                                                                    t
                                                            COURT OF APPEALS OIYl
                                                            -STATE OF WASHINGTON

                                                            2018 NOV 26 AM 10: 1i




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Estate of          )      No. 77166-3-1
LAWRENCE X. SULLIVAN,                   )
                                        )      DIVISION ONE
     Deceased.                          )
                                        )
STAFFORD HEALTH SERVICES, INC.,)
a Washington corporation, d/b/a         )
STAFFORD HEALTHCARE AT                  )
BELMONT,                                )
                                        )
     Respondent/Third  Party  Defendant,)
                                        )
                   v.                   )      UNPUBLISHED OPINION
                                        )
THE ESTATE OF LAWRENCE X.               )
SULLIVAN and THE LAWRENCE AND )
ARLENE SULLIVAN LIVING TRUST )
and DEANNA MERKATZ AND "JOHN )
DOE" MERKATZ, individually and the )
marital community comprised thereof, )
                                        )
     Appellants/Third Party Plaintiffs. )      FILED: November 26, 2018

       SCHINDLER, J. — Stafford Health Services Inc.(SHS)filed a creditor's claim for

nursing services and care against the Estate of Lawrence X. Sullivan. After the

personal representative rejected the claim, SHS filed a Trust and Estate Dispute

Resolution Act(TEDRA), chapter 11.96A RCW, petition against the Estate and the

Lawrence and Arlene Sullivan Living Trust (collectively, the Estate) and the personal

representative of the Estate, Deanna Merkatz, individually. The Estate and Merkatz
No. 77166-3-1/2

filed counterclaims against SHS alleging violation of the Consumer Protection Act

(CPA), chapter 19.86 RCW,and damages under the abuse of vulnerable adults act

(AVA), chapter 74.34 RCW. The court dismissed the counterclaim for violation of the

CPA and noneconomic damages under the AVA on a CR 12(b)(6) motion. On

summary judgment, the court dismissed the claim for economic damages under the

AVA. The court ruled the Estate must pay SHS under the terms of the "Admission and

Financial Agreement" and unjust enrichment. The court awarded attorney fees and

costs under the terms of the Agreement and TEDRA. We affirm but remand to enter

findings of fact and conclusions of law on the reasonableness of the award of attorney

fees and costs.

                                          FACTS

       In 2013, 94-year-old Lawrence Sullivan lived at an assisted living facility, Crista

Shores. Sullivan was admitted to the Harrison Medical Center emergency department

on October 23 with "[s]epsis secondary to urinary tract infection," pneumonia,

hypertension, and dementia. After nine days in the hospital, Sullivan improved and his

"mental status" returned to "baseline." However, Sullivan was "weak and debilitated and

unable to return to his prior assisted living arrangements." Harrison Medical Center

discharged Sullivan to a skilled nursing facility, Stafford Health Services Inc.(SHS).

       SHS admitted Sullivan for treatment and therapy on November 1. Sullivan's

niece Deanna Merkatz signed the "Admission and Financial Agreement" as the "POA

[(Power of Attorney)] or Responsible Party" and consented to nursing services. The

Agreement states the "Resident has the right to consent or refuse medical care

provided by the staff, consultants or physicians" and the "undersigned Resident(or the
No. 77166-3-1/3

undersigned responsible party on behalf of Resident)" consents to the "nursing services

provided by" SHS. The Agreement states the "Resident or decision maker will be

informed of the treatment options, risk and benefits of treatment and of no treatment."

       Merkatz promised as the Responsible Party to pay for services provided by SHS

and charges not covered by Medicare from "the Resident's income or resources legally

available for payment of such obligations." The Admission and Financial Agreement

states, in pertinent part:

       THIRD PARTY PAYERS - Where third party payers such as Medicare,
       Medicaid, or insurance pay some or all of the charges, the undersigned
       hereby agrees to pay the Resident's portion of the covered charges, all
       charges for any period the Resident is determined to be ineligible for the
       program involved, all charges which are chargeable to the Resident under
       any such program, and any balance not paid by third party payers.
       Stafford Healthcare cannot and does not guarantee that benefits will be
       paid by any third party or guarantee the Resident's eligibility for any
       programs.



