                                                                            FILED
                                                                      JULY 24, 2014
                                                               In the Office of the Clerk of Court
                                                             W A State Court of Appeals, Division III



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

ETHEL BOYD, as Personal                      )        No. 30910-0-111
Representative of EDITH CLARK,               )        (consolidated with
                                             )        No. 31267-4-111)
                     Respondent,             )
                                             )
              v.                             )
                                             )        UNPUBLISHED OPINION
MARY PANDREA,                                )
                                             )
                     Appellant.              )

       KORSMO, J. - This case involves a power of attorney entered into in California by

Nevada residents who may have exercised that power in Hawaii before moving to

Washington where litigation, brought by an Idaho plaintiff, ensued. We reverse and

remand this matter for trial.

                                         FACTS

       Appellant Mary Pandrea and respondent Ethel Boyd are half-sisters through their

mother, Edith Clark. The essential facts of this case revolve around Ms. Pandrea's care

for Ms. Clark during her final years.

       Widowed in 1975, Ms. Clark spent the subsequent years alternately living on her

own or with her children. Ms. Pandrea resigned her secretarial job at Portland State

University in 2000, to become a full time caregiver to her mother. The following year the
No. 3091O-0-III; No. 31267-4-III
Boyd v. Pandrea


pair moved to Las Vegas, Nevada, to live with Ms. Pandrea's daughter. In November of

200 I, Ms. Boyd suggested that Ms. Clark move into a nursing home in Escondido,

California. Ms. Boyd, Ms. Clark, and Ms. Pandrea ventured to the facility.

       The nursing home would not accept Ms. Clark unless she first exercised a power

of attorney in favor of one of her daughters. Ms. Boyd declined to act as attorney in fact,

so Ms. Pandrea took on the responsibility. The three women went to a California

stationary store and purchased a power of attorney form. Ms. Clark signed the form in

the presence of a notary in the store. She then was admitted to the nursing facility on

November 2, 2001. Two days later, Ms. Pandrea removed Ms. Clark from the facility

because the elder lady was miserable and overly medicated. They returned to Las Vegas;

       Ms. Clark and Ms. Pandrea moved to Hawaii in January, 2002, to live in Ms.

Pandrea's son's one bedroom cottage. While there, Ms. Clark received a $100,000

inheritance from her brother's estate. The check was forwarded to her by Ms. Boyd and

deposited into Ms. Clark's checking account. As with previous accounts, Ms. Pandrea

was a joint holder of the account.

       Approximately $90,000 ofthe inheritance was used to purchase a three acre

property with a house in Hawaii. The two women moved into that house, which was

placed in Ms. Pandrea's name supposedly to repay her for the work of caring for Ms.

Clark over the years. However, just seven months later they returned to Las Vegas to

                                             2

No. 30910-0-III; No. 31267-4-II1
Boyd v. Pandrea


again live with Ms. Pandrea's daughter and assist her in caring for Ms. Pandrea's

granddaughter. They stayed until 2004, when the two women moved to Cheney,

Washington, which they thereafter considered their permanent home. Other than a two

month visit to the Hawaii house in 2008, Ms. Clark lived in Washington the rest of her

life.

        Guardianship proceedings regarding Ms. Clark eventually were filed in Spokane

County. A guardian ad litem report in October, 2009, found Ms. Clark incapacitated and

urged the appointment of a neutral guardian due to family dissension. Ms. Clark died

intestate November 25,2009 in Spokane County, survived by her seven children. Ms.

Boyd was appointed administrator of the estate on December 29,2009. Ms. Pandrea

filed a request for special proceedings, RCW 11.28.240, seven weeks later.

        Ms. Boyd, as representative of the estate, sued Ms. Pandrea, alleging breach of

fiduciary duty concerning the power of attorney, conversion, and abuse of a vulnerable

adult. The trial court, the honorable Gregory Sypolt, eventually granted summary

judgment in Ms. Boyd's favor on the breach of fiduciary duties theory. He found that the

language of the power of attorney, discussed later during the analysis of that issue,

precluded self-dealing, so Ms. Pandrea could not accept the gift from her mother. Ms.

Pandrea sought reconsideration and tried to raise new issues, including a claim that the

statute of limitations had run; she also asked to be allowed to amend her pleadings. The

                                             3

No. 3091O-0-III; No. 31267-4-III
Boyd v. Pandrea


court denied both motions and entered judgment against Ms. Pandrea for $227,425,

consisting of the $100,000 inheritance, prejudgment interest, and attorney fees. No

findings were entered establishing the basis for the attorney fee award or concerning the

reasonableness of the attorney fees. Ms. Pandrea then appealed to this court.

