Hale v. Bridge Builders, Ltd.

ROBERT LISLE HALE, Personal Representative of the ESTATE OF LISLE HALE, deceased; CLARA HALE, surviving spouse of LISLE HALE ROBERT L. HALE; DONALD HALE; and TRICIA HALE, Appellants, v. BRIDGE BUILDERS, LTD.; MINDIR. BLANCHARD and JOHN DOE BLANCHARD; BRENDA S. CARPENTER and JOHN DOE CARPENTER; JANET WATRAL and JOHN DOE WATRAL; MICHAEL R. HASTINGS and JANE DOE HASTINGS; and MICHAEL R. HASTINGS, P.S., Respondents.

No. 43265-0-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Dated: August 20, 2013

UNPUBLISHED OPINION

WORSWICK, C.J. — The Hale family appeals the summary dismissal of their case. The Hales, a family consisting of two elderly adults and their three adult children, sued Bridge Builders, a company that provides personal services to elderly people. The adult children placed their elderly parents in an assisted living facility. Because the parents did not want to move, they became upset and, with the help of Bridge Builders, made plans to move back home. About a week later, the adult children convinced their parents that the decision to move back home was financially unsound and the move was cancelled. The Hales sued Bridge Builders and aregistered nurse at the assisted living facility, seeking declaratory judgments and a variety of tort claims. The trial court dismissed all of the Hales' claims on summary judgment. We affirm.

FACTS

Lisle and Clara Hale, an elderly couple, lived at their home in Sequim, Washington in 2008. Lisle and Clara¹ have three adult children: Tricia, Donald, and Robert. Tricia lived with her parents and managed their care for many years. Donald held durable powers of attorney for his parents, and Robert was named as the successor attorney-in-fact.

In 2007, Lisle's and Clara's health deteriorated. They became increasing frail and suffered from dementia. By March 2008, Lisle, who was 86 years old, and Clara, who was 90 years old, required round-the-clock care. At about this time, the family decided Lisle should be moved to an assisted living facility. They moved Lisle to Sherwood Assisted Living on April 4, 2008. Lisle did not want to move and was upset.

Shortly thereafter, the family determined that Clara should be moved to Sherwood as well. Using a ruse, the children moved Clara to Sherwood on June 3. Family members told Clara that she was going to Sherwood to have lunch with Lisle. The Hale children told Janet Watral, the director at Sherwood who was also a. registered nurse, that Clara would likely be upset. The next day, Tricia and Donald went to Sherwood to visit and deliver medication for Clara. They were asked to wait and talk to Watral first. Watral told them that Lisle and Clarawere irate and had hired a lawyer. Watral told Tricia and Donald that it would be best if they not visit their parents. That day, Lisle and Clara met an attorney, Michael Hastings.²

On June 5, Hastings contacted Mindi Blanchard, the owner of a company called Bridge Builders, Ltd. Bridge Builders provides personal and assisted living services to the residents of Clallam County. Bridge Builders' website listed a wide variety of services, including:

• Advocacy/Mediation

• Daily Reminders

• Daily Check-in Calls

• Bill Paying and Financial Organizing

• Monthly Checkbook Reconciliation

• Reconcile Your Medical Insurance

• Organize Caregiver Assistance

• Coordinating Care

• Peace of Mind Program

• Personal Shopper

• Transportation to Appointments

• Neighborhood Caregiver Services

• Take Your Pet to the Groomer or Vet

• Outings; Family Liaison

• Letter/Note Writing

• Mail Sorting and Filing

• Telephone Call Assistance

• Computer Assistance

• Help Activate Your LTC [(long-term care)] Insurance

• Notary Service

• Homecoming

• Residential Placement.Assistance

• Meals Delivered to Your Home

• Friday Flowers

• Power of Attorney

• Certified Professional Guardian

• Representative of the Estate

• Educational Workshops

• Continuing Education Conference

Clerk's Paper (CP) at 325-30.

The website stated that Bridge Builders does not "provide personal care" and that it is "not a caregiving agency." CP at 335-36.

Lisle and Clara had contacted Hastings seeking to change their power of attorney from their children. Hastings asked Blanchard if she would act as Lisle and Clara's new attorney-in-fact. Blanchard met with Lisle, Clara, and Hastings at Sherwood Assisted Living on June 5. Lisle and Clara told her that their children tricked them into moving to Sherwood Assisted Living and that they wanted to move back into their home. They were also concerned that their children were accessing their money. Blanchard told Lisle and Clara that Bridge Builders could assist them in moving back home. Lisle and Clara agreed that they wanted Blanchard to act as their attorney-in-fact. On June 6, they executed new powers of attorney and revoked the old ones. Lisle also called Blanchard and asked her to change the financial accounts so that his children would no longer have access.

