Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Matter of:                        )
                                            )       DIVISION ONE
WANDA M. BELL,                              )
A Vulnerable Adult (Protected Person)       )       No. 65395-4-I
                      DOB 7/12/1926         )
                                            )       UNPUBLISHED OPINION
KATHLEEN CAROVANO,                          )
                                            )
                      Respondent,           )
                                            )
                  v.                        )
                                            )
MAUREEN McCASLIN,                           )
                                            )
                      Appellant.            )       FILED: June 11, 2012
________________________________)

       Dwyer, J.  --  Maureen McCaslin appeals from the terms of a vulnerable 

adult protection order restraining her contact with her mother and from an order 

requiring McCaslin to pay an award of $11,000 in costs, including reasonable 

attorney fees, to her mother's estate.  We affirm.  

                                            I

       Eighty-five year-old Wanda Bell suffers from dementia and is unable to 

manage her estate or her personal affairs.  In May 2008, Bell, through her 

daughter and legal guardian Kathleen Carovano, sought a vulnerable adult  

No. 65395-4-I/2

protection order to protect Bell from her other daughter, Maureen McCaslin.  The 

petition alleged that McCaslin interfered with Carovano's duties as attorney-in-

fact for Bell by visiting Bell for several hours a day in her group home and telling 

Bell that Carovano was taking Bell's money.  This caused Bell to become 

extremely agitated and upset. The petition also claimed that McCaslin had 

previously filed unfounded complaints with Adult Protective Services against 

Carovano, was spending nights in Bell's room against the rules of the facility 

where Bell lived, and had accepted cash gifts from Bell, knowing that Bell lacked 

the capacity to manage her own finances.  

       The trial court entered a temporary protection order, restraining McCaslin 

from soliciting or accepting cash gifts from Bell, and from contacting any 

financial institution holding Bell's assets.  The order also prohibited McCaslin 

and Carovano from discussing any issue before the court with Bell.

       On December 15, 2008, the trial court entered a permanent order, which 

provided, in pertinent part:

       In the event additional reports alleging abandonment, abuse, 
       financial exploitation or neglect of the Vulnerable Adult are filed by 
       Respondent with any governmental agency in the future, 
       Respondent shall be liable for any costs, including reasonable 
       attorney's fees, incurred by the Attorney-in-Fact or any third party 
       in responding to or defending against any such complaint filed 
       without reasonable cause. 

       McCaslin moved to terminate the protection order, claiming that RCW 

74.34.035 permitted her to make reports to Adult Protective Services.  Carovano 

responded to the motion and sought an award of costs, including reasonable 

                                           2 

No. 65395-4-I/3

attorney fees, incurred in responding to McCaslin's motion.  The trial court 

ordered that the terms of the December 15, 2008 protection order would remain

in effect, and denied Carovano's request for attorney fees without prejudice.

       In response to concerns that McCaslin had been surveiling and 

photographing her mother's care facility, disturbing other residents and staff, and 

causing the treatment providers to consider moving Bell to another facility as a 

result, Carovano moved to modify the protection order.  Carovano also 

requested an award of attorney fees.  

       On February 23, 2010, the trial court entered a protection order with new

restrictions on McCaslin's contact with Bell.  The order contained the same 

language notifying McCaslin that she "shall be liable" for the costs Bell or a third 

party incurred in responding to reports McCaslin "filed without reasonable 

cause."  

       On March 22, 2010, following a hearing, the trial court ordered McCaslin 

to pay $11,000 to reimburse Bell's estate for the expense incurred in preparing 

Bell's motion to modify the protection order, following McCaslin's disturbing 

behavior at Bell's living facility.  The trial court did not require McCaslin to pay 

Bell's attorney fees for any of the earlier proceedings.
       McCaslin appeals.1        

                                           II

       McCaslin contends that the protection order provision that she "shall be 

       1McCaslin subsequently filed with this court a motion to correct the record pursuant to 
RAP 9.10 and to submit additional evidence pursuant to RAP 9.11.  Because the additional 
materials McCaslin seeks to submit are not necessary to resolve any relevant issue in her 
appeal, we deny McCaslin's motion. 
                                           3 

No. 65395-4-I/4

liable" for attorney fees and costs incurred by Bell in defending any unfounded 

report of abuse or neglect was a prior restraint on her right to free speech.

McCaslin's argument lacks merit.      

       Appellate courts review a superior court's decision to grant or deny a 

protection order for an abuse of discretion.  Hecker v. Cortinas, 110 Wn. App 

865, 869, 43 P.3d 50 (2002).  A trial court abuses its discretion when its decision 

is manifestly unreasonable, based on untenable grounds, or when untenable 

reasons support the decision.  State ex reI. Carroll v. Junker, 79 Wn.2d 12, 26, 

347 P.2d 1062 (1971) (citing MacKay v. MacKay, 55 Wn.2d 344 (1959)).  We 

apply the de novo standard of review to questions of law in the context of a 

protection order.  In re Marriage of Suggs, 152 Wn.2d 74, 79, 93 P.3d 161 

(2004).

       Article 1, section 5 of the Washington Constitution states: "Every person 

may freely speak, write and publish on all subjects, being responsible for the 

abuse of that right."  Article I, section 5 prohibits prior restraints against 

protected speech but permits prior restraints against unprotected speech.  State 

v. Coe, 101 Wn.2d 364, 374, 679 P.2d 353 (1984). The United States Supreme 

Court defines prior restraints as:

       "[A]dministrative and judicial orders forbidding certain 
       communications when issued in advance of the time that such 
       communications are to occur.  Temporary restraining orders and 
       permanent injunctions --  i.e., court orders that actually forbid 
       speech activities -- are classic examples of prior restraints."

