                                                                          FILED
                                                                 OCTOBER 18, 2018
                                                             In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                             DIVISION THREE

In the Matter of the Guardianship of        )
                                            )        No. 33356-6-III
JUDITH D. HOLCOMB,                          )
                                            )
             and                            )
                                            )        UNPUBLISHED OPINION
OTHER SIMILAR CASES                         )
CONSOLIDATED ON APPEAL.†                    )

      †
          No. 33357-4-III, In re Guardianship of St. Peter; No. 33358-2-III, In re
Guardianship of Wiegele; No. 33359-1-III, In re Guardianship of Daniel; No. 33360-4-
III, In re Guardianship of Adams; No. 33362-1-III, In re Trust of Hartley; No. 33363-9-
III, In re Guardianship of Ard; No. 33364-7-III, In re Guardianship of Wright; No.
33365-5-III, In re Guardianship of Friesen; No. 33366-3-III, In re Guardianship of Reed;
No. 33367-1-III, In re Guardianship of Bowers; No. 33368-0-III, In re Special Needs
Trust of Harmon; No. 33369-8-III, In re Guardianship of Cornelius; No. 33370-1-III, In
re Guardianship of Mateer; No. 33371-0-III, In re Guardianship of Harris; No. 33372-8-
III, In re Trust of Elvidge; No. 33373-6-III, In re Guardianship of Fulton; No. 33374-4-
III, In re Guardianship of Zauner; No. 33375-2-III, In re Guardianship of Martin; No.
33376-1-III, In re Guardianship of Mateer; No. 33377-9-III, In re Guardianship of
Carey; No. 33378-7-III, In re Guardianship of Olson; No. 33379-5-III, In re
Guardianship of Nalley; No. 33380-9-III, In re Guardianship of Nichols; No. 33381-7-
III, In re Guardianship of Smelcer; No. 33382-5-III, In re Guardianship of Olson; No.
33383-3-III, In re Guardianship of Fairbanks; No. 33384-1-III, In re Guardianship of
Collier; No. 33385-0-III, In re Guardianship of Blair; No. 33386-8-III, In re
Guardianship of Vogel; No. 33387-6-III, In re Guardianship of Campbell; No. 33388-4-
III, In re Guardianship of Fenske; No. 33389-2-III, In re Guardianship of Sullivan; No.
33390-6-III, In re Guardianship of Higgins; No. 33391-4-III, In re Guardianship of
Tuckerman; No. 33392-2-III, In re Guardianship of Wharton; No. 33393-1-III, In re
Guardianship of Weiland; No. 33394-9-III, In re Guardianship of Vingo; No. 33395-7-
III, In re Guardianship of Morales; No. 33396-5-III, In re Guardianship of Morales; No.
33397-3-III, In re Guardianship of Moore; No. 33398-1-III, In re Guardianship of
No. 33356-6-III
In re Guardianship of Holcomb, et al.




Stanich; No. 33399-0-III, In re Guardianship of Hopper; No. 33400-7-III, In re
Guardianship of Taylor; No. 33401-5-III, In re Guardianship of Rosser; No. 33402-3-III,
In re Guardianship of Reinhardt; No. 33403-1-III, In re Guardianship of Fry; No. 33404-
0-III, In re Guardianship of Edgar; No. 33405-8-III, In re Guardianship of Pitner; No.
33406-6-III, In re Guardianship of Baker; No. 33407-4-III, In re Guardianship of
Williams; No. 33408-2-III, In re Guardianship of Wells; No. 33409-1-III, In re
Guardianship of Alden; No. 33410-4-III, In re Guardianship of Stephens; No. 33411-2-
III, In re Guardianship of Torpey; No. 33414-7-III, In re Guardianship of Gehring; No.
33444-9-III, In re Guardianship of Brangwin; No. 33445-7-III, In re Guardianship of
Anderson; No. 33446-5-III, In re Guardianship of Anderson; No. 33447-3-III, In re
Guardianship of Baldwin; No. 33448-1-III, In re Guardianship of Baldwin; No. 33449-0-
III, In re Guardianship of Blair-Robbins; No. 33450-3-III, In re Guardianship of Bloyed;
No. 33451-1-III, In re Guardianship of Brady; No. 33452-0-III, In re Guardianship of
Bowen; No. 33453-8-III, In re Guardianship of Claycomb; No. 33454-6-III, In re
Guardianship of Dahl; No. 33455-4-III, In re Guardianship of Delorenzo; No. 33456-2-
III, In re Guardianship of Demary; No. 33457-1-III, In re Guardianship of Desjardins;
No. 33458-9-III, In re Guardianship of Eberhart; No. 33459-7-III, In re Guardianship of
Eisenman; No. 33460-1-III, In re Guardianship of Foster; No. 33461-9-III, In re
Guardianship of Futo; No. 33462-7-III, In re Guardianship of Garcia; No. 33463-5-III,
In re Guardianship of Haliwell; No. 33464-3-III, In re Guardianship of Harrington; No.
33465-1-III, In re Guardianship of Hinds; No. 33466-0-III, In re Guardianship of House;
No. 33467-8-III, In re Guardianship of Howard; No. 33468-6-III, In re Guardianship of
Jenkins; No. 33469-4-III, In re Guardianship of Laird; No. 33470-8-III, In re
Guardianship of Lee; No. 33471-6-III, In re Guardianship of Loss; No. 33472-4-III, In re
Guardianship of Love; No. 33473-2-III, In re Guardianship of Mally; No. 33474-1-III, In
re Guardianship of May; No. 33475-9-III, In re Guardianship of McKinsey; No. 33476-
7-III, In re Guardianship of McLellan; No. 33477-5-III, In re Guardianship of McMorris;
No. 33478-3-III, In re Guardianship of Melendrez; No. 33479-1-III, In re Guardianship
of Melton; No. 33480-5-III, In re Guardianship of Miller; No. 33481-3-III, In re
Guardianship of Milton; No. 33482-1-III, In re Guardianship of Mitchell; No. 33483-0-
III, In re Guardianship of Morris; No. 33484-8-III, In re Guardianship of Naylor; No.
33485-6-III, In re Guardianship of Oppengaard; No. 33486-4-III, In re Guardianship of
Palmer; No. 33487-2-III, In re Guardianship of Rice; No. 33488-1-III, In re Gurdianship
of Rivero; No. 33489-9-III, In re Guardianship of Roberts; No. 33490-2-III, In re
Guardianship of Seeman; No. 33491-1-III, In re Guardianship of Shaw; No. 33492-9-III,
In re Guardianship of Slater; No. 33493-7-III, In re Guardianship of Smith; No. 33494-5-
III, In re Guardianship of Boyd; No. 33495-3-III, In re Guardianship of Stephenson; No.
                                            2
No. 33356-6-III
In re Guardianship of Holcomb, et al.


