IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of:

THE HARLAN D. DOUGLASS TRUST.

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No. 39183-3-III

HARLEY C. DOUGLASS, an individual 

and Residuary Beneficiary of the Harlan 

D. Douglass Trust,

Plaintiff,

v.

LANZCE G. DOUGLASS, individually 

and as a Residuary Beneficiary of the 

Harlan D. Douglas Trust,

Petitioner,

THOMAS HAMILTON, individually and 

as Special Trustee of the Harlan D. 

Douglas Trust,

Defendant,

STACEY M. DOUGLASS BOIES, as a 

Residuary Beneficiary of the Harlan D. 

Douglass Trust, and as an additional 

necessary party,

Petitioner,

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UNPUBLISHED OPINION

FILED

NOVEMBER 7, 2023

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 39183-3-III

In re Harlan D. Douglass Trust

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DEANNA MALCOM, as Attorney in Fact 

for HARLAN D. DOUGLASS, a 

Beneficiary of the Harlan D. Douglass 

Trust, and as an additional necessary party,

Respondent.

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BIRK, J. 1 — We review a preliminary injunction restraining Lanzce Douglass and 

Stacey Douglass Boies from using an April 2019 durable power of attorney (DPOA) 

making them co-attorneys-in-fact to manage the affairs of their father, Harlan Douglass. 

The superior court entered the preliminary injunction on the motion of Deanna Malcom, 

who holds a competing February 2019 DPOA to manage Harlan’s affairs.2

 The issue 

arose in a proceeding initiated by Harlan’s other son, Harley Douglass, who contended 

that in the summer of 2019 Lanzce wrongfully procured a deed transferring real property 

out of a trust established by the will of Harlan’s late wife Maxine Douglass. Harley

argued the deed was the product of undue influence, and, when the existence of the April 

2019 DPOA was revealed, Malcom asserted that it, too, was the product of undue 

influence. The trial court entered the preliminary injunction against use of the April 2019

DPOA before trial over the validity of the deed. A commissioner of this court granted 

 

1 The Honorable Ian S. Birk is a Court of Appeals, Division One, judge sitting in 

Division Three pursuant to CAR 21(a).

2 We refer to Douglass family members by their first names for clarity. No 

disrespect is intended.
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discretionary review, ruling the trial court’s neglect to waive or fix an appropriate bond 

met the criteria of RAP 2.3(b)(1). We confine our review to this issue, we do not disturb 

the continuing force of the preliminary injunction, and we remand for the trial court to 

waive or fix an appropriate bond.

I. Facts

On August 29, 2019, Harley filed an action against Lanzce, Thomas Hamilton as 

the special trustee of the Harlan D. Douglass Trust, and unnamed Doe defendants. Harley 

alleged Maxine’s will established a trust to receive certain real property, and made her

three children residual beneficiaries. Under the trust, Harley was a 50 percent 

beneficiary, Stacey was a 40 percent beneficiary, and Lanzce was a 10 percent 

beneficiary. The trust made Harlan trustee, unless he was unwilling or unable to serve, in 

which case Hamilton was named “Special Trustee.” According to Harley’s complaint, 

“sometime in July or August of 2019, Lanzce . . . wrongfully caused, encouraged and 

prevailed upon Mr. Hamilton to execute one or more deeds for the tortious purpose of 

removing each and every asset from the Trust.” On January 3, 2020, Harley filed a 

petition under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A 

RCW, naming Lanzce and Hamilton as respondents and making generally similar 

allegations. 
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On August 3, 2022, Malcom filed a motion for a preliminary injunction in her 

capacity as attorney-in-fact for Harlan. Malcom was designated Harlan’s attorney-in-fact 

in a February 2019 DPOA.3 According to the motion and its supporting papers, on 

August 2, 2022, counsel for Lanzce sent a letter invoking the April 2019 DPOA, which 

purportedly took effect “‘upon the disability or incapacity of the principal,’” revoked 

“‘any other powers of attorney which the principal may have previously executed,’” and 

named Lanzce and Stacey co-attorneys-in-fact. The letter asserted that the April 2019 

DPOA was triggered when Harlan’s treating physician testified he was not able to 

manage his affairs. The letter included a delegation by Stacey giving Lanzce authority to 

