Bolliger's several appeals would be considered and decided at the same time.
No. 32024-3-III
In re the Welfare of Cudmore
FACTS AND PROCEDURAL BACKGROUND
On July 2, 2013, then 84-year-old Donald Cudmore visited attorney John Bolliger
with the stated intention of altering his estate plan. This was the first time the two men
had met. A friend of Mr. Cudmore's had both referred him to Mr. Bolliger and arranged
the appointment.
Tim Lamberson, who is Mr. Cudmore's stepson and served as his attorney-in-fact
· under a power of attorney executed in 2008, learned that Mr. Cudmore was being taken
to financial institutions by the friend and was making changes to his estate plan. Mr.
Lamberson became concerned. On July 12, he filed a petition for a full guardianship of
his stepfather and obtained an ex parte order appointing C. Wayne May to serve as
guardian ad litem. 2
On July 18, Mr. May petitioned the court to appoint Rachel Woodard to serve as
2
We take note of several adjudicative facts from the guardianship proceeding, In
re Cudmore, cause no. 13-4-00260-9, Benton County Super. Ct. Under ER 20l(c), courts
may take judicial notice of adjudicative facts, whether requested to or not. Courts
applying the parallel federal rule have recognized "that a 'court may take judicial notice
of a document filed in another court not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such litigation and related filings.''' United
States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (quoting Liberty Mut. Ins. Co. v.
Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (internal quotation marks
and citation omitted)); accord 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE
LA w AND PRACTICE§ 201.9 (5th Ed. 2007) (noting distinction between consulting the
record of another case to determine whether it contains something and consulting the
record to determine whether disputed facts were found to be true). We take judicial
notice only of the fact that relevant developments occurred in the guardianship
proceeding.
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In re the Welfare of Cudmore
Mr. Cudmore's lawyer in the guardianship proceeding. Mr. Bolliger filed a petition to
have himself appointed as Mr. Cudmore's lawyer on the same day. By July 18, Mr.
Bollinger had prepared, and Mr. Cudmore had signed, durable powers of attorney
appointing Mr. Bolliger as Mr. Cudmore's attorney-in-fact for financial and health care
decision-making.
On July 19, Judge Salvador Mendoza heard the competing petitions to appoint a
lawyer to represent Mr. Cudmore in the guardianship proceeding. The court appointed
Ms. Woodard as Mr. Cudmore's lawyer, adding a handwritten notation to his order that
"John Bolliger's motion for appointment as Mr. Cudmore's counsel is denied." Clerk's
Papers (CP) at 34.
On July 22, Mr. Bolliger filed a motion for reconsideration of the trial court's
choice of lawyer for Mr. Cudmore, renewing his request that he receive the appointment.
On August 12, the court filed its order denying the motion.
On September 13, Shea Meehan, the lawyer representing Mr. Lamberson in the
guardianship proceeding, personally filed a petition for an order of protection against Mr.
Bolliger under RCW 74.34.110, seeking to limit Mr. Bolliger's contact with Mr.
Cudmore. In his petition and a declaration filed in support, Mr. Meehan stated he had
been reluctant to seek the order, but that the following actions, among others, had caused
him to conclude Mr. Cudmore was at risk:
• In early July 2013, Mr. Bolliger drafted powers of attorney for Mr.
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In re the Welfare of Cudmore
Cudmore that named Mr. Bolliger as his attorney-in-fact for financial and
medical matters;
• Mr. Bolliger had also drafted a new will for Mr. Cudmore, naming himself
the personal representative of the estate;
• Notwithstanding the superior court's appointment of Ms. Woodard as Mr.
Cudmore's lawyer in the guardianship proceeding, Mr. Bolliger continued to
visit and have meetings with Mr. Cudmore and to talk to Mr. Cudmore about
the subject matter of the guardianship case;
• Although not a party or a lawyer for any party in the guardianship
proceeding, Mr. Bolliger filed motions and notes for the docket during August
and September, purporting to act on behalf of Mr. Cudmore;
• Despite a request by Ms. Woodard for a copy of Mr. Bolliger's file on Mr.
