In the Matter of the Protective Proceedings of Vernon H. ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Protective )
Proceedings of Vernon H., ) Supreme Court No. S-14960
)
VERNON H. and JUDITH H., ) Superior Court No. 3AN-12-00209 PR
)
Appellants, ) OPINION
)
v. ) No. 6945 – August 22, 2014
)
PETER H., )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Anne R. Helzer, Anchorage, for Appellant
Vernon H., and Kenneth P. Jacobus, Kenneth P. Jacobus,
P.C., Anchorage, for Appellant Judith H. Jonathon A.
Katcher, Pope & Katcher, Anchorage, for Appellee Peter H.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger,
Justices. [Maassen, Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
An elderly father was hospitalized for medical testing and treatment. The
father had previously granted a durable power of attorney to his eldest adult daughter and
had been residing with his youngest adult daughter and her family. One of the father’s
adult sons initiated guardianship and conservatorship proceedings over the father. The
son’s petition alleged that the father was incapacitated and unable to manage his affairs
or his property, citing the hospital’s psychiatric evaluation and the son’s own
observations. The petition also alleged that the eldest and youngest daughters were not
looking after the father’s best interests and wishes. The son later terminated the
protective proceedings following a neuropsychological evaluation by the father’s expert
that concluded that the father did not need a guardian.
The father and his eldest daughter filed motions for attorney’s fees and
costs incurred in defending against the son’s petition. The superior court denied both
motions, concluding that Alaska Civil Rule 82 was entirely displaced by
AS 13.26.131(d) and that the son’s actions did not meet the standard for fee shifting
required by that statute: that the petitioner initiated a proceeding that was “malicious,
frivolous, or without just cause.” We agree with the superior court’s analysis and affirm.
II. FACTS AND PROCEEDINGS
A. Vernon’s Family And His Recent Medical Problems
Vernon H.1 was born in 1928 and has 15 living adult children. Vernon
granted a durable general power of attorney over “[a]ll . . . matters” to his eldest
daughter, Judith, in 2002. Since 2002, Vernon has chosen to live with his youngest
daughter, Jeannette, and her family. Vernon reaffirmed those decisions in
December 2011.
Peter, one of Vernon’s sons, grew increasingly worried about his father’s
decision-making during Vernon’s battle with cancer in late 2011 and early 2012. In
1
We use initials in lieu of the parties’ last names to protect the family’s
privacy.
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late 2011, Vernon exhibited confusion, and tests revealed elevated calcium levels;
consequently, Vernon was hospitalized. He underwent diagnostic testing and some
treatment for suspected cancer, and he was later discharged and referred for further
outpatient oncology testing and treatment. During Vernon’s first stay in the hospital,
Peter allegedly observed that Vernon “was out of it,” that he “could not remember what
was going on from hour to hour,” and that he mistakenly “complained his children were
not coming to see him.”
Vernon’s condition appears to have fluctuated following his first discharge
from the hospital in late 2011. On one hand, in a pair of emails from Peter to the other
siblings, Peter stated: “Dad seems . . . more alert than I’ve seen him in weeks, maybe a
month. . . . He spoke clearly, decisively and was able to comprehend everything being
said.”2 On the other hand, Vernon’s primary physician observed that Vernon “was not
very alert or himself at all.” Vernon’s doctor also recalled that he told Judith that Vernon
had to undergo several more tests, but Judith was reluctant to have any more tests
performed, claiming that “her dad was a ‘very spiritual person, and felt like his problem
had actually gotten better or gone away.’ ” Peter alleges that he was present at a meeting
with Vernon and Vernon’s doctors during which a course of treatment was agreed to, but
Vernon subsequently canceled the follow-up doctor’s appointments because Vernon
mistakenly believed “the doctors had given him a clean bill of health.” The doctor
recalled that Judith did not seek follow-up testing and treatment until the doctor informed
Judith that Vernon “would likely DIE within a few days if she did not take him to the
hospital ASAP.”
2
Peter also stated: “Dad remains very alert and aware of everything around
him. He carried on conversations during the entire visit, he answered all of the Dr.’s
questions, asked his own questions when he had any, and made the final decisions to
move forward with the upcoming surgery and necessary treatments.”
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On December 19, 2011, Alaska’s Adult Protective Services agency received
a report alleging that Vernon was “mentally incapacitated,” that Jeannette and Judith had
“refused contact with family and have disregarded physician care and advice,” and that
there was “possible [f]inancial [e]xploitation.” Judith recalls that around the same time,
several siblings “paid an unannounced visit at [Vernon’s] home” with Peter as
“spokesperson,” trying to “convince [Vernon] to move out of his home and into another
residence.” Vernon declined.
Vernon was readmitted to the hospital on January 20, 2012, with the
medical record noting that he was “pleasantly confused.” Vernon underwent
chemotherapy treatment. At one point during this second hospitalization, Judith refused
morphine for her father, and even physically pushed a nurse away when she was trying
to administer it, before Vernon countermanded her order.3 Judith also tried to exclude
the other siblings from the hospital room until Vernon told her he didn’t want a
“standoff.” Peter’s affidavit states that Peter visited Vernon during this second
hospitalization and observed that Vernon “was out of it” and “did not know why he was
in the hospital” and “did not remember from one day to the next.”