       RESPONSIBLE PARTY AGREEMENT: The party who manages the
       Resident's financial affairs and has legal access to the Resident's income
       or resources available to pay for Facility services is required to sign this
       agreement in addition to the Resident and in signing this agreement
       represents that he/she actually manages the Resident's financial affairs
       and/or has access to the Resident[']s income or resources available to pay
       for Facility services.

       Without incurring personal liability for the Resident's financial obligations
       to Stafford Healthcare, the undersigned responsible party promises to pay
       for the items and services provided to the Resident by Stafford
       Healthcare, from the Resident's income or resources legally available for
       payment of such obligations. In the event that the undersigned fails to
       make timely payments from such sources in accordance with terms and
       conditions of the agreement, the undersigned shall be personally
       responsible for the amount past due, interest charges on the past due
       balance and penalties, including reasonable attorney's fees and costs.




                                             3
No. 77166-3-1/4

      On November 25, SHS nurse Prescilla Piete discussed Sullivan's "new baseline

ADLsoi" with Merkatz and Crista Shores employee Diana Allen. Piete explained that

when Medicare coverage ends, Sullivan would be responsible for those costs.

      [Merkatz] stated that she was happy with [Sullivan] remaining in this
      facility with the possibility of. .. moving to a facility closer to her in
      Kirkland. [Allen] agreed that [Sullivan] needs more care than Crista
      Shores can offer. [Allen] &[Merkatz] will communicate with one another;
      disclosed to both that I was speaking to each of them & to keep the lines
      of communication open to best meet the needs of[Sullivan]. [Sullivan] still
      on Medicare with secondary Tricare for Life; explained to [Merkatz] that
      [Sullivan] will be private pay when Medicare coverage ends.

      SHS determined Medicare would no longer pay benefits for physical and

occupational therapy effective December 15. Nothing in the records indicated whether

Sullivan could not make the decision to either assume responsibility to pay for the

therapy after December 15 or decline to do so. On December 9, SHS employee Laney

Beach provided an "Advance Beneficiary Notice" and "Notice of Medicare Non-

Coverage" to Sullivan and explained the options to him. The Advance Beneficiary

Notice states, in pertinent part:

       NOTE: You need to make a choice about receiving these health care
       items or services.

       It is not Medicare's opinion, but our opinion, that Medicare will not pay for
       the item(s) or service(s) described below. Medicare does not pay for all of
       your health care costs. Medicare only pays for covered items and
       services when Medicare rules are met. The fact that Medicare may not
       pay for a particular item or service does not mean that you should not
       receive it. There may be a good reason to receive it. Right now, in your
       case, Medicare probably will not pay for —

       Items or Services: [physical therapy] & [occupational therapy] skilled

       Because: Reached max potential will continue with restorative.



       1 Activities of daily living.
                                            4
No. 77166-3-1/5

      The purpose of this form is to help you make an informed choice about
      whether or not you want to receive these items or services, knowing that
      you might have to pay for them yourself.

The Advance Beneficiary Notice sets forth two options: "Option 1. YES. I want to

receive these items or services" and "Option 2. NO. I will not receive these items

or services." Sullivan checked the box next to Option 2 and signed the Advance

Beneficiary Notice. Sullivan also signed the Notice of Medicare Non-Coverage that

states, "Services Will End: 12/14/2013."

      On January 20, 2014, SHS contacted Merkatz about the outstanding amount

due. Merkatz disputed the charges for $17,520. On January 28, Merkatz faxed SHS a

copy of a "Durable Power of Attorney and Nomination of Guardian" signed by Sullivan

and the "Acceptance of Appointment" as Sullivan's attorney-in-fact signed by Merkatz.

      At the direction of Merkatz, SHS discharged Sullivan to Crista Shores on

February 4. Crista Shores had to take additional steps to care for Sullivan, including

hiring physical and occupational therapists. SHS sent Sullivan an invoice each month

for the amount owed of $19,025 forservices provided from December 15, 2013 to

February 4, 2014.

      Sullivan passed away in 2015. On May 22, 2015, the Estate sent a "Non-

Probate Notice to Creditors" to SHS. SHS filed a creditor's claim for $19,025 against

the Estate. On August 17, Merkatz acting as the personal representative of the Estate

rejected the claim.