Suggs, 152 Wn.2d at 81 (alteration in original) (citations and internal quotations 

                                           4 

No. 65395-4-I/5

omitted) (quoting Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 

2766, 125 L. Ed. 2d 441 (1993)).

       The February 23, 2010 protection order provided, in relevant part:

       In the event additional reports alleging abandonment, abuse, 
       financial exploitation or neglect of the Vulnerable Adult are filed by 
       Respondent with any government agency in the future, 
       Respondent shall be liable for any costs, including reasonable 
       attorney's fees, incurred by the Attorney-in-Fact or any third party 
       in responding to or defending against any such complaint filed 
       without reasonable cause. 

       We conclude that the protection order contained no prior restraints on 

McCaslin's speech.  It neither restrained nor enjoined McCaslin from making 

reports or complaints.  Rather, it provided her with express notice that she faced 

financial consequences if third parties incurred expenses responding to any 

complaint she filed without reasonable cause.  

       McCaslin fails to demonstrate that the protection order at issue restrained 

her right to free speech. 

                                           III

       McCaslin next alleges that the trial court erred in awarding $11,000 in 

attorney fees and costs to Bell, to be paid by McCaslin.  Her argument is 

unavailing.

       An appellate court reviews a trial court's award of attorney fees for an 

abuse of discretion.  In re Guardianship of McKean, 136 Wn. App. 906, 918, 151 

P.3d 223 (2007).

       McCaslin contends that she is immune from liability for making reports to 

                                           5 

No. 65395-4-I/6

government agencies concerning suspected abuse or neglect of a vulnerable 

adult, under RCW 74.34.050.  Under certain circumstances, RCW 74.34.050 

provides immunity for an individual attempting to report or testify mistreatment of 

a vulnerable adult:  

       A person participating in good faith in making a report under this 
       chapter or testifying about alleged abuse, neglect, abandonment, 
       financial exploitation, or self-neglect of a vulnerable adult in a 
       judicial or administrative proceeding under this chapter is immune 
       from liability resulting from the report or testimony. The making of 
       permissive reports as allowed in this chapter does not create any 
       duty to report and no civil liability shall attach for any failure to 
       make a permissive report as allowed under this chapter.

RCW 74.34.050(1).

       The evidentiary record strongly suggests that if there was any error, it was 

invited by McCaslin's arguments to the trial court.  The invited error doctrine 

prohibits a party from setting up an error at trial and then complaining of it on 

appeal. City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002).

McCaslin's argument on appeal that she made a "report" under RCW 74.34.050 

is inconsistent with the position she took before the trial court.  McCaslin argued 

to the trial court that she filed no "report" under RCW 74.34.050.  She explained 

that she made no allegation of suspected abuse or neglect, but merely 

requested a "welfare check."  She also asserted that "[t]he decision to file a 

report [with DSHS] was made by the Bellevue Police Department."  If the trial 

court, after considering this argument, declined to extend the immunity provided 

for by RCW 74.34.050, any error would have been invited by McCaslin.

       McCaslin fails to meet her burden of demonstrating an abuse of discretion 

                                           6 

No. 65395-4-I/7

by the trial court.

                                           7 

No. 65395-4-I/8

                                           IV

       McCaslin argues that the trial court erred by dismissing her two motions 

for revision as untimely.  She is incorrect.  

       On March 24, 2010, the trial court ordered that McCaslin's motion for 

revision of the trial court's February 23, 2010 order be struck, because it was 

filed 17 days after that order was entered and applicable court rules required 

that such a motion be served and filed within 10 days of entry.   King County 

Local Rule 7(b)(8)(A); RCW 2.24.050.  On April 1, 2010, the trial court denied 

McCaslin's motion for reconsideration of its order striking McCaslin's motion for 

revision.   And on April 6, 2010, the trial court struck McCaslin's second motion 

for revision, explaining that:

       The only motion provided to this court was a motion for revision of 
       the February 23, 2010 protection order.  The motion is struck for 
       the reasons stated in this court's March 23, 2010 order striking the 
       previous motion for revision of the protection order.

McCaslin argues that the February 23, 2010 order was not "final" on that date 

because the trial court "continued the hearing" to determine attorney fees.  And 

while it is true that the order concerning attorney fees was entered on April 1, 

McCaslin fails to demonstrate that she made a timely motion to revise that order.  

       McCaslin fails to demonstrate any trial court error.     

                                           V

       Carovano requested an award of attorney fees on appeal under RAP 18.1

and RCW     74.34.130(7).  Under RAP 18.1, if attorney fees are allowable at trial, 

                                           8 

No. 65395-4-I/9

the prevailing party may recover fees on appeal. Under RCW 74.34.130(7), the 

court may require a respondent to "reimburse the petitioner for costs incurred in 

bringing the [protection order] action, including a reasonable attorney's fee."  

Here, McCaslin appealed from the protection order, entered pursuant to RCW 

74.34.130.  We conclude Carovano is entitled to attorney fees on appeal, 

subject to compliance with RAP 18.1. The commissioner of our court will make 

an appropriate award upon proper application.

       Affirmed.

WE CONCUR:

                                           9