In re Mitchell

• Decision Date: 09 May 2023
• Docket Number: 34236-1-III [†]
• Parties: In the Matter of the Guardianship of DONALD RAYMOND MITCHELL, and SEVERAL OTHER SIMILAR CASES CONSOLIDATED ON APPEAL.
• Court: Washington Court of Appeals

1

In the Matter of the Guardianship of DONALD RAYMOND MITCHELL, and SEVERAL OTHER SIMILAR CASES CONSOLIDATED ON APPEAL.^[†] No. 34236-1-III ^[†]

Court of Appeals of Washington, Division 3

May 9, 2023

UNPUBLISHED OPINION

Siddoway, J.

Hallmark Care Services, Inc. and Lori Petersen assign error to two sets of judgments and orders in these appeals. The appeals were commenced with their notices of appeal of 76 judgments dated January 19, 2016, that were entered against them and in favor of Spokane County as contempt sanctions (the contempt judgments). After the superior court vacated the contempt judgments on its own motion in September 2019 and then denied Hallmark's and Petersen's requests for awards of costs, Hallmark and Petersen appealed the cost orders, which this court treated as amending the 2016 notices of appeal. Representative copies of the original and amended notices of appeal with the challenged contempt judgment and cost order are attached in an appendix (Ex. A).

Also before us is a motion to dismiss this appeal as moot, which was filed by an attorney for Spokane County's Guardianship Monitoring Program.

We dismiss the appeals of the contempt judgments as moot. We affirm the trial court's orders denying Hallmark's and Petersen's requests for cost awards.

FACTS AND PROCEDURAL BACKGROUND

After Lori Petersen, a certified professional guardian, was disciplined by the Certified Professional Guardianship Board with a 12-month suspension, review was initiated in Spokane County Superior Court of guardianships in which two certified professional guardianship agencies (CPGAs) by which she had been employed- Hallmark Care Services, Inc. d/b/a Castlemark Guardianship and Trusts, and Hallmark Care Services, Inc. d/b/a Eagle Guardianship and Professional Services (collectively Hallmark)-were serving as court-appointed guardians. In re Guardianship of Holcomb No. 33356-6-III, slip op. at 4, 7-8 (Wash.Ct.App. Oct. 18 2018) (unpublished).^[1] The Hallmark CPGAs and Petersen were removed as guardians, and in May and June 2015 Hallmark and/or Petersen filed notices of appeal in over 120 guardianships. They challenged the court's appointment of a special master, its removal of them as guardians, and judgments entered against them for the cost of guardians ad litem in the cases in which they were removed. Id. at 16-17. The appeals were consolidated, with Guardianship of Holcomb serving as the anchor case.

In February 2016, Hallmark and Petersen filed this second set of appeals, seeking review of contempt judgments entered against them in 76 guardianship matters. After Hallmark's and Petersen's removals as guardian, the superior court had ordered them to file accountings. When they failed to do so in the 76 cases, the court entered a $228 judgment as a contempt sanction in each case. Appeal of the contempt judgments was stayed pending a decision and issuance of the mandate in Holcomb.

Early in the Holcomb appeal, a Spokane County deputy prosecutor moved for permission to appear as amicus curiae for Spokane County's Guardianship Monitoring Program, an arm of the county's superior court administrator's office (hereafter "the Monitoring Program"). He contended that the individual guardianships lacked the funds to defend the court's orders. The motion was granted by our commissioner, who ruled that the prosecutor's participation as special amicus would assist this court within the meaning of RAP 10.6(a). In the same ruling, our commissioner held that orders removing the Hallmark CPGAs as guardians were not appealable by them because the CPGAs were not aggrieved parties.

This court's opinion filed in Guardianship of Holcomb in October 2018 reversed all of the judgments imposing guardian ad litem fees against Hallmark and Petersen, concluding that the judgments were entered without affording Hallmark and Petersen due process. The court's reasons and more of the underlying facts are recounted in the opinion in that first appeal. Following remand, Spokane County abandoned its earlier effort to recover guardian ad litem fees from Hallmark and Petersen.

Following our decision in Guardianship of Holcomb and issuance of the mandate, notification to the parties in this appeal of a briefing schedule prompted the deputy prosecutor who had served as special amicus to seek leave under RAP 7.2(e) for the Spokane County Superior Court to dismiss the contempt judgments on its own motion. The prosecutor's RAP 7.2(e) motion was supported by a declaration from then-superior court presiding Judge Harold D. Clarke III, in which Judge Clarke explained:

6. Commissioner [Steven] Grovdahl issued sanctions to be [paid] to Spokane County at a rate of $3.00 a day for every day [Petersen] and her guardianship agencies failed to perform accountings in each Guardianship. Commissioner Grovdahl thereafter entered judgment in each of the Guardianships referenced in Attachment "A."