       SIDDOWAY, J. — After Lori Petersen, a certified professional guardian (CPG),

received a one-year disciplinary suspension, the Spokane County Superior Court

undertook judicial review not only of cases in which she served as guardian, but of cases

assigned to a CPG agency (CPGA) with which she was associated. Following costly

proceedings in which replacement guardians were appointed in every case, the court

assessed costs of the procedure against her and the corporate operator of the agencies.

       The costs were assessed without due process, including without affording the

CPGA an opportunity to challenge facts outside the record on which assessment

decisions were based. We reverse the money judgments only, and remand for further

proceedings consistent with this opinion. We retain jurisdiction for one reason only: the

administrative inconvenience to the courts and the parties that would be presented should

the conduct of further hearings result in over 120 new appeals. Our retention of

jurisdiction should not be viewed as reflecting any view of the merits or any belief that a

further appeal is expected.



33496-1-III, In re Guardianship of Sternberg; No. 33497-0-III, In re Guardianship of
Stocker; No. 33498-8-III, In re Guardianship of Storrud; No. 33499-6-III, In re
Guardianship of Tiffany; No. 33500-3-III, In re Guardianship of Underwood; No. 33501-
1-III, In re Guardianship of White; No. 33502-0-III, In Guardianship of Withers; No.
33503-8-III, In re Guardianship of Baker; No. 33504-6-III, In re Guardianship of
McCoy; No. 33505-4-III, In re Guardianship of McDirmid; No. 33506-2-III, In re
Guardianship of Trimble; No. 33507-1-III, In re Guardianship of Zingale; No. 33508-9-
III, In re Guardianship of Leach; No. 33601-8-III, In re Guardianship of Getchell.
                                             3
No. 33356-6-III
In re Guardianship of Holcomb, et al.


                          BACKGROUND OF PROCEEDINGS

       Lori Petersen became a CPG in 2001. See In re Disciplinary Proceeding Against

Petersen, 180 Wn.2d 768, 773, 329 P.3d 853 (2014). In April 2012, the Certified

Professional Guardian Board served her with a complaint charging her with violating

standards of practice. Id. at 774-75. The charges and Ms. Petersen’s defense were

presented to a hearing officer in October 2012. Id. at 775. He entered findings,

conclusions, and a recommendation that Ms. Petersen be suspended from serving as a

CPG for 1 year and monitored for 24 months thereafter. Id. at 779. The Board adopted

the hearing officer’s recommendations but reduced the costs he had recommended be

imposed. Id.

       The record and recommendation were submitted to the Washington Supreme

Court for review. It questioned only the proportionality of the costs imposed by the

Board. Id. After a remand in which the Board made a further substantial reduction in the

costs imposed to $7,500.00, the court affirmed and adopted the Board’s recommendation

in an order dated March 13, 2015. During the almost three years of proceedings leading

up to the March 2015 order, the Board did not impose an interim suspension on Ms.

Petersen, which it was authorized to do if there was a substantial risk of injury to the




                                              4
No. 33356-6-III
In re Guardianship of Holcomb, et al.


public. Petersen, 180 Wn.2d at 789 (citing former DR1 519).