“fulfill all power, duty, and authority” conferred to the nominated attorneys-in-fact. The 

August 2, 2022 letter requested a meeting “on Thursday, August 4 at 9:00 a.m. to meet 

with you regarding pending matters and the overall operations” of Harlan’s business 

affairs. In the motion, Malcom asserted the letter was received “merely three court days 

before commencement of trial” of the claims in Harley’s August 2019 complaint and 

January 2020 TEDRA petition. Malcom asserted the request that Malcom “transfer all 

authority to Lanzce” was “a litigation strategy to hamper Harlan’s ability to protect

 

3 It is apparent from the captions of the trial court documents that Malcom as 

Harlan’s attorney-in-fact and Stacey became joined as necessary parties in the trial court 

proceedings. 
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himself at trial.” The motion argued the April 2019 DPOA was either “an outright 

forgery,” or “otherwise a product of undue influence by Lanzce” and “not a reflection of 

Harlan’s true intent.” (Emphasis omitted.) 

Malcom attested to further background information in her declaration supporting 

the motion. She stated Harlan executed the February 2019 DPOA naming her as 

attorney-in-fact, but at Harlan’s direction she did not take any action until starting in 

August 2019. She asserted that, also at Harlan’s direction, as Harlan’s attorney-in-fact 

she advised Lanzce and Stacey that general powers of attorney that they held were 

revoked. Malcom then began managing Harlan’s affairs. Malcom denied knowledge of 

the April 2019 DPOA naming Lanzce and Stacey co-attorneys-in-fact in case of Harlan’s 

disability until her counsel received the August 2, 2022 letter invoking it. Malcom 

described events in March 2019, in which Lanzce was allegedly involved, in which 

Harlan declined to sign a different DPOA, signed the general power of attorney naming 

Lanzce and Stacey that was later revoked, signed a will, and then signed a subsequent will 

after his lawyer learned of changes to the first will. According to Malcom, Lanzce 

presented Harlan documents to sign in California outside the presence of his attorney and

then later took Harlan in a private plane in April 2019 to meet with a new attorney in the 

Seattle area. Malcom’s narrative suggests the conclusion that the April 2019 DPOA was 

procured by undue influence after Harlan declined to sign a substantially similar DPOA in 
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March 2019. Malcom filed an amended motion for preliminary injunction on August 4, 

2022.

Lanzce opposed the motion. Lanzce argued Malcom presented “an overly 

complicated and colorful” version of events. Lanzce gave a different account of Harlan’s 

signing certain power of attorney documents in 2019, including meeting with Lanzce and 

Stacey in California and attending a meeting with Lanzce, attorney Mike Turnbull, and 

others in Tacoma. Lanzce claimed he and Stacey were blocked from visiting or speaking 

with Harlan once Malcom began using the February 2019 DPOA. He asserted the April 

2019 DPOA was triggered when Harlan’s treating physician, Sameh Elsanadi, MD, gave 

testimony in a deposition on April 22, 2022 meeting its definition of incapacity. At that 

point, Lanzce argued, “steps were immediately taken to secure Harlan’s property and 

affairs.” Lanzce argued (1) Malcom failed to meet the necessary burden of proof for a 

preliminary injunction, (2) the invocation of the April 2019 DPOA was not a trial tactic 

and the DPOA was not a product of fraud or undue influence, and (3) if the superior court 

granted injunctive relief, it would be required to set a bond. Stacey filed a joinder in 

Lanzce’s response to the motion for preliminary injunction. 

