Garrison v. McGill (In re Horst)

1

In the Matter of the Guardianship of: VERNON JACOB HORST, An Alleged Incapacitated Person.

MARGARET GARRISON, Respondent, v. DELBERT LEE McGILL, Appellant.

No. 55001-6-II

Court of Appeals of Washington, Division 2

January 19, 2022

UNPUBLISHED OPINION

Worswick, J.

This is a case involving elder financial abuse. Delbert "Lee" McGill used his influence over 90-year-old Vernon Jacob Horst to obtain title to Horst's 300-acre farm and possession of all its equipment, supplies, and livestock. Margaret Garrison, Horst's daughter and guardian, filed a petition under the Trust and Estate Dispute Resolution Act (TEDRA) to regain possession of the property. The trial court entered a judgment quieting title and also entered a vulnerable adult protection order restraining McGill from contacting or further exploiting Horst.

McGill appeals the trial court's orders arguing that (1) the trial court's findings are not supported by substantial evidence and (2) the findings do not support the trial court's conclusions of law. McGill also argues that (3) he did not exceed the power granted to him as Horst's attorney-in-fact, (4) he did not have the burden of proving that the transfer was not a result of undue influence, (5) he did not unduly influence Horst, and (6) he did not financially exploit Horst.

We disagree with McGill and affirm the trial court's orders. We also award reasonable attorney fees on appeal to Garrison.

FACTS

Horst had been living on his farm in Yelm, Washington, since he returned from World War II. Over several years, Horst expanded his farm from 40 acres to about 300 acres. In addition to his farm, Horst operated other businesses such as a grain business, lumber business, trucking company, heavy equipment operating business, scrap metal business, and others. Garrison is the daughter and now-guardian of the person and estate of Horst. At the time of the trial, Horst was 93 years old.

Horst met McGill in 2000 at a bowling alley, where they were bowling partners until 2003. In 2006, Horst and McGill agreed that McGill would move into a spare bedroom in Horst's trailer home on the farm, and that McGill would work on the farm in lieu of paying rent. McGill lived in Horst's home before moving to a trailer on Horst's farm. Shortly after, McGill moved his wife, his mother, and his stepson to the farm. None of them paid rent while they lived on the farm.^[1] As Horst aged, he relied more heavily on McGill to manage his finances and to care for the farm. Although Horst owned many businesses during his lifetime, his mental acuity diminished as he aged. For example, Horst fell victim to foreign lottery schemes on multiple occasions. In 2017, Horst was adjudicated to be incapacitated. The parties agree that Horst was incompetent to testify at trial.

In February 2015, Horst's farmhouse burned down. Horst was severely injured during the fire. He was transported to Harborview Medical Center where he was placed into a medically induced coma and hospitalized for over two weeks. Horst's injuries were so severe that he required a tracheostomy tube, an alternate airway, to allow him to breathe. The tube made it practically impossible for Horst to verbally communicate.

While Horst was in the hospital, McGill learned that before the fire, Horst had granted his bookkeeper, Kim Craddock, a power of attorney and attempted to transfer his property to her by executing a quit claim deed. Although it is not completely clear from the record on appeal, it appears the quit claim deed to his property was granted as a type of collateral for debt owned by Horst to Craddock. Craddock did not record the deed. The record on appeal does not include the basis for this debt or explain when this conveyance occurred.

McGill brought a notary to the hospital to secure Horst's signature granting McGill power of attorney over Horst. The power of attorney provided:

A. The agent shall act on my behalf and for my benefit, and shall have all powers over my estate that I have or acquire. These shall include, but not be limited to, the following the power to make deposits to, and payments from, any account in my name in any financial institution; the power to open and remove items from any safe deposit box in my name; the power to sell, exchange or transfer title to stocks, bonds or other securities; the power to sell, convey or encumber any real or personal property . . . .

(If gifts are authorized under paragraph D, either initial next to "in any amount" or initial next to "no more than" and fill in a dollar amount. If gifts are not authorized, cross out all of paragraph D.)

No gift may be made under this power of attorney, except to a spouse or registered domestic partner if authorized under paragraph 1 (C), unless authorized by this paragraph.