       The Supreme Court’s order directed that Ms. Petersen’s suspension become

effective on March 20, 2015. In response to a motion to stay the suspension filed with

the Supreme Court by Ms. Petersen on March 18, the court granted a stay to April 27,

2015, to allow her “to work with the Certified Professional Guardian Board to ensure

proper representation of her clients and the transition of the representation of her clients

to successor certified professional guardians.” Clerk’s Papers (CP) at 67.

       At the time of the Supreme Court’s order, Ms. Petersen operated as a CPG doing

business as Empire Care Services or Empire Care and Guardianship (Empire). The

Supreme Court’s July 2014 decision characterized Empire as an agency that Ms. Petersen

“owns and operates” and described it as “serv[ing] over 60 wards.” Petersen, 180 Wn.2d

at 773. By Ms. Petersen’s count at the time, 37 of the wards she served were subject to

guardianships ordered and being supervised by the Spokane County Superior Court.

       At the time of the Supreme Court’s order affirming her suspension, Ms. Petersen

was also an employee of Hallmark Care Services, Inc. and served as a designated CPG

for two CPGAs operated by Hallmark: Castlemark Guardianship and Trust (Castlemark),

       1
         The Board’s disciplinary rules (DR) are contained within the Certified
Professional Guardianship Board’s Program Regulations, available at https://www
.courts.wa.gov/programs_orgs/guardian/?fa=guardian.display&fileName=rulesindex. In
the regulations presently appearing on the website, the Board’s authority to impose an
interim suspension where a respondent’s continued practice as a CPG poses a substantial
threat of serious harm to the public appears at DR 509.6.1.A.
                                              5
No. 33356-6-III
In re Guardianship of Holcomb, et al.


and Eagle Guardianship and Professional Services (Eagle). If she were not replaced, Ms.

Petersen’s suspension as a CPG would cause Hallmark to be out of compliance with a

Board regulation requiring CPGAs to have two designated CPGs.

       On March 17, 2015, a Spokane County court commissioner wrote to Ms. Petersen

at two business locations—one, Hallmark’s; the other, Empire’s—directing her to inform

the court in writing of her plans for her caseload, given the impending March 20 effective

date of her suspension. She was asked to deliver her answer by no later than 4:00 p.m. on

March 19. An attachment to the letter listed well over 120 pending guardianships by case

name, incapacitated person name, guardian, and standby guardian. Empire was the

assigned guardian in 32 of the cases and Ms. Petersen was the assigned guardian in 5. In

all of the other cases, the assigned guardian was Castlemark, Eagle, or Hallmark.

       Ms. Petersen’s lawyer responded to the court commissioner the next day, notifying

her that a motion had been made to stay the Supreme Court’s order to allow Ms. Petersen

time to transition her clients. He pointed out that of the cases on the commissioner’s list,

only 37 were cases in which Ms. Petersen served as guardian in her own name or in her

trade name, Empire, causing them to be directly affected by the suspension. As for the

Castlemark and Eagle cases, he informed the commissioner that Ms. Petersen would

cease working for Hallmark during the period of her suspension and that Hallmark was

working to identify a new designated CPG to replace Ms. Petersen. He stated that he had


                                             6
No. 33356-6-III
In re Guardianship of Holcomb, et al.


notified the Board of the change in agency status in light of Ms. Petersen’s suspension

and that Hallmark had 60 days to find a new CPG, citing Board DR 706.3.

      Ms. Petersen’s lawyer later filed a notice of appearance for Hallmark. Given the

predominance of his advocacy for Hallmark in matters relevant to this appeal, we refer to

him hereafter as Hallmark’s lawyer, although he continues to represent Ms. Petersen.

      According to a declaration Hallmark’s lawyer later filed with the court, corporate

actions were taken on April 1, 2015, by Hallmark’s shareholder, directors and officers to

address Ms. Petersen’s impending suspension. Reportedly, Keri Sandifer was elected the

sole director and officer of Hallmark and two individual CPGs in good standing, James

Whiteley and Joan Shoemaker, provided written acceptances of their appointment as

Hallmark’s two designated CPGs on that date. The lawyer’s declaration states, “After

April 1, 2015, Hallmark Care Services, Inc. had on its board, an individual qualified

pursuant to RCW 11.88.020, and had two designated CPGs, both in good standing with

the CPG Board, making the Agency compliant pursuant to GR 23(d)(2).” CP at 105. 2

      On April 7, 2015, a judge of the Spokane County Superior Court wrote to

Hallmark’s counsel and expressed disagreement with his view that only Ms. Petersen’s

and Empire’s cases were affected by Ms. Petersen’s suspension. The letter stated that the

      2
         The declaration also states that Ms. Sandifer was given a proxy by the
company’s sole shareholder, PJLA, Inc., but as discussed hereafter, rules adopted by the
Washington Supreme Court do not treat ownership of the capital stock of a CPGA as
relevant to certification.
                                            7
No. 33356-6-III
In re Guardianship of Holcomb, et al.


appointment of successor guardians was at issue in all of Hallmark’s cases as well,

explaining:

              Specifically, Hallmark/Castlemark/Eagle’s ownership is in question.
       Despite inquiries by the Court on multiple occasions, ownership has always
       been stated as “confidential.” The choice to leave this inquiry unanswered
       puts Ms. Petersen’s association with any of those agencies into question.
       The Court will not appoint as a successor guardian any certified
       professional guardian associated with Hallmark or with entities falling
       under the Hallmark umbrella.