On January 26, 2012, Peter drafted an email to the other siblings
summarizing his recent discussions with Vernon’s doctors. In the email, Peter stated that
Vernon said he “ ‘pretty much’ understands what the doctor is explaining” and that
“Judy will remain ‘point person’ for the family.” Judith alleges that Peter was “playing
both sides of the fence” and that three days earlier, Peter and many other siblings had
“tried to force” Vernon to sign a new durable general power of attorney they had drafted.
3
The hospital appears to have filed a notice of harm with Adult Protective
Services following this incident.
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Peter also alleges that on January 26, Vernon asked him to confer with Vernon’s attorney
and help manage and distribute some financial assets.
On January 28, 2012, Vernon executed a will while still in the hospital.
Peter’s affidavit states that he was in the room and observed that Vernon “was sluggish,”
took “several minutes to write his name” and “more than a minute to initial each of the
pages,” had to be coached on how to spell his name, did not have his hearing aids in, and
did not have reading glasses on for execution of two of the three copies of the will. The
superior court later reviewed a video of the will execution and described Peter’s
“characterization of the events in the video as accurate.” Peter requested a copy of the
will,4 and Vernon allegedly refused to provide it.5
In order to “assess [Vernon’s] capacity to accept/refuse pain medication and
other minor issues such as dietary care,” the hospital had a nurse practitioner perform a
psychiatric evaluation of Vernon on January 30, 2012.6 The evaluation noted that
Vernon was “notably confused and delirious prior to his last admission in December,”
that he had been “pleasantly confused” at the time of his readmission in January, and that
“[h]is mental status has varied somewhat since admission, with some definite clearing . . .
from [January] 25th through the 28th.” The report stated that Judith claimed that Vernon
“is more confused [today] than he usually is and that this is not his baseline mental
4
Peter stated in an affidavit that he asked for the will because he assumed
that he “could use the will to fulfill [Vernon’s] wishes for [Peter] to deal with the
[financial assets]” that Vernon had allegedly asked him to manage a few days earlier.
5
A few days later, Peter’s attorney demanded that Vernon’s lawyer provide
a copy of the will to Peter, stating the attorney’s belief that Vernon “directed [Vernon’s
attorney] repeatedly to provide a copy of the document to Peter.” Vernon’s lawyer
responded saying that Vernon clearly stated at the will execution that Peter was not to
have a copy of the will.
6
The evaluation was co-signed by a doctor.
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status.” Judith explained that Vernon’s cognitive abilities had “worsened significantly”
since the day before.7 The hospital’s psychiatric evaluation recorded that on January 30,
2012, Vernon was “displaying a significantly fluctuating span of attention, an inability
to encode or recall information, and general cognitive disorganization” and that “[h]is
insight is poor” and “[h]is judgment is impaired.”
The hospital’s psychiatric evaluation concluded that Vernon’s symptoms
that day were “very consistent with delirium” and that “[a]t this time, the patient is not
able to demonstrate that he can retain and weigh the risks and benefits of any
information, and actually does not demonstrate capacity regarding the potential
consequences of pain management on an acute basis.” The report described this
delirious condition as “acute” and subject to short-term fluctuation.8 The evaluation’s
conclusions were borne out by observations of doctors and hospital staff over the next
few days.9
7
Vernon was allegedly given Benadryl one and a half days before the
psychiatric evaluation, and Vernon’s medical expert, Dr. Paul Craig, subsequently
determined that Benadryl “can result in an acute confusional state” in an elderly patient
that would be “consistent with Vernon’s reported comportment following the dose of
Benadryl in January [2012].”
8
The same nurse practitioner stated in a follow-up note in the medical
records that she was “certainly not encouraging seeking guardianship at this time, based
on the description of his high functioning prior to delirium by Judy and his physicians.”
9
Medical progress notes from one of Vernon’s doctors on January 30, 2012
state that Vernon had “a fluctuating mental status” and was “competent to make limited
decisions about care of himself, such as pain[,] likes[, and] dislikes,” but the doctor did
“not feel that [Vernon] is competent to discuss complicated medical issues and evaluate[]
risk-benefit.” Similarly, on February 1, 2012, one of Vernon’s doctors noted in a
medical record that Vernon displayed “[s]table delirium and lethargy,” while Vernon’s
dietician noted his “fluctuating mental status.”
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B. Peter Petitions For Guardianship And Conservatorship But Later
Withdraws The Petitions.
Two days after the January 30, 2012 psychiatric evaluation, Peter10 filed
emergency and long-term petitions for guardianship over Vernon pursuant to
AS 13.26.10511 and for conservatorship over Vernon’s property pursuant to
AS 13.26.180.12 Peter alleged that Vernon was incapacitated13 and unable to manage his
property.14 Peter’s petition characterized the hospital’s “[n]europsych evaluation” of
10
Peter and another sibling allege in affidavits that Peter had the support of
all of the surviving adult siblings, save Judith and Jeannette. One of the siblings alleged
in an affidavit that she and the other siblings supported Peter’s guardianship petition
because Vernon “appeared . . . to be mentally compromised” and because they were
“very concerned that Judith has repeatedly demonstrated a profound inability to take care
of Vernon’s health care best interests.”
11
AS 13.26.105(a) provides that “[a]ny person may petition the court for a
finding of incapacity and the appointment of a guardian . . . for another person,” and
AS 13.26.105(c) provides that “[t]he petition may also . . . include a request for
temporary guardianship . . . if the petitioner believes there is an imminent danger that the
physical health or safety of the respondent will be seriously impaired during the
pendency of the guardianship proceeding.”