       On September 14, SHS filed a Trust and Estate Dispute Resolution Act

(TEDRA), chapter 11.96A RCW, petition against the Estate of Lawrence X. Sullivan and




                                            5
No. 77166-3-1/6

the Lawrence and Arlene Sullivan Living Trust (collectively, the Estate) and Deanna

Merkatz individually.

      The Estate and Merkatz filed counterclaims against SHS alleging violation of the

Consumer Protection Act(CPA), chapter 19.86 RCW,and claims for damages under

the abuse of vulnerable adults act(AVA), chapter 74.34 RCW. The counterclaim

alleged filing the TEDRA petition against Merkatz individually was a deceptive act or

practice in violation of the CPA and an abuse of process. The Estate and Merkatz

alleged financial exploitation under the AVA.

      SHS filed a CR 12(b)(6) motion to dismiss the counterclaim for violation of the

CPA and the claim for noneconomic damages under the AVA. SHS asserted the

counterclaim did not allege a cause of action under the CPA. SHS argued filing the

TEDRA petition against Merkatz individually and as the personal representative of the

Estate is not an unfair or deceptive practice that impacts the public interest under the

CPA. SHS argued that because Merkatz is not a statutory beneficiary, as a matter of

law she is not entitled to noneconomic damages under the AVA. The court granted the

CR 12(b)(6) motion to dismiss the counterclaim for violation of the CPA and the

counterclaim for noneconomic damages under the AVA.

      SHS filed a motion for summary judgment dismissal of the counterclaim for

economic damages under the AVA. SHS argued billing for the services provided to

Sullivan is not financial exploitation under the AVA. The court granted the motion and

dismissed of the counterclaim against SHS for economic damages under the AVA.

       SHS filed a second motion for summary judgment on the claim against the Estate

and Merkatz for the amount owed under the terms of the Admission and Financial


                                             6
No. 77166-3-1/7

Agreement and unjust enrichment. SHS argued it was entitled to payment of $19,025

for the care of Sullivan from December 15, 2013 to February 4, 2014. In opposition, the

Estate and Merkatz argued the Notice of Medicare Non-Coverage was an invalid

"'contract' extension for care." Merkatz asserted she was not responsible for payment

under the Admission and Financial Agreement. SHS argued the Notice of Medicare

Non-Coverage did not modify the terms of the Admission and Financial Agreement.

      The court dismissed the claim against Merkatz individually. The court ruled

under the terms of the Admission and Financial Agreement and unjust enrichment, the

Estate must pay SHS for services from December 15 to February 4. The court ordered

the Estate to pay $19,025 with interest "both under the contract and based upon unjust

enrichment."

      SHS filed a motion for attorney fees and costs against the Estate under the terms

of the Admission and Financial Agreement and TEDRA, RCW 11.69A.150. The court

entered an order awarding SHS $44,426.94. The court did not enter findings of fact on

the amount of fees. The order states the award is "against all defendants jointly and

severally other than Deanna Merkatz, who shall have no responsibility for payment."

                                       ANALYSIS

A. CR 12(b)(6) Dismissal

       The Estate and Merkatz contend the court erred by granting the CR 12(b)(6)

motion to dismiss the counterclaim for violation of the CPA and the counterclaim for

noneconomic damages under the AVA.

       We review an order dismissing a claim under CR 12(b)(6) de novo. Kinney v.

Cook 159 Wn.2d 837, 842, 154 P.3d 206(2007). Dismissal under CR 12(b)(6) is


                                            7
No. 77166-3-1/8

warranted only if we conclude, beyond a doubt, the plaintiff cannot prove "'any set of

facts which would justify recovery.'" Kinney, 159 Wn.2d at 842(quoting Tenore v.

AT&T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). On a CR

12(b)(6) motion, the trial court must not consider testimony outside the pleadings.

Brown v. MacPherson's, Inc., 86 Wn.2d 293, 297, 545 P.2d 13(1975). "Washington is

a notice pleading state and merely requires a simple, concise statement of the claim

and the relief sought." Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342,

352, 144 P.3d 276 (2006); CR 8(a).

       1. CPA Claim

       The Estate and Merkatz claim filing a lawsuit against Merkatz individually to

collect a "debt" is an unfair and deceptive act occurring in trade or commerce that

"affects the public interest."