       Ms. Pandrea also petitioned to remove Ms. Boyd as the personal representative of

the estate for alleged failures to file appropriate reports and tax returns. She also sought

an inventory and appraisal. Three of the siblings supported Ms. Pandrea, while the other

two supported Ms. Boyd. The trial court ultimately denied the petition and granted Ms.

Boyd nonintervention powers. Ms. Pandrea also appealed those rulings to this court.

That appeal was consolidated with the original action.

                                        ANALYSIS

       The initial appeal turns on the construction of the power of attorney. We discuss

that matter before turning to the appeal involving the personal representative.

       Power ofAttorney

       Judge Sypolt granted summary judgment based on his construction of the

terms of the power of attorney. We review a summary judgment ruling de novo.

Schaafv. Highfield, 127 Wn.2d 17,20-21,896 P.2d 665 (1995). All facts and inferences

are considered "in a light most favorable to the nonmoving party." Inniss v. Tandy Corp.,

141 Wn.2d 517,522,7 P.3d 807 (2000). Summary judgment is appropriate where there

                                              4

No. 30910-0-III; No. 31267-4-111
Boyd v. Pandrea


is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. CR 56(c); Reid v. Pierce County, 136 Wn.2d 195,201,961 P.2d 333

(1998).

       The purpose of construing a document is to give effect to the intent of the parties.

Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 340, 738 P.2d 251 (1987). A power of

attorney is "strictly construed." Bryant v. Bryant, 125 Wn.2d 113, 118, 882 P.2d 169

(1994). The "instrument will be held to grant only those powers which are specified, and

the agent may neither go beyond nor deviate from the express provisions." Id.

       The power of attorney form is three pages; the first page begins with the

appointment of Ms. Pandrea by Ms. Clark to act as her attorney in her place. A series of

paragraphs follow that grant Ms. Pandrea authority to act concerning real and personal

property, borrow money, and otherwise engage in financial transactions for Ms. Clark. I

Paragraphs (g) and (h), dealing with a durable power of attorney, are stricken. Paragraph

(i) advises that if (g) or (h) are not stricken, the following Notice to Persons Executing

Durable Power of Attorney applies.

       Following the notice concerning the durable power of attorney is the Notice to

Person Accepting the Appointment as Attorney-in-Fact. It states that the person


       1 Allthree pages of the power of attorney form carry a footer stating in capital
letters: "THIS FORM IS NOT VALID FOR HEALTH CARE DECISIONS."
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No. 3091O-0-III; No. 3 I267-4-III
Boyd v. Pandrea


accepting the appointment assumes "the fiduciary and other legal responsibility of an

agent," including: "(1) the legal duty to act solely in the interest of the principal and to

avoid conflicts of interest; (2) the legal duty to keep the principal's property separate and

distinct from any other property owned or controlled by you." Clerk's Papers (CP) at 18.

The notice then continues with the following sentences:

       You may not transfer the principal's property to yourself without full and
       adequate consideration or accept a gift of the principal's property unless
       this power of attorney specifically authorizes you to transfer property to
       yourself or accept a gift of the principal's property.

CP at 18.

       The notice concludes with information that prosecution for fraud or embezzlement

is possible, an elder abuse prosecution under Penal Code Section 368 is possible, and that

a civil suit could also result. At the conclusion of the notice, on the top of the third page,

is Ms. Pandrea's written acknowledgement that she had read the notice and understood

the fiduciary duties she would assume. Finally, the document concludes with the

principal signing, in the presence of a notary, the grant of authority that actually

empowers the attorney in fact to act under the document.

       The trial court concluded that the quoted language of the notice section was an

operative part of the power of attorney and that Ms. Pandrea breached one of her duties

under the document by accepting the gift. For two reasons, we disagree. First, the


                                              6

No. 30910-0-111; No. 31267-4-111
Boyd v. Pandrea


drafting of the document places the powers granted Ms. Pandrea in their own section,

which is primarily on the first page of the document. Two notice sections then follow,

before the agent must acknowledge the notices. While the restrictions on the attorney's

authority that are acknowledged in the notice section accurately state the law of

California (and that of many other states), those restrictions are not found within the

document's grant of powers to the attorney. Instead, the notice section only states the

legal consequences of accepting the power.

