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                                                                                                    CUU I, Gr
                                                                                                         T  APPEALS
                                                                                                         01 11
                                                                                                 2013 JUL 30
                                                                                                             AN f0 23
    IN THE COURT OF APPEALS OF THE STATE OF W                                                                   S.%




In re the Matter of the Guardianship of:
                                               DIVISION II

                                                                         No. 42076 7 II
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                                                                                                                Tr



RICHARD B. MORSE,

             A Partially Incapacitated Person.

                                                                  UNPUBLISHED OPINION




       PENOYAR, J. —Richard           Morse appeals the order appointing a limited guardian of his

person and a full guardian of his estate, arguing that the trial court erred by appointing counsel
for the guardian ad litem and by allowing counsel to participate during his guardianship trial.
Because Morse did not object at the time of the appointment and because the trial court has

broad authority to regulate the conduct of a trial, we affirm and award the respondent attorney

fees on appeal.

                                                  FACTS


       Born in 1938, Morse graduated from college and served in the military before returning

to Clark County in 1970 to live with his mother. Morse's sister and her husband, Louise and Dr.

Richard Guthrie, bought the family home, and Morse continued to live there after his mother

died. The Guthries stopped sending Morse monthly financial support when he became eligible
for Social               but   they   continued to pay his     phone   and   utility   bills.   Morse owned a
             Security,

neighboring 40 acre parcel of land.
               =

        Over the years, his neighbors observed him preaching outside in his yard and, on

occasion,.wearing clothing that          was   inappropriate    for the weather.         They also observed

considerable   garbage    and debris around his home.           The Guthries became concerned about
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Morse's living conditions and helped him clean up his property after he received a notice from

the county in 2003. In early 2010, they also became concerned about Morse's health. Morse had

trouble with his mobility and breathing, and Dr. Guthrie observed large sores on his legs and an

odor of decaying flesh around him.

       Morse initially resisted medical treatment, but he was eventually hospitalized with deep

wounds on his legs, untreated diabetes, and other medical conditions. During his hospitalization,

the Guthries cleaned up his home. They discovered that he had been living with approximately

30 cats and   layers   of debris that included cat feces and dead cats.   The kitchen stove was


unusable; Morse had been cooking on an upturned space heater.

       After a month in the hospital, Morse was discharged to Vancouver Health and

Rehabilitation Center (VHR), skilled
                           a              nursing facility, for rehabilitation. He began hoarding

urine and rotting food and would not discuss his future plans beyond explaining that "God will
provide." 4 Report of Proceedings (RP)at      351 52.
                                                  -     When it became apparent that VHR staff

could not determine whether Morse understood his ongoing medical needs, the social services

director filed a guardianship petition. Pursuant to her request, the trial court appointed Thomas

Deutsch as guardian ad litem ( AL).
                             G

       In a conversation with the GAL, Morse expressed his unhappiness with the guardianship.

petition, questioned the GAL about his spiritual beliefs, and gave the GAL a piece of scripture.
The GAL also spoke with Morse's sister and caregivers and reviewed his medical records.

Morse had implanted wound pumps that required medical management, and the GAL became
concerned that Morse faced.ischarge from VHR because of his inability to pay for his care.
                          d

Morse was ineligible for Medicaid because of the property he owned, and the GAL eventually

moved for the appointment of counsel to assist him in getting a court order to list the property for
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sale and enable Morse to         qualify   for Medicaid.   The GAL's attorney, Therese Greenen,

subsequently obtained an order expanding the GAL's duties to allow for the listing of the

property.     Greenen also obtained a court order requiring Morse to participate in a

neuropsychological evaluation by Dr. Stephen Meharg.

         The GAL eventually filed a report recommending a limited guardianship of the person

and a full guardianship of the estate for Morse. The matter proceeded to a jury trial,and during a

pretrial conference in chambers, the parties resolved a motion to limit Greenen's participation at
trial to matters   involving   the GAL.    Back in court, the parties agreed .that Greenen would be

allowed to cross examine witnesses on behalf of the GAL and that she could directly question

Dr.   Meharg and    the GAL.     Morse's attorney then objected to the GAL having counsel and

asserted that the presence of such counsel "unfairly paints the Guardian ad Litem's opinion as

greater than another witness."1 RP at 23.

