FABE, Chief Justice.
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.
Vernon H.
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 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."
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.
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. 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,
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.
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.
Two days after the January 30, 2012 psychiatric evaluation, Peter
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 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
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.
Vernon moved for full attorney's fees and for costs related to Dr. Craig's expert report.
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 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."
Vernon and Judith appeal, filing their briefs jointly.
"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."
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.
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."
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).
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."
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 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.
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.
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 — "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
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.
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.
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
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 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
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).
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.
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).
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.
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."
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 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).
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.
For these reasons, we AFFIRM the superior court's order denying Vernon's and Judith's motions for attorney's fees and other costs.
MAASSEN, Justice, not participating.
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).
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.
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.