Blanchard Visited Lisle and Clara again on June 9 and talked about moving home. Later, Blanchard went to Washington Mutual Bank, where Lisle and Clara banked. On June 10, Blanchard brought the elderly Hales to the bank and changed their accounts. They discussed planning the move for June 12. Because Lisle told Blanchard that he did not want his children accessing the house, Blanchard met a locksmith and had the locks changed. On June 10 and 11, Bridge Builders contacted private caregivers and in-home care agencies to provide in-home care for Lisle and Clara.

On June 12, Donald Hale went to visit his parents. At some point that day, Lisle, Clara, and Donald spoke with Robert over the phone, and Donald recorded the conversation. Lisle and Clara decided it was not in their financial interest to move back home. Later that day, Brenda Carpenter, an employee at Bridge Builders, went to talk to Lisle and Clara to prepare them for the move. When she arrived, Donald told her that Lisle and Clara would not be moving. Bridge Builders canceled the moving plans.

The Hales³ sued Bridge Builders, Mindi Blanchard, Brenda Carpenter, Janet Watral, and Michael Hastings⁴ in April 2009. The Hales sought declaratory judgments that Bridge Builders was an "in-home services agency" required to be licensed under chapter 70.127 RCW and that Blanchard, Carpenter, and Bridge Builders were prohibited from serving as attorney-in-fact for either Lisle or Clara. The Hales also sought damages for: violations of the vulnerable adults act⁵ and the Consumer Protection Act⁶; malpractice by Blanchard, Carpenter, Bridge Builders, and Watral; interference with the Hale family; negligent infliction of emotional distress; and outrage.

In December 2011, Bridge Builders moved for summary judgment of all of the Hales' claims. The trial court granted their motion. Later, the trial court entered an amended order and memorandum making the dismissal of the Hales' claims applicable to Watral. The Hales appeal the dismissal of their case on summary judgment.

ANALYSIS

A. Summary Judgment Standard of Review Applies

The Hales argue, without citation to authority, that the trial court should have applied the standards for dismissal under CR 12(b)(6) rather than the standards for summary judgment under CR 56. This argument is meritless. The defendants moved for summary judgment, thus, summary judgment standards apply.

We review summary judgments de novo, engaging in the same inquiry as the trial court. Sheikh v. Choe, 156 Wn.2d 441, 447,128 P.3d 574 (2006). Summary judgment is appropriate where there are no issues of material fact. CR 56(c). A defendant in a civil action is entitled to summary judgment if he can show that there is an absence or insufficiency of evidence supporting an element that is essential to the plaintiff's claim. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). In such a situation, there can be no genuine issue as to any material fact, because a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Young, 112 Wn.2d at 225. To survive a motion for summary judgment, a nonmoving party must set forth specific facts showing that a genuine issue exists. Young, 112 Wn.2d at 225-26. The nonmoving party may not rely on speculative or argumentative assertions that unresolved factual issues remain. Michael v. Mosquera-Lacy, 165 Wn.2d 595, 602, 200 P.3d 695 (2009). When reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Cornerstone Equipment Leasing, Inc. v. MacLeod, 159 Wn. App. 899, 902, 247 P.3d 790 (2011).

B. Standing Not Waived

The trial court dismissed the Uniform Declaratory Judgments Act⁷ claims, ruling that the Hales did not have standing. The Hales argue that the trial court should not have ruled on the issue of standing, asserting that the defendants waived the issue by not pleading standing as an affirmative defense. We reject the Hales' argument that standing is an affirmative defense that is waived unless pleaded.

In support of their argument, the Hales cite to the general rule that a party must plead affirmative defenses or have the defense waived. See CR 8(c) ("a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense"). Their argument is undeveloped. They do not provide supporting authority or a reason why standing should be considered an affirmative defense that is waived if not pleaded. Even assuming standing is an affirmative defense, the Hales do not argue prejudice. See Mahoney v. Tingley, 85 Wn.2d 95, 100, 529 P.2d 1068 (1975) (failure to plead an affirmative defense is harmless if it does not affect substantial rights of the parties). We do not review issues where inadequate argument has been made. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004). The Hales' argument is insufficient and we decline to address whether Bridge Builders waived the issue of standing by not pleading it as an...