                                                               FILED
                                                            MARCH 21, 2019
                                                      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 re Petition for Vulnerable Adult Order      )         No. 35678-7-III
of Protection of:                              )         (consolidated with
                                               )         No. 35679-5-III)
HELEN KRINKE,                                  )
                                               )
              A Vulnerable Adult,              )
                                               )
KAREN PICOLET,                                 )
                                               )
               Appellant.                      )         UNPUBLISHED OPINION
In re Petition for Vulnerable Adult Order      )
of Protection of:                              )
                                               )
HELEN KRINKE,                                  )
                                               )
              A Vulnerable Adult,              )
                                               )
PAUL PICOLET,                                  )
                                               )
              Appellant.                       )

       LAWRENCE-BERREY, C.J. — Karen Picolet and Paul Picolet, wife and husband,

appeal after the trial court issued a protection order in favor of Helen Krinke. In its order,

the trial court explicitly reserved the issue of damages for a later hearing. We conclude

that this appeal is premature, award attorney fee sanctions against the Picolets for a

frivolous appeal, and remand.
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


                                          FACTS

       Helen Krinke has lived in her home at 44 Alder Road in Twisp, Washington, since

1948. In 1969, after her husband passed away, Ms. Krinke sold the property to Thomas

Devins and Marjorie Adele Devins. The property is comprised of three different tax

parcels—a 12.43 acre parcel, a 14 acre parcel, and a residential 3.45 acre parcel. When

she sold the property, Ms. Krinke reserved a life estate on the residential parcel. The life

estate agreement was not notarized. Ms. Krinke recorded the life estate agreement with

the Okanogan County auditor’s office almost one decade later, on May 16, 1978.

       The Devinses subsequently divorced. Ms. Devins retained the property, she

remarried, and her last name is now O’Neal. In 2017, Mrs. O’Neal and her husband

Cecile listed the property for sale. The listing recited that 30 acres were for sale, which

included three different parcels, and noted that the “house parcel (3322200068) is subject

to A Life Estate of Helen Krinke.” Clerk’s Papers (CP) at 64.

       In April 2017, Paul Picolet approached his real estate agent, Susannah Gardner,

about purchasing the property. Ms. Gardner informed Mr. Picolet of the life estate.

During negotiations with the O’Neals, Mr. Picolet asked Ms. Gardner if it was possible to

remove the life estate so he could secure financing for the property and then put it back

on. She declined. On May 1, 2017, Mr. Picolet contacted the O’Neals’ real estate agent


                                              2
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


and asked if there was some way to eliminate the life estate. She explained that the life

estate could not be removed without the approval of Ms. Krinke, and that he might want

to contact an attorney.

       The Picolets and the O’Neals decided to complete the purchase without further

involvement of the real estate agents. After closing, they hired an attorney to prepare a

life estate agreement for Ms. Krinke, apparently without informing the attorney that an

agreement already existed. The proposed agreement would give Ms. Krinke a life estate

in the house and one foot around it. The agreement, which did not reference the existing

life estate agreement, was signed by the Picolets and the O’Neals. It was never signed by

Ms. Krinke.

       The Picolets began moving items onto Ms. Krinke’s life estate parcel. The items

included a horse trailer, a single-wide manufactured home, shipping containers, and

motion-activated cameras. In addition, they bulldozed plants and vegetation, and began

drilling a well.

       Ms. Krinke felt that the Picolets were taking over her property and it caused her

great anxiety. The Picolets placed their property right outside Ms. Krinke’s window and

it blocked her view of the trees. Ms. Krinke was so nervous over the situation that she

called her nieces, Nita Mahaffey and Ellen Bump, to come stay with her. Ms. Mahaffey


                                             3
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


recognized that Ms. Krinke became really stressed, was sad that she could not see her

trees, and obsessed over the situation. Ms. Bump recalled that Ms. Krinke cried more in

one week than she had seen in 50 years. She was really stressed, angry, and she worried

constantly about leaving her home. Ms. Krinke stated she could not get out of bed

sometimes. Ms. Krinke’s neighbor, Kent Woodruff, noticed she became constantly

agitated. Mr. Woodruff testified that Ms. Krinke felt threatened, violated, would cry

often, would refuse to leave the house, and felt afraid. At one point, Mr. Picolet told Ms.

