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                                                                                       COURT OF APPEALS
                                                                                           DIVISION, if
                                                                                      2013 SEP -4
                                                                                                  A1410:20
                                                                                      S- OF WASHINGTON
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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II


In re the Guardianship of CAROLYN K.
PLOTKE,
0


                       An incapacitated person.                                   No. 42984 5 II
                                                                                            - -


LEO K.PLOTKE,

                                         Appellant,
             V.




YVONNE POLKOW,                                                           UNPUBLISHED OPINION




             JOHANSON, A. . Leo K.Plotke signed a memorandum of agreement that established .
                       J.
                        C     —


an IOLTA (nterest on Lawyer Trust Account)account to pay for his wife Carolyn K. Plotke's
         I

medical care and special needs. Leo appeals the superior court's order denying his request that

certain home maintenance costs be paid out of the IOLTA account. He argues that the superior

court erred in finding that the parties' memorandum of agreement did not cover the requested

costs. We disagree and affirm the superior court.




    1
        To avoid   confusion, we   use   their first names, intending   no   disrespect.
No. 42984 5 II
          - -



                                                FACTS


          Leo and Carolyn are an elderly, married couple. In 2008, the superior court declared
Carolyn to be a vulnerable adult and entered a temporary protection order restraining both Leo

and   Carolyn's daughter    from contact with   Carolyn. Carolyn was removed from the couple's

home and has since resided at the Fort Vancouver Convalescent Center where she receives


ongoing assistance with all activities of daily living due to her extensive history of serious health

conditions.    Leo has continued to live in the         couple's   home in Clark County.    The court


appointed Yvonne Polkow as Carolyn's personal guardian and appointed Thomas Deutsch as

guardian ad litem to investigate the couple's finances and recommend how the couple would

finance    Carolyn's   necessary   long term
                                         -      care.      Then, after   concerns   arose   about   Leo


inappropriately managing the couple's finances, the court appointed Polkow as guardian of

Carolyn's estate as well.

          In 2009, Leo and his attorney, Dee Ellen Grubbs; Polkow and her attorney, Therese

Greenen; and Deutsch's attorney, Margaret Phelan, signed a memorandum of agreement

Memorandum)that outlined the parties' plan and respective duties regarding Leo and Carolyn's              -

finances. Leo agreed to be financially responsible for Carolyn's necessary long term care and
                                                                                 -

special needs. Carolyn agreed to transfer all her assets into Leo's name, thus qualifying her for
Medicaid.     In return, Leo was to deposit funds for Carolyn's care into a trust account on a

monthly basis.




2
 This case involves the same parties as a prior opinion from this court in July 2012. Plotke v.
Plotke, noted at 169 Wn. App. 1037 (2012).Unless otherwise noted, the facts in this paragraph
come from that opinion.

                                                   2
No. 42984 5 II
          - -



       The Memorandum also provided that the superior court would retain continuing

jurisdiction over all community funds and all of Leo's separate funds. In the event Carolyn died

or no longer had special needs, any remaining funds would be distributed to Leo. If Leo became

unable to pay for Carolyn's care, he would apply for a reverse mortgage on the couple's home,

which was then in his name only. A short time later, Leo apparently became unable to pay for

Carolyn's care and obtained a reverse mortgage from Genworth Financial.

       At first, Leo failed to use the reverse mortgage money for Carolyn's care. As a result, in

December 2010, the superior court ordered that Leo direct Genworth Financial to place

approximately $82, 00 from the reverse mortgage into an IOLTA account for Carolyn's
                 0

expenses. The court also ordered that Leo direct Genworth Financial to disburse approximately

4, each month into the IOLTA account for Carolyn's care and needs, beginning in January
 600

2011. The court's order also provided that Leo was "restrained from removing any other funds

from Genworth Financial other than those funds as stated herein without approval of the Court.

     Failure of [ eo]to comply with the terms of this agreement will result in incarceration due
                L

to contempt of court."Clerk' Papers (CP)at 102. This order was not appealed. -

        In August 2011, Leo moved to disburse funds from the IOLTA account for the payment

of property taxes, homeowner's insurance, septic tank maintenance, hot water heater repair, and

attorney fees for Leo's appellate counsel, Christopher Hardman, for Leo's earlier appeal.

Polkow responded that she agreed that the IOLTA account should pay the property taxes but that




                                                3
No. 42984 5 II
          - -



the court should deny Leo's remaining requests because they were solely for his personal needs

and did not fall within the Memorandum's parameters.        The court approved the property tax

request but denied Leo's remaining requests.