Cudmore, and despite a court order in the guardianship proceeding directing
Mr. Bolliger to send copies of his complete file relating to Mr. Cudmore to
Ms. Woodard and Mr. May before 1:30 p.m. on September 6, Mr. Bolliger
had failed to produce the file as ordered;
• On September 9, Mr. Bolliger issued and caused subpoenas duces tecum
for Mr. Cudmore's financial account records to be served on Edward Jones
and HAPO Community Credit Union despite not being a party or representing
any party in the proceeding in which he purported to issue the subpoenas; and
• On September 11, Mr. Bolliger procured (or caused to be procured) Mr.
Cudmore's execution of a declaration prepared by Mr. Bolliger that supported
Mr. Bolliger and positions he had taken in the guardianship matter; this,
despite not having received consent from Ms. Woodard to speak with her
client.
The petition for protection was also supported by a declaration of Mr. Lamberson.
He testified that while Mr. Cudmore had initially "seemed quite happy" with Ms.
Woodard as his lawyer, Mr. Bolliger's continued contact with Mr. Cudmore left Mr.
Cudmore believing that Mr. Bolliger was his only lawyer and that "Rachel Woodard is
merely a friend that stops in to visit on occasions." CP at 96. He stated that although he
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In re the Welfare of Cudmore
and his stepdad had returned to having a "good, but guarded relationship," each of Mr.
Bolliger's visits left Mr. Cudmore "agitated and argumentative." Id. As an example, he
told the court that after one of Mr. Bolliger's contacts, his stepfather demanded that Mr.
Lamberson "drop[] the charges against him." Id. He testified that anxiety about legal
issues was waking Mr. Cudmore up at night and made him reluctant to ask for help from
his caregivers, because he feared they were taking notes to determine whether he was
incapacitated.
The superior court granted a temporary order for protection.
At the hearing on the request for a permanent order, the trial court considered the
written submissions of the parties, heard from Mr. Meehan and Mr. Bolliger, and
personally questioned Mr. May and Ms. Woodard.
Ms. Woodard told the court that although she had obtained Mr. Cudmore's
consistent assurance that he was comfortable with her, Mr. Cudmore had told her on
multiple occasions that he would like Mr. Bolliger to still be his attorney-yet on other
occasions, he had been "extremely upset with Mr. Bolliger and would not want him to be
his attorney anymore." Report of Proceedings (RP) at 10. Asked whether Mr. Bolliger's
continued contact was interfering with her representation, she said,
My opinion is yes. I find it to be-[Mr. Cudmore] to have extreme
stress. When I go and see him, there is sometimes when he is very very
stressed out, and it's dealing with court and feeling like he needs to find
ways to get here to yell at the court for what they have done, because he has
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In re the Welfare of Cudmore
said that he would like John to be his attorney. It's very stressful for him,
and I can see the stress.
RP at 11.
When Mr. May was asked by the court about Mr. Cudmore's attitude toward Mr.
Bolliger, he said Mr. Cudmore was conflicted: vacillating from not caring whether Mr.
Bolliger was his lawyer, to wanting Mr. Bolliger to represent him, to not wanting Mr.
Bolliger to represent him. Asked by the court about Mr. Cudmore's mental and
emotional status, Mr. May described psychological testing that he had caused to be
performed, on which Mr. Cudmore performed "very poorly." RP at 13. He described the
tests as revealing that Mr. Cudmore has "severe memory problems," is "very conflicted,"
"becomes very emotional on different topics," and "has problems with his perception of
reality." Id. As further evidence of Mr. Cudmore's limitations, Mr. May told the court
he had witnessed Mr. Cudmore starting to undress in the dining room of the assisted
living center where Mr. Cudmore resided, The Manor at Canyon Lakes (the Manor),
before being stopped by staff. When asked whether he believed Mr. Cudmore's
continued contact with Mr. Bolliger was harmful, Mr. May answered, "Yes, sir, I do."
RP at 14.
After allowing Mr. Bolliger to examine Ms. Woodard and hearing extensive
testimony from Mr. Bolliger, the court stated it would sign the order of protection "based
upon the petition[ and] based upon the testimony today." RP at 29. It expressed
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In re the Welfare of Cudmore
particular disapproval of Mr. Bolliger's contact with Mr. Cudmore about the
guardianship following the court's appointment of Ms. Woodard, which it observed was
"very concerning." Id.