Krinke that if she did not stop complaining, he would have her committed.

       One day before filing the petition, Ms. Krinke’s counsel met Ms. Picolet on the

property. During the conversation, Ms. Picolet denied any knowledge of Ms. Krinke’s

life estate. However, also during the same conversation, Ms. Picolet corrected counsel on

the date the life estate was actually recorded with the Okanogan County auditor’s office

and also corrected counsel on the acreage it covered.

       Ms. Krinke filed a “Petition for Vulnerable Adult Order for Protection” on

August 24, 2017. In her petition, she asked the court to restrain the Picolets from

committing any harm against her, exclude them from her life estate property, restrain the

Picolets from having any contact with her, require the Picolets to pay costs and attorney




                                             4
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


fees, require the Picolets to remove their property, and also pay damages for her

emotional stress.

       Before trial, the O’Neals filed sworn affidavits on the Picolets’ behalf. Both Mr.

O’Neal and Mrs. O’Neal denounced Ms. Krinke’s life estate agreement as fraudulent.

Mr. O’Neal assisted in the preparation of Mrs. O’Neal’s affidavit because she had a

stroke five years earlier and only communicated via eye blinks and hand squeezes. Mr.

O’Neal confirmed the accuracy of his wife’s affidavit by reading her a paragraph at a time

and then waiting for an eye blink or a hand squeeze.

       After trial, the court found that (1) Ms. Krinke was a vulnerable adult within the

meaning of chapter 74.34 RCW, (2) Ms. Krinke holds a valid life estate with respect to

the residential parcel, (3) the Picolets were aware of Ms. Krinke’s life estate prior to the

purchase of the property, (4) that substantial changes occurred in Ms. Krinke’s life by the

Picolets placing large shipping containers and motion-activated cameras on the residential

property, and bulldozing areas of the life estate property, and (5) the Picolets’ nonverbal

actions violated Ms. Krinke’s life estate rights and caused her significant worry and fear.

       The trial court entered a vulnerable adult protection order. The order required the

Picolets to remove their possessions from the life estate property and delete the pictures

taken by their motion cameras. The order explicitly stated: “[Ms. Krinke’s] request for


                                              5
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


damages and costs will be determined at a separately noticed special hearing.” CP

(Karen Picolet) at 11.

       The Picolets appealed prior to the special hearing.

                                        ANALYSIS

       A.     DIRECT REVIEW IS NOT PROPER

       In her response brief, Ms. Krinke argues the appeal is premature because it is not

from a final order or judgment. In their reply brief, the Picolets argue that direct review is

proper because their appeal is from a final order. We agree with Ms. Krinke.

       RAP 2.2 lists the decisions of the superior court that are subject to direct review.

Under RAP 2.2(a)(1), a party may appeal a “final judgment entered in any action or

proceeding, regardless of whether the judgment reserves for future determination an

award of attorney fees or costs.” “A ‘final judgment’ ‘is one that settles all the issues in a

case.’” State v. Hecht, 2 Wn. App. 2d 359, 363, 409 P.3d 1146 (quoting In re Det. of

Turay, 139 Wn.2d 379, 392, 986 P.2d 790 (1999)), review denied, 190 Wn.2d 1024, 418

P.3d 800 (2018).

       Ms. Krinke has a pending claim for emotional damages. The trial court

acknowledged as much in its order. The Picolets contend that a claim for emotional

damages is not available under chapter 74.34 RCW, the “Abuse of Vulnerable Adults”


                                              6
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


act. Whether this is true or not, the Picolets have not raised this argument below and the

trial court has not ruled on it. Not all issues in the case have been settled. The appeal,

therefore, is not from a final order and is not subject to direct review.

       B.      DISCRETIONARY REVIEW IS NOT PROPER

       The Picolets alternatively argue that this court should grant discretionary review.

We decline to do so.

       RAP 2.3(a) permits a party to seek discretionary review of any act by a superior

court that is not subject to direct review. RAP 2.3(b) sets forth considerations for this

court in deciding whether to grant discretionary review.

       The Picolets argue there “is an automatic right to appeal injunctions and protective

orders under RAP 2.3(b)(2) where there is probable error.” Reply Br. of Appellants at 17.