       The CPA prohibits "[unfair methods of competition and unfair or deceptive acts

or practices in the conduct of any trade or commerce." RCW 19.86.020. Hangman

Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 783, 719 P.2d 531

(1986). We liberally construe the CPA. RCW 19.86.920; Panag v. Farmers Ins. Co. of

Wash., 166 Wn.2d 27, 37, 204 P.3d 885(2009). "Any person who is injured in his or

her business or property by a violation of" the CPA may file a civil action. RCW

19.86.090.

       To establish a violation of the CPA,the plaintiff must prove (1)the defendant

engaged in an unfair or deceptive act or practice,(2)the act occurred in trade or

commerce,(3) the act impacts the public interest,(4) the plaintiff suffered injury to his or

her business or property, and (5)the injury was causally related to the unfair or


                                             8
No. 77166-3-1/9

deceptive act. Panaq, 166 Wn.2d at 37. A plaintiff must establish all five elements to

prevail on a CPA claim. Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc.,

162 Wn.2d 59, 74, 170 P.3d 10(2007).

       Whether the allegations in the complaint allege a CPA claim is a question of law

that we review de novo. Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133,

150, 930 P.2d 288(1997). In the counterclaim, the Estate and Merkatz do not allege

that filing a TEDRA petition against Merkatz to obtain payment for health care services

impacts the public interest.

       To establish an act or practice impacts the public interest, the complaint must

allege a real and substantial potential for repetition, "'as opposed to a hypothetical

possibility of an isolated unfair or deceptive act's being repeated.'" Michael v.

Mosguera-Lacy, 165 Wn.2d 595, 604-05, 200 P.3d 695(2009)(quoting Eastlake

Constr. Co. v. Hess, 102 Wn.2d 30, 52,686 P.2d 465 (1984)). In determining whether

an alleged deceptive act or practice affects the public interest, the court evaluates four

factors: (1) whether the alleged acts were committed in the course of defendant's

business;(2) whether the defendant advertised to the public in general;(3) whether the

defendant actively solicited this particular plaintiff, indicating potential solicitation of

others; and (4) whether the plaintiff and defendant have unequal bargaining positions.

Hangman Ridge, 105 Wn.2d at 790-91. These factors are not exclusive; no one factor

is dispositive and it is not necessary that all factors be present. Hangman Ridge, 105

Wn.2d at 791.




                                                9
No. 77166-3-1/10

       The counterclaim alleges violation of RCW 19.86.093.2 The counterclaim

alleges, in pertinent part:

       Defendant Deanna Merkatz, individually, bears no liability and is not a
       proper party to the Plaintiff's Complaint. Suing Deanna Merkatz
       personally is an abuse of process and a deceptive act or practice in
       violation of the Consumer Protection Act. As a result she has incurred
       personal legal expenses and fees. She has suffered damages to her
       name and business.

               ... The Plaintiff skilled nursing facility, and its Administrator, as to
       vulnerable adult Lawrence X. Sullivan, a dementia patient now-deceased,
       violated the Consumer Protection Act by engaging in unfair and deceptive
       acts or practices in the conduct of the Plaintiffs business subjecting
       Plaintiff and its Administrator to treble damages, litigation expenses,
       expert witness fees, and attorney fees incurred by Defendants.

       The lawsuit filed by SHS to collect payment for services is a private dispute that

does not impact the public interest. The counterclaim does not allege SHS advertised

to the public, actively solicited Merkatz or Sullivan, or there was a "pattern of

generalized course of conduct" creating a "real and substantial potential for repetition of

defendant's conduct." Eifler v. Shurgard Capital Mgmt. Corp., 71 Wn. App. 684, 697,

861 P.2d 1071 (1993).

       The Estate and Merkatz cite Panag to argue the SHS Admission and Financial

Agreement impacts the public interest. Panag does not support their argument. In

Panag, the Washington Supreme Court concluded unregulated debt collection could

constitute a violation of the CPA "when a collection agency holds itself out as collecting


       2 RCW   19.86.093 states:
       In a private action in which an unfair or deceptive act or practice is alleged under RCW
       19.86.020, a claimant may establish that the act or practice is injurious to the public
       interest because it:
               (1) Violates a statute that incorporates this chapter;
               (2) Violates a statute that contains a specific legislative declaration of public
       interest impact; or
               (3)(a) Injured other persons;(b) had the capacity to injure other persons; or (c)
       has the capacity to injure other persons.
                                                   10
No. 77166-3-1/11

a liquidated debt when, in fact, it is pursuing recovery of an unadjudicated insurance

subrogation claim." Panaq, 166 Wn.2d at 54-55. For the first time in the reply brief on

appeal, the Estate and Merkatz argue filing the lawsuit against Merkatz individually

impacts the public interest because the Admission and Financial Agreement violates 42

C.F.R. § 483.15(a)(3).3 We do not consider arguments raised for the first time in the

reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d

549(1992). We conclude the court did not err by granting the CR 12(b)(6) motion to

dismiss the counterclaim for violation of the CPA.