Mr. Bolliger appeals.
ANALYSIS
Mr. Bolliger assigns error as follows:
The superior court ( 1) erred by failing to establish (by clear, cogent,
and convincing evidence) that Mr. Cudmore was a "vulnerable adult," (2)
abused its discretion in entering its 5-year [vulnerable adult protection
order] against Mr. Bolliger (because substantial evidence does not exist to
support its findings that Mr. Bolliger had "committed acts of abandonment,
abuse, neglect, and/or financial exploitation" of Mr. Cudmore), and (3)
therefore abused its discretion in imposing $2,714.64 in attorneys' fees and
costs against Mr. Bolliger.
Second Amended Appellant's Br. at 1. We address the assigned errors in the order
stated.
I. "Failure to establish" that Mr. Cudmore was a vulnerable adult
The Abuse of Vulnerable Adults Act, chapter 74.34 RCW, was enacted to protect
vulnerable adults who "may be subjected to abuse, neglect, financial exploitation, or
abandonment by a ... person who has a relationship" with them. RCW 74.34.005(1), (6)
(legislative findings). One way to protect a vulnerable adult is to petition for an order for
their protection. RCW 74.34.110. Any "interested person" may file a petition for such
an order. RCW 74.34.110(1). The petition must be accompanied by an affidavit or
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In re the Welfare of Cudmore
declaration stating specific facts and circumstances that demonstrate the need for the
relief sought. RCW 74.34.110(3).
We review a superior court's decision to grant a protection order for abuse of
discretion. In re Knight, 178 Wash. App. 929,936,317 P.3d 1068 (2014). "A trial court
abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons." In re Marriage of Littlefield, 133 Wash. 2d 39, 46-47, 940
P.2d 1362 (1997). We review a trial court's findings of fact for substantial evidence.
Knight, 178 Wash. App. at 936-37.
Mr. Bolliger first challenges the trial court's finding that Mr. Cudmore was a
vulnerable adult. "Vulnerable adult" is a defined term in chapter 74.34 RCW, so we must
rely on the statutory definition. "It is an axiom of statutory interpretation that where a
term is defined we will use that definition." United States v. Hoffman, 154 Wash. 2d 730,
741, 116 P.3d 999 (2005).
'" Vulnerable adult' includes a person: (a) Sixty years of age or older who has the
functional, mental, or physical inability to care for himself or herself; or ... (d) Admitted
to any facility." RCW 74.34.020(17). "Facility," itself a defined term, means
a residence licensed or required to be licensed under chapter 18.20 RCW,
assisted living facilities; chapter 18.51 RCW, nursing homes; chapter
70.128 RCW, adult family homes; chapter 72.36 RCW, soldiers' homes; or
chapter 71A.20 RCW, residential habilitation centers; or any other facility
licensed or certified by the department [of social and health services].
RCW 74.34.020(5).
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In re the Welfare of Cudmore
Evidence of Mr. Cudmore's admission to and residence at the Manor is sufficient
to support the trial court's finding that he was a vulnerable adult. Were that not
dispositive, Mr. Cudmore's age and the stage of his dementia would serve as substantial
evidence. At the time of the court's findings, he was 84 years old, required assisted
living, and, according to evidence presented to the trial court, suffered from moderate to
severe dementia, serious memory problems, and problems with his perception of reality.
In the section of Mr. Bolliger's brief devoted to this assignment of error, his
principal argument deals with the standard of proof: he contends the trial court erred by
requiring Mr. Meehan to support his petition by only a preponderance of the evidence
rather than by clear and convincing evidence. He relies on Knight, 178 Wash. App. 929. It
is doubtful that Knight applies to this case 3 or that Mr. Meehan's evidence falls short
under either standard. But Mr. Meehan correctly invokes RAP 2.S(a), under which we
generally refuse to consider arguments made for the first time on appeal. Mr. Bolliger
argues the decision in Knight postdated the hearing on the protective order and thus could
not have been cited, but he misapprehends RAP 2.S(a). It is irrelevant to RAP 2.S(a) that
3
Knight holds that where an allegedly incapacitated person actively opposes an
order for his or her protection, due process requires proof of facts warranting protection
by clear and convincing evidence. In Knight, the alleged incapacitated person, the
alleged abuser/exploiter, and the petitioner, were all present at the hearing "and each was
represented by separate counsel." 178 Wash. App. at 934. It is apparent from the opinion
that the allegedly incapacitated person in Knight opposed the order of protection through,
and with the opportunity to obtain counsel from, her independent lawyer.
