FILED MAY 18, 2023 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
DEBRA KAY MCCLAIN, a single ) person, ) No. 39176-1-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION ELIZABETH J. SANCHEZ, a single ) person, ) ) Respondent. )
STAAB, J. — Debra McClain appeals from the superior court’s summary judgment
order in her quiet title action against Elizabeth Sanchez. McClain argues the superior
court erred in granting Sanchez’s motion for summary judgment because there was a
genuine issue of material fact regarding whether Sanchez used undue influence to acquire
the property in question. Sanchez contends that the superior court’s summary judgment
order was correct and requests attorney fees on appeal. We conclude that McClain’s
appeal is frivolous, and we decline to address her arguments as they have not been
properly briefed and preserved. In addition, under RAP 18.9(a), we order counsel for
McClain to pay Sanchez’s reasonable attorney fees for responding to this appeal. No. 39176-1-III McClain v. Sanchez
BACKGROUND
As this case was decided on summary judgment, the following facts are set forth
in the light most favorable to the nonmoving party, McClain.
McClain and Sanchez were friends for several years and called each other sisters.
McClain owned and resided at a property located in Wenatchee, Washington that was
encumbered by a mortgage. In early 2018, McClain approached Sanchez about taking
over the mortgage payment on the property and paying her an additional sum in exchange
for McClain deeding the property to Sanchez. McClain said she intended to move to
Hawaii and needed money.
In September 2018, McClain deeded the property to Sanchez. The deed purported
to convey the property as a gift, but Sanchez also paid McClain $6,000 and started
making payments on the mortgage attached to the home. Although Sanchez did not
assume the mortgage, she agreed to make payments on it as part of the transaction. The
mortgage subsequently lapsed.
McClain brought a quiet title action against Sanchez, alleging that Sanchez
asserted undue influence to acquire ownership of the property. McClain claimed that she
“suffer[ed] from a variety of issues and, as such, [had] a caseworker.” Clerk’s Papers
(CP) at 4. She also stated that she had “been diagnosed with depression, PTSD,[1]
1 Post-traumatic stress disorder.
2 No. 39176-1-III McClain v. Sanchez
anxiety, bi-polar, and [was] a pancreatic cancer survivor” and had been using heroin in
the fall of 2018 when the transaction in question occurred. CP at 4. McClain claimed
that Sanchez convinced her to deed ownership of the property to Sanchez for $6,000 even
though it was worth $174,200. McClain said that she did not realize her actions in selling
the house until she became sober in December 2018.
Sanchez moved for summary judgment, arguing that there was no evidence
supporting McClain’s contentions of cognitive impairment, diminished capacity, or
inability to make an informed decision or gift.
In support of her motion, Sanchez provided a declaration from expert witness Dr.
Catherine MacLennan, who reviewed medical records produced by McClain. Dr.
MacLennan noted that according to the records, McClain had not been seen once for
medical care in 2018, the year she deeded the house to Sanchez. Dr. MacLennan
explained that nothing in McClain’s medical records demonstrated that she had been
treated for any conditions at any point “that would render her susceptible to either undue
influence or manipulation or render [her] incapable of making her own independent
decisions.” CP at 97. Dr. MacLennan also stated that according to the medical records
provided, none of McClain’s prescriptions, if taken as prescribed, would have affected
McClain’s judgment.
McClain responded to Sanchez’s motion for summary judgment, arguing that
McClain’s use of heroin during the time period of the transaction created a genuine issue
3 No. 39176-1-III McClain v. Sanchez
of material fact as to undue influence. In response to Dr. MacLennan’s declaration,
McClain stated, “I am not a medical doctor and thus not able to make any medical
opinions regarding [Dr. MacLennan’s] analysis but I do disagree with her conclusions.”
CP at 37. In another declaration, McClain said that Sanchez persuaded her to deed the
house so that Sanchez could refinance the house and “get things in order.” CP at 25.
The superior court granted Sanchez’s motion for summary judgment and McClain
appeals.2
ANALYSIS
1. SUMMARY JUDGMENT
McClain argues that there was a genuine issue of material fact as to undue
influence, and therefore, the superior court erred in granting Sanchez’s motion for
summary judgment. We disagree.
Orders on summary judgment are reviewed de novo. Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080 (2015). Evidence is considered in a light most favorable to the
nonmoving party. Id. Summary judgment is only appropriate if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law. Id.
Mere speculation is insufficient to support or defeat a motion for summary judgment.
Umpqua Bank v. Gunzel, 19 Wn. App. 2d 16, 34, 501 P.3d 177 (2021).
2 The notice of appeal has not been designated as part of the record on appeal.
4 No. 39176-1-III McClain v. Sanchez
We apply additional principles to the summary judgment standard where a party
claims undue influence, as undue influence is a mixed question of law and fact. Kitsap
Bank v. Denley, 177 Wn. App. 559, 569, 312 P.3d 711 (2013). The party asserting undue
influence must demonstrate it by clear, cogent, and convincing evidence at trial. Id. To
survive summary judgment, the party asserting undue influence “must present sufficient
evidence to make it highly probable that the undue influence claim will prevail at trial.”
Id.
“Undue influence involves unfair persuasion that seriously impairs the free and
competent exercise of judgment.” In re Estate of Jones, 170 Wn. App. 594, 606, 287
P.3d 610 (2012). A party may demonstrate undue influence by virtue of a confidential
relationship. Id. “A confidential relationship exists when one person has gained the
confidence of the other and purports to act or advise with the other person’s interest in
mind.” Id. Confidential relationships are particularly likely to arise in family
relationships. Kitsap Bank, 177 Wn. App. at 572. A close “friendship, on its own, does
not establish a confidential relationship.” Id.
McClain argues that the superior court erred in granting Sanchez’s motion for
summary judgment because there was a genuine issue of material fact as to whether
Sanchez asserted undue influence. Although McClain block quotes a pattern jury
instruction and portions of the Restatement (Second) of Contracts (Am. Law Inst. 1981),
she fails to provide any analysis or reasoned argument to support her position.
5 No. 39176-1-III McClain v. Sanchez
Accordingly, we decline to address her argument as it has not been properly briefed. See
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MAY 18, 2023 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
DEBRA KAY MCCLAIN, a single ) person, ) No. 39176-1-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION ELIZABETH J. SANCHEZ, a single ) person, ) ) Respondent. )
STAAB, J. — Debra McClain appeals from the superior court’s summary judgment
order in her quiet title action against Elizabeth Sanchez. McClain argues the superior
court erred in granting Sanchez’s motion for summary judgment because there was a
genuine issue of material fact regarding whether Sanchez used undue influence to acquire
the property in question. Sanchez contends that the superior court’s summary judgment
order was correct and requests attorney fees on appeal. We conclude that McClain’s
appeal is frivolous, and we decline to address her arguments as they have not been
properly briefed and preserved. In addition, under RAP 18.9(a), we order counsel for
McClain to pay Sanchez’s reasonable attorney fees for responding to this appeal. No. 39176-1-III McClain v. Sanchez
BACKGROUND
As this case was decided on summary judgment, the following facts are set forth
in the light most favorable to the nonmoving party, McClain.
McClain and Sanchez were friends for several years and called each other sisters.
McClain owned and resided at a property located in Wenatchee, Washington that was
encumbered by a mortgage. In early 2018, McClain approached Sanchez about taking
over the mortgage payment on the property and paying her an additional sum in exchange
for McClain deeding the property to Sanchez. McClain said she intended to move to
Hawaii and needed money.
In September 2018, McClain deeded the property to Sanchez. The deed purported
to convey the property as a gift, but Sanchez also paid McClain $6,000 and started
making payments on the mortgage attached to the home. Although Sanchez did not
assume the mortgage, she agreed to make payments on it as part of the transaction. The
mortgage subsequently lapsed.
McClain brought a quiet title action against Sanchez, alleging that Sanchez
asserted undue influence to acquire ownership of the property. McClain claimed that she
“suffer[ed] from a variety of issues and, as such, [had] a caseworker.” Clerk’s Papers
(CP) at 4. She also stated that she had “been diagnosed with depression, PTSD,[1]
1 Post-traumatic stress disorder.
2 No. 39176-1-III McClain v. Sanchez
anxiety, bi-polar, and [was] a pancreatic cancer survivor” and had been using heroin in
the fall of 2018 when the transaction in question occurred. CP at 4. McClain claimed
that Sanchez convinced her to deed ownership of the property to Sanchez for $6,000 even
though it was worth $174,200. McClain said that she did not realize her actions in selling
the house until she became sober in December 2018.
Sanchez moved for summary judgment, arguing that there was no evidence
supporting McClain’s contentions of cognitive impairment, diminished capacity, or
inability to make an informed decision or gift.
In support of her motion, Sanchez provided a declaration from expert witness Dr.
Catherine MacLennan, who reviewed medical records produced by McClain. Dr.
MacLennan noted that according to the records, McClain had not been seen once for
medical care in 2018, the year she deeded the house to Sanchez. Dr. MacLennan
explained that nothing in McClain’s medical records demonstrated that she had been
treated for any conditions at any point “that would render her susceptible to either undue
influence or manipulation or render [her] incapable of making her own independent
decisions.” CP at 97. Dr. MacLennan also stated that according to the medical records
provided, none of McClain’s prescriptions, if taken as prescribed, would have affected
McClain’s judgment.
McClain responded to Sanchez’s motion for summary judgment, arguing that
McClain’s use of heroin during the time period of the transaction created a genuine issue
3 No. 39176-1-III McClain v. Sanchez
of material fact as to undue influence. In response to Dr. MacLennan’s declaration,
McClain stated, “I am not a medical doctor and thus not able to make any medical
opinions regarding [Dr. MacLennan’s] analysis but I do disagree with her conclusions.”
CP at 37. In another declaration, McClain said that Sanchez persuaded her to deed the
house so that Sanchez could refinance the house and “get things in order.” CP at 25.
The superior court granted Sanchez’s motion for summary judgment and McClain
appeals.2
ANALYSIS
1. SUMMARY JUDGMENT
McClain argues that there was a genuine issue of material fact as to undue
influence, and therefore, the superior court erred in granting Sanchez’s motion for
summary judgment. We disagree.
Orders on summary judgment are reviewed de novo. Keck v. Collins, 184 Wn.2d
358, 370, 357 P.3d 1080 (2015). Evidence is considered in a light most favorable to the
nonmoving party. Id. Summary judgment is only appropriate if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of law. Id.
Mere speculation is insufficient to support or defeat a motion for summary judgment.
Umpqua Bank v. Gunzel, 19 Wn. App. 2d 16, 34, 501 P.3d 177 (2021).
2 The notice of appeal has not been designated as part of the record on appeal.
4 No. 39176-1-III McClain v. Sanchez
We apply additional principles to the summary judgment standard where a party
claims undue influence, as undue influence is a mixed question of law and fact. Kitsap
Bank v. Denley, 177 Wn. App. 559, 569, 312 P.3d 711 (2013). The party asserting undue
influence must demonstrate it by clear, cogent, and convincing evidence at trial. Id. To
survive summary judgment, the party asserting undue influence “must present sufficient
evidence to make it highly probable that the undue influence claim will prevail at trial.”
Id.
“Undue influence involves unfair persuasion that seriously impairs the free and
competent exercise of judgment.” In re Estate of Jones, 170 Wn. App. 594, 606, 287
P.3d 610 (2012). A party may demonstrate undue influence by virtue of a confidential
relationship. Id. “A confidential relationship exists when one person has gained the
confidence of the other and purports to act or advise with the other person’s interest in
mind.” Id. Confidential relationships are particularly likely to arise in family
relationships. Kitsap Bank, 177 Wn. App. at 572. A close “friendship, on its own, does
not establish a confidential relationship.” Id.
McClain argues that the superior court erred in granting Sanchez’s motion for
summary judgment because there was a genuine issue of material fact as to whether
Sanchez asserted undue influence. Although McClain block quotes a pattern jury
instruction and portions of the Restatement (Second) of Contracts (Am. Law Inst. 1981),
she fails to provide any analysis or reasoned argument to support her position.
5 No. 39176-1-III McClain v. Sanchez
Accordingly, we decline to address her argument as it has not been properly briefed. See
State v. Stubbs, 144 Wn. App. 644, 652, 184 P.3d 660 (2008) (“Passing treatment of an
issue or lack of reasoned argument is insufficient to allow for our meaningful review.”),
rev’d on other grounds by 170 Wn.2d 117, 240 P.3d 143 (2010).
For the first time on appeal, McClain also argues that there was a confidential
relationship between her and Sanchez as they were close friends who referred to each
other as sisters.3 We also decline to address this argument as it has not been properly
preserved. See RAP 2.5(a).
In sum, we decline to address McClain’s arguments as they have not been properly
briefed and accordingly affirm the superior court’s summary judgment order.
2. ATTORNEY FEES
Sanchez argues that she is entitled to attorney fees on appeal. RAP 18.9(a)
provides that the appellate court, on its own initiative, may order counsel who files a
frivolous appeal to pay sanctions. “‘Appropriate sanctions may include, as
compensatory damages, an award of attorney fees and costs to the opposing party.’”
Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009) (quoting Yurtis v. Phipps,
143 Wn. App. 680, 696, 181 P.3d 849 (2008)). “‘An appeal is frivolous if, considering
3 Although Sanchez states in her brief that McClain raised an argument regarding a confidential relationship during the motion for summary judgment, the record does not support this.
6 No. 39176-1-III McClain v. Sanchez
the entire record, the court is convinced that the appeal presents no debatable issues upon
which reasonable minds might differ and that it is so devoid of merit that there is no
possibility of reversal.’” Id. (quoting Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906,
151 P.3d 219 (2007)). Any doubt as to whether an appeal is frivolous is resolved in favor
of the appellant. Id.
Here, McClain fails to raise any issues that we can address as her issues were
either improperly briefed or not preserved. There are no debatable issues, and it is so
devoid of merit that there is no possibility of this court reversing. Accordingly, we
determine that her appeal is frivolous and order appellate counsel to pay Sanchez’s
appellate attorney fees and costs.
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.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Fearing, C.J.
_________________________________ Pennell, J.