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In Re S.H. (8/9/2002) sp-5604
In Re S.H. (8/9/2002) sp-5604
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. 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.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of S.H., ) Supreme Court
No. S-9633
)
) Superior
Court No.
) 3AN-96-1371 PR
)
) O P I N I O N
)
________________________________) [No. 5604 - August 9, 2002]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Phillip Paul Weidner, Weidner &
Associates, Inc., Anchorage, for Appellant.
Thomas V. Van Flein, Clapp, Peterson &
Stowers, LLC, Anchorage, for Clapp, Peterson
& Stowers.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. S.H. was adjudged to be in need of a special
conservator in 1997 regarding litigation he was pursuing against
Anchorage Refuse, Inc. After we affirmed the appointment of a
conservator in 1999, S.H.s conservator moved to finalize a
settlement entered into in 1997. At that time, S.H. petitioned
the superior court to terminate the conservatorship, claiming
that he was competent to manage his affairs. The superior court
denied the petition to terminate, entered the settlement, and
dismissed S.H.s litigation against Anchorage Refuse. S.H.
appeals the superior courts refusal to hold a hearing on the need
for a conservatorship and its refusal to void the actions of the
conservator settling the Anchorage Refuse litigation. Because
the conservator entered into the settlement in 1997 and our
decision in S.H. I was a ratification of that settlement, we
affirm the superior courts entry of settlement and dismissal of
the litigation.
II. FACTS AND PROCEEDINGS
This case is before us for a second time. It concerns
the superior courts actions following our remand in In re S.H.
(S.H.I).1
A. In re S.H.
After working at Anchorage Refuse, Inc. (ARI) from 1991
to 1993, S.H. sued ARI in April 1995 alleging, among other
things, that his fellow employees sadistically mistreated him.2
His attorneys in that action were from the law firm of Clapp,
Peterson, & Stowers (CPS).3 Between May 1995 and December 1996,
CPS attorneys Marcus Clapp and Thomas V. Van Flein grew uneasy
with S.Hs increasing obsession with the case.4 S.H. began
showing signs of instability, including irrational behavior,
paranoia, inclinations toward gratuitous dismissal of his
personal injury suit, a tendency to threaten his own witnesses,
the desire to initiate direct and inappropriate dealings with
opposition counsel and the judge, and a marked lack of
confidentiality.5
In 1996 and 1997 psychiatric experts examined S.H. in
connection with the ARI litigation and because CPS was concerned
with S.H.s behavior.6 The majority of these doctors concluded
that S.H. had a mental impairment that made him unable to think
rationally at times.7 Only one doctor found S.H. to be capable
of dealing rationally with the settlement proceedings.8
Mediation between S.H. and ARI began in December 1996,
and led to a $500,000 settlement offer by ARI.9 S.H. refused to
accept the offer, however, believing his case was worth $2
million.10 CPS then filed a Petition for Appointment of Limited
Conservator/Guardian Ad Litem of a Person due to its belief that
S.H. was incapable of handling his affairs.11 Superior Court
Judge Karen L. Hunt appointed Ernest Schlereth to act as S.H.s
attorney in the conservatorship/guardianship proceeding on
December 30.12 In March 1997 Phillip Paul Weidner replaced
Schlereth as S.H.s attorney in the conservatorship/guardianship
proceeding.13
Master Andrew Brown commenced a hearing on the
conservatorship/guardianship petition in July 1997, at which time
S.H. requested a jury trial.14 Master Brown denied the request
for a jury trial and issued his report in August after a three-
day hearing.15 He recommended that a special conservator be
appointed to act on S.H.s behalf for the purposes of the ARI
litigation and that the costs of that conservator be imposed on
CPS.16 The superior court adopted Master Browns recommendation
and appointed Paul Cossman as S.H.s special conservator.17 After
reviewing S.H.s case against ARI, Cossman concluded that it was
in S.Hs best interests to accept the $500,000 settlement offer18
and approved the settlement. The settlement funds were placed in
the court registry in order to allow S.H. to appeal the decision
to appoint a special conservator and CPS to cross-appeal the
imposition of the conservators costs on CPS.19
In August 1999 we decided S.H. I. We held that a
conservator has the authority to settle a lawsuit; that the court
properly considered S.H.s ability to make litigation-related
decisions, as opposed to his ability to make a rational decision
in general; and that an inability to manage ones property need
not be long-term to justify a conservatorship.20 We further held
that the conservator has the authority to waive the protected
persons jury trial rights, reasoning that otherwise, the
protected person, who had already [been] deemed incapable in the
laws eyes, would retain control of the case.21 Regarding S.H.s
request for a jury trial on the conservatorship/guardianship
petition, we held that his request, coming more than twenty days
after service of the first pleading and not before the first
hearing, was untimely under Alaska Probate Rule 11.22 Finally, we
held that it was improper to impose the costs of the
conservatorship on CPS and remanded the case to the superior
court to impose those costs in accordance with AS 13.26.230.23
B. On Remand
Judge Hunt conducted the remand hearing on October 7,
1999. On the remanded cost issue, she directed CPS to file a
proposed order imposing the conservatorship costs on S.H., and
indicated that she would refer the case back to the probate
master, who had handled the conservatorship, for all further
proceedings. At this time, Weidner indicated that S.H. was fully
competent to handle the ARI litigation. CPS filed stipulations
for dismissal with prejudice and to distribute settlement funds
that same day.