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In re the Welfare of Cudmore
no published decision supported Mr. Bolliger's position at the time he was in the trial
court. Even without Knight, he could have made the liberty and autonomy interest-based
argument that succeeded in that case, but he did not. We will not entertain the argument
for the first time on appeal.
II. Whether substantial evidence supports the court's findings that
Mr. Bolliger "committed acts of abandonment, abuse,
neglect, and/or financial exploitation"
Mr. Bolliger next argues that substantial evidence does not support the trial court's
finding that he abused or exploited Mr. Cudmore.
The order for protection entered by the court was prepared using the preprinted,
statutorily-required permanent order for protection form. 4 The preprinted form states,
"The Court Finds Based Upon the Court Record: ... Respondent committed acts of
abandonment, abuse, neglect and/or financial exploitation of the vulnerable adult." CP at
182. Given the "and/or," substantial evidence need support only one of the wrongful acts
listed in the finding.
RCW 74.34.020(2) defines "[a]buse" as "the willful action ... that inflicts injury
... intimidation, or punishment on a vulnerable adult." "Mental abuse" includes willful
action that coerces, intimidates or isolates a vulnerable adult. RCW 74.34.020(2)(c).
4
Form WPF VA-3.015, Order for Protection-Vulnerable Adult (ORPRTVA)
(revised June 2012); see RCW 74.34.115(1) (directing the Administrative Office of the
Courts to develop standard forms).
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In re the Welfare of Cudmore
"Exploitation" includes acts of "exerting undue influence over a vulnerable adult
causing the vulnerable adult to act in a way that is inconsistent with relevant past
behavior." RCW 74.34.020(2)(d).
"Financial exploitation" includes "improper use" or "control over'; a vulnerable
adult's "property, income, [or] resources," "for any person's or entity's profit or
advantage other than for the vulnerable adult's profit or advantage." It includes "[t]he
use of ... undue influence by a person or entity in a position of trust and confidence with
a vulnerable adult to obtain or use [such] property, income [or] resources ... for the
benefit of a person or entity other than the vulnerable adult," and "[t]he breach of a
fiduciary duty, including, but not limited to, the misuse of a power of attorney ... that
results in the unauthorized appropriation, sale, or transfer of the property, income [or]
resources ... of the vulnerable adult for the benefit of a person or entity other than the
vulnerable adult." RCW 74.34.020(6).
Here, within six days of their first meeting, Mr. Bolliger had prepared durable
powers of attorney by which Mr. Cudmore appointed Mr. Bolliger his attorney-in-fact.
By two weeks later, Mr. Bolliger had prepared a new will for Mr. Cudmore designating
Mr. Bolliger the personal representative of his estate, and had met with Mr. Cudmore to
secure the will's execution. Despite the trial court's appointment of Ms. Woodard to
represent Mr. Cudmore in the guardianship action, Mr. Bolliger continued to meet with
Mr. Cudmore and prepared one unsworn and one sworn declaration for Mr. Cudmore's
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No. 32024-3-III
In re the Welfare of Cudmore
execution without first obtaining Ms. Woodard's consent to communicate with her client.
Manifestly, Mr. Bolliger is not the only lawyer in Benton County capable of
representing Mr. Cudmore. Once the guardianship was commenced and professionals
were appointed by the court, Mr. Bolliger should have allowed them to perform their
work without interference-particularly in light of his disfavored act of drafting estate
documents that made himself the attorney-in-fact and personal representative for an
elderly individual, suffering from dementia, whom he had just met.
Thirty years ago, our Supreme Court observed that a lawyer's act of drawing a
will in which he is appointed executor
[c]annot help but engender suspicion and, as here, lengthy and expensive
will contests. While we do not hold[ t]hat this violates the Code of
Professional Responsibility, it is an activity of which we disapprove, in
which we believe no attorney should engage, and which should not occur in
the future.