      2. Noneconomic Damages under the AVA

       We also conclude the court did not err in dismissing the counterclaim for

noneconomic damages under CR 12(b)(6). The AVA establishes a cause of action to

protect vulnerable adults from abandonment, abuse, financial exploitation, or neglect.

RCW 74.34.200. RCW 74.34.210 allows a party to file a claim for noneconomic

damages after the death of a vulnerable adult for the benefit of the decedent's

beneficiaries as defined by RCW 4.20.020. RCW 74.34.210 states, in pertinent part:

      An action for damages under this chapter may be brought by the
      vulnerable adult, or where necessary, by his or her family members and/or
      guardian or legal fiduciary. The death of the vulnerable adult shall not
      deprive the court of jurisdiction over a petition or claim brought under this
      chapter. Upon petition, after the death of the vulnerable adult, the riqht to
      initiate or maintain the action shall be transferred to the executor or
      administrator of the deceased, for recovery of all damaqes for the benefit
      of the deceased person's beneficiaries set forth in chapter 4.20 RCW or if



      3 42 C.F.R. § 483.15(a)(3) provides:

      The facility must not request or require a third party guarantee of payment to the facility as
      a condition of admission or expedited admission, or continued stay in the facility.
      However, the facility may request and require a resident representative who has legal
      access to a resident's income or resources available to pay for facility care to sign a
      contract, without incurring personal financial liability, to provide facility payment from the
      resident's income or resources.
                                                   11
No. 77166-3-1/12

        there are no beneficiaries, then for recovery of all economic losses
        sustained by the deceased person's estate.[4]

        RCW 4.20.020 states:

        Every such action shall be for the benefit of the wife, husband, state
        registered domestic partner, child or children, including stepchildren, of the
        person whose death shall have been so caused. If there be no wife,
        husband, state registered domestic partner, or such child or children, such
        action may be maintained for the benefit of the parents, sisters, or
        brothers, who may be dependent upon the deceased for support, and who
        are resident within the United States at the time of his or her death.

        In the answer and counterclaim, Merkatz identifies herself as the "niece of

decedent." The niece of a decedent is "not among the beneficiaries on whose behalf

the decedent's personal representative can maintain a cause of action." Tait v. Wahl,

97 Wn. App. 765, 769-70, 987 P.2d 127 (1999); RCW 4.20.020.

B. Summary Judgment Dismissal

        The Estate and Merkatz contend the court erred by granting summary judgment

dismissal of the counterclaim for economic damages under the AVA and ordering the

Estate to pay $19,025 for services provided from December 15, 2013 to February 4,

2014.

        We review summary judgment de novo. Keck v. Collins, 184 Wn.2d 358, 370,

357 P.3d 1080(2015). A party is entitled to summary judgment only if no genuine issue

exists as to any material fact and the moving party is entitled to judgment as a matter of

law. CR 56(c); Keck, 184 Wn.2d at 370. We engage in the same inquiry as the trial

court, viewing the facts and all reasonable inferences in the light most favorable to the

nonmoving party. Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d




        4   Emphasis added.

                                             12
No. 77166-3-1/13

1220 (2005). When reasonable minds could reach but one conclusion, summary

judgment is appropriate. Owen, 153 Wn.2d at 788.

       1. Economic Damages under the AVA

       The Estate and Merkatz claim that because SHS financially exploited Sullivan,

genuine issues of material fact preclude summary judgment on the claim for economic

damages under the AVA.

       The AVA protects vulnerable adults from financial exploitation. RCW 74.34.200.

The Estate and Merkatz contend the Admission and Financial Agreement violates the

AVA. RCW 74.34.020(7) defines "financial exploitation" as follows:

      [T]he illegal or improper use, control over, or withholding of the property,
      income, resources, or trust funds of the vulnerable adult by any person or
      entity for any person's or entity's profit or advantage other than for the
      vulnerable adult's profit or advantage.