12
AS 13.26.180(a) provides that “any person who would be adversely
affected by lack of effective management of the property and affairs of the person to be
protected, may petition for the appointment of a conservator,” and AS 13.26.180(c)
provides that “[t]he petition may include a request for temporary conservatorship . . . if
it appears that the respondent’s property is likely to be wasted or dissipated during the
pendency of the conservatorship proceeding.”
13
AS 13.26.005(5) defines an “incapacitated person” as “ a person whose
ability to receive and evaluate information or to communicate decisions is impaired . . .
to the extent that the person lacks the ability to provide the essential requirements for the
person’s physical health or safety without court-ordered assistance.”
14
AS 13.26.165(2) provides that a conservator may be appointed “if the court
(continued...)
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January 30, 2012, as determining that Vernon “is not competent to make treatment or
financial decisions,” and he further alleged that Judith “is attempting to remove [Vernon]
from [a healthcare facility] against [Vernon’s] express wishes and against medical
advice.” Peter also alleged that Vernon owned a one-percent interest in a natural gas
lease that was “currently in the process of distribution” and that Vernon “directed [Peter]
to become the trustee” and “manage this investment.”
Vernon, through his privately retained attorney, moved to dismiss the
petition, stating that Vernon was lucid and competent, wished to retain Judith as his
durable power of attorney, wished to continue living with Jeannette, and intended to
argue that Peter brought the petition in bad faith to gain control of Vernon’s assets to pay
Peter’s personal debts. Judith, through her separate lawyer, stated that Judith concurred
in the motion to dismiss. Vernon supported the motion with an affidavit of his own,
along with affidavits from 16 other people attesting to his capacity.
In a preliminary report from the court visitor dated February 7, 2012, the
visitor noted that Peter filed the petition “out of concern for [Vernon’s] medical
well-being” and that Judith had been “controlling and difficult,” had “refuse[d] pain
medication for her father despite hospital standards of care,” and had “reportedly pushed
a nurse[’]s hand away when attempting to administer morphine.” The visitor observed
that Vernon was “cognitively impaired (at varying degrees)” but that this impairment
may have been temporary due to his hospitalization. The visitor recommended a
continuance to give Vernon a chance to “regain his cognitive abilities after treatment.”
The visitor later conducted interviews to follow up on the two reports of harm filed with
14
(...continued)
determines that (A) the person is unable to manage the person’s property and affairs
effectively . . . ; and (B) the person has property that will be wasted or dissipated unless
proper management is provided . . . .”
-8- 6945
Adult Protective Services and concluded that “[t]he reports of harm were not
substantiated and Adult Protective Services has not filed as a party to this matter though
they are informed of these proceedings.” In late March, the visitor notified counsel for
Vernon, Judith, and Peter that a full neurological assessment by Vernon’s expert was
forthcoming and that in the meantime the court visitor’s “current recommendation is that
a guardian[] not be appointed.”
On April 4, 2012, Judith’s attorney submitted to the superior court and
opposing counsel a report from Dr. Paul Craig, a board-certified clinical
neuropsychologist. Vernon’s attorney secured Dr. Craig as an expert, and after
conducting two lengthy interviews and administering a battery of cognitive tests,
Dr. Craig concluded that Vernon was “unequivocally competent” and met “all criteria
for being his own guardian, making his own decisions, and making informed choices
regarding his health care.” Dr. Craig expressly concurred with the previous
determination by one of Vernon’s doctors expressed in a medical record dated
February 21, 2012, that Vernon “is fully competent to carry out complex decision
making. He is cognizant of the risk/benefits and has good insight into what is happening
to him medically and psychologically.” Dr. Craig noted that Vernon suffered from
“emotional distress” stemming from Peter’s petition that put “his ability to make his own
decisions . . . in dispute.” Finally, Dr. Craig specifically noted that Vernon was happy
with the services Judith and Jeannette were giving him: Vernon “was very clear about
his positive relationship with [Jeannette and her family] with whom he [was] residing”
and “ha[d] no interest in relocating,” and Vernon “expressed confidence about [Judith].”
On April 9, 2012, one day before trial was scheduled to begin, Peter
notified the superior court that he wanted to withdraw his petitions and terminate the
proceedings. The superior court signed the proposed order on April 11.
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C. The Superior Court Denies Vernon’s And Judith’s Motions For
Attorney’s Fees And Costs.
Vernon moved for full attorney’s fees and for costs related to Dr. Craig’s
expert report.15 The motion alleged that Peter petitioned for guardianship and
conservatorship knowing that Vernon was not incapacitated or incompetent and that
Peter’s true purpose was “to cause deliberate harm and emotional distress” to Vernon,
Judith, and Jeannette “because [Vernon] would not allow [Peter] to view [Vernon’s]
will.” The motion also alleged that Peter initiated the proceedings “for the malicious and
selfish purpose of obtaining his father’s assets in a thoughtless effort to preserve [Peter’s]
own rapidly declining financial situation.” The motion stated that Vernon was entitled
to attorney’s fees and costs under both AS 13.26.131(d)16 and Civil Rule 82.17
Separately, Judith also moved for full attorney’s fees, incorporating and reiterating the
arguments made in Vernon’s motion.18
Peter opposed the motions, denying Vernon’s and Judith’s allegations that
he initiated the proceedings for an improper purpose. Peter argued that when he filed his
petition on February 1, “he had a good faith, non-frivolous belief, based on substantial
evidence, that Vernon was an incapacitated person in need of a guardian and a
15
He sought $20,408.50 in attorney’s fees and $5,657.50 for Dr. Craig’s
report.