In re Estate ofShaughnessy, 104 Wash. 2d 89, 97, 702 P.2d 132 (1985).
RPC 4.2 provides that "[i]n representing a client, a lawyer shall not communicate
about the subject of the representation with a person the lawyer knows to be represented
by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or
is authorized to do so by law or a court order."
From the facts that Mr. Bolliger drafted powers of attorney and a will giving him
control over Mr. Cudmore's assets; refused, when requested, to provide copies of his file
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In re the Welfare of Cudmore
on Mr. Cudmore to Mr. May 5 and Ms. Woodard; and engaged in an ongoing effort to
influence Mr. Cudmore and affect decisions in the guardianship proceeding in violation
of civil and ethical rules; a reasonable inference of financial exploitation could be drawn
by the trial court.
From the testimony of Ms. Woodard and Mr. May that Mr. Cudmore's attitude
toward Mr. Bolliger would swing from one extreme to the other, the trial court could
reasonably infer that Mr. Bolliger's contacts with Mr. Cudmore were coercive,
intimidating or otherwise unduly influential on Mr. Cudmore.
The court could reasonably draw the same inference from Mr. Lamberson's
testimony that Mr. Bolliger's contacts left his stepfather paranoid and defensive. The
court could also reasonably find from Mr. Lamberson's testimony that Mr. Bolliger's
contacts were isolating Mr. Cudmore from his stepson and court-appointed lawyer-a
5
Among provisions of the order appointing Mr. May as guardian ad litem was the
following:
The Guardian ad Litem shall have access to all information
regarding the Alleged Incapacitated Person. Such information may contain,
but is not limited to ... matters of legal representation of the Alleged
Incapacitated Person .... By this Order, copies of information regarding
the Alleged Incapacitated Person shall be released to the Guardian ad
Litem.
In re Cudmore, Order Appointing Guardian Ad Litem and Notice of Hearing, cause no.
13-4-00260-9, Benton County Super. Ct. (July 12, 2013) at 5-6.
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In re the Welfare of Cudmore
form of "mental abuse" under RCW 74.34.020(2)(c).
And all of the evidence presented to the trial court, apart from Mr. Bolliger's
testimony and the declaration he penned for Mr. Cudmore, was that Mr. Bolliger's
continued contacts and efforts at involvement in the guardianship were causing extreme
stress and anguish for Mr. Cudmore.
In reviewing an order of protection, we defer to the trial court on the
persuasiveness of the evidence, witness credibility, and conflicting testimony. Knight,
178 Wash. App. at 937. Substantial evidence supports the trial court's finding of abuse
and/or financial exploitation.
Ill Trial court's attorney fee award
Finally, Mr. Bolliger challenges the trial court's award of attorney fees to Mr.
Meehan. Under RCW 74.34.130(7), the court may require the respondent to reimburse
the petitioner for costs incurred in bringing the action, including a reasonable attorney's
fee. Mr. Bolliger's sole argument is that because the trial court abused its discretion
when it entered the protection order, it necessarily abused its discretion when it awarded
fees. The trial court did not abuse its discretion in entering the protection order.
Attorney fees on appeal
Mr. Meehan requests an award of reasonable attorney fees and costs on appeal
pursuant to RAP 18.1 and RCW 74.34.130(7). Under RAP 18.1, we may award attorney
fees and costs if authorized by applicable law. We award Mr. Meehan reasonable
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attorney fees on appeal as authorized by RCW 74.34.130(7) subject to compliance with
RAP 18.l(d).
Mr. Bolliger requests an award of attorney fees under RAP 18.1 and CR 11. CR
11 is intended for use in superior court, not in the appellate court. Bldg. Indus. Ass 'n of
Wash. v. McCarthy, 152 Wn. App. 720,750,218 P.3d 196 (2009). Mr. Bolliger fails to
identify a basis for sanctions under any court rule. His request for fees is denied.
We affirm and award Mr. Meehan attorney fees on appeal subject to compliance
with RAP 18.l(d).
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.
15