CP at 56.

                                     PROCEEDINGS

       On the same day that the superior court judge informed Hallmark’s counsel that all

of its cases would be transitioned to a successor guardian, a second superior court judge

signed an order appointing a special master “to oversee the transition to and appointment

of successor guardians for incapacitated persons serviced by . . . Lori Petersen and the

agencies of which she is a designated CPG or standby guardian.” CP at 94. The order

was uncaptioned other than to say, “In the Guardianship of: ____ An Incapacitated

Person” and bore no case number. A copy of the order was mailed to Hallmark’s lawyer.

       In a contemporaneous letter, the first superior court judge wrote to persons serving

as guardians ad litem (GAL) in Spokane County that the suspension of Ms. Petersen

“affects 125 cases in Spokane County,” causing it to appoint a special master “to oversee

the transition of the 125 cases currently assigned to Ms. Petersen and/or agencies with

which she is involved.” CP at 58. It explained:
                                            8
No. 33356-6-III
In re Guardianship of Holcomb, et al.


      The court will assign Guardians ad Litem to each case to investigate the
      appointment of a guardian, successor guardian and/or standby guardian. Of
      the 125 cases seven are already assigned to Mr. William Dodge to
      investigate specific complaints . . . .
      . . . Ms. Ana Kemmerer[3] will assign a group of cases to each of you so the
      work can begin. If you have a conflict in a particular case please file a
      motion and the Special Master will review it. If the Special Master
      concurs, Ms. Kemmerer will arrange a trade between two Guardians ad
      Litem to eliminate the conflict and keep the caseload balanced.
      Ms. Kemmerer cannot review each case to determine if it is county or
      private pay. At a minimum your reasonable fees will be covered at the
      county pay rate. Because generally the only issue in these cases will be
      appointment of a successor guardian and/or standby guardian, the
      maximum fee will be $500.00 without further court approval.

CP at 58-59.

      On April 10, 2015, dozens of orders were entered appointing GALs and

scheduling review hearings on an expedited basis for each guardianship in which Ms.

Petersen, Empire, Castlemark, or Eagle served as guardian. Each order was captioned

with multiple case names and numbers; generally with four. In each order, the court

directed a given GAL to review court files and any other pertinent records and file a GAL

report and successor guardian recommendation on the assigned cases with the court.

Each order found good cause to shorten the period for filing the GAL reports from 15

days to 5 days before the scheduled hearing date. The order did not direct the GAL to




      3
        Ms. Kemmerer served as Guardianship Monitoring Program Coordinator within
the Spokane County Court Administrator’s Office.
                                           9
No. 33356-6-III
In re Guardianship of Holcomb, et al.


provide a copy of his or her report and recommendation to Ms. Petersen, Hallmark, or

their lawyer.

       Each order reiterated that the GAL was appointed initially at public expense and

that Spokane County would not pay more than $500 in GAL fees without further court

approval. Each contained the following additional language:

       Upon the hearing to appoint a successor guardian and/or standby guardian,
       the Court may assess all Guardian ad Litem fees as costs against Certified
       Professional Guardian, Lori Petersen, CPG #9713.

See CP at 178-647. The orders were e-mailed to Hallmark’s lawyer on April 10 and were

mailed to him on the following Monday, April 13.

       On April 16, Ms. Kemmerer forwarded a follow-up letter to the GALs from the

second superior court judge. It informed the GALs that:

       No certified Professional Guardian or agency affiliated with Ms. Lori
       Petersen should be appointed as Guardian or Standby Guardian. That
       therefore excludes any CPG affiliated with the Hallmark, Castlemark,
       and Eagle agencies, including but not limited to Joan Shoemaker and
       James Whiteley, from being appointed.

CP at 76. On April 19, Ms. Shoemaker resigned as a designated CPG for Hallmark,

reportedly because she received a telephone call from an employee of the Administrative

Office of the Courts informing her that if she continued as a CPG for Hallmark, she

would lose all her guardianship cases. Hallmark’s lawyer later represented to the court

that Mr. Whiteley had received a similar call.


                                            10
No. 33356-6-III
In re Guardianship of Holcomb, et al.


       On April 17, 2015, Hallmark’s lawyer filed a motion for reconsideration of the

order appointing the special master, specifically challenging its directive to transition

guardianship cases to guardians other than Hallmark dba Castlemark and Eagle.

Hallmark posed a number of questions about events leading to the court’s order and

challenged the court’s jurisdiction to take actions against Hallmark that it characterized as

disciplinary, and therefore the exclusive province of the Board.

