Peterson v. Pacific First Federal Sav. and Loan Ass'n, 3221-II

• Decision Date: 09 July 1979
• Docket Number: No. 3221-II,3221-II
• Citation: 23 Wn.App. 688,598 P.2d 407
• Parties: Maurice PETERSON, as Personal Representative of the Estate of Alfred J. Wiese, Deceased, and Western Surety Company, a foreign corporation, Respondents, v. PACIFIC FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant.
• Court: Washington Court of Appeals

Page 688

23 Wn.App. 688

598 P.2d 407

Maurice PETERSON, as Personal Representative of the Estate

of Alfred J. Wiese, Deceased, and Western Surety Company, a foreign corporation, Respondents, v. PACIFIC FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant.

No. 3221-II.

Court of Appeals of Washington, Division 2.

July 9, 1979.

Valen H. Honeywell, Tacoma, for appellant.

Gary L. Raaen, Tacoma, for respondents.

SOULE, Judge.

We accepted discretionary review of the Pierce County Superior Court's denial of a motion for summary judgment made by Pacific First Federal Savings and Loan Association (PFF). Western Surety Company, the surety on the guardian's bond posted by Opal Haizlip, guardian for Alfred J. Wiese prior to his death, brought suit against PFF to recover funds disbursed to Mrs. Haizlip in excess of restrictions allegedly imposed by an order authorizing disbursement of guardianship funds. We reverse the denial of summary judgment.

On October 21, 1975, Opal Haizlip, the newly appointed guardian for Alfred J. Wiese, an incompetent, obtained an order authorizing her to disburse various sums from her ward's estate including paragraph 5:

$500.00 per month to be sent by Pacific First Federal Savings and Loans (Sic ), Tacoma, Washington, from the account of the incompetent, to OPAL HAIZLIP, such amount to be made payable to OPAL HAIZLIP on the 1st day of each and every month, to be used by her for the room and board of the incompetent and for his personal expenses.

The other paragraphs in the order simply authorized the guardian to expend the guardianship assets to pay the fee of the attorney who drew the guardianship papers, to pay a physician's fee, to buy a wheel chair, and to reimburse her costs.

Alfred J. Wiese had a savings account at PFF containing $12,645. On October 28, 1975, Mrs. Haizlip presented PFF with a copy of the order authorizing disbursement, along with letters of guardianship, and obtained a transfer of the account to herself as guardian for Alfred J. Wiese. On that day she withdrew $1,500 from the guardianship account. During the next 10 weeks, she made two more withdrawals, emptying the account. Apparently Mrs. Haizlip misappropriated the funds and did not expend them on behalf of Mr. Wiese.

PFF has procedures for review of ambiguous guardianship orders by supervisors and its attorneys, and for special handling of restricted access accounts. These internal operating procedures were not used when Mrs. Haizlip established the guardianship account or when she made her withdrawals.

Mr. Wiese died in July, 1976. The personal representative of his estate and the guardianship bond surety sued PFF to recover the Haizlip withdrawals, on the theory that PFF should not have allowed them in obvious excess of the $500 monthly limit in the disbursement order. Western Surety has fully indemnified the estate and remains as the sole party in interest.

It is well established that the trial court may grant summary judgment only when the record introduced in support of the motion does not create a genuine issue of material fact between the parties, and the moving party is entitled to judgment as a matter of law. E. g., Morris v. McNicol, 83 Wash.2d 491, 519 P.2d 7 (1974); Adamski v. Tacoma General Hospital, 20 Wash.App. 98, 579 P.2d 970 (1978). With this rule in mind, we first consider Western Surety's contention that the trial court properly denied summary judgment because PFF's motion was not accompanied by affidavits containing sufficient underlying facts, but was based instead on the factual allegations in the pleadings and on the disbursement order and letters of guardianship in the guardianship file.

As CR 56(a) and (b) make clear, a party's motion for summary judgment need not be accompanied by supporting affidavits, and may be based on the pleadings. See also Peterick v. State, 22 Wash.App. 163, 179, 589 P.2d 250 (1977). When a pleading is properly made and uncontradicted, it may be taken as true for purposes of deciding summary judgment. Leland v. Frogge,71 Wash.2d 197, 200, 427 P.2d 724 (1967). The question is whether or not the material before the court creates a genuine issue of material fact. In this case, PFF's answer admitted all of the pertinent factual allegations made in the complaint, and the guardianship letters and disbursement order were submitted to speak for themselves concerning the scope of Mrs. Haizlip's authority to make the expenditures. In these circumstances, affidavits were not necessary to demonstrate that the facts were undisputed.

Plaintiff argues that PFF owed a duty of care to Mr. Wiese, its original depositor, and to Opal Haizlip, the substituted account holder, to handle the Wiese account prudently. After oral arguments to this court, the contentions boil down essentially to two: (1) that the duty was breached because the order authorizing disbursement unambiguously required PFF to limit Mrs. Haizlip's access to the guardianship funds to $500 per month, or (2) alternatively, that if the order is ambiguous, PFF was negligent in failing to invoke its internal procedures to clarify the intended effect of the order before allowing the withdrawals. ¹ PFF responds that the order, on its face, limits only the expenditure of guardianship funds and not the guardian's access to those funds.

The resolution of these contentions involves no genuine questions of fact. The Existence of a duty is a question of law rather than fact. Bayman v. Clearwater Power Co., Inc., 15 Wash.App. 566, 550 P.2d 554 (1976). If it be determined that PFF owed a duty...