Lanzce supported his opposition to the motion with a declaration attesting to his 

view of the circumstances of the documents Harlan signed in 2019. Lanzce testified,

“Following Dr. Elsanadi’s deposition, I realized that the April 2019 [DPOA] was 
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In re Harlan D. Douglass Trust

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effective.” He further testified that Harlan had expressed his “wishes that I not disclose 

its existence until he was incapacitated.” Lanzce testified that he believed certain estate 

planning actions should be taken with respect to Harlan’s estate. Lanzce also supported

his opposition with a declaration of Mike Turnbull, an estate planning attorney. Turnbull 

testified that Harlan attended a meeting at his office with him, Lanzce and others on April 

22, 2019 and “seemed like a normal guy with full capacity.” Turnbull stated, “I had no 

concerns about [Harlan’s] understanding what he was doing, or whether he was clear in 

his desire to do so. Harlan did not seem lacking or deficient or incapacitated in any 

way.” Turnbull stated he did not have reason to believe Lanzce or Stacey were pressuring 

or forcing Harlan into doing anything he did not already wish to do. Lanzce also 

submitted a declaration by a certified public accountant who attended the meeting and 

likewise denied concerns about Harlan’s capacity to make decisions. 

On September 12, 2022, the superior court entered its order granting the 

preliminary injunction. The court found there was a “well-grounded fear of invasion of 

Harlan’s right to determine his own attorney-in-fact where a legitimate dispute currently 

exists as to whether the April 2019 DPOA appointing Lanzce and Stacey Douglass as coattorneys in fact or the February 2019 DPOA appointing Deanna Malcom is the DPOA 

that should remain in full force and effect.” The court stated, “[T]he validity of the 

competing power of attorney document[s] needs to be adjudicated,” and there was 
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sufficient question concerning the procurement of the April 2019 DPOA to enjoin its 

use “until such time a final determination on the validity of the document can be made.” 

The order did not address either waiving or fixing a bond. Lanzce and Stacey filed a 

notice for discretionary review. A commissioner of this court granted their motion for 

discretionary review, concluding “the trial court’s failure to order a bond” met the criteria 

for discretionary review pursuant to RAP 2.3(b)(1). 

We grant Malcom’s motion to supplement the record with the superior court’s 

June 5, 2023 findings of fact, conclusions of law and judgment. The superior court found 

that on August 14, 2019, Hamilton signed a deed in his capacity as special trustee of the 

Harlan D. Douglass Trust, which purported to convey 224 Spokane County properties out 

of the trust to Harlan individually. The superior court concluded the deed “does not have 

effect and is set aside, based on lack of acceptance and undue influence.” The superior 

court concluded the deed came about because Lanzce “engineered a situation whereby he 

could inherit a great deal more than was natural or planned by Harlan.” 

II. Analysis

Before turning to the preliminary injunction, we note that we asked the parties to 

submit briefs on whether the superior court’s entry of its June 5, 2023 findings of fact, 

conclusions of law, and judgment mooted our review of the preliminary injunction. Both 

parties argued that our review is not moot. Lanzce and Stacey argued the superior court’s 
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decision “did not address, dissolve, or alter” the preliminary injunction. Accordingly, 

they say, the preliminary injunction “remains undisturbed.” They observe the superior

court’s decision notes that the subject of Lanzce’s power of attorney remains pending. 

Similarly, Malcom argued “there is an outstanding issue that the trial court has yet to 

resolve,” which is “whether Harlan properly revoked the April 2019 DPOA which 

nominated Lanzce to act as his attorney-in-fact.” Like Lanzce and Stacey, Malcom also 

argues “the preliminary injunction is still in effect.” We also take judicial notice that the 

superior court’s June 5, 2023 decision is subject to a notice of appeal which has been 

transmitted to this court. Because the parties agree that the preliminary injunction 

remains in effect and remains subject to future proceedings, we agree with the parties that 

review is not moot.

We next consider the scope of this discretionary review. We review the grant or 

denial of a preliminary injunction for abuse of discretion. San Juan County v. No New 

Gas Tax, 160 Wn.2d 141, 153, 157 P.3d 831 (2007). Lanzce contends Malcom did not 

show a clear legal or equitable right, a likelihood of succeeding on the merits, a wellgrounded fear of immediate invasion, or actual and substantial injury. However, the 

commissioner did not grant discretionary review on any of those issues, and did not 

conclude that any of those issues entrusted to the trial court’s discretion met the standard 

for discretionary review of “obvious” or “probable” error under RAP 2.3(b)(1) or (2). 
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Rather, the commissioner granted review under RAP 2.3(b)(1) solely on the basis that the 

failure of the preliminary injunction to waive or set a bond was “obvious error” under 

RAP 2.3(b)(1), based on authority holding a bond is “mandatory.” Evar, Inc. v. Kurbitz, 

77 Wn.2d 948, 951, 468 P.2d 677 (1970). Neither party obtained modification of the 

commissioner’s ruling. 