Prior to the hearing before the probate master, S.H.
filed a demand for jury trial and an objection to the
stipulations for dismissal with prejudice and distribution of
settlement funds filed by CPS, Cossman, and ARI. At the hearing
on October 27, 1999, Master Brown indicated that his
responsibilities were limited, by our remand instructions, to the
imposition of conservatorship costs. He approved the costs
submitted by CPS and Cossman and told S.H. that, if he wished to
change the conservatorship order, he needed to file a written
motion.
In November 1999 S.H. filed an objection to Master
Browns failure to address his objections to the stipulations
entered into by CPS, Cossman, and ARI. S.H. also filed a motion
that month to set aside the conservatorship and to void the
conservators decisions. Judge Hunt denied the motion to set
aside the conservatorship and issued an order imposing the
conservators costs on S.H. and reaffirming the conservators
authority to settle the ARI litigation.
As the ARI litigation was settled and an order of
dismissal was signed by Superior Court Judge Peter A. Michalski
in November 1999, CPS refiled the stipulation for the
distribution of settlement proceeds in March 2000. In April,
Judge Hunt signed the order distributing settlement funds and
terminating the appointment of the conservator. S.H. appeals.
III. STANDARD OF REVIEW
We apply our independent judgment to questions of
statutory interpretation.24 In interpreting statutes, we look to
the meaning of the language, the legislative history, and the
purpose of the statute in question.25 Whether a trial court acted
inconsistently with our mandate is a question of law.26 We adopt
the rule of law that is most persuasive in light of precedent,
reason and policy.27
IV. DISCUSSION
A. Weidner Has the Authority To Act as S.H.s Counsel in this
Appeal.
A. CPS argues that S.H. I granted S.H.s conservator the
authority to make litigation decisions on S.H.s behalf. It
contends that, because Weidner never obtained the approval of the
conservator to file the present action, the appeal should be
dismissed. S.H. responds that Weidners representation is proper
and protected by the conservatorship statutes.
CPS cites In re Conservatorship of Nelsen28 as support
for its argument that Weidner has no authority to represent S.H.
In Nelsen, the Minnesota court of appeals held that the
conservatee could not contractually retain an attorney without
the approval of either the conservator or the court.29 This
reasoning, CPS argues, should apply to the instant case.
The court in Nelsen, however, based its decision on the
conservatorship order, which required the conservator to approve
any contract, except for necessities, which the conservatee might
make.30 The order appointing S.H.s conservator was not as broad
as the order in Nelsen. Rather than granting the conservator
authority over all contracts, S.H.s conservator was only given
the authority to make all necessary decisions on [S.H.s] behalf
in the ARI Case, including but not limited to accepting a
settlement offer in the ARI Case or proceeding to trial with that
litigation. Given the more limited nature of S.H.s
conservatorship, Nelsen does not apply.
Furthermore, AS 13.26.195 grants a prospective
protected person the right to counsel in the conservatorship
proceedings.31 Weidner is S.H.s counsel under this statute,
having substituted in for the original counsel appointed for S.H.
by the court. While Weidner could not take part in any aspect of
the ARI litigation, he is properly representing S.H. in the
probate proceedings, including S.H.s petition to terminate the
conservatorship and this appeal.
B. S.H. I Controls this Case.
S.H. argues that the conservator did not have
the authority to settle the case with CPS and ARI, as he
petitioned for termination of his conservatorship. S.H. further
argues that the superior court erred in granting the order for
distribution of settlement funds and terminating the appointment
of the conservator.
In 1997 the special conservator stated that it was
in S.H.s best interest to accept the settlement offer of $500,000
and that S.H.s chances of recovering a judgment in excess of that
offer were basically nonexistent.32 Accordingly, the conservator
approved the settlement on behalf of S.H. The conservator, CPS,
and ARI then stipulated to interplead the settlement funds.33 The
settlement monies were deposited with the court registry and
awaited distribution pending S.H.s appeal to this court.34
Our decision upholding the appointment of a conservator
and ratifying his authority to enter into the settlement with ARI
was announced in August 1999. On October 7, 1999 the special
conservator and CPS filed a stipulation for distribution of
settlement funds. That same day, S.H. petitioned to have the
conservatorship revoked. However, as the settlement had been
entered into in 1997, S.H.s claim had already been disposed of by
the conservator. When this court upheld the conservatorship, the
settlement funds in the court registry became S.H.s. As such,
with the distribution of funds, S.H. no longer had an interest in
the ARI litigation and the conservatorship was to end by the
order of the appointment.
V. CONCLUSION
Because S.H.s claims were settled by the
conservator in 1997 prior to his petition for termination, the
superior court did not err in failing to hold a hearing on S.H.s
petition. Accordingly, we AFFIRM the decisions of the superior
court.
_______________________________
1 987.P.2d 735 (Alaska 1999).
2 Id. at 737. S.H. also named individual ARI officers
and employees in that suit. Id.
3 Id.
4 Id.
5 Id. (internal footnotes omitted).
6 Id.
7 Id. at 738.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
20 Id. at 739-40 (internal quotation marks omitted).
21 Id. at 741.
22 Id. at 742.
23 Id.
24 Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380
(Alaska 2001).
25 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).
26 Gaudiane v. Lundgren, 754 P.2d 742, 744 (Alaska 1988).
27 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1977).
28 587 N.W.2d 649 (Minn. App. 1999).
29 Id. at 650.
30 Id. at 651.
31 AS 13.26.195(b) states in part: Unless the person to
be protected has counsel of the persons own choice, the court
must appoint a lawyer to represent the person who then has the
power and duties of a guardian ad litem.
32 S.H. I, 987 P.2d at 738.
33 Id.
34 Id.