16
AS 13.26.131(d) provides: “The court may require the petitioner [in a
protective proceeding] to pay all or some of the costs described in (a) and (b) of this
section if the court finds that the petitioner initiated a proceeding under this chapter that
was malicious, frivolous, or without just cause.”
17
Alaska R. Civ. P. 82(a) provides: “Except as otherwise provided by law
or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney’s
fees calculated under this rule.”
18
She sought $13,117.50.
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conservator.” Peter further argued that Civil Rule 82 was displaced by AS 13.26.131(d)
and that no fees should be awarded under AS 13.26.131(d) because “[a]t the time he
initiated his petition Peter had abundant evidence that Vernon was incompetent and that
Judith was not taking good care of him” and because there was “no evidence” of an
improper purpose. Peter pointed to his own affidavits about his contemporaneous
observations of his father’s condition, as well as the corroborating psychiatric evaluation
performed by the hospital. He also argues that his subjective beliefs were objectively
reasonable given the confirming notes of Vernon’s confused mental state in Vernon’s
medical records prior to Peter’s filing of the petition, as well as Vernon’s general
practitioner’s description of events after Vernon’s first hospitalization. He argues that
because he didn’t have access to all of Vernon’s medical records until after he filed the
petition, he had no reason to believe that “Vernon’s delirium could be temporary.”
The superior court denied Vernon’s and Judith’s motions for attorney’s fees
and costs. The superior court first ruled that Civil Rule 82 could not apply in this case
because AS 13.26.131(d) “sets out ‘a specific statutory scheme for awarding attorney’s
fees’ . . . [and] therefore . . . displaces Civil Rule 82.”19 The superior court further ruled
that attorney’s fees of privately retained counsel may be recovered under
AS 13.26.131(d).20 The superior court then concluded that “there is insufficient evidence
to support a finding that [Peter] instituted this proceeding ‘maliciously, frivolously, or
without just cause.’ ” On the contrary, the superior court stated that “[t]he detailed
evidence presented by [Peter] makes out a prima facie case that this action was not
initiated maliciously, frivolously or without just cause,” noting that Peter had an
19
The superior court quoted Enders v. Parker, 66 P.3d 11, 14 (Alaska 2003).
20
The superior court cited In re Guardianship of McGregory, 193 P.3d 295,
298 (Alaska 2008).
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objectively reasonable basis to support his subjective belief that Vernon was
incapacitated and that Judith was not adequately protecting Vernon.21
Vernon and Judith appeal, filing their briefs jointly.
III. STANDARDS OF REVIEW
“Determinations of which legal authorities apply in a case and
interpretations of what those legal authorities mean are questions of law subject to de
novo review.”22 “When construing the meaning of a statute under this standard, we look
to the meaning of the language, the legislative history, and the purpose of the statute and
adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”23
Whether a litigant’s conduct is malicious, frivolous, or without just cause
within the meaning of AS 13.26.131(d) is a question of fact that we review for clear
error.24 A superior court’s factual finding “is clearly erroneous when a review of the
entire record leaves us with the ‘definite and firm conviction’ that a mistake has been
made.”25
21
Vernon and Judith moved for reconsideration, but the motions were denied
by operation of Alaska Civil Rule 77(k)(4) when the superior court did not grant the
motions within 30 days.
22
ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d
114, 122 (Alaska 2014) (citations omitted).
23
Enders, 66 P.3d at 13-14 (internal quotation marks and citations omitted).
24
In re McGregory, 193 P.3d at 300.
25
Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Wee v.
Eggener, 225 P.3d 1120, 1124 (Alaska 2010)).
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IV. DISCUSSION
A. The Superior Court Did Not Err By Denying Vernon’s And Judith’s
Motions For Attorney’s Fees And Costs Under AS 13.26.131(d).
Alaska Statutes 13.26.131(a) and (b) allocate certain categories of costs in
guardianship proceedings to the state, respondent, and petitioner. Alaska
Statute 13.26.131(d) enables the court to shift those costs to the petitioner: “The court
may require the petitioner to pay all or some of the costs described in (a) and (b) of this
section if the court finds that the petitioner initiated a proceeding under this chapter that
was malicious, frivolous, or without just cause.”
1. The fees of a respondent’s privately retained attorneys and
experts can qualify for fee shifting under AS 13.26.131(d) as
“other court and guardianship costs” listed in AS 13.26.131(b).
The costs and fees identified in AS 13.26.131(a) and (b) — which are
subject to shifting under AS 13.26.131(d) — include the costs of court visitors, experts,
and attorneys “appointed” under various sections of the guardianship chapter of Title 13
of the Alaska Statutes. Nothing in AS 13.26.131 expressly discusses fees and costs of
a respondent’s privately retained counsel or experts. But subsection (b) includes a catch­
all provision providing that normally “the respondent shall bear . . . other court and
guardianship costs incurred under this chapter.”