In State v. LG Electronics, Inc., we granted discretionary review on two questions 

certified by the trial court under RAP 2.3(b)(4). 185 Wn. App. 123, 130, 340 P.3d 915 

(2014), aff’d, 186 Wn.2d 1, 375 P.3d 636 (2016). We recognized two ways in which this 

court possesses discretion to determine the scope of discretionary review. First, the court 

has discretion to limit the scope of review on an issue on which review has been

allowed. Id. at 130 n.12 (“The formulation of this second question could be construed as 

an invitation to consider whether RCW 4.16.160 exempts the Attorney General’s claim 

for actual damages pursuant to RCW 19.86.090 from the four-year limitation period set 

forth in RCW 19.86.120. To the extent that this invitation was, in fact, extended, we

decline to accept it.”). Second, the court has discretion to decline to reach issues on 

which review was not granted. We explained,

“This court determines the scope of discretionary review.” Emily Lane 

Homeowners Ass’n v. Colonial Dev., LLC, 139 Wn. App. 315, 318, 

160 P.3d 1073 (2007), aff’d in part, rev’d in part sub nom., Chadwick 

Farms Owners Ass’n v. FHC, LLC, 166 Wn.2d 178, 207 P.3d 1251 (2009); 

RAP 2.3(e). While RAP 2.3(e) vests discretion in appellate courts to 
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delimit the scope of discretionary review, we have been indisposed to 

consider issues for which discretionary review was not granted. See

Johnson[ v. Recreational Equip., Inc.], 159 Wn. App. [969,] 959 n.7, 

247 P.3d 18 [2011] (“Because discretionary review was not granted on 

this issue, we will not reach it.”); see also City of Bothell v. Barnhart, 

156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (“We granted review 

on a single, narrow issue. Accordingly, we decline to address other issues 

for which discretionary review was not granted.”), aff’d, 172 Wn.2d 223, 

257 P.3d 648 (2011): cf. Lunsford v. Saberhagen Holdings, Inc., 139 

Wn. App. 334, 338, 160 P.3d 1089 (2007) (“[I]f an issue raised for the 

first time on appeal is ‘arguably related’ to issues raised in the trial court, 

a court may exercise its discretion to consider newly-articulated theories for 

the first time on appeal.”), aff’d, 166 Wn.2d 264, 208 P.3d 1092 (2009).

LG Elecs., 185 Wn. App. at 151-52 (last alteration in original).

While we recognize that Lanzce and Stacey sought discretionary review on the 

entirety of Malcom’s showing to obtain the preliminary injunction, the commissioner 

found only one issue that met this court’s standards for discretionary review. The trial 

court’s subsequent 43-page decision speaks to the extensive evidence bearing on the 

merits of Malcom’s claims that is not before us on this record. This raises the concern 

that “‘it would be imprudent for us to address those complex issues’” on a record that is 

incomplete and one on which the substance of Malcom’s claims was largely vindicated 

after trial in the superior court. Id., at 152 (quoting Barnhart, 156 Wn. App. at 538 n.2). 

We exercise our discretion to limit our review to the issue of the bond.
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RCW 7.40.080 states,

No injunction or restraining order shall be granted until the party 

asking it shall enter into a bond, in such a sum as shall be fixed by the court 

or judge granting the order, with surety to the satisfaction of the clerk of 

the superior court, to the adverse party affected thereby, conditioned to pay 

all damages and costs which may accrue by reason of the injunction or 

restraining order. The sureties shall, if required by the clerk, justify as 

provided by law, and until they so justify, the clerk shall be responsible for 

their sufficiency. The court in its sound discretion may waive the required 

bond in situations in which a person’s health or life would be jeopardized.

This requires a party obtaining a preliminary injunction “to deposit an amount deemed by 

the court sufficient to secure the interests of the adverse party.” Bowcutt v. Delta N. Star 

Corp., 95 Wn. App. 311, 320, 976 P.2d 643 (1999) (citing RCW 7.40.080). 