7. Appellant never performed the accountings.

. . . .

9. Having reviewed the issues in this case I am at this time respectfully requesting this Court to grant the Superior Court Jurisdiction pursuant to RAP 7.2 to enter an order vacating the orders imposing sanctions on Appellant.

10. The reason for vacating the orders at this time is that the sanctions were originally imposed to coerce Appellants to perform their legal obligations in preparing accountings in each of the Guardianships for which she was removed in the summer of 2015.

11. Civil Contempt Sanctions can be imposed only as long as it is possible for a party to purge themselves of the contempt by performing the Court's directions. See In Re King v. Department of Social and Health Services, 110 Wn.2d 793, 804, 756 P.2d 793 (1988); United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983).

12. Since Appellant and her businesses have not yet had control over the estates in question for a number of years, she would not presently be in a position to provide accurate accountings at this stage. Moreover, any accountings prepared at this point would be of no value to the present Guardians. It is therefore pointless to pursue sanctions at this juncture.

13. A copy of the Superior Court's proposed order vacating the judgments imposing sanctions in these matters which the Court proposes to enter after a presentment hearing as soon as practical is attached hereto.

Mot. to Permit Super. Ct. to Enter an Ord., Ex. 2, Decl. of Harold D. Clarke, III at 2-4, In re Guardianship of Mitchell, No. 34236-1-III (Wash.Ct.App. Aug. 6, 2019) (on file with court). Our commissioner granted the motion in a letter ruling on August 9, 2019.

The superior court's proposed order vacated its October 2015 order imposing sanctions and the resulting judgments. Hallmark and Petersen filed a response in the trial court in which they agreed that the orders and judgments should be vacated. But they objected to the proposed order's characterization of the order imposing sanctions as "lawful" and to its characterization of the underlying claims in the case as being "fully resolved." E.g., Clerk's Papers (CP) at 27972-27974. Hallmark and Petersen also filed a declaration with the trial court identifying a total of $2,558.50 in statutory attorney fees and other amounts that they asked be awarded to them as costs.^[2]

Presentment of the proposed orders vacating the contempt judgments took place before Judge Clarke on September 13, 2019. He entered orders vacating the October 2016 orders imposing sanctions and resulting judgments at that time, but took the cost issue under advisement.

On September 23, 2019, Judge Clarke entered an "Order Re: Statutory Fees and Costs" that denied Hallmark's and Petersen's requests for costs. He determined that neither the superior court nor the Monitoring Program-against whom Hallmark and Petersen sought to recover the costs-were parties to the guardianship cases. He also determined that if Hallmark and Petersen were parties, they did not prevail in any substantive way because the court had vacated the contempt sanctions on its own motion.

After the superior court vacated the contempt orders and judgments, but before Hallmark and Petersen filed their amended notices of appeal, the Monitoring Program moved to dismiss this appeal as moot. Hallmark and Petersen opposed the motion. It was referred to the panel for decision. Hallmark and Petersen timely filed amended notices of appeal of the cost orders.

ANALYSIS

I. Appeal of the judgments imposing contempt sanctions is moot

The Monitoring Program moved to dismiss these appeals as moot, arguing that since the superior court has vacated the orders imposing sanctions and resulting judgments, this court can no longer provide effective relief. It cites State v. Gentry for the propositions that "[o]rdinarily, this Court will not consider a question that is purely academic," and, "A case is moot if a court can no longer provide effective relief." 125 Wn.2d 570, 616, 888 P.2d 1105 (1995).

Hallmark and Petersen argue that dismissal is unwarranted for two reasons: the Monitoring Program lacks standing to bring the motion to dismiss, since it is neither a party nor has it been recognized as amicus curiae in this appeal, and there is a matter- specifically, their requests for costs-that has not yet been addressed. Hallmark and Petersen also move to strike the attachments to the Monitoring Program's motion to dismiss, which they argue are not part of the trial or appellate record in this matter.

On the issue of standing, the motion to dismiss acknowledged that the deputy prosecutor filing the motion had been granted special amicus statute in different but related appeals. It pointed out that this court had continued to give the deputy prosecutor notice...