       The court interprets a statute de novo. In re Estate of Kissinger, 166 Wn.2d 120,

125, 206 P.3d 665(2009). If the plain language is subject to only one interpretation, the

inquiry ends. HomeStreet, Inc. v. Dep't of Revenue, 166 Wn.2d 444,451, 210 P.3d 297

(2009). The plain language of RCW 74.34.020(7) states that financial exploitation is the

"illegal or improper use, control over, or withholding of the property" of a vulnerable

adult for the advantage of a person or entity "other than for the vulnerable adult[ ]."

       The Estate and Merkatz cannot show financial exploitation because the costs

incurred for the nursing services and care were for Sullivan's "advantage." The

undisputed record shows SHS provided room and board, restorative care, and nursing




                                             13
No. 77166-3-1/14

services for 94-year-old Sullivan.5

        2. Order To Pay SHS for Services

        The Estate and Merkatz contend the court erred by granting summary judgment

on the claim for $19,025. The Estate and Merkatz argue the charges accrued after

Sullivan reached "maximum potential" under Medicare and there is a material issue of

fact as to whether Sullivan was competent to agree to remain in the facility after

Medicare coverage ended.

        The interpretation of an unambiguous contract is a question of law and may be

resolved by summary judgment. In re Estates of Wahl, 99 Wn.2d 828, 831,664 P.2d

1250 (1983). Summary judgment as to a contract interpretation is proper if the parties'

written contract, viewed in light of the parties' other objective manifestations, has only

one reasonable meaning. GMAC v. Everett Chevrolet, Inc., 179 Wn. App. 126, 135,

317 P.3d 1074(2014).

        Below and on appeal, the Estate and Merkatz characterize the Advance

Beneficiary Notice as a modification of the terms of the Admission and Financial

Agreement. The Estate and Merkatz contend there are material issues of fact as to

whether Sullivan was competent to sign and inform Merkatz of the modification.

        The burden of proving modification of a contract is on the party asserting it.

Flowery. T.R.A. Indus., Inc., 127 Wn. App. 13, 28, 111 P.3d 1192(2005). One party

may not unilaterally modify a contract. Jones v. Best, 134 Wn.2d 232, 240, 950 P.2d 1

         5 The federal and state regulations the Estate and Merkatz cite do not create a genuine issue of
material fact. See WAC XXX-XX-XXXX ("nursing home" must determine whether resident has a surrogate
decision maker); WAC XXX-XX-XXXX (nursing home must ensure informed consent for treatment); WAC
XXX-XX-XXXX(3)(nursing home resident has right to be informed of health status and to accept or refuse
treatment); WAC XXX-XX-XXXX(8)(prohibiting Medicare certified nursing facilities from charging for any
item or service not requested by resident); 42 C.F.R.§ 483.10(c)(resident of long term care facility has
right to be informed of and participate in care); 42 C.F.R.§ 483.15 (admission, transfer, and discharge
rights of residents in long term care facilities).
                                                   14
No. 77166-3-1/15

(1998). "Mutual modification of a contract by subsequent agreement arises out of the

intentions of the parties and requires a meeting of the minds." Jones, 134 Wn.2d at

240. "'Without a mutual change of obligations or rights, a subsequent agreement lacks

consideration and cannot serve as modification of an existing contract.'" Flower, 127

Wn. App. at 27-28 (quoting Ebling v. Gove's Cove, Inc., 34 Wn. App. 495, 499, 663

P.2d 132(1983)).

       The Advance Beneficiary Notice is not a "'mutual change of obligations or

rights' "under the Admission and Financial Agreement. Flower, 127 Wn. App. at 27-28

(quoting Ebling, 34 Wn. App. at 499). The Admission and Financial Agreement

explicitly states that when Medicare coverage ended, Sullivan agreed to pay for SHS's

services out-of-pocket. The Advance Beneficiary Notice informed Sullivan that

Medicare coverage was ending and that he could elect to pay for further physical or

occupational therapy or decide not to pay. Sullivan declined to pay for further therapies.