       The court heard argument of the motion for reconsideration on May 15, 2015, and

announced its decision a couple of days later. In orally announcing its decision, the court

stated that in appointing the special master it had relied on its authority under RCW

11.88.120(1) and (4) and that the order appointing the special master did only two things:

appointed a special master and ordered Ms. Petersen to post a surety bond (the court

granted Ms. Petersen’s challenge to the surety bond requirement). The court stated, “The

order that I signed does not remove Hallmark from any case nor does it order the

appointment of a guardian in any case.” Report of Proceedings (RP) (May 18, 2015) at 4.

       Later, however, the court stated:

              Ms. Petersen is not now listed as a director or officer of the agency
       but there are concerns about ownership or other positions within the
       agency. This is important and necessary information because clearly the
       CPG Board and Supreme Court did not want Ms. Petersen, who has been
       found to have committed professional misconduct, involved in any
       guardianship actions.
              [Hallmark’s lawyer] at argument noted there had been a change in
       directors and officers of the agency and said there was quote, no possibility
                                             11
No. 33356-6-III
In re Guardianship of Holcomb, et al.


       of outside influence in the matter, closed quote. That’s the heart of the
       issue in these cases completely. While Ms. Petersen may no longer be
       employed as a CPG with Hallmark or serving as an officer or director, there
       is a very valid concern based upon past history and lack of full disclosure,
       that she continues to be connected in some other way and still has access to
       and involvement with these vulnerable IPs. Having not received, even to
       this day, some positive affirmation from Hallmark that Ms. Petersen is no
       longer involved in any way or benefiting financially at all from any
       guardianship matters, this Court is not inclined to allow those agencies to
       be considered as guardian or standby guardian in these matters.

Id. at 8-9. A written order denying the motion for reconsideration was later entered and

identified only the respects in which the motion was granted and denied, without making

findings or stating reasons.

       Meanwhile, the review hearings had begun on May 4, 2015, and they continued

through June 4, 2015, before two superior court commissioners. Counsel for Hallmark

was present for each of the review hearings. At one of the initial hearings, he challenged

the superior court’s jurisdiction, its authority to remove Hallmark, and the process it had

used and was using to remove Hallmark and Ms. Petersen. Hallmark also filed a

response and objection to the order appointing the guardian ad litem in three of the cause

numbers, and it renewed that objection by reference at most of the hearings.

       At each hearing, the GAL summarized his or her report and recommended a

successor GAL. At the first hearing on May 4, Hallmark’s lawyer indicated he had not

yet received copies of any GAL reports. The court responded that it would have the

GALs provide a copy of the reports as they went through the process. At oral argument

                                             12
No. 33356-6-III
In re Guardianship of Holcomb, et al.


of this appeal, Hallmark’s lawyer stated that he never received copies of the GAL reports

in advance of the subject hearings, but he was sometimes provided with a copy of the

report at the hearing itself. See Wash. Ct. App. oral argument, In re Guardianship of

Holcomb, No. 33356-6-III (May 3, 2018) at 6 min., 41 sec. through 7 min., 17 sec.

(available at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets

/index.cfm?fa=appellateDockets.showDateList&courtId=a03&archive=y).

      Although some of the GALs did not report any concerns about the care provided

by Ms. Petersen, Empire, Castlemark, or Eagle, a number did. Among concerns

expressed in individual cases were

              mismanagement of trust funds;
              charging excessive or improper guardianship fees for clients with
               limited funds;
              providing insufficient personal allowance to the incapacitated person;
              failure to perform visits of the incapacitated person;
              failure to file periodic care plans or status reports;
              filing falsified or improper periodic care plan reports;
              failing to list a current address for the incapacitated person in the
               guardianship file;
              improper care; and
              complaints from caregivers concerning lack of communications from
               the guardian.

Some of these concerns were raised by the court and the GALs’ review of the

guardianship files, and some were raised by the caretakers or family members of the

incapacitated person.


                                           13
No. 33356-6-III
In re Guardianship of Holcomb, et al.


       None of the GALs sought appointment of a successor CPG because of a concern

that Ms. Petersen might exercise control over Castlemark or Eagle or benefit financially

from its operations during the period of her suspension. None contended that she had

been insufficiently forthcoming about her role at Hallmark or that Hallmark was in chaos.

The commissioners sometimes explained their appointment decisions or responded to

Hallmark’s procedural objections by referring to these matters, but it was not based on

any evidence presented by GALs during the review hearings.4

       The amount of requested GAL fees was discussed on the record at some of the

hearings, but there were many hearings where the amount of fees requested was never

discussed. While both court commissioners allowed GALs to present fee requests at the

review hearings, both stated at various times that the court was not signing on the fees at

that time. See RP (May 7, 2015) at 49-50, 82; RP Supp. (May 4, 2015) at 13-14, (May

14, 2015) at 250. Instead, the commissioners repeatedly stated during review hearings

that they were reserving the issue of reimbursement to Spokane County for the approved

GAL fees pending further court review. Each order appointing a successor guardian also



       4
         A declaration of Ms. Kemmerer containing some of this information had been
filed in opposition to Hallmark’s and Ms. Peterson’s motion for reconsideration of the
order appointing a special master but it was not a part of the evidence presented in the
review hearings.


                                            14
No. 33356-6-III
In re Guardianship of Holcomb, et al.


stated that the court was reserving the issue of reimbursement pending further court

review.5

       A week following the conclusion of the review hearings, and without further

notice or proceedings, the commissioners began entering judgments assessing GAL fees

against Hallmark or Lori Petersen/Empire in all of the cases in which the incapacitated

person lacked assets to pay. Each judgment indicated that the court found that the GAL

fees incurred were reasonable and that “[t]he GAL investigation was necessitated by the

suspension of Lori Petersen as a CPG in this matter and her association with related

agencies.” CP at 3175-4364. On the second page of each judgment entered against

Hallmark, the court further found that:

       [A]lthough the agency in this case is not one in which Lori Peterson is the
       designated CPG, it has failed to disclose the interest that Ms. Peterson has
       in the agency and the degree of control that she has over the agency despite
       the requests of the court. Ms. Peterson has also served as the designated
       CPG for this agency and her activities were not overseen by the agency
       appropriately and as a result she was suspended. Furthermore, the agency
       has been in chaos with rapidly changing CPG designations. There have
       been numerous complaints from IPs, caregivers and others about lack of
       contact, lack of response to concerns raised about care and in some cases
       complaints about financial improprieties. The court has seen many
       instances of inaccurate and outdated information provided to it in annual
       reports. These acts and/or omissions have resulted in breaches of the
       fiduciary duty that the guardian owes to its IPs. Effective May 18, 2015,
       the agency, because of the recent resignation of one of the designated CPGs

       5
         In some cases this language was included in a separate addendum order entered
at the same time as the order appointing guardian, rather than in the order appointing
guardian.
                                           15
No. 33356-6-III
In re Guardianship of Holcomb, et al.


      will not have the requisite two CPGs to conduct business and effective June
      30, 2015, the resignation of the other CPG will mean that it will have no
      CPGs to conduct business and thus it does not appear that the agency can
      provide the assurance of viability beyond that date. For all these reasons,
      and based upon additional findings of the court as articulated on the record
      in these related proceedings and incorporated by reference herein, the CPG
      agency is presently unsuitable to be appointed as a successor guardian and
      that has necessitated the need of the court to appoint a GAL to investigate
      and recommend a successor guardian to insure continuity of care for the
      incapacitated persons under its jurisdiction.

Id. at 4140. Upon entry, copies of the money judgments were served on Hallmark’s

attorney. Hallmark and Ms. Petersen appeal.

                                        ANALYSIS

                          Issues on appeal and motion to strike

      Hallmark and Ms. Petersen initially appealed three orders in each of more than

120 guardianship cases: the order appointing the special master; the order removing

appellants as guardians and appointing a successor guardian; and the judgment assessing

GAL fees against one of them. We consolidated the cases for appeal. The Spokane

County Guardianship Monitoring Program (GM Program), a program within the county’s

superior court administrator’s office, sought and was granted special amicus status to

respond to Hallmark’s pleadings on appeal.

      In response to this court’s motion to determine appealability, the parties briefed

and our court commissioner heard argument on whether Ms. Petersen and Hallmark had

standing to appeal their removal as guardians. Finding that Ms. Petersen and Hallmark

                                             16
No. 33356-6-III
In re Guardianship of Holcomb, et al.


were not aggrieved parties with respect to the orders appointing a special master and

removing them as guardians, our commissioner dismissed the appeal of those categories

of orders, leaving the judgments assessing GAL fees as the sole subject matter of this

appeal. Commissioner’s Ruling, In re Guardianship of Holcomb, No. 33356-6-III

(Wash. Ct. App. Aug. 26, 2015) at 22-23. Hallmark and Ms. Petersen did not move to

modify the commissioner’s ruling.

       As a threshold matter, the GM Program asks us to strike portions of Hallmark’s

and Ms. Petersen’s opening brief,6 which it contends violates our commissioner’s prior

orders as well as provisions of the Rules on Appeal. The opening brief does include

material that our commissioner deemed relevant only to dismissed matters, but with the

benefit of hindsight, background on Hallmark’s and Ms. Petersen’s objections to the

procedure followed in the superior court proves to be relevant. Hallmark and Ms.

Petersen evidently foresaw that the superior court’s authority to assess GAL fees against

them would be defended on the basis that all actions taken in response to Ms. Petersen’s

suspension were an “emergent necessity,” as the GM Program argues on appeal. Br. of

Amicus Curiae at 12. Hallmark’s and Ms. Petersen’s objections to the procedure in the

trial court calls into question that defense of the process.


       6
         Hallmark’s and Ms. Petersen’s operative opening brief is their second. They
were ordered by our court commissioner to remove portions of their first opening brief
related to matters that were dismissed.
                                              17
No. 33356-6-III
In re Guardianship of Holcomb, et al.