         Counsel for petitioner VHR responded that Greenen had been serving as the GAL's

counsel for several months, and Greenen explained that the GAL had needed her to file several

motions with the court.        The trial court ruled that it was customary to occasionally appoint

counsel for a GAL and that Greenen's participation at trial would aid the court.

         Morse's neighbors, family, and two VHR staff members then testified to the facts set out
above.    Greenen asked Dr. Guthrie a single question about Morse's assumption of financial

responsibility. Greenen then conducted the GAL's direct examination and asked two questions

of John Majerus, Moore's physical therapist, on cross examination. The trial court gave Greenen

the opportunity to object to some exhibits introduced during Majerus's testimony, but she
declined.




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         Before testimony resumed the following day, Morse objected to Greenen's cross

examination of Majerus as beyond the scope of the parties' agreement. Greenen agreed to abide

by that agreement and then conducted Dr. Meharg's direct examination. Dr. Meharg testified

that Morse has a psychotic type illness that affects his insight, and he added that Morse's
                            -
                                                                  and stubborn." 3 RP at 292.   Morse
hoarding behavior would          prove   especially "persistent

testified on his own behalf.


         The jury returned verdicts finding that Morse was partially incapacitated as to his person

and   fully incapacitated   as   to his estate.   The court then issued an order appointing a limited

guardian of the person and a full guardian of the estate.
                                                  ANALYSIS


I.       COUNSEL FOR GAL


         Morse contends on appeal that the trial court erred by appointing counsel for the GAL

and by allowing counsel to participate in his guardianship trial

         We observe initially that Morse cites no authority to support his claim that the trial court

erred by appointing counsel for the guardian ad litem. In the Single case he does cite, the GAL
was represented by two attorneys. In re Guardianship ofMatthews, 156 Wn. App. 201, 208, 232

P. d 1140 (2010).Furthermore, Morse did not object to the appointment of counsel for the GAL
 3

until after the parties had agreed to the scope of counsel's participation at trial and well after
counsel had obtained court orders on the GAL's behalf. Finally, we note that the trial court has

the inherent authority and broad discretion to control litigation and to regulate the conduct.of a
trial.   See State v. Gregory, 158 Wn. d 759, 816, 147 P. d 1201 ( 2006); re Marriage of
                                     2                  3               In

MacGibbon, 139 Wn. App. 496, 508, 161 P. d 441 (2007). Having appointed counsel for the
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GAL without objection, the trial court had the authority to allow counsel to continue to represent

the GAL at trial. We find Moore's objection to counsel for the GAL untimely and without merit.

       Morse also argues on appeal that the trial court erred by allowing counsel for the GAL to

examine several witnesses at trial. As stated, the parties agreed to allow counsel for the GAL to

question   certain witnesses.   Morse objected during trial that counsel had exceeded that

agreement, but that is not his argument now. Rather, he contends that it was error for the court to

allow that agreement at all. Having failed to make that argument below, he may not make it on

appeal, as he makes no showing that it implicates a manifest error affecting a constitutional right.

RAP 2. (
    a)(
     3).
     5

II.    ATTORNEY FEES


       VHR, the respondent herein, requests an award of attorney fees on appeal under RCW

150,
11. 6A.which provides as follows:
  9

               1) Either the superior court or any court on an appeal may, in its
       discretion, order costs, including reasonable attorneys' fees, to be awarded to any
       party: (a)From any party to the proceedings; b)from the assets of the estate or
                                                        (
       trust involved in the proceedings; or (c)from any nonprobate asset that is the
       subject of the proceedings. The court may order the costs, including reasonable
       attorneys' fees, to be paid in such amount and in such manner as the court
       determines to be    equitable. In exercising its discretion under this section, the
       court may consider any and all factors that it deems to be relevant and
       appropriate, which factors may but need not include whether the litigation
       benefits the estate or trust involved.
                2)This section applies to all proceedings governed by this title,including
             guardianship matters.

        As the statute makes clear, there is no firm rule governing an award of fees, and in some

situations, fees are properly assessed against an estate. In re Estate ofBlack, 116 Wn. App. 476,

490, 66 P. d 670 (2003),
         3             affirmed on other grounds, 153 Wn. d 152, 102 P. d 796 (2004).The
                                                        2             3



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trial court awarded VHR attorney fees below. We award VHR attorney fees on appeal subject to

its compliance with RAP 18. (
                        d).
                          1

       Affirmed.


       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




                                                         Pe   yar


We concur:




       Hunt, J.




                  J.
    Ij7ren,




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