Previously, in In re Guardianship of McGregory, we declined to decide
whether the costs of privately retained counsel or experts fell within one of the
enumerated categories of costs in subsections (a) or (b) that could be shifted pursuant to
AS 13.26.131(d).26 Both parties in that appeal agreed that the costs of privately retained
counsel or experts did not fall within AS 13.26.131(a) or (b) and were therefore not
shiftable under AS 13.26.131(d), and “[f]or the purposes of this case we accept[ed] this
26
193 P.3d at 298 n.8.
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position.”27 But we noted, without reaching the legal issue, “that it is possible that the
fees of privately retained counsel are encompassed within the phrase ‘other . . .
guardianship costs’ in subsection (b).”28
Today we decide what we hinted at in McGregory: The fees of privately
retained counsel and experts qualify for fee shifting pursuant to AS 13.26.131(d) if the
other requirements of that subsection are also satisfied. Those fees and costs constitute
“other court and guardianship costs incurred under this chapter” within the meaning of
AS 13.26.131(b). Our interpretation of AS 13.26.131(b) is consistent with our
interpretation of other statutes allowing for the shifting of “costs.”29 As we have
routinely held, “the term ‘costs’ is generally construed in Alaska to include attorney’s
fees.”30
In this case, Vernon, the respondent, retained counsel and an expert. The
fees and costs Vernon paid are “other court and guardianship costs” enumerated in
27
Id.
28
Id. (omission in original).
29
For example, AS 29.45.500(a) provides that a taxpayer who “pays taxes
under protest,” “bring[s] suit in the superior court . . . for recovery of the taxes,” and
prevails, is entitled to a refund, interest, and “costs.” We have interpreted the allowance
for “costs” to include attorney’s fees. See Kenai Peninsula Borough v. Port Graham
Corp., 871 P.2d 1135, 1141 (Alaska 1994); see also Fairbanks N. Star Borough v. Dena
Nena Henash, 88 P.3d 124, 142 (Alaska 2004); Ketchikan Gateway Borough v.
Ketchikan Indian Corp., 75 P.3d 1042, 1049 (Alaska 2003).
Similarly, AS 42.06.610 provides that “ the commission may reallocate the
cost of the proceeding [under the Pipeline Act] among the parties, including the
commission, as is just under the circumstances.” We have interpreted “costs” as used in
AS 42.06.610 to include attorney’s fees. Amerada Hess Pipeline Corp. v. Alaska Pub.
Utils. Comm’n, 711 P.2d 1170, 1182 (Alaska 1986).
30
Kenai Peninsula Borough, 871 P.2d at 1141.
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AS 13.26.131(b), normally borne by the respondent. These fees and costs are eligible
for shifting onto the petitioner, Peter, if the requirements of AS 13.26.131(d) are met.
2. The superior court considered all three of the statutory factors
required by AS 13.26.131(d): whether the petitioner initiated a
proceeding that was “malicious, frivolous, or without just
cause.”
Vernon’s first substantive argument for reversal is his allegation that the
superior court’s order denying his motion for fees and costs considered only whether the
litigation initiated by Peter was “malicious” but failed to consider whether it was
“frivolous, or without just cause.” Peter maintains that Vernon misunderstands the
superior court’s “repeated references to all three criteria.”
We reject Vernon’s reading of the superior court’s order. The superior
court correctly stated all three prongs of the AS 13.26.131(d) standard: “In guardianship
proceedings, fees and costs may be awarded only if the Court finds that the petitioner
initiated the proceeding maliciously, frivolously, or without just cause.” After reviewing
the factual record, the superior court then found that “[t]he detailed evidence presented
by Petitioner makes out a prima facie case that this action was not initiated maliciously,
frivolously or without just cause.” Nothing in the superior court’s order purports to
restrict its analysis or findings to the maliciousness prong.
3. The superior court did not impermissibly consider matters
unknown to Peter at the time he initiated the guardianship
petition in the course of deciding that Peter’s petition was not
initiated maliciously, frivolously, or without just cause.
Vernon’s second substantive argument for reversal is his allegation that the
superior court — to support its conclusion that Peter’s filing for guardianship was not
malicious, frivolous, or without merit — impermissibly relied on evidence that was not
known to Peter at the time of his filing of the petition for guardianship. Vernon asserts
that AS 13.26.131(d)’s adjectives — malicious, frivolous, or without just cause —
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“appl[y] to the ‘initiation’ of the guardianship proceeding” and that therefore only those
things known to Peter at the time of his filing of the guardianship petition can properly
be considered to determine if that filing was malicious, frivolous, or without just cause.
Vernon further argues that (with the exception of the psychiatric evaluation performed
by the hospital) Peter never saw the medical records detailing doctors’ observations of
Vernon’s mental health before Peter filed his petition; Vernon argues that the superior
court therefore erred by considering those documents in the course of concluding that
Peter did not initiate his petition maliciously, frivolously, or without just cause.
We conclude that the superior court did not improperly consider
information that Peter did not yet know in concluding that Peter did not initiate the
petition maliciously, frivolously, or without just cause. Instead, the superior court
properly found that Peter had a good-faith basis for filing his petition based on Peter’s
own repeated personal observations and his access to the hospital’s psychiatric
evaluation. The superior court then concluded that this subjective concern for his
father’s mental condition was corroborated by objectively reasonable indicators such as
the medical reports that were not available to Peter at the time he filed his petition.
Vernon misreads the order, mistaking what is really support drawn from objective
indicators reinforcing the reasonableness of Peter’s subjective concerns and instead
viewing it as improperly imputing knowledge to Peter that Peter could not possibly have
known. But as the superior court clearly stated: “The medical records . . . strongly
support [Peter’s] contention that there was a legitimate concern over [Vernon’s] mental
clarity and capacity at the time this petition was filed” as well as concern that Judith “was
not adequately protecting [Vernon].” Information developed through discovery can, as
here, support a petitioner’s good-faith and objectively reasonable belief about the
necessity of a guardianship.
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4. Vernon has not satisfied his burden on appeal of showing that
the superior court’s factual finding — that Peter did not initiate
his petition maliciously, frivolously, or without just cause — was
clearly erroneous.
The superior court determined that “[t]he detailed evidence presented by
[Peter] makes out a prima facie case that this action was not initiated maliciously,
frivolously or without just cause.” The superior court noted that Peter “relied upon his
own observations” of his father’s declining cognitive condition while in the hospital; that
Peter also relied on the observations “of qualified medical personnel” [that is, the
hospital’s psychiatric evaluation]; that the court had reviewed the video of the will
execution and found Peter’s “characterization of the events in the video [indicating
Vernon’s apparent cognitive impairment] as accurate”; and that Peter’s own observations
of Vernon’s cognitive decline and Peter’s reliance on third-party observations available
to him at the time were supported by the additional third-party observations found in
Vernon’s medical records. The superior court also noted that Peter “has presented
sufficient evidence to establish an objectively reasonable basis for his belief that
Judith . . . was not adequately protecting [Vernon].” The superior court concluded that
Vernon “has not presented sufficient evidence to the contrary” to persuade the superior
court to find that Peter’s petition was malicious, frivolous, or without just cause.
On appeal, Vernon must demonstrate that the superior court’s factual
finding — that Peter’s guardianship proceeding was not initiated maliciously,
frivolously, or without just cause — was clearly erroneous.31 We conclude that he has
not done this.
31
In re McGregory, 193 P.3d at 300 (“How the State’s conduct should be
characterized was a question of fact for the superior court, and its finding that the petition
was not malicious, frivolous, or without just cause is not clearly erroneous.”).
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Ample record evidence supports the superior court’s findings, belying
Vernon’s assertion that Peter “simply [had] no evidence on February 1, 2012, to establish
that Vernon . . . needed a guardian.” First, evidence supports the superior court’s finding
that Peter had a good-faith concern about his father’s mental capacity. Peter stated in an
affidavit that he repeatedly observed his father in a state of apparent cognitive
impairment during December 2011 and January 2012. His concerns about his father’s
mental condition were supported by the hospital’s January 30, 2012 psychiatric
evaluation,32 which he cited in his February 1 petition. Second, evidence supports the
superior court’s finding that Peter’s belief was objectively reasonable, such as the
hospital’s evaluation to which Peter had access as well as many contemporaneous
observations of Vernon’s declining cognitive condition. And the court visitor’s
32
Vernon argues that the hospital’s evaluation “did not even support
incapacity, but does say that Vernon . . . is oriented, able to make his needs known, and
that guardianship is not needed or recommended at this time.” This characterization is
misleading. The report never disavowed the need for guardianship; that was a
subsequent note added to the medical records. And a fair reading of the evaluation itself
shows grave concerns about Vernon’s mental condition. Even if the report, standing on
its own, was not sufficient to support an order imposing guardianship, it is certainly
enough to generate a good-faith and objectively reasonable belief by Peter that there was
a sufficient risk that Vernon needed a guardian to justify his initiation of guardianship
proceedings.
Vernon also argues that Peter “falsely characterized that consultation as a
‘neuropsychological evaluation’ ” in his petition. But the document itself is titled
“Psychiatric Consultation,” so Peter’s characterization hardly seems out of line.
Finally, Vernon argues that Peter “secured” the hospital’s evaluation in
violation of federal law. But the report indicates the psychiatric evaluation was
generated by referral from one of Vernon’s physicians. Nothing in the record indicates
that Peter played a role in “secur[ing]” the report. And even if he had initiated the
hospital’s evaluation, we do not understand how that could help demonstrate that Peter’s
reliance on the hospital’s evaluation could not be reasonable as a basis for his good-faith
belief that his father needed a guardian.
-18- 6945
preliminary report even stated that Peter initiated the petition “out of concern for
[Vernon’s] medical well-being.”
By contrast, Vernon identifies little, if any, evidence supporting his
contention that the superior court clearly erred. Vernon claims on appeal that Peter’s
intent was to gain control of assets, citing Peter’s petition. But Peter’s petition merely
alleged that Vernon wanted Peter to help Vernon distribute some of Vernon’s assets.
This view is bolstered by the court visitor’s preliminary report, which discusses an
interview with Vernon in which Vernon said, “Peter is helping with investments.”
Vernon further argues that even if there is no evidence of an improper
motive, there are two reasons to conclude that Peter could not have had a proper motive
because he knew that Vernon had no need of protective proceedings.
First, he argues that Peter knew that Adult Protective Services had “closed
its file on abuse claims against Vernon[’s] . . . primary care givers in January 2012 for
lack of substantiation of abuse.” But nothing in the record indicates that Peter knew that
the investigation had been closed. And nothing in the record indicates that the end of the
investigation resulted from a conclusion that no guardian was needed. Further, the fact
that claims of abuse are not substantiated in an initial investigation does not mean that
a petitioner cannot have a good-faith and objectively reasonable concern about the need
for a guardian.