Lanzce argues “an injunction without the required bond is invalid.” Lanzce 

bases this argument on Evar, which held that under RCW 7.40.080 “posting a bond is 

mandatory” and because the trial court there had not fixed a bond supporting the order 

appealed, the order was “invalid.” 77 Wn.2d at 951. But Lanzce’s argument does not 

consider the complete context of the Evar decision. That case arose out of several 

proceedings in Yakima county “to determine the ownership of stock, and management, 

and control of several closely held corporations.” Id. at 948. Following a hearing on 

November 19, 1968, the court entered an order on December 24, 1968 which directed 

the restrained party “to surrender and deliver certain property” to the plaintiff. Id.

at 950. The Supreme Court concluded it was “apparent” that the motions presented 
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on November 19, 1968 “were for the purpose of preserving the status quo and to 

temporarily freeze the assets involved pendente lite until all issues presented by the 

pleadings could be heard upon the merits.” Id. Later, following a claim that the 

restrained party was in contempt of the December 24, 1968 order, the trial court on 

March 21, 1969 entered a new order enjoining the restrained party from voting certain 

corporate stock and directing that he immediately transfer certain stock to the plaintiff. 

Id. It was the later, March 1969 order that the Supreme Court declared “invalid” for 

lack of bond. Id. at 950-51. We find this significant, because nothing indicates that by 

reversing that order, the court disturbed the trial court’s original order entered “for the 

purpose of preserving the status quo.” Id. at 950.

Evar relied on Irwin v. Estes, 77 Wn.2d 285, 461 P.2d 875 (1969). In Irwin, 

plaintiffs sought to enjoin a proposed “Sky River Rock Festival and Lighter Than Air 

Fair” from taking place in Thurston County. Id. at 285. On August 28, 1969, the superior 

court entered an order temporarily enjoining the event, providing the injunction would not 

be effective until deposit of a $25,000 bond. Id. at 285-86. The next day, the Supreme 

Court held a hearing on a writ of certiorari, at which it was stipulated that the plaintiffs 

would not post the required bond. Id. at 286. As a result, the Supreme Court “entered an 

order which left the parties in exactly the same position as though there had been no 

injunction,” because it was apparent in the absence of the plaintiffs posting bond “there 
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was not and would not be a valid injunction.” Id. Evar also relied on Western Academy 

of Beaux Arts v. De Bit, 101 Wash. 42, 171 P. 1036 (1918). There, plaintiff secured a 

temporary restraining order against a continuing trespass upon land, which the court held 

was error and invalid without the required bond. Id. at 43-44, 45. And Lanzce further 

cites Cheney v. City of Mountlake Terrace, 20 Wn. App. 854, 857, 583 P.2d 1242 

(1978). Citing Irwin, Cheney states “it is error to grant the injunction without the 

required bond,” 20 Wn. App. at 857, but otherwise Cheney is not on point because in 

that case the trial court had fixed a bond and the appeal concerned the amount of damages 

recoverable by the restrained party after a temporary restraining order was dissolved. 

Id. at 856-57.

In the present case, we believe the preliminary injunction was, like the original 

order in Evar, intended by the trial court to preserve the status quo until there could be a 

determination on the merits of the validity of the April 2019 DPOA that Lanzce and 

Stacey sought to invoke. Evar, Irwin, Western Academy, and Cheney all generally 

support the proposition that it is error under RCW 7.40.080 to issue a preliminary 

injunction without waiving or fixing a bond. But, when their context is considered, these 

decisions do not support the proposition that a preliminary injunction is always without 

effect, as opposed to only subject to correction, when a required bond is omitted. At the 

same time, we do not agree with Malcom’s argument that we can assume the superior 
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court waived bond as permitted by RCW 7.40.080 “in situations in which a person’s 

health or life would be jeopardized,” where Malcom points to nothing in the record 

supporting that the court made such a decision.

We do not disturb the continuing force of the preliminary injunction, and we 

remand for the trial court to waive or fix an appropriate bond. We deny the parties’ 

respective requests for attorney fees.

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.

WE CONCUR: Birk, J.

__________________________ ______________________________

Fearing, C.J. Lawrence-Berrey, J.