       The GM Program’s argument that Hallmark and Ms. Petersen violated the Rules

of Appellate Procedure by failing to cite to all relevant portions of the record supporting

their assertions of fact is also true. But the same can be said for some statements of fact

in the GM Program’s brief. We recognize that an appeal that involves separate

submissions and proceedings in over 120 cases makes complete compliance with RAP

10.3(a)(5) and 10.4(f) onerous and perhaps prohibitively expensive. Both parties did a

sufficient job of providing record citations for important and contested matters. Neither

parties’ briefing has hampered the work of the court.

       We turn to the dispositive issue that remains before us following our

commissioner’s unappealed order as to the scope of the appeal: Whether the superior

court violated CR 54(f)(2) and Hallmark’s and Ms. Petersen’s due process rights when it

filed judgments requiring Ms. Petersen and Hallmark to reimburse Spokane County for

the GAL fees incurred in each of the cases.

                    Violation of CR 54(f)(2) and denial of due process

       Hallmark and Ms. Petersen argue that the money judgments entered against them

violated CR 54(f)(2), which requires five days’ notice of presentation of a judgment.

They also allege a violation of due process, where the court commissioners consistently

represented that the issue of assessment of the fees against Ms. Petersen was being

reserved, and Hallmark never received notice that assessment of fees against it was even


                                              18
No. 33356-6-III
In re Guardianship of Holcomb, et al.


being considered. At oral argument of the appeal, the GM Program characterized

repeated statements by the commissioners that the cost assessment issue was being

reserved as equivalent to the court taking a disputed matter under advisement. We

disagree. The implication of the commissioners’ statements was that an assessment of

fees against Ms. Petersen, if it were to be considered at all, would be the subject matter of

a future hearing. She and Hallmark understandably did not address the issue of fee

assessment at the review hearings.

       Under RAP 2.5(a), a party may raise a claim of “manifest error affecting a

constitutional right” for the first time on appeal. “It is consistent with RAP 2.5(a) for a

party to raise the issue of denial of procedural due process in a civil case at the appellate

level for the first time.” Conner v. Universal Utils., 105 Wn.2d 168, 171, 712 P.2d 849

(1986) (citing Esmieu v. Schrag, 88 Wn.2d 490, 497, 563 P.2d 203 (1977)). The due

process challenge is properly before us.

       A party is also able to challenge a judgment entered in violation of CR 54(f)(2) for

the first time on appeal. Failure to comply with the notice requirements of CR 54(f)(2)

generally renders the trial court’s entry of judgment void; while the judgment will not be

found invalid if the complaining party is not prejudiced, a party is prejudiced if it is not

allowed to appeal. See Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986) (no

prejudice shown when party was allowed to appeal).


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No. 33356-6-III
In re Guardianship of Holcomb, et al.


       The GM Program argues that the superior court was not required to comply with

CR 54(f)(2) because guardianships are special proceedings for purposes of CR 81(a).

Assuming (though not deciding) that this is so, CR 81(a) provides that statutes applicable

to special proceedings supersede the civil rules only where they provide for inconsistent

procedure. Statutes governing guardianship proceedings do not dictate a procedure for

entering a money judgment imposing fees that is inconsistent with the procedure required

by CR 54(f)(2).

       Because entry of the money judgments violated both CR 54(f)(2) and Ms.

Petersen’s and Hallmark’s right to due process, they are reversed.

                                   Procedure on remand

       Because our commissioner has dismissed Ms. Petersen’s and Hallmark’s

challenges to the orders removing her and Hallmark’s agencies as guardians, we write

further to make clear that in any future proceedings, they are free to challenge the

assessment of GAL fees (but not the orders removing them as guardians) on the basis that

the replacement process followed by the court was not necessary.

       It appears to be the case that in taking action in proceedings below some, and

perhaps all, of the judicial officers involved were privy to information obtained ex parte

from persons associated with the GM Program. As explained in Sherman v. State, 128




                                             20
No. 33356-6-III
In re Guardianship of Holcomb, et al.


Wn.2d 164, 204-05, 905 P.2d 355 (1995), reliance on ex parte information, however well

intentioned, is improper:

       Canon 3 of the CJC, which requires judges to perform the duties of their
       offices impartially and diligently, provides in relevant part:
               Judges should accord to every person who is legally interested in
          a proceeding, or that person’s lawyer, full right to be heard according
          to law, and, except as authorized by law, neither initiate nor consider
          ex parte or other communications concerning a pending or impending
          proceeding. . . .
       CJC Canon 3(A)(4) (1994) (emphasis added). As the comment to Canon 3
       explains, this prohibition against ex parte communications includes
       contacting neutral third parties about a pending case:
          The proscription against communications concerning a proceeding
          includes communications from lawyers, law teachers, and other
          persons who are not participants in the proceeding, except to the
          limited extent permitted. . . .
       CJC Canon 3(A)(4) cmt. (1994) (emphasis added).

Id.