Second, Vernon argues that Peter sent emails to the family in December and
January indicating his contemporary knowledge that Vernon was not cognitively
impaired and was content with Judith’s and Jeannette’s help. But the fact that Peter saw
his father on some of his good days and reported as much to the family does not
undermine Peter’s observations of his father on his bad days. Vernon’s doctors noted
his “fluctuating mental status” several times during January. Peter’s occasional
observations of his father’s cognitive ability do not undermine Peter’s or others’ contrary
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observations at other times, and does nothing to undermine Peter’s good-faith and
reasonable concerns. They certainly do not compel us to conclude that the superior court
clearly erred.
Finally, Vernon argues that the superior court “should have considered”
other pieces of evidence that allegedly tend to show that Peter acted maliciously,
frivolously, or without just cause, such as affidavits supporting Vernon’s capacity filed
with Vernon’s motion to dismiss, or Dr. Craig’s report. But those sources were available
to Peter only after Peter initiated this action and thus are irrelevant to Vernon’s claim that
Peter initiated his action maliciously, frivolously, or without just cause. And even if
Peter had been aware of the information in those affidavits and in Dr. Craig’s report, the
mere presence of countervailing evidence does not compel a conclusion that the superior
court’s finding of good faith was clearly erroneous.33
In sum, we conclude that Vernon has not met his burden of showing that
the superior court clearly erred when it found that Peter did not initiate his petition for
guardianship maliciously, frivolously, or without just cause and therefore could not
receive attorney’s fees and costs under AS 13.26.131(d).34
33
Appellants’ attorneys incorrectly characterize Dr. Craig’s report when they
state that Dr. Craig found that Vernon “had full capacity at all times before, during and
following the initiation of the proceeding.” Dr. Craig’s report concluded only that
Vernon had capacity at the time of Dr. Craig’s evaluation.
34
Peter also argues on appeal that Judith is ineligible to receive attorney’s fees
or other costs under AS 13.26.131(d) because Vernon, rather than Judith, was the
“respondent” in the protective proceedings. We do not reach this issue because we
conclude that the standard for fee shifting under AS 13.26.131(d) has not been met.
-20- 6945
B. The Superior Court Did Not Err By Concluding That AS 13.26.131(d)
Entirely Displaces Alaska Civil Rule 82 In Guardianship And
Conservatorship Proceedings.
Two fee-shifting provisions are potentially applicable in this case: Alaska
Rule of Civil Procedure 82 and AS 13.26.131(d). As discussed above, AS 13.26.131(d)
provides for fee and cost shifting only where the petitioner initiated a protective
proceeding that was malicious, frivolous, or without just cause. Civil Rule 82(a), by
contrast, states: “Except as otherwise provided by law . . . , the prevailing party in a civil
case shall be awarded attorney’s fees calculated under this rule.” Civil Rule 82 thus
permits partial fee shifting as a matter of course.35 It also gives the superior court
discretion to impose enhanced (or diminished) fee awards based on several factors,
including “the reasonableness of the claims and defenses pursued by each side,”
“vexatious or bad faith conduct,” and “other equitable factors deemed relevant.”36
In deciding the applicability of Civil Rule 82 in this case, we are guided by
two statutory commands. First, we have stated as a general proposition that “[i]f a
specific statutory scheme for attorney’s fees exists, Civil Rule 82 does not apply”
because fees would thus be “otherwise provided by law” within the meaning of Civil
Rule 82(a).37 Second, Alaska Rule of Probate Procedure 1(e) provides that “[w]here no
specific procedure is prescribed by these [Probate] rules, the court may proceed in any
lawful manner, including application of the Civil . . . Rules,” but “[s]uch a procedure
35
For example, in a case involving no claim for money judgment that is
resolved without trial (such as the instant case), the prevailing party shall receive
“20 percent of its actual attorney’s fees which were necessarily incurred.” Alaska R.
Civ. P. 82(b)(2).
36
Id. 82(b)(3)(F), (G), & (K).
37
Enders v. Parker, 66 P.3d 11, 17 (Alaska 2003).
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may not be inconsistent with these rules and may not unduly delay or otherwise interfere
with the unique character and purpose of probate proceedings.”
We first addressed the relationship between Civil Rule 82,
AS 13.26.131(d), and Probate Rule 1(e) in In re Guardianship of McGregory.38 In that
case, the state initiated a petition for guardianship but later did not oppose a motion to
dismiss after a social worker determined that the respondent was not in need of a
guardian.39 Rather than move for attorney’s fees under AS 13.26.131(d), the respondent
moved for fees pursuant to Civil Rule 82.40 We held that routine awards of partial Civil
Rule 82 fees as a matter of course to the prevailing party were not available because such
routine fee shifting would “interfere with the unique character and purpose of
guardianship proceedings” in violation of Probate Rule 1(e).41 We noted that
AS 13.26.131 normally leaves enumerated costs with the state or respondent as outlined
in the statute (unless shifted pursuant to AS 13.26.131(c) or (d)), making routine fee
shifting to the prevailing party under Civil Rule 82 at odds with the more-specific
statutory mandate of AS 13.26.131.42 And we distinguished between typically self-
interested civil proceedings and beneficent guardianship proceedings, which “are not
entirely adverse” and in which “application of [Civil] Rule 82 . . . could . . . deter the
state from engaging in needed protective litigation.”43
38
193 P.3d 295 (Alaska 2008).
39
Id. at 297.