Ex. 1 at 2. Subsection D was crossed out. The power of attorney expressly excluded the power to gift any of Horst's real or personal property. For the entire time that Horst was hospitalized, McGill managed and controlled the farm under his power of attorney. McGill also had control over Horst's personal property. Horst clearly trusted McGill. McGill was aware of debt owed to Craddock but did not attempt to address that transaction or resolve the debt owed. When Horst was discharged, he suffered from a diminished mental state and memory loss, and was not capable of making financial decisions.

Horst was discharged from the hospital to Garrison's home on February 18. While Horst was recovering from his injuries, McGill picked up Horst from Garrison's house when Garrison was at work. McGill then obtained Horst's signature on quit claim deeds conveying all of Horst's real property to himself. After the deeds were rejected for insufficient legal descriptions, McGill revised and consolidated the deeds on March 20, and obtained Horst's signature a second time.^[2] McGill then used his power of attorney to sign a Real Estate Excise Tax Affidavit (REETA). That same day, McGill recorded the revised quit claim deeds, purporting to transfer all of Horst's real property to himself at no cost.

During McGill's initial attempt to record the deeds in February, Horst was "very ill, very frail and could not stand at the counter at the Thurston County Auditor's office to complete the transaction." Clerk's Papers (CP) at 39. During this period, Horst could not identify his family, could not identify whether McGill was family or not, and did not understand the transaction. McGill and his wife drafted all the required documents for the transfer: the power of attorney, the REETA, and the deeds. McGill and his wife actively procured the transaction by driving Horst to notarize his signature on multiple occasions. McGill did not allow Horst an opportunity to obtain the advice of legal counsel, nor did he inform Horst's family of the transaction.

After McGill recorded the revised deeds, Horst returned to the farm against his family's advice. Horst insisted on going back to take care of his animals and run his farm. He returned to the property and treated it as his own: he continued to sell cattle and hay and operate equipment. McGill then filed a lawsuit against Horst, along with an injunction to preclude Horst from operating the farm as his own. This lawsuit was dismissed in 2019.^[3]

II. Procedural History

Garrison filed a TEDRA petition seeking the return of Horst's real and personal property. Following a bench trial, the trial court entered findings of fact and conclusions of law, as well as a judgment quieting title to all the real and personal property in Horst. The trial court also entered a permanent Vulnerable Adult Restraining Order, which found that McGill had financially exploited Horst and restrained McGill from contacting or further exploiting Horst.

McGill appeals the trial court's judgment and orders.

ANALYSIS

I. Substantial Evidence: Challenged Findings of Fact

McGill makes 33 assignments of error, assigning error to almost every finding of fact and conclusion of law. All of McGill's challenges to the findings of fact fail, except for three. However, the three unsupported findings do not warrant reversal. We hold that the remaining challenged factual findings are supported by substantial evidence.

We review a trial court's findings of fact following a bench trial to determine whether those findings are supported by substantial evidence. In re Estate of Barnes, 185 Wn.2d 1, 9, 367 P.3d 580 (2016). Substantial evidence is that which is sufficient to persuade a fair-minded person of the truth of the premise. In re Marriage of Condie, 15 Wn.App. 2d 449, 459, 475 P.3d 993 (2020). We defer to the trial court for resolution of conflicting testimony and credibility. Barnes, 185 Wn.2d at 9.

"When a challenged factual finding [must] be proved at trial by clear, cogent, and convincing evidence, we incorporate that standard of proof in conducting [a] substantial evidence review." In re Estate of Jones, 170 Wn.App. 594, 603, 287 P.3d 610 (2012). When such a finding is appealed, we review whether there is substantial evidence in light of the "highly probable" test. In re Estate of Melter, 167 Wn.App. 285, 301, 273 P.3d 991 (2012). In other words, we will not disturb a finding if supported by substantial evidence which the lower court could reasonably have found to be clear, cogent, and convincing. In re of Det. of B.M., 7 Wn.App. 2d 70, 85, 432 P.3d 459 (2019).

Assignments of error to findings of fact that are not argued in a brief are abandoned on appeal. In re Marriage of Glass, 67 Wn.App. 378, 381 n.1, 835 P.2d 1054 (1992). And unchallenged findings of fact are verities on appeal. Hornback v. Wentworth, 132 Wn.App. 504, 508, 132 P.3d 778 (2006). We review conclusions of law de novo to determine if they are...