       In October 2011, Leo again moved the superior court to disburse funds from the IOLTA

account for homeowner's insurance, septic tank maintenance, hot water heater repair, and

attorney fees for Hardman and for Grubbs.        Leo called this motion a "Renewed/ mended
                                                                                  A


Motion." CP at 133.      Polkow responded the same way as she did to the August motion and

argued that CR 11 sanctions be granted against Leo for bringing the same motion that the

superior court had already ruled on. The court again denied the motion in its entirety. In its oral

ruling, the court explained that the requested monies were Leo's responsibility, that he needed to

take responsibility for his poor financial decisions in the past, that the IOLTA account was to be

used for Carolyn's care, and not for the expenses that Leo was requesting.

       Grubbs then asked the court about the requested attorney fees for herself and for

Hardman and the court stated that


       I' not at this time going to make any additional award of attorney's fees. But
        m
       I'l reserve on that ....
        l
                    I don't anticipate this case going away very soon, so at some point
       we'll have to sit down andI' have to sit down and make some decisions on
                                 —ll
       that.


Report of Proceedings (RP) at 55 56. Our record contains no further attorney fee motions or
                                 -

orders. Leo timely appeals.




                                                 E
No.42984 5 II
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                                          ANALYSIS


       Leo argues that Polkow breached the Memorandum by not paying the requested monies

from the IOLTA account and that the      superior       court erred in   denying   his   requests.   Polkow


responds that the parties intended that the IOLTA funds be used only for Carolyn's care and that

the Memorandum does not allow Leo to access the funds for any other purpose.

       Turning to Leo's request for homeowner's insurance, septic tank maintenance, and hot

water heater repair, we must determine whether the Memorandum provided for these expenses to

be paid from the IOLTA account. We review questions of law, including the interpretation of

contract provisions, de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn. d 873, 880,
                                                                                 2
73 P. d 369 (2003).
    3                   We apply fundamental contract construction rules when interpreting a

contract and to the extent we interpret contract provisions; we apply the de novo standard of

review. Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., Wn. d 475, 487, 209 P. d
                                                           166 2                  3

863 (2009); v. Moffett, 156 Wn. App. 689, 697, 234 P. d 279 (2010).
          Kim                                       3

       In construing a contract, we give the parties' intent as expressed in the instrument's plain

language controlling weight and give words in       a    contract their ordinary meaning.       Cambridge

Townhomes, LLC, 166 Wn. d at 487; Corbray v. Stevenson, 98 Wn. d'415, 656 P. d 473
                      2                                    410,
                                                             2             2

1982). Also, we may discover parties' intent from "` iewing the contract as a whole, the
                                                   v


3
  Leo also argues that the Memorandum is enforceable because it was merged into a court order.
However, Polkow does not dispute that the Memorandum is enforceable. Therefore, merger is
inapplicable here; and, instead, the issue more properly before us is the superior court's
interpretation of   the Memorandum.   Leo also claims the superior court erred in denying his
attorney fee request.   But whether the superior court should have granted Leo's requests for
attorney fees is not properly before us for review. The superior court's oral ruling clearly states
that it reserved its ruling on attorney fees for another time. Our record does not reveal whether
the superior court eventually ruled, but until the superior court does so,there is no final judgment
on attorney fees and the issue is not properly before us on appeal. RAP 2. (
                                                                           a).2

                                                    5
No. 42984 5 II
          - -



subject matter and objective of the contract, all the circumstances surrounding the making of the

contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of

respective interpretations advocated by the parties. "' In re Marriage ofLitowitz, 146 Wn. d 514,
                                                                                         2

528, 48 P. d 261 (2002) internal quotation marks omitted) quoting Scott Galvanizing, Inc. v.
         3               (                                (

Nw. EnviroServices, Inc.,
                        120 Wn. d 573, 580 81, 844 P. d 428, cent. denied, 537 U. . 1191
                              2            -        2                           S

2003) citations omitted). But the parties' subjective intent is generally irrelevant if we can
      (

determine their intent from the actual words used in the contract. Hearst Commc'n,Inc. v.