40
Id.
41
Id. at 300.
42
Id. at 299-300.
43
Id. at 299 (quoting Wetherhorn v. Alaska Psychiatric Inst., 167 P.3d 701,
(continued...)
-22- 6945
But McGregory did not close the door entirely on applying Civil Rule 82
in guardianship and conservatorship proceedings. We suggested that “to the extent that
[Civil] Rule 82 permits an award of up to full reasonable attorney’s fees for vexatious
or bad faith conduct or for cases that are malicious, frivolous, or brought without just
cause, utilization of the rule does not interfere with the unique character of guardianship
proceedings and in such circumstances the enhanced fee shifting contemplated by [Civil]
Rule 82 could be considered to be authorized under Probate Rule 1(e) if AS 13.26.131(d)
is inapplicable.”44 But this suggested role for Civil Rule 82 to provide enhanced fees
where AS 13.26.131(d) was “inapplicable” was predicated on the stipulation by the
parties in that case that AS 13.26.131(d) did not apply to the fees of privately retained
counsel and experts.45 Addressing that legal issue on the merits for the first time, we
hold that the fees and costs of privately retained counsel and experts may be shifted
pursuant to AS 13.26.131(d).46 Thus, AS 13.26.131(d) applies in this case, as it does in
every guardianship or conservatorship case. Accordingly, McGregory’s allowance for
Civil Rule 82 fee enhancements where AS 13.26.131(d) is “inapplicable” describes an
empty set.
We hold that AS 13.26.131(d) forecloses any role for Civil Rule 82 in the
guardianship and conservatorship context. Anything in McGregory that would leave a
43
(...continued)
703-04 (Alaska 2007)). We expressly invoked analogous holdings about the
inapplicability of routine Civil Rule 82 fee shifting in the child-in-need-of-aid and civil-
commitment contexts. Id. at 298 (citing Wetherhorn, 167 P.3d at 703 (commitment);
Cooper v. State, 638 P.2d 174, 178 (Alaska 1981) (child-in-need-of-aid)).
44
Id. at 300 (footnotes omitted).
45
Id. at 298 n.8.
46
See supra section IV.A.1, text accompanying notes 26-30.
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role for Civil Rule 82, based on an incorrect stipulation of law by the parties in that case,
is abrogated. We reaffirm McGregory’s core conclusion: application of Civil Rule 82
would “interfere with the unique character and purpose of guardianship proceedings” in
violation of Probate Rule 1(e).47 We expand this core holding to foreclose all
applications of Civil Rule 82, including for enhanced attorney’s fees. And we clarify
that Civil Rule 82 is inapplicable in guardianship or conservatorship proceedings
regardless of whether the state or a private party initiated the petition.48
In sum, AS 13.26.131(d) entirely displaces Civil Rule 82 in guardianship
and conservatorship proceedings, for two reasons. First, AS 13.26.131(d) is a specific
statutory scheme that triggers Civil Rule 82(a)’s provision that Civil Rule 82 shall not
apply when fee shifting is “otherwise provided by law.” Second, application of Civil
Rule 82 would “interfere with the unique character and purpose” of guardianship and
conservatorship proceedings and is thus impermissible under Probate Rule 1(e).
Here, the superior court determined that it could not apply Civil Rule 82 in
these guardianship and conservatorship proceedings. We affirm.49
47
In re McGregory, 193 P.3d at 300.
48
We noted in McGregory that the proceedings in that case were “initiated
by the State” and “express[ed] no view as to whether the holding of this opinion should
be extended to guardianship proceedings initiated by private parties.” Id. at 298 n.12
(emphasis added). But the logic of McGregory applies equally well in both cases.
Guardianship proceedings initiated by a private party are similarly beneficent and “not
entirely adverse,” and “application of [Civil] Rule 82 . . . could . . . deter [private
petitioners] from engaging in needed protective litigation” as much as it could deter
beneficent state action. Id. at 299 (citation omitted).
49
Because we conclude that Civil Rule 82 is inapplicable, we do not address
Peter’s argument that Judith is not a party and is thus ineligible for an award of
attorney’s fees under Civil Rule 82. Similarly, we do not address Vernon and Judith’s
(continued...)
-24- 6945
V. CONCLUSION
For these reasons, we AFFIRM the superior court’s order denying Vernon’s
and Judith’s motions for attorney’s fees and other costs.
49
(...continued)
arguments that they satisfied the requirements for routine or enhanced fees under Civil
Rule 82.
Vernon and Judith also argue that the superior court erred by not
considering the applicability of Civil Rule 82 for Peter’s conduct after the initiation of
the proceedings. They reason that AS 13.26.131(d) focuses narrowly on the initiation
of a petition but “has no application regarding the conduct of the parties or on the
proceeding as a whole. This is where [Civil] Rule 82 applies.” Because they raised this
argument for the first time in their reply brief, it is waived. Oels v. Anchorage Police
Dep’t Emps. Ass’n, 279 P.3d 589, 598-99 (Alaska 2012). But even if this argument were
properly before us, it would be unavailing on the merits. McGregory’s core logic, and
today’s holding, forecloses the application of Civil Rule 82 in guardianship proceedings.
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