       The second reason is that the notice section is required by California law and acts

only as a summary of that state's law. California Probate Code section 4128 requires that

"a printed form of a durable power of attorney that is sold or otherwise distributed in this

state for use by a person who does not have the advice of legal counsel shall contain, in

not less than 10-point boldface type or a reasonable equivalent thereof, the following

warning statements ...." That statement is followed by a verbatim recitation of the

warning found in the power of attorney at issue here:

             By acting or agreeing to act as the agent (attorney-in fact) under this
      power of attorney you assume the fiduciary and other legal responsibilities
      of an agent. These responsibilities include:
      1. 	 The legal duty to act solely in the interest of the principal and to avoid
           conflicts of interest.
      2. 	 The legal duty to keep the principal's property separate and distinct
           from any other property owned or controlled by you.


                                             7

No. 3091O-0-III; No. 3 I 267-4-III
Boyd v. Pandrea


               You may not transfer the principal's property to yourself without full
       and adequate consideration or accept a gift of the principal's property. If
       you transfer the principal's property to yourself without specific
       authorization in the power of attorney, you may be prosecuted for fraud
       and/or embezzlement. If the principal is 65 years of age or older at the time
       that the property is transferred to you without authority, you may also be
       prosecuted for elder abuse under Penal Code Section 368. In addition to
       criminal prosecution, you may also be sued in civil court.
Cal. Prob. Code section 4128.
       The warnings contained in the power of attorney are a restatement of

California Probate Code section 4233 which requires: "[t]he attorney-in-fact shall

keep the principal's property separate and distinct from other property in a manner

adequate to identify the property clearly as belonging to the principal."

Additionally, the warning in the power of attorney and the probate code refer

to California's "Penal Code Section 368."2 See, e.g., People v. Cafley,

148 Cal. App. 4th 500, 55 Cal. Rptr. 3d 786 (2007) (prosecuting a caretaker for

accepting a gift from an elderly man in caretaker's care because of the elder's lack

of cognitive capacity).

       In the present case the "notice" at issue here was language required to be

inserted into California forms to give a warning to individuals about the current

state of California law. Washington does not appear to have a similar provision



       2 Specifically, Section 368(e). 

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No. 3091O-0-III; No. 3 1267-4-III
Boyd v. Pandrea


requiring an attorney-in-fact to keep property separate and distinct nor prevent an

attorney-in-fact to accept a gift from the principal, when the principal herself is

giving the gift to the agent. 3

       The "notice" language in the Power of Attorney in this case was language

mandated by California probate law and pertained to California laws. The

language was not an express provision and, thus, did not set the standard of

fiduciary care in this case. It merely alerted the parties as to what legal duties

existed under California law.

       For both reasons, we conclude the trial court erred in finding that the legal

notice of the consequences of accepting the appointment as attorney in fact served

as a provision defining the agent's authority. We reverse the judgment4 and




       3 Outside of the provisions of the power of attorney here, the acceptance of a gift
and the commingling of funds are not per se a breach of the fiduciary duty. See, e.g.,
In re Estate ofLennon, 108 Wn. App. 167,29 P.3d 1258 (2001) (requiring proof of an
inter vivos gift where stepson was agent under power of attorney, and existence of
commingling of funds not mentioned as breach of fiduciary duty).
       4 We note that no findings of fact and conclusions of law were entered in
support of the attorney fee award. In the event fees are awarded in the future, the
source of the attorney fees needs to be identified and the reasonableness of the fees
established with sufficient detail to afford review. E.g., Mahler v. Szucs, 135 Wn.2d 398,
435,957 P.2d 632 (1998).
                                              9

No. 30910-0-111; No. 31267-4-111
Boyd v. Pandrea


remand for trial where numerous factual 5 questions remain to be sorted out,

including any issues concerning Ms. Clark's capacity, whether Ms. Pandrea ever

exercised the power of attorney, etc. Under the circumstances, we do not address

Ms. Pandrea's challenges to the denial of her motion for reconsideration, nor do

we address her motion to amend. In light of the issues remaining, it is likely both

parties may be seeking to amend their pleadings before trial.

       Administration ofthe Estate

       Ms. Pandrea also argues that the trial court erred in denying her motion to

remove Ms. Boyd from her post as administrator of their mother's estate. The trial

court did not abuse its discretion.