       It appears that some of the information obtained ex parte led to the conclusion by

the judicial officers that no CPG or CPGA affiliated with Ms. Petersen or Hallmark could

be appointed to serve as guardian. The Supreme Court’s order and its rules do not

support that conclusion.

       RCW 11.88.120(1) addresses a court’s authority to make changes to a

guardianship after it is established, and includes the court’s authority to replace a

guardian, on the court’s own motion, “upon the death of the guardian . . . or for other

good reason.” Washington cases hold that under a similarly-worded former law, “the
                                         21
No. 33356-6-III
In re Guardianship of Holcomb, et al.


court always has power, under proper circumstances, to remove a guardian, but it may

not act arbitrarily.” In re Guardianship of Hemrich, 187 Wash. 21, 26, 59 P.2d 748

(1936) (applying Rem. Rev. Stat. § 1579 (1932), which empowered courts to remove

guardians “for good and sufficient reasons”) (citing In re Estate of Shapiro, 131 Wash.

653, 230 P. 627 (1924); In re Guardianship of Dodson, 135 Wash. 625, 238 P. 610

(1925)).

       Under RCW 11.88.090(10), the fees of a GAL “shall be charged to the

incapacitated person unless the court finds that such payment would result in substantial

hardship upon such person, in which case the county shall be responsible for such costs.”

This charging language is subject to the proviso that “the court may charge such fee to

the petitioner, the alleged incapacitated person, or any person who has appeared in the

action; or may allocate the fee, as it deems just.” Id.

       Guardianships are equitable creations of the courts and it is the Washington

Supreme Court that holds the authority to regulate the certification of professional

guardians. Petersen, 180 Wn.2d at 781-82. It has done so in GR 23, establishing the

framework and delegating some regulatory and rulemaking tasks to the Board. Id. at 782.

Relevant here, the Supreme Court has established the requirements that individuals and

agencies must meet to apply to serve as CPGs or CPGAs. GR 23(d). Although the




                                             22
No. 33356-6-III
In re Guardianship of Holcomb, et al.


Board processes applications for certification and makes recommendations to the

Supreme Court, it is ultimately the court that orders certification. GR 23(c)(2)(i), (v).

       The Supreme Court’s requirements for an agency wishing to be certified as a

CPGA include a requirement that its officers and directors all meet the qualifications of

RCW 11.88.020 for guardians, that it have two designated CPGs, and that it provide

proof of its financial responsibility. GR 23(d)(2), (5). No requirement limits who can

own the capital stock of a CPGA and the rule does not identify any ramification to an

agency if one of its CPGs is suspended, other than the requirement that it have two CPGs

in place. Board DR 706.3 provides that “[i]f a change in circumstances results in an

agency having only one designated guardian, the agency shall notify the Board within

five (5) calendar days of the change in circumstances” and “shall have sixty (60) calendar

days from the date the agency is no longer in compliance with GR 23 to add a designated

guardian to the agency.”

       The fact that the Supreme Court has not required that the capital stock of a CPGA

be owned by only CPGs in good standing makes sense. CPGs may have a significant

capital investment in a CPGA through which they operate, and may have coworkers who

depend on the business’s continued operation for their livelihood. Even if a CPG facing

suspension does not have a large sunk investment in a CPGA’s assets, she may be

individually responsible, as a guarantor or otherwise, for ongoing real estate, equipment,


                                             23
No. 33356-6-III
In re Guardianship of Holcomb, et al.


and loan obligations. Obviously she must scrupulously abide by an order suspending her,

and the suspension alone will likely have significant financial ramifications. But nothing

in GR 23 suggests that in addition to suffering the suspension, a CPG should lose her

entire investment in a CPGA or that the CPG’s coworkers should all be thrown out of

work.

        The Supreme Court’s order in Ms. Petersen’s case provides only that “Lori A.

Petersen is suspended for a period of one year,” that “[f]ollowing the end of the one year

suspension, she shall be monitored for a 24 month period,” that “[t]he monitoring shall be

at Lori A. Petersen’s expense,” and that “Lori A. Petersen shall pay costs to the Board in

the amount of $7,500.00.” CP at 1881. It does not state or imply that anyone affiliated

with Ms. Petersen must suffer suspension with her.

        Evidence presented in future proceedings may or may not support the guardian

replacement procedure followed by the court and an assessment of fees against Hallmark

or Ms. Petersen. We do not prejudge that issue, but want to be clear that our

commissioner’s decision that the guardian replacement decisions were not before us on

appeal does not foreclose Hallmark’s challenge to fee assessments based on what it

claims was an unnecessary guardian removal procedure.

        We reverse the money judgments only, and remand for further proceedings

consistent with this opinion. We retain jurisdiction to avoid the administrative


                                            24
No. 33356-6-III
In re Guardianship of Holcomb, et al.


inconvenience to the courts and the parties that would be presented should the conduct of

further hearings result in over 120 new appeals.

      A majority of the panel has determ.ined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                                     d]dM?Jt!J,~·
                                                   Siddoway, J.

WE CONCUR:




Lawrence~errey, C.J.
                              c..~.

Fearing, J.




                                             25