       Under the plain and unambiguous language of the Advance Beneficiary Notice

and Notice of Medicare Non-Coverage, Sullivan elected not to receive only physical

therapy and occupational therapy. Merkatz signed the Admission and Financial

Agreement as the "Responsible Party."6 Merkatz consented and agreed as the

Responsible Party to pay for "nursing services provided by" SHS. Merkatz agreed to

pay SHS from Sullivan's "income or resources legally available for payment of such

obligations." The plain and unambiguous language of the Admission and Financial

Agreement states SHS accepts third party payment, including Medicare; and Merkatz




       6 The undisputed record shows SHS did not receive the Durable Power of Attorney
documentation until January 28, 2014.
                                                15
No. 77166-3-1/16

agreed to pay "all charges for any period [Sullivan] is determined to be ineligible for the

program involved" and "any balance not paid by third party payers."

       For the first time in the reply brief, the Estate and Merkatz cite 42 C.F.R.§

483.15(a)(3) to argue the Admission and Financial Agreement is void and

unenforceable. Under RAP 9.12, we do not consider an argument that was not raised

below on summary judgment. See also Cowiche Canyon, 118 Wn.2d at 809 (court will

not consider issue raised for the first time in a reply brief).

       We conclude the court did not err by granting summary judgment and ordering

the Estate to pay SHS $19,025 under the Admission and Financial Agreement and

unjust enrichment.

C. Attorney Fees

       The Estate and Merkatz contend the court abused its discretion by awarding

SHS attorney fees and costs for time spent on the CPA and AVA counterclaims. The

Estate and Merkatz contend the attorneys did not provide sufficient documentation of

the work performed, legal invoices include inadmissible hearsay, and the court abused

its discretion by including paralegal fees in the award without considering factors under

Absher Construction Co. v. Kent School District No. 415, 79 Wn. App. 841, 845, 917

P.2d 1086 (1995).

       We review the award attorney of fees and the reasonableness of the award for

an abuse of discretion. Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100

(2012). We review de novo whether there is a legal basis for awarding attorney fees by

statute, under contract, or in equity. Gander, 167 Wn. App. at 647.




                                              16
No. 77166-3-1/17

       SHS is entitled to an award of attorney fees under the Admission and Financial

Agreement:

       ENFORCEMENT OF THIS AGREEMENT - This agreement shall be
       governed by the laws of the State of Washington.. . . In the event of any
       dispute arising out of the payment or nonpayment of any funds due and
       owing pursuant to this Agreement, the substantially prevailing party shall
       be entitled to an award from the other party of its reasonable attorney's
       fees and costs. . . incurred at trial, arbitration, on appeal, or in bankruptcy
       proceedings, as well as reasonable attorney's fees and costs incurred in
       collecting any award or judgment.

       The court also had discretion to award attorney fees under TEDRA. "RCW

11.96A.150 grants broad discretion to courts to award attorney fees 'in such manner as

the court determines to be equitable' in 'all proceedings governed by this title.'" In re

Estate of Berry, 189 Wn. App. 368, 379, 358 P.3d 426(2015). The authority to award

attorney fees and costs under RCW 11.96A.150 "is not limited to actions initiated under

chapter 11.96A RCW." Berry, 189 Wn. App. at 379. Under RCW 11.96A.150(1), the

court may consider "any and all factors that it deems to be relevant and appropriate."

The court did not abuse its discretion by including fees and costs SHS incurred

responding to the Estate and Merkatz's counterclaims.

       However, we conclude the court erred in failing to enter findings of fact and

conclusions of law on the award of fees. The trial court must enter findings of fact and

conclusions of law supporting its decision to award fees. Mahler v. Szucs, 135 Wn.2d

398, 434-35, 957 P.2d 632(1998). Because the trial court did not enter findings of fact

and conclusions of law supporting the reasonableness of the award of attorney fees, we

remand.

       SHS requests attorney fees and costs on appeal under RAP 18.1(a). RAP

18.1(a) allows a party to recover attorney fees on appeal if allowed under the applicable

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law. Because SHS is entitled to fees under the terms of the Admission and Financial

Agreement and TEDRA, RCW 11.96A.150, upon compliance with RAP 18.1, SHS is

entitled to an award of attorney fees and costs on appeal.

      We affirm but remand to enter findings of fact and conclusions of law on the

reasonableness of the award of attorney fees and costs.




WE CONCUR:




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