       If a personal representative "has not faithfully discharged said trust or is subject to

removal for any reason specified in 11.28.250," RCW 11.68.070 allows the court to

intervene and to remove or restrict the powers of a nonintervention personal

representative, upon the petition of a creditor or other person with statutory authority.

In re Estate ofJones, 152 Wn.2d 1,9,93 P.3d 147 (2004). RCW 11.28.250 provides:




       5This appeal does not present a choice of law issue, though it appears the trial
court now will be required to decide what law governs. On its face, the action of two
Hawaii residents buying real estate in that state and jointly using a bank account there
would appear to be governed by Hawaiian law. The parties are urged to follow
CR 9(k)( 1) upon remand with respect to the causes of action and any applicable defenses.
                                             10 

No. 30910-0-111; No. 31267-4-111
Boyd v. Pandrea


               Whenever the court has reason to believe that any personal
       representative has wasted, embezzled, or mismanaged, or is about to waste,
       or embezzle the property of the estate committed to his charge, or has
       committed, or is about to commit a fraud upon the estate, or is incompetent
       to act, or is permanently removed from the state, or has wrongfully
       neglected the estate, or has neglected to perform any acts as such personal
       representative, or for any other cause or reason which to the court appears
       necessary, it shall have power and authority, after notice and hearing to
       revoke such letters.

       The trial court must have valid grounds supported in the record in order to

justify removal of the personal representative. Jones, 152 Wn.2d at 10 (citing

In re Estate ofBeard, 60 Wn.2d 127, 132,372 P.2d 530 (1962); In re Estate ofAaberg,

25 Wn. App. 336, 339, 607 P.2d 1227 (1980)). The process for removing a personal

representative is set forth in RCW 11.68.070, which provides:

              If any personal representative who has been granted nonintervention
      powers fails to execute his trust faithfully or is subject to removal for any
      reason specified in RCW 11.28.250 as now or hereafter amended, upon
      petition of any unpaid creditor of the estate who has filed a claim or any
      heir, devisee, legatee, or of any person on behalf of any incompetent heir,
      devisee, or legatee, such petition being supported by affidavit which makes
      a prima facie showing of cause for removal or restriction of powers, the
      court shall cite such personal representative to appear before it, and if, upon
      hearing of the petition it appears that said personal representative has not
      faithfully discharged said trust or is subject to removal for any reason
      specified in RCW 11.28.250 as now or hereafter amended, then, in the
      discretion of the court the powers of the personal representative may be
      restricted or the personal representative may be removed and a successor
      appointed.




                                            11 

No. 30910-0-III; No. 31267-4-II1
Boyd v. Pandrea


        The purpose of the statute   ~~is   to provide protection to beneficiaries and other

interested parties when a personal representative breaches his fiduciary duties." Jones,

152 Wn.2d at 11. The statute grants the trial court "discretion to remove a personal

representative who has nonintervention powers if the personal representative fails to

execute his or her trust faithfully or is subject to removal for any reason specified in

RCW 11.28.250." In re Estate ofArdell, 96 Wn. App. 708, 718, 980 P.2d 771 (1999)

(citing In re Estate ofBeard, 60 Wn.2d at 132). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker,

79 Wn.2d 12,26,482 P.2d 775 (1971).

        The essence of the trial court's ruling was that although Ms. Pandrea established

errors or lapses by Ms. Boyd in the handling ofthe estate, there were no errors that

prejudiced the estate or the beneficiaries. We believe that is a tenable ground for denying

the motion to remove Ms. Boyd.

        The trial court did not abuse its discretion in denying the motion to remove Ms.

Boyd.

        Attorney Fees on Appeal

        Both parties seek attorney fees on appeaL We decline to grant fees to either party.

This appeal was not frivolous and the estate has not significantly benefited from this

action, so we decline to award fees to Ms. Boyd or the estate. Similarly, while Ms.

                                                   12
No. 3091O-0-III; No. 3 I 267-4-III
Boyd v. Pandrea


Pandrea has won the right to a trial, she has not prevailed substantively on the merits of

the case nor has she prevailed on the action to remove the administrator. Accordingly,

there is no basis for awarding attorney fees to her.

         We reverse the summary judgment ruling and remand it for trial. The appeal from

the action to remove Ms. Boyd is affirmed. We deny both parties their attorney fees and

costs.

         A major;ity of the panel has determined 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.




WE CONCUR:



~~       Brown, A . .1.



         Lawrence-Be ey,1.




                                              13 