Seattle Times Co., Wn. d 493, 503 04, 115 P. d 262 ( 005).
                 154 2            -        3       2

       Leo provides no legal analysis for his argument that the superior court should have

approved his IOLTA funds requests.         Leo does not even argue that the Memorandum's

provisions are ambiguous. Leo asks that we review his motions made at superior court to

support his argument on appeal. These motions specified that the basis for his motions was that

the requested funds were a "special need" of Carolyn's because the expenses were for the
maintenance of the couple's community property home and that if such expenses were not paid,

the home may be subject to foreclosure. CP at 51, 133. And if the home was foreclosed, there

would be no funding for the IOLTA account.

        But the Memorandum clearly outlines Leo's responsibility for Carolyn's medical bills,

and other continuing special needs. The Memorandum specifies that such "special needs ...

include, but are not limited to, the services of a professional guardian, attorney fees for the

professional guardian, services from Geromedical Psychological[,] eyeglasses." CP at 127.
                                                                and
Viewing the Memorandum. as a whole and giving the words "special needs" their plain and

ordinary meaning, the Memorandum simply does not provide for Leo's home maintenance costs


                                                 I
No. 42984 5 II
          - -


to be     paid   out of the IOLTA account.           Leo's argument about the home potentially being

foreclosed if his requested costs are not paid is an interesting one, but it fails simply because the

Memorandum does not provide that the IOLTA funds would be used. to maintain the home or

ensure that it will not be foreclosed. The IOLTA account was set up for Carolyn's medical bills

and continuing special needs. Accordingly, Leo's argument that Polkow is in breach for failing

to pay the requested costs also fails because the Memorandum does not require Polkow to pay

them.


          In his reply, Leo asserts that his arguments on appeal center on the superior court's

failure    to    enforce the   parties'   Memorandum.        But, the superior court did enforce the

Memorandum, it just did          not   interpret   the Memorandum in Leo's favor.   Also, Leo's reply

appears to change his argument to assert that all IOLTA funds in excess of a certain amount

should be disbursed to him. But again, the Memorandum's plain language provides that funds

from the IOLTA account will be distributed to him only if Carolyn's special needs discontinue or

in the event of Carolyn's death. These are the only times that Leo is entitled to the IOLTA funds

and he does not argue that either of these things has occurred. Furthermore, the superior court

ruled on the motion that Leo presented, which was for the specific home maintenance costs, not

that control of the account should be turned over to him. The superior court did not err and we

affirm.


                                              ATTORNEY FEES


           Both parties request attorney fees on appeal. Leo does not prevail; thus he is not entitled

to attorney fees. Stating Leo's appeal is frivolous, Polkow also requests attorney fees.




                                                         7
No. 42984 5 II
          - -



           RAP 18. (
               a)1 provides that we may award attorney fees .on appeal where authorized by

applicable law. RAP 18. (
                    a)9 authorizes us, on a motion or sua sponte, to sanction a party who

1)uses the rules of appellate procedure for purposes of delay, 2)
                                                               ( files a frivolous appeal, or (3)
fails to   comply   with the rules of     appellate procedure. In determining whether an appeal is

frivolous, five considerations guide us: (1) civil appellant has a right to appeal; 2) resolve
                                            a                                       ( we

any doubts about whether an appeal is frivolous in the appellant's favor; 3)we consider the
                                                                          (

record as a whole; 4)an unsuccessful appeal is not necessarily frivolous; and (5)an appeal is
                   (

frivolous if it raises no debatable issues on which reasonable minds might differ and it is so

totally devoid of merit that no reasonable possibility of reversal exists. Green River Cmty. Coll.

Dist. No. 10 v. Higher Educ. Pers. Bd., Wn. d 427, 442 43,730 P. d 653 (1986);
                                      107 2            -       2             Carrillo v.

City of Ocean Shores, 122 Wn. App. 592, 619, 94 P. d 961 (2004).If an appeal is frivolous, we
                                                 3

may award respondent's attorney fees for having to defend against the frivolous appeal. West v.

Thurston County, 169 Wn. App. 862, 867- 8,. 3d 1150 (2012),
                                   282 P.
                                      6                   review denied, 176 Wn. d
                                                                               2

1012 (2013);
           Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P. d 9, review denied, 175 Wn. d
                                                          3                           2

1016 (2012).

           Here, Leo does not raise any debatable issues on which reasonable minds might differ

and   no   reasonable   possibility   of reversal exists.   This appeal is frivolous and we exercise our

discretion to award Polkow attorney fees for defending against this frivolous appeal upon

compliance with RAP 18. .
                      1




                                                       M.
No.42984 5 II
         - -



       We affirm.


       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                              Johanson, A. .
                                                                        J.
                                                                         C
We   concur:
