text:
    Brodi EPPS, BY AND THROUGH His Guardian ad litem, Molly S. EPPS, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE, an inter-insurance exchange, et al., Defendants, and Truck Insurance Exchange, an inter-insurance exchange, dba Farmers Insurance Company of Oregon; John Douglas Pollard; and Alta Lorena Hise-Pollard, Defendants-Respondents.
    A166532
    Court of Appeals of Oregon.
    Argued and submitted October 22, 2018. December 12, 2018
    Charles G. Duncan, Eugene, argued the cause and filed the briefs for appellant. Respondents John Douglas Pollard and Alta Lorena Hise-Pollard joined the opening brief.
    Thomas M. Christ argued the cause for respondent Truck Insurance Exchange. Also on the brief was Sussman Shank LLP.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   TOOKEY, J.

Plaintiff appeals a limited judgment that was entered following the trial court's grant of summary judgment in favor of defendant insurer. Plaintiff, by and through his guardian ad litem , began this declaratory judgment action to determine whether a homeowners' insurance policy that defendant had issued covers the liability of the insureds, the Pollards, in an underlying action against them. The trial court granted defendant's motion for summary judgment, ruling that the policy does not cover the Pollards' potential liability because of the motor vehicle exclusion in the policy. Plaintiff assigns error to the trial court's grant of summary judgment in favor of defendant, contending that the motor vehicle exclusion does not apply to plaintiff's claim against Alta Pollard. For the reasons that follow, we conclude that the trial court did not err when it granted defendant's motion for summary judgment and, accordingly, we affirm.

"Because this case arises on defendant's motion for summary judgment, we state the facts in the light most favorable to plaintiffs." Dewsnup v. Farmers Ins. Co. , 349 Or. 33, 35, 239 P.3d 493 (2010). Defendant sold a homeowners' insurance policy to John and Alta Pollard, which, subject to various exclusions, covered their personal liability for bodily injury to others. While the policy was in force, plaintiff's mother took plaintiff, who was just under two years old, to the Pollards' home and left plaintiff in Alta's care while plaintiff's mother ran errands. Alta knew that John was intoxicated from drinking alcohol. Nevertheless, Alta allowed John to place plaintiff between his knees on an all-terrain vehicle (ATV) and drive around the premises without plaintiff wearing a helmet or protective gear. At some point, John drove the ATV onto a public road and ran the ATV into a fence, which caused the ATV to roll and eject plaintiff, causing plaintiff serious bodily injury.

Plaintiff filed the underlying negligence action against the Pollards, alleging that, Alta's "failure to reasonably supervise" plaintiff on the premises of the insured, and John's actions, both on and off of the premises, caused plaintiff's injuries. The Pollards tendered an insurance claim to defendant, which defendant denied on the basis of the motor vehicle exclusion to coverage in the policy. Plaintiff then filed this declaratory judgment action against defendant to determine whether the Pollards' homeowners' insurance policy covers the Pollards' liability in plaintiff's action against them. In response, defendant moved for summary judgment, contending that the Pollards' insurance policy excludes claims for bodily injury that do not occur on the insured premises and that result from the use of a motor vehicle. The trial court agreed with defendant and granted the motion for summary judgment.

As noted above, on appeal, plaintiff does not dispute the trial court's determination that his claim against John Pollard is excluded from coverage under the policy because the plaintiff's injuries resulted from the use of a motor vehicle off of the insured premises. Plaintiff's sole argument on appeal is that the trial court erred when it determined that the policy excluded coverage for Alta's negligence; plaintiff contends that Alta's negligence is not subject to the motor vehicle exclusion in the policy because Alta's negligent supervision of plaintiff occurred on the insured premises and resulted in a foreseeable harm to plaintiff.

On the other side, defendant contends that the motor vehicle exclusion in the Pollards' policy applies to plaintiff's negligent supervision claim against Alta because the "exclusion applies to any claim for injury that 'results from' the use of a motor vehicle," and "[w]hat determines whether a claim is covered is the nature of the injury , whether it is vehicle related, not whether the alleged negligence is vehicle related, nor where the negligence occurred." (Emphasis in defendant's brief.)

To determine whether the trial court erred when it granted defendant's motion for summary judgment, we "examine[ ] the summary judgment record, in accordance with ORCP 47 C, to determine whether the pleadings and any supporting documents on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law." Bresee Homes Inc. v. Farmers Ins. Exchange , 353 Or. 112, 114, 293 P.3d 1036 (2012). In disputes such as this one, that turn on the meaning of an insurance policy, "the primary and governing rule is to ascertain the intention of the parties" and, to do so, "we examine the terms and conditions of the policy, and where a particular term is not defined in the contract, we begin by identifying that term's plain meaning." Dewsnup , 349 Or. at 39-40, 239 P.3d 493 (brackets, ellipsis, internal quotation marks, and internal citations omitted). We are mindful that "[i]f the term has no plain meaning; that is, if the term is ambiguous, we examine that term within the context of the policy as a whole" and, "[i]f two or more plausible interpretations still remain, we construe the term against the drafter and in favor of the insured." Id. at 40, 239 P.3d 493.

We begin our analysis with "Coverage E" in the policy, which provides, in pertinent part, that "[w]e will pay those damages which an insured becomes legally obligated to pay because of bodily injury, property damage or personal injury resulting from an occurrence to which this coverage applies" and, "[a]t our expense and with attorneys of our choice, we will defend an insured against any covered claim or suit." Additionally, "Coverage F" provides that "[w]e will pay the necessary medical expenses for services furnished to a person other than you or any resident of your household within 3 years from the date of an occurrence causing bodily injury." The policy defines an "occurrence" as "an accident including exposure to conditions which results during the policy period in bodily injury or property damage."

However, those policy provisions must be read in relationship to the exclusions in the policy. The policy sets forth certain exclusions "applying to Coverage E and F-personal liability and medical payments to others." The pertinent exclusion states:

"We do not cover bodily injury, property damage or personal injury which:
"* * * * *
"7. results from the ownership, maintenance, use, loading or unloading of:
"* * * * *
"b. motor vehicles[.]"

As relevant here, the policy defines "motor vehicle" as "any * * * motorized land vehicle designed for recreational use off public roads," but that definition does not include "a motorized land vehicle, not subject to motor vehicle registration, used only on an insured location." Reading the exclusion and definition together, the apparent purpose of the exclusion is to require the insured to obtain separate liability insurance for recreational vehicles, except when they are "used only on an insured location." The parties do not dispute that, once the ATV left the Pollards' property and was traveling on the public road, the ATV was a "motor vehicle" within the policy's definition.

Plaintiff, relying on the definition of "occurrence" in the policy, contends that Alta's negligent supervision of plaintiff on the insured premises "constituted an occurrence under the policy because [it] exposed the child to conditions resulting in bodily injury" and, because "the policy insures against" the use of the ATV on the insured premises, the policy coverage should extend to Alta's acts.

Plaintiff's construction of the policy ignores the applicability of the motor vehicle exclusion to occurrences that cause bodily injury. See Leach v. Scottsdale Indemnity Co. , 261 Or. App. 234, 242, 323 P.3d 337, rev. den. , 356 Or. 400, 339 P.3d 440 (2014) (a construction that requires us to disregard a provision of the policy is unreasonable, "as a matter of law"). The policy covers the insured's liability for "bodily injury * * * resulting from an occurrence to which this coverage applies ." (Emphasis added.) Thus, the policy insures against accidents that cause bodily injury, unless the bodily injury is caused in a manner or by an instrumentality for which the policy excludes coverage. As noted above, the policy unambiguously excludes coverage for "occurrences," i.e. accidents, including exposure to conditions, which result in bodily injury, when the bodily injury "results from the * * * use * * * of" "motor vehicles" off the premises of the insured.

In this case, plaintiff's injuries were the result of John's and plaintiff's "use" of a "motor vehicle" on a public road. See American Economy Ins. Co. v. Hughes , 121 Or. App. 183, 186, 854 P.2d 500 (1993) (construing a nearly identical exclusion for the "use" of a motor vehicle and concluding that the homeowners' policy exclusion for "using" a motor vehicle applies to passengers because an "exclusion for 'using' a motor vehicle is broader than one for 'operating' a motor vehicle"). The policy specifically and unambiguously excludes coverage for bodily injury that results from the "use" of "motor vehicles," such as the one used in this case, and the application of the exclusion under the policy does not depend on plaintiff's theory of liability or the defendant against whom his claim is stated.

In our analysis, we are guided by our decision in Farmers Insurance Group v. Nelsen , 78 Or. App. 213, 715 P.2d 492, rev. den. , 301 Or. 241, 720 P.2d 1280 (1986). In that case, Welch was injured when the Nelsens' minor son, Robert, collided with him while Robert was operating a dirt bike on a public road. Id. at 215, 715 P.2d 492. Welch sued the Nelsens, alleging, among other things, "that the Nelsens were negligent * * * in failing to exercise reasonable control and supervision over Robert in his operation of the vehicle." Id. Farmers Insurance Group, the insurer, brought a declaratory judgment action to determine whether the Nelsens' homeowners' insurance policy covered their liability, and moved for summary judgment on the ground that coverage for Welch's injury was excluded by a motor vehicle exclusion clause similar to the one at issue in this case. Id. at 215-16, 715 P.2d 492. Welch and the Nelsens argued that, "the policy provided coverage for Welch's claim against the Nelsens, because the claim rests on legal theories," including "negligent supervision, under which the Nelsens could be liable for their own negligence" and because the claim of "negligent supervision do[es] not arise out of the * * * use or operation of a motor vehicle, but instead out of the Nelsens' separate negligent conduct." Id. at 216, 715 P.2d 492. The trial court agreed with Welch and the Nelsens and denied the insurer's motion for summary judgment. Id.

On appeal, we noted that, "[t]he policy covers liability for bodily injury, unless the injury is caused in a manner or by an instrumentality for which the policy excludes coverage" and that "that coverage under the policy does not vary depending on the theory of tort liability which is asserted." Id. We concluded that the trial court erred when it denied the insurer's motion for summary judgment because "Welch's injury arose out of Robert's operation and use of the motor vehicle off of the premises of the insured, and the policy specifically and unambiguously excludes liability for that, no matter against whom a claim is stated or under what theory of liability Welch seeks to recover." Id. at 216-17, 715 P.2d 492. In reaching our conclusion, we were persuaded by numerous cases that "hold that the policy insures, not against theories of liability, but against liability for certain injuries or damage and that injuries caused by motor vehicles off the premises of the insured are not covered by a homeowner's policy." Id. (collecting cases).

Our holding in Farmers Insurance Group applies under the circumstances of this case. Here, plaintiff's negligent supervision claim is based on Alta's act of allowing plaintiff to use the ATV with John-this is not a case where there is an independent nonmotor vehicle related cause of plaintiff's bodily injuries that would take the claim outside of the motor vehicle exclusion. John's and plaintiff's use of the ATV off the premises of the insured triggered the Pollards' alleged liability for plaintiff's bodily injuries, and the policy unambiguously excludes coverage for bodily injuries that result from such a use. Because plaintiff's bodily injuries resulted from the use of the ATV off the premises of the insured, plaintiff's claim squarely falls within the exclusion for coverage, irrespective of "whom [plaintiff's] claim is stated [against] or under what theory of liability [plaintiff] seeks to recover." Id. at 217, 715 P.2d 492.

We conclude that the trial court did not err in granting defendant's motion for summary judgment because there is no genuine issue as to any material fact and defendant is entitled to prevail as a matter of law.

Affirmed.

      Because there are multiple defendants in this case, for clarity, we refer to defendant-respondent Truck Insurance Exchange (collectively Farmers) as "defendant" throughout this opinion.

      On appeal, plaintiff does not dispute the trial court's determination that his claim against John Pollard is excluded from coverage under the policy.

      Conversely, coverage for personal injury does depend on plaintiff's theory of liability. Under "Coverage E," "[p]ersonal injury means any injury arising from" various theories of tort liability such as false arrest, invasion of rights of privacy, libel, slander, or defamation of character. We decline to impose a condition on the applicability of the motor vehicle exclusion that relates to plaintiff's theory of liability, when the language of that exclusion regarding coverage for bodily injury is not constrained by plaintiff's theory of liability. See ORS 42.230 ("In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.").

      That policy provided, in pertinent part:
      " 'If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:
      " 'a. pay up to our limit of liability for the damages for which the insured is legally liable; and
      " 'b. provide a defense at our expense by counsel of our choice * * *
      " '* * * * *
      " 'Section II-Exclusions:
      " '1. Coverage E-Personal Liability and Coverage F-Medical Payments to Others do not apply to bodily injury or property damage:
      " '* * * * *
      " 'e. arising out of the ownership, maintenance, use, loading or unloading of:
      " '* * * * *
      " '(2) a motor vehicle owned or operated by, or rented or loaned to any insured * * *.' "
      Farmers Insurance Group , 78 Or. App. at 215, 715 P.2d 492.

      We note that, although case law from other states is not binding upon us, the interpretation of the motor vehicle exclusion proffered by defendant is consistent with that of other courts which have recognized that coverage under automobile policies is often "dovetailed" into the motor vehicle exclusion in homeowners' policies "to provide for uniform, non-duplicative liability coverage," and that "[t]he practice of excluding [motor vehicle] liability from coverage under a comprehensive liability policy and issuing a separate automobile policy is relevant to the issue of whether the [motor vehicle] exclusion is ambiguous." Northern Ins. Co. of New York v. Ekstrom , 784 P.2d 320 (Colo. 1989) ; see also Wolfe v. Ross , 115 A.3d 880, 893 (Pa. Super. Ct. 2015), rev. allowed , 633 Pa. 414, 125 A.3d 408 (2015) (noting that, "with regard to public policy, the rational for excluding coverage for injuries arising out of operation or use of an insured's vehicle * * * in a homeowner's policy is obvious: the homeowner's carrier is seeking to avoid liability for the losses that attend the higher risks associated with motor vehicles operated on public roads and which are traditionally covered by the insured's motor vehicle policy"); Bankert v. Thershermen's Mut. Ins. Co. , 105 Wis.2d 438, 446, 313 N.W.2d 854 (Wis. Ct. App. 1981), aff'd , 110 Wis.2d 469, 329 N.W.2d 150 (Wis. 1983) (discussing "the sound public policy embodied in separate policies of homeowner's and automobile insurance" and noting that "[e]ach policy insures a different risk for a premium appropriate to that risk" because "[o]verlapping coverage results in added costs to the insured without a proportionate benefit in improved coverage").

      We further note that, in cases where "the negligent supervision is so inextricably intertwined with the motor vehicle, [such that] there is no independent nonauto-related act which would take the claim outside the scope of the motor vehicle exclusionary clause," the rule that " '[c]overage does not turn on the legal theory under which liability is asserted, but on the cause of the injury' " has been adopted by a "majority of jurisdictions." Taylor v. American Fire and Cas. Co. , 925 P.2d 1279, 1282-83 (Utah Ct. App. 1996), rev. den. , 936 P.2d 407 (Utah 1997) (quoting Farmers Insurance Group , 78 Or. App. at 218, 715 P.2d 492, and explaining the minority and majority positions); compare Illinois Farmers Ins. Co. v. Wiegand , 808 N.E.2d 180, 181-92 (Ind. Ct. App. 2004) (adopting "the majority line of reasoning" and concluding that the motor vehicle exclusion applied to a claim of negligent supervision against parents who allowed their child and the child's friend to use ATVs, because the bodily injury occurred when the child and her friend drove off of the insured's property onto a country road and the friend struck a tree), with Richland Knox Mut, Ins. Co. v. Kallen , 376 F.2d 360, 364-65 (6th Cir. 1967) (where passenger in rear seat of automobile lit a firecracker and unsuccessfully attempted to throw it out of the window, resulting in injuries to another passenger, the accident was not one that resulted from the "use" of a motor vehicle and the motor vehicle exclusion did not apply).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF R. J. C., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. R. J. C., Appellant.
    A166502
    Court of Appeals of Oregon.
    Submitted October 30, 2018. January 16, 2019
    Joseph R. DeBin and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the custody of the Mental Health Division for a period not to exceed 180 days, raising a challenge to the sufficiency of the state's proof that he is a person with mental illness within the meaning of ORS 426.005(1)(f). In its oral pronouncement at the commitment hearing, the court found that defendant was not a danger to himself, but that it was "going to find that he is a danger to others and order that he be committed." However, the judgment entered that same day, which is a check-the-box form, reflects the opposite: that appellant was committed under " ORS 426.005 (1)(f)(A) [dangerous to self]," but not as a danger to others. (Bracketed material in original.) On appeal, appellant argues that there is legally insufficient evidence to support a commitment on the "dangerous to self" basis stated in the judgment; furthermore, he argues, "[s]hould this court conclude that the circuit court made a scrivener's error on its judgment and that it actually based its judgment on a finding that appellant was dangerous to others," then the record lacks legally sufficient evidence on that basis as well.

A recitation of the underlying facts of this case, and its procedural history, would not benefit the bench, the bar, or the public. It suffices to say that we agree with the state that the judgment contains a scrivener's error with regard to the basis for commitment, and that the record clearly indicates that the court based its commitment on a finding that appellant was dangerous to others. See State v. E. A. , 295 Or. App. 265, 433 P.3d 422 (2018) (describing a similar scrivener's error); State v. D. Z. , 274 Or. App. 77, 359 P.3d 1246 (2015) (same). We further conclude that the record contains legally sufficient evidence to support the court's commitment on that basis. We therefore vacate the commitment judgment and remand for entry of a judgment accurately reflecting the basis of commitment as "danger to others," but we otherwise affirm. See E. A. , 295 Or. App. at 266, 433 P.3d 422 (vacating and remanding for entry of a judgment correcting a scrivener's error with regard to the basis for commitment); D. Z. , 274 Or. App. at 80, 359 P.3d 1246 (reaching the same disposition).

Vacated and remanded for entry of a corrected judgment of commitment; otherwise affirmed.

      The trial court separately entered an order prohibiting appellant from purchasing or possessing firearms under ORS 426.130(1)(a)(D). Our decision does not disturb that order.


author: GARRETT, J.

text:
    In the MATTER OF the TESTAMENTARY TRUST CREATED UNDER the WILL OF David F. KING, Deceased (aka the David F. King Trust Dtd 3/6/95).
    David King, Jr. ; Kristin King-Fournier; and Kathryn King, Petitioners-Respondents, v. Sandra L. King, Individually and as Trustee of the Testamentary Trust Created Under the Will of David F. King, Deceased and Alexandra King, Individually and as Trustee of the FBN Management Trust, Respondents-Appellants, and James D. Cameron, Individually; et al., Respondents Below.
    In the Matter of the Testamentary Trust Created Under the Will of David F. King, Deceased (aka the David F. King Trust Dtd 3/6/95).
    David King, Jr. ; Kristin King-Fournier; and Kathryn King, Petitioners-Appellants, v. Sandra L. King ; E. L. King, III and Sarah King, Individually and as Trustees of the Testamentary Trust Created Under the Will of David F. King, Deceased; Alexandra King, Individually and as Trustee of the FBN Management Trust; James D. Cameron and Jamie Sandhurst, as Trustees of the 78th Place Trust; and James D. Cameron, Individually and as Trustee of the Hamilton House Trust, Respondents-Respondents, and Winona National Bank, as Trustee of the Testamentary Trust Created Under the Will of David F. King, Deceased, Trustee Below.
    A157640 A159957
    Court of Appeals of Oregon.
    December 5, 2018
    In A157640, James R. Dole argued the cause for appellants. Also on the briefs was Watkinson Laird Rubenstein, P.C.
    In A157640, H. M. Zamudio, Medford, argued the cause for respondents. Also on the briefs were Darrell R. Jarvis and Huycke O'Connor Jarvis, LLP.
    In A159957, H. M. Zamudio, Medford, argued the cause for appellants. Also on the briefs were Darrel R. Jarvis and Huycke O'Connor Jarvis, LLP.
    In A159957, James R. Doyle argued the cause for respondents Alexandra King and Sandra L. King. Also on the brief was Watkinson Laird Rubenstein, P.C.
    In A159957, no appearance for respondents E. L. King III and Sarah King.
    In A159957, no appearance for respondents James D. Cameron and Jamie Sandhurst.
    Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.
   GARRETT, J.

These two appeals, which we have consolidated for purposes of this opinion, arise from a dispute over the administration of a testamentary trust (the DFK trust) created under the will of David F. King. In the first appeal, we conclude that the trial court did not err in determining that Nevada law applied and that, under that law, the trustee breached the trust. Accordingly, we affirm the limited judgment. In the second appeal, we conclude that the trial court erred in construing Nevada law to prohibit a successor trustee from applying a trustee-beneficiary's interest in a trust to compensate the trust for losses caused by that trustee-beneficiary's own breaches of trust. Accordingly, we reverse the order on the petition for instructions and remand for further proceedings.

We begin with factual background and history of the proceedings; the relevant facts are undisputed. In 1995, David F. King executed a will providing for a trust to be established after his death. After he died in 2004, the DFK trust was created by operation of that will. The original trustees were David F. King's brother, E. L. King III; David F. King's sister-in-law, Sarah King; and David F. King's wife, Sandra King. By 2011, Sandra King was acting as the sole trustee; E. L. King III had resigned and Sarah King was no longer involved in the administration of the trust.

In 2011, David F. King's three adult children, David King, Jr., Kristin King-Fournier, and Kathryn King (the children), who are the remainder beneficiaries of the trust, petitioned the court for relief against Sandra, their stepmother, who, in addition to acting as the sole trustee, is the income beneficiary of the trust for her lifetime. The children alleged that under Nevada trust law, Sandra breached the trust by making loans to her son James Cameron and to another entity in which Sandra had an interest. The children alleged that those breaches had caused and would cause substantial losses to the trust. They also alleged that Sandra had improperly treated as income certain distributions to the DFK trust from a limited liability corporation that held mineral interests and certain undistributed earnings of a Subchapter S corporation owned in part by the trust, and that Sandra had failed to account for approximately $900,000 of trust assets. The petition sought relief including removal of Sandra as trustee, an accounting, a surcharge of approximately $2.8 million on Sandra's interest to compensate for the damages caused by her breaches, a withholding of Sandra's trust income until that liability was satisfied, the imposition of constructive trusts on two properties owned by other trusts of which Cameron was the trustee, injunctive and declaratory relief, and attorney fees.

After a four-day trial, the trial court issued a detailed letter opinion. The court held that Nevada law governed the administration of the trust and that, under Nevada law, Sandra had committed breaches of trust and had improperly treated most of the disputed distributions and undistributed earnings as income. In addition to its issue-by-issue analysis, the court provided a general summary of its findings, explaining that Sandra

"by and large treated the assets of the trust as her own without regard to whether those assets were to be treated as income or principal, she entered into a number of poorly secured or totally unsecured large insider transactions that constituted per se breaches of trust under Nevada law, she failed to properly and timely account and she generally ignored or was completely oblivious to the rights of petitioners and the fiduciary duties she owed them as contingent remainder beneficiaries of the DFK trust."

In a limited judgment, the court removed Sandra as trustee and appointed Winona National Bank (WNB) as trustee, surcharged Sandra $913,247, imposed constructive trusts on the two properties, and awarded the children their attorney fees, the amount of which remained to be determined.

Sandra appealed the limited judgment, and that is the first appeal before us.

While the first appeal was pending, the parties' dispute continued. After accepting the appointment as trustee, WNB petitioned for instructions on how to distribute funds in light of the court's previous money awards: one against Sandra and in favor of the trust for $913,247 to compensate the trust for losses caused by Sandra's breaches of trust, and one against Sandra and the trust in favor of the children for the children's attorney fees. As to the first item, WNB sought "direction regarding whether to apply income generated by the trust and owing to Sandra King [ (as the income beneficiary) ] to the judgment against Sandra King and how much she should be given for support." As to the second item, the children's attorney fees, WNB noted that Sandra and the trust were jointly and severally liable for the fees and suggested methods for distributing the income to pay the fee award.

In response to WNB's petition, the children requested that the court order WNB to pay the fee award and the money judgment in full from trust income before distributing further income to Sandra. For her part, Sandra asserted that a Nevada statute protecting interests in spendthrift trusts, Nevada Revised Statute (NRS) 166.120, prohibited the trustee from applying any part of the trust income to satisfy the judgment.

The trial court agreed with Sandra and entered an order instructing the trustee that " NRS 166.120 restrains and prohibits the Trustee * * * from applying income of the [DFK trust] toward the Money Judgment entered against Sandra King herein." The children appeal that order, and that is the second appeal before us.

We consider the two appeals in turn. As noted above, in the first appeal, Sandra appeals the limited judgment, raising eight assignments of error that challenge the trial court's reasoning in numerous respects. In her first assignment of error, she argues that the trial court erred in holding that she breached her fiduciary duty by making the disputed loans, given that the terms of the trust allowed the trustee to make loans to anyone, including "any beneficiary" of the trust. We conclude, as the trial court did, that the will's choice-of-law provision selects Nevada law to govern all questions regarding the administration of the DFK trust, and that, under Nevada law, the disputed loans were breaches of trust. Because Nevada law absolutely prohibits a settlor from allowing insider loans, it is immaterial whether other terms of the trust purport to allow the disputed loans. We reject Sandra's other assignments of error without discussion and thus affirm the limited judgment.

We take the relevant facts, which, again, are undisputed, from the trial court's order and the text of the trust.

"Sandra L. King * * * and the decedent, David F. King, were married in 1976. At the time of the decedent's death in September, 2004, they had been married for nearly 29 years. [Sandra] is currently 74 years old. The trust in question * * * is contained in David King's will which he executed in 1995 when he and [Sandra] were residents of Nevada. In that will, the decedent exercised a general power of appointment over certain property contained in a trust created by his father in 1986. The trust the decedent created by his exercise of this power of appointment allowed for all income from the assets of the trust to go to [Sandra] while alive, with the principal to pass to his children * * * following [Sandra's] death. Decedent designated Sandra, his brother and his brother's wife to act as trustees of the DFK trust. Decedent's brother immediately resigned and [his] brother's wife resigned in 2011; however, prior to her resignation, her involvement was minimal. * * *
"The will was drafted by a prominent estate planning lawyer, Clinton Schroeder, in Minneapolis, Minnesota in 1994."

(Citations omitted; capitalization modified.)

Article Six of the will provides the terms of the DFK trust. As the trial court noted, those terms "confer[ ] upon the Trustee almost unfettered discretion in terms of managing the assets of the Trust." Section 6.2 provides that the trustee "shall have all of the powers enumerated in section 501B.81, Minnesota Statutes," a copy of which is attached to the will and incorporated by reference. Those powers are broad. Section 6.2 also enumerates other broad powers of a trustee:

"To invest and reinvest in, or exchange assets for, any securities and properties [the trustee or trustees] deem advisable including without limiting the generality of the foregoing, common and preferred stocks and shares in mutual funds or other securities of so-called registered investment companies, without being limited in the selection or diversification of investments by any statutes, rules of law, custom or usage whatsoever * * *; and to lend funds of the trust estate to any person, including any beneficiary hereunder, upon such terms, at such rate of interest, if any, and upon such security, if any, as the Trustee may determine;
"* * * * *
"To do all necessary and convenient acts or things which the Trustee deems for the best interest of the beneficiaries of a trust, including making loans to such beneficiaries on such terms and conditions as the Trustee deems appropriate[.]"

Furthermore, and finally, for present purposes, subsection 6.10 of the trust provides as follows:

"6.10 Nevada law to govern:
"The laws of the State of Nevada shall govern all questions which may arise with respect to the interpretation of this Will or the administration of any trust established hereunder."

(Underscoring in original.)

As noted above, the children challenged several loans that Sandra made from trust principal: A loan of $1 million to herself to buy and remodel a house in the Applegate Valley; a loan of "either $900,000 or $950,000" to Cameron for the completion of construction of a house in a suburb of Minneapolis, and two loans totaling $180,000 to a limited liability company winery in which she had an interest.

At the relevant times, Nevada's trust law prohibited loans by a noncorporate trustee like Sandra to herself, family members, and business associates:

"Except as provided in NRS 163.040 [ (relating to corporate trustees) ], no corporate trustee shall lend funds to itself or an affiliate, or to any director, officer, or employee of itself or of an affiliate; nor shall any noncorporate trustee lend funds to himself or to his relative, employer, employee, partner or other business associate ."

NRS 163.030 (2009), amended by 2009 Nev. Laws, ch. 215, § 39 (emphasis added). Critically for this appeal, that provision cannot be overridden by any act of the settlor: "[N]o act of the settlor relieves a trustee from the duties, restrictions and liabilities imposed upon the trustee by NRS * * * 163.030 [.]" NRS 163.160.

The parties dispute, however, whether those provisions of Nevada law are applicable. At trial, Sandra contended that, because she resides in Oregon and many of the trust assets were located in Oregon, the court should apply Oregon law to evaluate the loans that she made to herself, Cameron, and the winery, while the children contended that the court should apply Nevada law. Two attorneys, including Schroeder, the attorney who drafted the will, testified about the effect of section 6.10. As relevant here, Schroeder testified that section "6.10 was inserted in the Will because the decedent was a resident of Nevada." Schroeder testified that he and his co-drafter had intended that Minnesota law-in the form of the list of powers of the trustee that was incorporated into the will-would apply to the powers granted to the trustee, but otherwise Nevada law was to apply. As the trial court summarized, "[u]ltimately, [Schroeder] conceded that not much thought had been given to the interplay between [sections] 6.2 and 6.10, but he didn't think it really mattered because the same fiduciary standards applied."

The trial court concluded that "it is inescapable that, by the title and content of [section] 6.10, Nevada law was intended to apply to matters (i.e. questions) involving the administration of the trust." Because NRS 163.030 prohibits insider loans by the trustee, the court concluded that all of the loans at issue were statutory breaches of trust despite the broad powers that section 6.2 purported to grant to the trustee.

In her first assignment of error, Sandra contends that the court erred in concluding that Nevada law applies to the determination whether the disputed loans were breaches of trust. To evaluate that argument, we consider the text of Article Six of the will, beginning with whether it is ambiguous. "When a trust instrument is fully integrated and is not ambiguous on its face, extrinsic evidence is not admissible to establish the grantor's intent." Samuel v. King , 186 Or.App. 684, 692, 64 P.3d 1206, rev. den. , 335 Or. 443, 70 P.3d 893 (2003). Whether a term in an agreement is ambiguous is a question of law. Yogman v. Parrott , 325 Or. 358, 361, 937 P.2d 1019 (1997). "An ambiguity is presented only when the language of the agreement is reasonably capable of more than one plausible interpretation." Samuel , 186 Or.App. at 692, 64 P.3d 1206.

Section 6.10 of the will provides: "Nevada law to govern: The laws of the State of Nevada shall govern all questions which may arise with respect to the interpretation of this Will or the administration of any trust established hereunder." (Underscoring in original.) In Sandra's view, that text invokes Nevada law only as "a 'gap filler,' that is, to answer questions which the will does not." She further contends that the loans do not raise any question "with respect to * * * the administration" of the DFK trust because the terms of the trust "specifically authorized her to loan money to whomsoever she chose, including herself, family members or companies with which she had a relationship." Sandra cites the powers listed in the incorporated section of Minnesota law as further support for her position that the trust authorized the loans, but she does not advance any developed argument that Oregon or Minnesota law governs the operation of the trust.

Sandra's argument that the choice-of-law provision operates only as a "gap filler" is untenable. It overlooks the fact that, although a settlor has considerable latitude to dictate how a trust will operate, the trust nevertheless operates within and has effect only to the extent that it complies with the trust law of some jurisdiction. See, e.g. , ORS 130.030 ("The meaning and effect of the terms of a trust are determined by: (1) The law of the state, country or other jurisdiction designated in the terms of the trust * * *; or (2) In the absence of a controlling designation in the terms of the trust, the law of the state, country or other jurisdiction having the most significant relationship to the matter at issue."). Each jurisdiction has default rules of construction and validity of trusts, and each has some limitations on the settlor's ability to dictate the terms of the trust. See, e.g. , ORS 130.020 (listing exceptions to general principle that the terms of the trust prevail); NRS 163.160 (similar). The terms of the trust have legal effect only to the extent that they comply with the rules of the chosen jurisdiction. See generally ORS 130.030 (providing rules to determine which jurisdiction's law controls "[t]he meaning and effect of the terms of a trust").

In short, Sandra's argument that the trust has independent legal meaning separate and apart from the law of any jurisdiction, and that Nevada law operates only interstitially, misconceives the law. The trust's text, alone, cannot answer any questions except against the backdrop of the law of some jurisdiction. The trust must be governed by the law of a jurisdiction, and the DFK trust chooses Nevada. Thus, absent any further argument by Sandra, we conclude that, when section 6.10 says that Nevada law applies to "all questions which may arise with respect to * * * the administration of" the DFK trust, it means, unambiguously, that Nevada law governs the administration of the trust. See ORS 130.030(1) (giving effect to settlor's choice of law as expressed in the trust). As explained above, Nevada law prohibits insider loans by the trustee regardless of whether such loans are allowed by the terms of the trust. NRS 163.030 (2009) (no "noncorporate trustee [shall] lend funds to himself or to his relative, employer, employee, partner or other business associate"); NRS 163.160 ("[N]o act of the settlor relieves a trustee from the duties, restrictions and liabilities imposed upon the trustee by NRS 163.030 [.]"). Because the trust unambiguously designates Nevada law as the law governing the administration of the trust, the trial court did not err in applying Nevada law to determine the questions of trust administration with which it was presented. Based on that conclusion and our rejection of Sandra's other assignments without discussion, we affirm the limited judgment.

We turn to the children's appeal from the order on WNB's petition for instructions. As explained above, as successor trustee, WNB sought instruction from the trial court on how to distribute funds in light of the money awards (1) in favor of the trust and against Sandra for $913,247 to compensate the trust for losses incurred as a result of her breaches of trust and (2) in favor of the children against Sandra and the trust for the children's attorney fees. The trial court determined that the DFK trust is a spendthrift trust under Nevada law and agreed with Sandra that NRS 166.120 prevents WNB from applying any part of the trust income to satisfy the money awards.

On appeal, the children do not dispute that the DFK trust is a spendthrift trust under Nevada law, but they contend that the trial court erred in concluding that NRS 166.120 prohibits WNB from applying Sandra's beneficial interest in the trust to compensate the trust for losses resulting from her breaches as trustee. Sandra defends the trial court's reasoning, noting that NRS 166.120 provides broad protection from creditors for interests in spendthrift trusts. The parties agree, however, that Nevada law applies.

NRS 166.120 provides:

"1. A spendthrift trust as defined in this chapter restrains and prohibits generally the assignment, alienation, acceleration and anticipation of any interest of the beneficiary under the trust by the voluntary or involuntary act of the beneficiary, or by operation of law or any process or at all. The trust estate, or corpus or capital thereof, shall never be assigned, aliened, diminished or impaired by any alienation, transfer or seizure so as to cut off or diminish the payments, or the rents, profits, earnings or income of the trust estate that would otherwise be currently available for the benefit of the beneficiary.
"2. Payments by the trustee to the beneficiary, whether such payments are mandatory or discretionary, must be made only to or for the benefit of the beneficiary and not by way of acceleration or anticipation, nor to any assignee of the beneficiary, nor to or upon any order, written or oral, given by the beneficiary, whether such assignment or order be the voluntary contractual act of the beneficiary or be made pursuant to or by virtue of any legal process in judgment, execution, attachment, garnishment, bankruptcy or otherwise, or whether it be in connection with any contract, tort or duty. Any action to enforce the beneficiary's rights, to determine if the beneficiary's rights are subject to execution, to levy an attachment or for any other remedy must be made only in a proceeding commenced pursuant to chapter 153 of NRS, if against a testamentary trust * * *. A court has exclusive jurisdiction over any proceeding pursuant to this section.
"3. The beneficiary shall have no power or capacity to make any disposition whatever of any of the income by his or her order, voluntary or involuntary, and whether made upon the order or direction of any court or courts, whether of bankruptcy or otherwise; nor shall the interest of the beneficiary be subject to any process of attachment issued against the beneficiary, or to be taken in execution under any form of legal process directed against the beneficiary or against the trustee, or the trust estate, or any part of the income thereof, but the whole of the trust estate and the income of the trust estate shall go to and be applied by the trustee solely for the benefit of the beneficiary, free, clear, and discharged of and from any and all obligations of the beneficiary whatsoever and of all responsibility therefor.
"4. The trustee of a spendthrift trust is required to disregard and defeat every assignment or other act, voluntary or involuntary, that is attempted contrary to the provisions of this chapter."

As noted above, the parties agree that Nevada law applies to the question at issue in this appeal. When we apply the substantive law of another state, if that state's appellate courts have not answered the question before us, we use that state's "statutory interpretation principles and related case law" to ascertain how courts of that state would apply its law. CACV of Colorado, LLC v. Stevens , 248 Or.App. 624, 630, 274 P.3d 859, rev. den. , 352 Or. 377, 290 P.3d 813 (2012). Like Oregon appellate courts, Nevada courts review legal questions, including matters of statutory interpretation, for errors of law. Brock v. Premier Trust, Inc. , 133 Nev. 8, 390 P.3d 646, 649 (2017).

Under Nevada law, "[t]he goal of statutory interpretation is to give effect to the Legislature's intent. To ascertain the Legislature's intent, we look to the statute's plain language. When a statute's language is clear and unambiguous, the apparent intent must be given effect, as there is no room for construction." Williams v. Dep't of Corrections , 402 P.3d 1260, 1262 (Nev. 2017) (internal quotation marks, citations, and brackets omitted). When the text is ambiguous, courts "turn to other legitimate tools of statutory interpretation, including related statutes, relevant legislative history, and prior judicial interpretations of related or comparable statutes by [the Nevada Supreme Court] or other courts." Andrews v. State , 412 P.3d 37, 40 (Nev. 2018). That analysis may include consideration of common law principles. See Brock , 390 P.3d at 650 (relying extensively on Restatement (Second) of Trusts to interpret a Nevada trust statute).

Under Nevada law, a violation of NRS 163.010 to 163.200 by a trustee may be treated as a breach of trust. NRS 163.190 ("If a trustee violates any of the provisions of NRS 163.010 to 163.200, inclusive, * * * any beneficiary, cotrustee or successor trustee may treat the violation as a breach of trust."). With respect to testamentary trusts, the probate court may compel "redress of a breach of trust," NRS 153.031(I)(m), using its "full equitable powers," Diotallevi v. Sierra Dev. Co. , 95 Nev. 164, 591 P.2d 270, 272 (1979) (probate court's "full equitable powers" include the power to apply a "practical and fair method" for protecting the interests of the trust beneficiaries).

Those equitable powers historically included the power to apply a breaching trustee-beneficiary's interest in the trust to compensate the trust and other beneficiaries for losses caused by the breach of trust. Restatement of Trusts § 257 (1935) ("If a trustee who is also one of the beneficiaries commits a breach of trust, the other beneficiaries are entitled to a charge upon his beneficial interest to secure their claims against him for the breach of trust."); accord. George Gleason Bogert, Trusts and Trustees , § 191 n. 47, 206-07 (1951); Restatement (Second) of Trusts , § 257 (1959) ; Restatement (Third) of Trusts , § 104 (2003). That principle applied with equal force to spendthrift trusts:

"Spendthrift Trust. The rule stated in this Section is applicable although the interest of the trustee-beneficiary is not transferable by him or subject to the claims of his creditors. Although his ordinary creditors cannot reach his interest under the trust and apply it to the satisfaction of their claims, his interest can be impounded for the benefit of the other beneficiaries of the trust to make good any liability which he incurs for breach of trust."

Restatement of Trusts , § 257 comment f (citation omitted); see also Restatement (Second) of Trusts , § 257 comment f (similar); Restatement (Third) of Trusts , § 104 comment h ("This rule applies even though the beneficiary's interest is subject to a spendthrift restraint." (Citation omitted.) ). The Nevada Supreme Court recently indicated its adherence to the Restatement approach when it stated that "surcharging [the breaching trustee-beneficiary's] interest" in the trust is an appropriate remedy for a breach of trust by a trustee-beneficiary. Montoya v. Ahearn , 426 P.3d 599, 603 (Nev. 2018). Thus, if the DFK trust were not a spendthrift trust, there is little question that the trial court could order that Sandra's income interest be applied as a remedy to compensate for her breaches. The remaining question is whether a different result is required because the DFK is a spendthrift trust subject to NRS 166.120. We conclude that it is not.

The text of the statute provides that "payments," "the income," and "the interest of the beneficiary" may not be directed away from the beneficiary by voluntary or involuntary acts, including court orders; rather "the whole of the trust estate and the income of the trust estate shall go to and be applied by the trustee solely for the benefit of the beneficiary, free, clear, and discharged of and from any and all obligations of the beneficiary whatsoever and of all responsibility therefor." NRS 166.120(2), (3). Although that text is worded broadly, it is written in terms of creditors and proceedings that are external to the affairs of the trust. Because breach-of-trust proceedings differ from all other types of proceedings in that they are internal to the trust and logically precede a trustee's determination of the beneficiaries' interests for distribution purposes, it is not clear that NRS 166.120 is intended to apply to them. For additional guidance, we "turn to other legitimate tools of statutory interpretation, including related statutes, relevant legislative history, and prior judicial interpretations of related or comparable statutes by [the Nevada Supreme Court] or other courts," Andrews , 412 P.3d at 40, as well as the common law, including the Restatement (Second) of Trusts , see Brock , 390 P.3d at 650.

As explained above, all three restatements of the law of trusts recognize that a spendthrift provision does not prevent application of the rule that a breaching trustee-beneficiary's interest can be applied to compensate other beneficiaries for losses incurred because of the breach of trust. Restatement of Trusts § 257 comment f; Restatement (Second) of Trusts § 257 comment f; Restatement (Third) of Trusts § 104 comment u. Moreover, since at least 1941, Nevada's law of testamentary trusts has incorporated the common law of trusts. See NRS 163.190 ; Diotallevi , 591 P.2d at 271. Given those circumstances, we conclude that the Nevada Legislature did not intend NRS 166.120 to prohibit a surcharge of the breaching trustee-beneficiary's interest as a remedy for that trustee-beneficiary's own breach of trust, and that the Nevada Supreme Court would not apply the provision that way. Rather, if the legislature had intended NRS 166.120 to abrogate the well-established common law rule of surcharge of the breaching trustee-beneficiary's interest, it would have said so explicitly.

We also note that, although NRS 166.120 creates protection for the corpus of a spendthrift trust and payments to beneficiaries, it does not displace the trustee's duty to treat all beneficiaries equally. See Ahearn v. Montoya , 393 P.3d 1090, 1094 (Nev. 2017) (noting "a trustee's duty to treat all beneficiaries equally" (citing Hearst v. Ganzi , 145 Cal.App.4th 1195, 52 Cal.Rptr.3d 473, 481 (2006) ) ). Although NRS 166.120 prohibits a trustee from "assign[ing], alien[ating], diminish[ing] or impair[ing]" the trust corpus "so as to cut off or diminish the payments, or the rents, profits, earnings or income of the trust estate that would otherwise be currently available for the benefit of the beneficiary," NRS 163.120(1), nothing suggests that it requires the trustee to protect the interest of one beneficiary in direct derogation of the interests in the trust of the other beneficiaries. Similarly, by directing that "the whole of the trust estate and the income of the trust estate shall go to and be applied by the trustee solely for the benefit of the beneficiary," NRS 163.120(3), the statute requires compliance with the terms of the trust and the duties imposed thereunder-again, including the duty to treat trust beneficiaries equally-without regard to the claims of creditors outside the trust or attempts by those creditors to attach or execute on the trust corpus or payments to a beneficiary. It does not require the trustee to direct payments to one beneficiary at the expense of others. A California appellate court addressed the same question in a case where the trust itself, rather than a statute, contained text similar to the text of NRS 166.120. Chatard v. Oveross , 179 Cal.App.4th 1098, 1100-01, 101 Cal.Rptr.3d 883, 886 (2009), rev. den. , Feb. 10, 2010 (interpreting a trust instrument providing that "[t]he interest of any beneficiary in the principal or income of any trust created by this instrument shall not be subject to claims of his or her creditors, or others, or liable to attachment, execution or other process of law"). The court concluded that surcharge of the breaching trustee-beneficiary's interest was not prohibited, and explained as follows:

"Reasonably construed, the language of the spendthrift provision here suggests protection against the claims of persons foreign to the trust-'creditors, or others'-who might use a writ of 'attachment, execution or other process of law' to satisfy a claim from a beneficiary's interest. The language does not reasonably refer to the claims of fellow beneficiaries relating to a breach of trust, which might be satisfied, in the exercise of the probate court's equitable power, by surcharging the interest of the trustee-beneficiary in the distribution of trust assets. In short, absent clear language to the contrary, we decline to read the spendthrift clause so as to permit the perverse result of depriving the court of its equitable power to surcharge the interest of dishonest trustee-beneficiary to compensate other beneficiaries for breaches of the trust."

Chatard , 179 Cal.App.4th at 1107, 101 Cal.Rptr.3d at 890.

The same reasoning applies here and leads us to conclude that NRS 166.120 does not prohibit WNB from applying Sandra's interest in the trust to compensate the trust for losses that the trial court had previously found were caused by her breaches of trust. Accordingly, we reverse the order on the petition for instructions and remand for the trial court, in the exercise of "its full equitable powers," to instruct WNB on the appropriate distribution of the trust income. Diotallevi , 591 P.2d at 272.

In A157640, affirmed. In A159957, reversed and remanded.

      The petition also named E. L. King III and Sarah King; Alexandra King as trustee of the FBN Management Trust; Cameron individually and as trustee of the 78th Place Trust and the Hamilton House Trust; and Jamie Sandhurst individually and as trustee of the 78th Place Trust. Like Cameron, Alexandra King is a child of Sandra; Jamie Sandhurst is a child of Cameron and, consequently, Sandra's grandchild. The trial court dismissed all claims against E. L. King III and Sarah King and Alexandra King, and Cameron in their personal capacities. Those dismissals are unchallenged on appeal.
      Although Alexandra King appears in both appeals, represented jointly with Sandra, she does not raise separate arguments; consequently, we do not distinguish her from Sandra for purposes of this opinion. E. L. King III, Sarah King, Cameron, and Sandhurst do not appear on appeal.

      The court later entered a general judgment disposing of one remaining matter and awarding (1) attorney fees against Sandra in favor of the trust and (2) attorney fees against the trust and against Sandra in favor of the children. No party appealed the general judgment.

      The children raise two cross-assignments of error that they request that we reach only if we grant any of the relief sought by Sandra. Because we do not grant any of the relief sought by Sandra, we do not address those cross-assignments.

      That provision originated in the Uniform Trusts Act (1937), which the Nevada Legislative Assembly enacted in 1941. See NRS 163.010 ; 1941 Nev. Laws, ch. 136.
      The current version of that statute allows loans by a noncorporate trustee to herself and her family members under limited circumstances that are not present in this case. NRS 163.030(2) (allowing such loans (1) when the trust instrument provides for them and all of the beneficiaries consent or receive specified notice and do not object and (2) when the loans are approved by a court).

      In Oregon, which, like 32 other states, has enacted the Uniform Trust Code, insider transactions are permitted if "[t]he transaction was authorized by the terms of the trust," among other circumstances. ORS 130.655(2) ; see also ORS 130.020(2)(b) (providing that the terms of the trust "prevail over the provisions of this chapter except," among other exceptions, "[t]he duty of the trustee to act in good faith and in accordance with the purposes of the trust"). The trial court did not, and we do not, express any opinion on whether the loans were breaches of trust under Oregon law.

      To the extent that Sandra could be understood to assert that Minnesota law governs the duties of the trustee, we conclude that the text of section 6.10 remains unambiguous when read in context with the text regarding the Minnesota statute. Section 6.2 provides, "The Trustee shall have all of the powers enumerated in section 501B.81, Minnesota Statutes, a copy of which is attached as Exhibit B, and the powers enumerated in said section are by this reference incorporated herein." That text incorporates "the powers enumerated" in the Minnesota statute with the same effect as if they were written in the text, but it does not purport to choose Minnesota as the jurisdiction whose law controls the trust administration. See Black's Law Dictionary 884 (10th ed. 2014) (defining "incorporation by reference" as "[a] method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one").

      In a second assignment of error, the children contend that, under another statute, WNB was required to pay one half of the attorney fee award from trust income. They explain that we "need only reach the second assignment of error if [we reject] the first." Because, as explained below, we conclude that the court erred as asserted in the first assignment, we do not address the second assignment.


author: LAGESEN, P. J.

text:
    In the MATTER OF B. K., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. B. K., Appellant.
    A167703
    Court of Appeals of Oregon.
    Submitted December 7, 2018. January 16, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Appellant appeals an order committing him for a period not to exceed 180 days pursuant to ORS 426.130. Appellant argues that the trial court committed plain error when it failed to either directly advise him of information and rights specified in ORS 426.100(1) or conduct an examination on the record to determine whether he validly waived the right to be so advised. Specifically, appellant contends that the trial court plainly erred by failing to advise him that the possible results of the proceeding included voluntary treatment or conditional release. See ORS 426.130(1) and (2) (setting out possible results of proceeding). The state has conceded that, under State v. M. M. , 288 Or. App. 111, 405 P.3d 192 (2017), and State v. M. T. , 244 Or. App. 299, 258 P.3d 1288 (2011), the trial court plainly erred. For the reasons we will explain, we disagree, however, that the trial court plainly erred. We therefore do not accept the state's concession of error, and we affirm the trial court's order of commitment.

ORS 426.100(1) requires a court conducting a civil commitment hearing to advise the person alleged to have a mental illness of the reason for the proceedings, the nature of the proceedings, the possible results of the proceedings, the right to subpoena witnesses, and the right to representation by, and appointment of, counsel. "[T]o comply with ORS 426.100(1), a trial court in a civil commitment proceeding must either advise the allegedly mentally ill person directly regarding those rights or conduct an examination on the record to determine whether a valid waiver of the right to be advised has been knowingly and voluntarily made." State v. S. J. F. , 247 Or. App. 321, 324, 269 P.3d 83 (2011) (internal quotation marks omitted).

Appellant acknowledges that his claim of error was not preserved. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error."). He contends, however, that it is plain error and asks that we exercise our discretion to correct it.

"Whether the trial court committed plain error in failing to advise appellant of all of the possible results of the proceedings depends on whether the error was one of law, whether the error was 'apparent' so that the legal point is obvious and not reasonably in dispute, and whether the error appears on the record so that we 'need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.' State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990)."

M. M. , 288 Or. App. at 114, 405 P.3d 192. As we will explain, here, the record is subject to competing inferences-it is not "irrefutable" that the trial court failed to fully advise appellant as required by ORS 426.100(1).

At the outset of the commitment hearing, the trial court stated the following:

"We're here at Unity Center for Behavioral Health, and we're at the hearing room, and [appellant] is not present.
"The record should reflect that the Court, along with [appellant's] attorney and the attorney for the State and the examiners went up to see [appellant] prior to this hearing to see whether he would be willing to come down to the hearing and to make sure he understood what the hearing was about and what his rights were .
"He actively spoke with us. He told us-he told us his position regarding the hearing, that he didn't want to be at the hospital, that he's already told everybody what his position is, and he answered a few questions from the examiners. He advised the Court that he did not want to be at the hospital, that he did not have a mental disorder.
"The Court advised him about what this hearing was, what could happen at the hearing, including a commitment for 180 days; advised him of his rights, including the right to be represented by an attorney . His attorney * * * introduced herself.
"I advised him of the right to subpoena witnesses and indicated we would have the hearing down here, but we were up there to see if he was interested in coming down to the hearing. He indicated to me that he did not want to participate, that what he had to say up there was all he needed to be said[.]
"* * * * *
"But he declined to be here today, so we're going to proceed without him.
"[Appellant's counsel] will be his legal representative and represent his legal interests.
"Is there anything else, [state's counsel], that you would like to put on the record about our meeting with him?
"[State's counsel]: No, Your Honor.
"THE COURT: How about you, [appellant's counsel]?
"[Appellant's counsel]: No."

(Emphases added.) The hearing proceeded; the trial court found appellant to be a person with a mental illness and entered an order of commitment.

Appellant argues that, although the trial court stated at the hearing that it had advised appellant of the possibility of a 180-day commitment, the court plainly erred because it failed to advise him of all of the possible results of the proceeding, including the possibilities of voluntary treatment and conditional release. But the record does not demonstrate-without a need to choose between competing inferences-that the trial court failed to advise him of those possibilities.

Appellant's inference may be a reasonable one, but it is not the only one that can be drawn from this record. The trial court's recitation at the outset of the hearing may be viewed as summarizing rather than fully detailing the conversation. The trial court stated that one of its purposes in going up to speak with appellant was "to make sure he understood what the hearing was about and what his rights were," which is consistent with what S. J. F. requires-that the court "directly" inform the person of the information and rights specified in ORS 426.100(1). The trial court's statement concerning what it had said about the possible results of the proceeding allows for the reasonable competing inference that the possibility of a 180-day commitment was not the only result of which it informed appellant, and that the court advised appellant of all possible results. The court stated that it advised him about "what could happen at the hearing, including a commitment for 180 days[.]" (Emphasis added.)

Based on that record, we cannot say that it is "irrefutable" that the trial court failed to inform appellant of the other possible outcomes of the proceeding. Accordingly, it is not plain that the trial court erred by failing to provide all of the information required by ORS 426.100(1). We therefore affirm the order of commitment.

Affirmed.

      We note that ORS 426.095(1) provides that a hearing may be held in a wide range of places: "a hospital, the person's home or in some other place convenient to the court and the person alleged to have a mental illness." As some of these places might pose logistical challenges to recording a hearing in full, this provides some indication that the legislature may have understood that, at times, a court might have to make a record of its advice of rights in the manner employed by the trial court here.

      In S. J. F. , a case that was before us on de novo review, we determined that a trial court plainly erred in omitting advising the appellant in accordance with ORS 426.100(1), when the appellant was not present for the hearing because she was being restrained. 247 Or. App. at 323-24, 269 P.3d 83. The state argued that the error was harmless because the record indicated that the appellant's counsel had advised the appellant of the same information as that required by ORS 426.100(1). We found, however, that the state's assertion was not supported by the record. Id . at 326, 269 P.3d 83. We determined that the record indicated only that the appellant's counsel had explained the options of either proceeding with the hearing in the appellant's absence or moving to continue the hearing. Id . The record did not demonstrate that the appellant had "received all of the information from another source." Id . at 327, 269 P.3d 83. This case is not in that posture. Here, the question is whether the trial court itself plainly failed to provide the required information.


author: PER CURIAM:

text:
    John Dean BEVAN, Appellant, v. STATE of Utah, Appellee.
    No. 20180786-CA
    Court of Appeals of Utah.
    Filed December 20, 2018
    Scott David Goodwin, Attorney for Appellant
    Sean D. Reyes and Thomas Brunker, Salt Lake City, Attorneys for Appellee
    Before Judges Michele M. Christiansen Forster, David N. Mortensen, and Ryan M. Harris.
   PER CURIAM:

¶1 John Dean Bevan appeals the trial court's order dismissing his petition for postconviction relief under rule 65C(h)(1) of the Utah Rules of Civil Procedure, which allows for summary dismissal of claims under certain circumstances. This matter is before the court on its own motion for summary reversal due to manifest error. See Utah R. App. P. 10(e).

¶2 The trial court summarily dismissed Bevan's claims as procedurally barred because it determined that the claims had previously been adjudicated. Under rule 65C(h)(1), if the trial court finds that a claim had been adjudicated in a prior proceeding, the court "shall forthwith issue an order dismissing the claim." Utah R. Civ. P. 65C(h)(1). However, the trial court did not provide notice to the parties that it was considering the procedural bar as required under the Post-Conviction Remedies Act (PCRA). See Utah Code Ann. § 78B-9-106(2)(b) (LexisNexis 2012).

¶3 The PCRA lists procedural and time bars in Utah Code section 78B-9-106. Among other things, relief is precluded if the ground for relief has been raised in prior proceedings, whether at trial, on appeal, or in a prior petition for relief. Id. § 78B-9-106(1). In 2008, the statute was amended to allow courts to consider sua sponte whether grounds for relief may be precluded. See Post-Conviction Remedies Act Revisions, ch. 288, § 106(2)(b), 2008 Utah Laws 1845, 1846. Now the statute provides that "[a]ny court may raise a procedural or time bar on its own motion, provided that it gives the parties notice and an opportunity to be heard." Utah Code Ann. § 78B-9-106(2)(b).

¶4 Utah Rule of Civil Procedure 65C was promulgated specifically to implement procedures for seeking relief under the PCRA. Utah R. Civ. P. 65C(a). Although the rule provides the procedures, the PCRA "sets forth the manner and extent to which a person may challenge the legality of a criminal conviction and sentence after the conviction and sentence have been affirmed" or the time to appeal has expired. Id. The rules of civil procedure "apply to all special statutory proceedings, except insofar as such rules are by their nature clearly inapplicable." Id. R. 81(a). To supercede a rule of civil procedure in regard to a special statutory proceeding, a statute must "clearly counter and thus override" the rule. Maxfield v. Herbert , 2012 UT 44, ¶ 17, 284 P.3d 647. Here, the statute requiring notice when a court raises the procedural bar that a claim for relief has been previously adjudicated is clearly counter to the summary dismissal permitted in rule 65C for the same procedural bar. Accordingly, the statute supercedes this provision of the rule, and the trial court must give the parties notice and an opportunity to be heard.

¶5 In this case, the record establishes that the trial court dismissed Bevan's petition as procedurally barred without providing the required notice and opportunity to be heard. The lack of compliance with the provisions of section 78B-9-106(2)(b) constitutes manifest error requiring reversal. See Utah R. App. P. 10(e). Therefore, the trial court's order is vacated and this matter is remanded to the trial court for further proceedings in compliance with section 78B-9-106(2)(b).

      Notably, if a trial court finds that the petition is frivolous on its face the petition may be dismissed without notice. Utah R. Civ. P. 65C(h)(1). Frivolousness is not a procedural bar requiring notice listed in section 78B-9-106. See Utah Code Ann. § 78B-9-106(1) (LexisNexis 2012).


author: GORDON McCLOUD, J.

text:
    STATE of Washington, Petitioner, v. James Austin YANCEY, Respondent.
    NO. 95992-7
    Supreme Court of Washington.
    Argued January 17, 2019 Filed February 14, 2019
    James Lyle Nagle, Office of the Prosecuting Attorney, 240 W. Alder Street, Suite 201, Walla Walla, WA 99362-2807, Teresa Jeanne Chen, Attorney at Law, PO Box 4242, Pasco, WA 99302-4242, for Petitioner.
    Tanesha La Trelle Canzater, Attorney at Law, P.O. Box 29737, Bellingham, WA 98228-1737, for Respondent.
   GORDON McCLOUD, J.

¶ 1 James Austin Yancey, a military veteran with no prior criminal history, was caught selling drugs within a school zone. Yancey pleaded guilty and asked the trial court for a lenient sentence-either a first-time offender waiver or a residential-based drug offender sentencing alternative (DOSA). RCW 9.94A.660. The State objected to the residential-based DOSA because the relevant DOSA statute allows only a prison -based-not a residential -based-DOSA for defendants with a standard range like the one Yancey had. RCW 9.94A.660(3). Over the State's objection, the trial court imposed a residential-based DOSA, and the Court of Appeals affirmed.

¶ 2 We reverse and remand for a new sentencing hearing. Based on the plain language of the DOSA statute, the trial court lacked discretion to sentence Yancey to a residential-based DOSA.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Yancey, a military veteran suffering from posttraumatic stress disorder, twice sold his prescription Suboxone strips to a person who turned out to be a police informant. Clerk's Papers (CP) at 1-3, 26. Suboxone contains buprenorphine, a schedule III controlled substance. CP at 4-5. Both sales took place within 1,000 feet of a school bus stop. CP at 4-5, 74.

¶ 4 The State charged Yancey with two counts of delivering the drug and added a sentence enhancement to each count for delivering within 1,000 feet of a school bus stop. CP at 4-5. Prior to these charges, Yancey had no criminal record. CP at 66. Given his offender score and the seriousness level of the crimes, Yancey faced a standard sentence range of 12 to 20 months, plus a 24-month sentence enhancement, for each count. See id. Accordingly, his total standard range was 36 to 44 months per count. Id.

¶ 5 The State initially offered a plea deal in which it would drop one count and recommend a prison-based DOSA for the other. CP at 41. Under the proposed deal, Yancey would have served 20 months in prison and an additional 20 months in community custody. Id. Yancey twice counteroffered to plead guilty if the State removed the school-zone enhancements so that he could serve a residential chemical dependency treatment-based (residential-based), rather than a prison-based, DOSA. CP at 26-27. The State refused both counteroffers. Id.

¶ 6 Yancey ultimately pleaded guilty to both counts and the corresponding enhancements. CP at 9-19, 65. Yancey sought either a first-time offender waiver, CP at 27, or a residential-based DOSA, CP at 34. The State opposed the first-time offender waiver. CP at 37-40. The State also opposed the residential-based DOSA, arguing that the DOSA statute bars this alternative sentence when the midpoint of an offender's standard range exceeds 24 months-and Yancey's midpoint was 40 months. CP at 61-63 (citing RCW 9.94A.660(3) ). Nevertheless, the trial court sentenced Yancey to a residential-based DOSA. CP at 69.

¶ 7 The State appealed, again arguing that the trial court lacked statutory discretion to impose a residential-based DOSA. CP at 78. In a split decision, the Court of Appeals held that the trial court may waive sentence enhancements to get to a standard sentence range that is low enough to accommodate the residential-based DOSA's sentence-length prerequisites. State v . Yancey, 3 Wash. App. 2d 735, 740, 418 P.3d 157 (2018) (interpreting State v . Mohamed, 187 Wash. App. 630, 350 P.3d 671 (2015) ). In Yancey's case, waiving a school-zone enhancement would reduce the midpoint of his standard range from 40 months to 16 months, making a residential-based DOS A possible. Id. at 739-40, 418 P.3d 157. Lacking a sentencing transcript, the Court of Appeals ultimately remanded "to the sentencing court to either confirm or exercise waiver of the enhancements or to resentence Yancey if the court did not intend to waive the enhancements." Id. at 741, 418 P.3d 157.

¶ 8 The dissent argued that courts may not waive the sentence enhancements and impose a DOSA. Id. at 742-47, 418 P.3d 157 (Korsmo, J., dissenting). The dissent would have "remanded for the trial court to consider either a prison-based DOSA or a standard range sentence." Id. at 747, 418 P.3d 157.

¶ 9 We granted review, State v . Yancey, 191 Wash.2d 1012, 426 P.3d 744 (2018), and now reverse.

ANALYSIS

¶ 10 To resolve this case, we must interpret RCW 9.94A.660. We review the meaning of a statute, a question of law, de novo. State v. Wooten, 178 Wash.2d 890, 895, 312 P.3d 41 (2013) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002) ).

¶ 11 In interpreting a statute, we strive to "ascertain and carry out the legislature's intent." State v . Bigsby, 189 Wash.2d 210, 216, 399 P.3d 540 (2017) (citing Campbell & Gwinn, LLC, 146 Wash.2d at 9, 43 P.3d 4 ). If the legislature's intent is clear from the statute's plain meaning, then we give effect to that plain meaning. Id. "Plain meaning is 'discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.' " State v . James-Buhl, 190 Wash.2d 470, 474, 415 P.3d 234 (2018) (quoting State v . Engel, 166 Wash.2d 572, 578, 210 P.3d 1007 (2009) ). "When ascertaining the plain meaning of the statute, we 'must not add words where the legislature has chosen not to include them,' and we must 'construe statutes such that all of the language is given effect.' " Id. (quoting Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash.2d 674, 682, 80 P.3d 598 (2003) ).

¶ 12 Generally, the trial court "shall impose a sentence ... within the standard sentence range." RCW 9.94A.505(2)(a)(i). But the court may deviate from the standard range in statutorily specified circumstances. E.g., RCW 9.94A.535 (exceptional sentences), .650 (first-time offender waiver), .660 (DOSA). The DOSA program allows the trial court "to give eligible nonviolent drug offenders a reduced sentence, treatment, and increased supervision in an attempt to help them recover from their addictions." State v . Grayson, 154 Wash.2d 333, 337, 111 P.3d 1183 (2005) (citing RCW 9.94A.660 ). The trial court may impose a prison-based DOSA or, in some circumstances, a residential-based DOSA. RCW 9.94A.660(3).

¶ 13 In this case, the parties dispute whether this is one of those circumstances that allows for a residential-based DOSA. This dispute boils down to the correct interpretation of the following statute, specifically the emphasized portions:

If the sentencing court determines that the offender is eligible for an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under RCW 9.94A.662 or a residential chemical dependency treatment-based alternative under RCW 9.94A.664. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less.

Id. (emphasis added).

¶ 14 Yancey argues that the first emphasized portion grants a trial court broad discretion to alter a standard sentence range. Resp't's Suppl. Br. at 5-8. Based on Yancey's reading, the trial court appropriately "waive[d] imposition of a sentence within the standard sentence range" of 36 to 44 months-a range that, based on the statute's last sentence, would have barred the trial court from imposing a residential-based DOSA-and instead imposed a different sentence with a midpoint of 24 months or less. From this argument it follows that the trial court may choose any midpoint it wants in order to accommodate the court's personal preference for or against a residential-based DOSA.

¶ 15 The State argues that the trial court's discretion to waive the standard range is constrained by the remainder of the statute. Suppl. Br. of Pet'r at 7-8, 15-16. Based on the State's reading, the trial court certainly can waive imposition of a sentence within the standard range. But the court cannot then impose any sentence that it sees fit. The court may impose only a prison-based or a residential-based DOSA-and only a prison-based DOSA if the midpoint of the standard sentence range exceeds 24 months. RCW 9.94A.660(3).

¶ 16 The State is correct. Immediately after the statute instructs the court to "waive imposition of a sentence within the standard sentence range," it expressly tells the court what it is to do next: "impose a sentence consisting of either a prison-based alternative under RCW 9.94A.662 or a residential chemical dependency treatment-based alternative under RCW 9.94A.664." RCW 9.94A.660(3). And those cross-referenced statutes provide detailed instructions on how to calculate prison-based and residential-based DOSAs. See RCW 9.94A.662, .664. Nowhere does the statute permit the court to, for instance, "impose a sentence based on the underlying count, absent any enhancements." We will not " 'add words where the legislature has chosen not to include them.' " James-Buhl, 190 Wash.2d at 474, 415 P.3d 234 (quoting Cananwill, 150 Wash.2d at 682, 80 P.3d 598 ). We will, however, " 'construe statutes such that all of the language is given effect.' " Id. (quoting Cananwill, 150 Wash.2d at 682, 80 P.3d 598 ). And this statute explicitly bars the court from imposing a residential-based DOSA if the midpoint of the standard sentence range exceeds 24 months.

¶ 17 Yancey claims that Mohamed supports his argument. In that case, a jury found Mohamed guilty of four counts of delivery of cocaine, three of which included enhancements. Mohamed, 187 Wash. App. at 634-35, 350 P.3d 671. Based on the convictions, Mohamed faced a standard sentence range of 20 to 60 months for each conviction of cocaine delivery, plus three 24-month sentence enhancements. Id. at 635, 350 P.3d 671. Accordingly, Mohamed's total standard range for each enhanced conviction was 44 to 84 months, with a midpoint of 64 months. See id. at 645, 350 P.3d 671. Mohamed asked the trial court to impose a DOSA. Id. at 635, 350 P.3d 671. But the trial court believed the law required Mohamed to serve the full 72 months of enhancements in prison, even if it imposed a DOSA sentence. Id. at 635-36, 350 P.3d 671. This erroneous belief led the trial court to reject Mohamed's DOSA request. Id. at 636, 350 P.3d 671.

¶ 18 The Court of Appeals in Mohamed explained that the trial court, under the DOSA statute, may "waive imposition of a sentence within the standard sentence range." Id. at 638, 350 P.3d 671. And the standard sentence range includes "the base sentence range plus enhancement of such range." Id. at 641, 350 P.3d 671 ; see also State v . Silva-Baltazar, 125 Wash.2d 472, 475, 886 P.2d 138 (1994) ("An enhancement increases the presumptive or standard sentence."); In re Postsentencing Review of Gutierrez, 146 Wash. App. 151, 155, 188 P.3d 546 (2008) ("A sentence range increased by an enhancement is still a standard range sentence."). It follows, the Mohamed court concluded, that "a sentencing court may waive the enhancements as part of the standard sentence range under a DOSA ...." 187 Wash. App. at 641, 350 P.3d 671. The court remanded to the trial court for a new sentencing hearing, where "the court will have the opportunity to consider the full range of sentencing options available to it." Id. at 647, 350 P.3d 671.

¶ 19 The Mohamed court broadly framed the issue as "whether the trial court had the authority to waive the 24-month school zone enhancements." Id. at 636, 350 P.3d 671 (citing RCW 9.94A.533(6) ). This framing led the Court of Appeals in this case to interpret Mohamed as precedent for the notion that a trial court may waive a school-zone enhancement, reducing the midpoint enough to accommodate a residential-based DOSA. Yancey, 3 Wash. App. 2d at 739-40, 418 P.3d 157.

¶ 20 This interpretation is incorrect. The Mohamed court simply held that the trial court may waive the standard sentence range-a range that includes any enhancements-and impose a DOSA. 187 Wash. App. at 638-47, 350 P.3d 671. For example, the trial court in Yancey's case had discretion to waive the standard range of 36 to 44 months, a range that included the 24-month enhancement, and impose a prison-based DOSA. A prison-based DOSA would have sent Yancey to prison for 20 months followed by 20 months of community custody. See RCW 9.94A.662(1). He did not have to serve the full 24-month enhancement in prison, contrary to what the trial court in Mohamed believed. Instead, as the Court of Appeals in Mohamed noted, that enhancement was subsumed into Yancey's standard range, which in turn may be waived and replaced by a prison-based DOSA. Had the trial court in this case imposed a prison-based DOSA, Yancey would have served fewer months in prison (20 months) than the sentence enhancement itself called for (24 months). This is what the Mohamed court meant when it discussed "waiving enhancements." 187 Wash. App. at 645, 350 P.3d 671.

¶ 21 In sum, we hold that the statute is clear: the trial court may not "waive" sentence enhancements or portions of the base sentence to get to a range that is low enough to accommodate the residential-based DOSA's sentence-length prerequisites. We therefore reverse the Court of Appeals. We do not know the trial court's reasons for imposing a residential-based DOSA as opposed to a prison-based DOSA or a standard range sentence. Nor do we know its reasoning concerning Yancey's request for a first-time offender waiver. We therefore remand for a full resentencing.

CONCLUSION

¶ 22 The legislature's intent is clear from the plain meaning of the DOSA statute. The trial court deviated from that plain meaning by imposing a residential-based DOSA. Accordingly, we reverse the Court of Appeals and remand for a full, new sentencing hearing.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Yu, J.

      He was caught selling cocaine prior to his military service, but the State dropped the charge after Yancey himself worked as a police informant. CP at 39, 42-48.

      The State-the party that filed the notice of appeal and the petition for review-failed to provide the sentencing transcript as part of the record on review. It is therefore impossible to know the trial court's reasoning or goals in sentencing Yancey to a residential-based DOSA.

      The trial court must sentence under the statutes in effect at the time of the crimes. Yancey committed his crimes in April 2015. CP at 4-5. The current statutes, in relevant part, remain the same as the former statutes that were in effect at the time of Yancey's crimes.

      The court in Mohamed did not express an opinion as to whether the three enhancements had to run consecutively to each other or just consecutively to the underlying conviction. 187 Wash. App. at 645, 350 P.3d 671. We subsequently resolved that issue, holding that although enhancements must run consecutively to their underlying conviction, they need not run consecutively across counts. State v . Conover, 183 Wash.2d 706, 717-19, 355 P.3d 1093 (2015).

      The State claims that Yancey's reading of the statute would permit the trial court to impose an inappropriate hybrid sentence consisting of an exceptional sentence and a DOSA. In dissent, Judge Korsmo made the same argument. Yancey, 3 Wash. App. 2d at 742-47, 418 P.3d 157 (Korsmo, J., dissenting). But the trial court in this case did not impose an exceptional sentence, so we do not address that issue.