We disagree.

       RAP 2.3(b)(2) sets forth a consideration for discretionary review, not for

automatic review. That consideration requires the appellant to show that “[t]he superior

court has committed probable error and the decision of the superior court substantially

alters the status quo or substantially limits the freedom of a party to act.” RAP 2.3(b)(2)

(emphasis added).




                                              7
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


        We infer that the Picolets are arguing that the order substantially limits their

freedom to act because it preserves Ms. Krinke’s life estate. Even if this is a sufficient

limitation on their ability to act, we disagree that the trial court committed probable error.

               1. The trial court did not commit probable error by concluding that the life
               estate agreement is enforceable

        The Picolets argue in their opening brief that the trial court erred when it enforced

the life estate agreement because it was never notarized and the allegations of fraud

rebutted the presumption of validity. We disagree.

        “A trial court’s findings of fact are reviewed for substantial evidence.” Hegwine v.

Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007). “‘Substantial evidence’

means evidence that is sufficient ‘to persuade a rational, fair-minded person of the truth

of the finding.’” Blackburn v. Dep’t of Soc. & Health Servs., 186 Wn.2d 250, 256, 375

P.3d 1076 (2016) (internal quotation marks omitted) (quoting Hegwine, 162 Wn.2d at

353).

        A life estate is “a present interest that terminates on the death of an individual

whose life serves as the governing life.” See RESTATEMENT (THIRD) OF PROPERTY:

(WILLS & DONATIVE TRANSFERS) § 24.5 (Am. Law. Inst. 2011). Generally, conveyance

of a life estate through a deed must “be in writing, signed by the party bound thereby, and

acknowledged by the party before some person authorized by this act to take

                                               8
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


acknowledgements of deeds.” RCW 64.04.020. Acknowledgements of deeds are most

commonly known to be taken by a notary public. RCW 64.08.010. However, an

unacknowledged deed is “valid as between the parties, and valid as to all persons

claiming under the grantor, except, perhaps, a purchaser of the property for a valuable

consideration who took without actual notice of the outstanding deed.” In re Estate of

Deaver, 151 Wash. 454, 456, 276 P. 296 (1929).

       Here, it is undisputed that the deed conveying a life estate to Ms. Krinke was

recorded in the Okanogan County auditor’s office on May 16, 1978. The Picolets also

concede that even though the deed was not acknowledged correctly, it still gave them

notice of its contents.1

       The Picolets merely assert the deed was fraudulent and the trial court erred in

finding otherwise. However, there is substantial evidence to persuade a rational, fair-

minded person, that the deed was not fraudulent. Ms. Krinke actually lived in the house



       1
          RCW 65.08.030 (“An instrument in writing purporting to convey or encumber
real estate or any interest therein, which has been recorded in the auditor’s office of the
county in which the real estate is situated, although the instrument may not have been
executed and acknowledged in accordance with the law in force at the time of its
execution, shall impart the same notice to third persons, from the date of recording, as if
the instrument had been executed, acknowledged, and recorded, in accordance with the
laws regulating the execution, acknowledgment, and recording of the instrument then in
force.”).

                                             9
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


for decades after the 1969 sale. Further, the original life estate agreement matched the

agreement that was recorded in the auditor’s office in 1978.

       Contrast this strong evidence against the Picolets’ weak evidence. The only

evidence the Picolets presented at trial was affidavits from the O’Neals. Mr. O’Neal, who

was not present during the 1969 sale, merely stated that his wife would have never signed

the life estate agreement. Mrs. O’Neal’s affidavit is also unpersuasive. Her affidavit is

based on Mr. O’Neal’s interpretation of her eye blinks and hand squeezes.

       We conclude that the trial court did not commit probable error when it determined

that Ms. Krinke’s life estate agreement is enforceable. In fact, the correctness of the trial

court’s determination is overwhelming.

              2.     The trial court did not commit probable error when it found that the
                     Picolets intentionally abused Ms. Krinke

       The Picolets argue in their opening brief that the trial court erred when it found

they intentionally abused Ms. Krinke. We disagree.

       A trial court’s decision to grant or deny a protection order is reviewed for an abuse

of discretion. In re Vulnerable Adult Petition for Knight, 178 Wn. App. 929, 936, 317

P.3d 1068 (2014). “An abuse of discretion occurs only when the decision of the court is

‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’”

State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel.

                                             10
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A trial court’s findings are

reviewed for substantial evidence. Knight, 178 Wn. App. at 936-37. “‘Substantial

evidence’ means evidence that is sufficient ‘to persuade a rational, fair-minded person of

the truth of the finding.’” Blackburn, 186 Wn.2d at 256 (internal quotation marks

omitted) (quoting Hegwine, 162 Wn.2d at 353).

       The “Abuse of Vulnerable Adults” act, chapter 74.34 RCW, was enacted to protect

vulnerable adults who may be subjected to abuse, neglect, financial exploitation, or

abandonment. RCW 74.34.005(1). “Abuse” means the willful action or inaction that

inflicts injury, unreasonable confinement, intimidation, or punishment on a vulnerable

adult, and includes mental abuse. RCW 74.34.020(2). “‘Mental abuse’ means a willful

verbal or nonverbal action that threatens, humiliates, harasses, coerces, intimidates,

isolates, unreasonably confines, or punishes a vulnerable adult.” RCW 74.34.020(2)(c).

“Willful” is when “‘a person acts knowingly with respect to the material elements of the

offense.’” Crosswhite v. Dep’t of Soc. & Health Servs., 197 Wn. App. 539, 551, 389

P.3d 731 (quoting State v. Bauer, 92 Wn.2d 162, 168, 595 P.2d 544 (1979)), review

denied, 188 Wn.2d 1009, 394 P.3d 1016 (2017).

       Here, there is substantial evidence that could have persuaded a “rational, fair-

minded person” that the Picolets intentionally abused Ms. Krinke. The Picolets’


                                             11
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


nonverbal actions were not accidental, but intentional. The Picolets placed their shipping

container, mobile home, large trucks, and other items onto Ms. Krinke’s life estate

property. The entire property purchased by the Picolets consists of 30 acres, and Ms.

Krinke’s life estate covers the middle parcel that is only 3.45 acres. Yet, the Picolets

moved their belongings onto Ms. Krinke’s small parcel. This placement blocked Ms.

Krinke’s view of her trees. The Picolets began bulldozing lots of vegetation and trees on

the life estate property and also began drilling a well. There were cameras mounted and

pointed at Ms. Krinke’s home. The evidence is undisputed that Ms. Krinke felt

threatened, humiliated, and intimidated by the Picolets’ actions. She had her nieces stay

with her for safety and comfort, and she cried extensively.

       We conclude that the trial court did not commit probable error by finding that the

Picolets “abused” Ms. Krinke within the meaning of RCW 74.34.020(2). In fact, the

evidence is overwhelming that the trial court’s finding was correct.

       C.     ATTORNEY FEE SANCTIONS

       Ms. Krinke requests attorney fees sanctions under RAP 18.9.

       RAP 18.9 authorizes an award of attorney fee sanctions if an appeal is frivolous.

When determining whether an appeal is frivolous, the court will consider the following

factors:


                                             12
No. 35678-7-III; No. 35679-5-III
In re Vulnerable Adult Pet. of Krinke


       "'( 1) A civil appellant has a right to appeal under RAP 2 .2; (2) all doubts as
       to whether the appeal is frivolous should be resolved in favor of the
       appellant; (3) the record should be considered as a whole; (4) an appeal
       that is affirmed simply because the arguments are rejected is not frivolous;
       (5) an appeal is frivolous if there are no debatable issues upon which
       reasonable minds might differ, and it is so totally devoid of merit that there
       was no reasonable possibility of reversal."

Espinoza v. Am. Commerce Ins. Co., 184 Wn. App. 176,202,336 P.3d 115 (2014)

(internal quotation marks omitted) (quoting Griffin v. Draper, 32 Wn. App. 611, 616, 649

P.2d 123 (1982)).

       After considering these factors, we determine that the Pico lets' appeal is frivolous.

The facts and law are so overwhelmingly against them that there was no reasonable

possibility of reversal. Subject to Ms. Krinke's compliance with RAP 18. l(d), we grant

Ms. Krinke's request for attorney fee sanctions against the Picolets.

      Remanded.

      A majority 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.




                                           Fearing,].

                                              13
