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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Guardianship of McGregory (09/19/2008) sp-6307

In the Matter of the Guardianship of McGregory (09/19/2008) sp-6307, 193 P3d 295

     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,


In the Matter of the Guardianship of: ) Supreme Court No. S-12597
LORAINE McGREGORY ) Superior Court No. 3AN-06- 01045 PR
) O P I N I O N
) No. 6307 September 19, 2008

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third    Judicial   District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan,  Anchorage, for Karen Decker-Brown,
          individually  as Intervenor and  as  Personal
          Representative  of  the  Estate  of   Loraine
          McGregory.    Laura  C.  Bottger,   Assistant
          Attorney   General,   Anchorage,   Talis   J.
          Colberg, Attorney General, Juneau, for  State
          of Alaska.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          MATTHEWS, Justice.

          The  question  presented  in  this  appeal  is  whether
attorneys fees and costs should be awarded as a matter of  course
to parties who successfully oppose the States efforts to impose a
guardianship on an allegedly incapacitated person.  The pertinent
facts, briefly stated, are as follows.
          In  2006  eighty-eight-year-old Loraine  McGregory  was
moved  from  the Pioneer Home in Anchorage by her daughter  Karen
Decker-Brown.  When Decker-Brown refused to tell the State  where
McGregory   was  residing,  the  State  filed  a   petition   for
guardianship  under  AS  13.26.090.  The  petition  claimed  that
McGregory  was incapacitated and that it was not known where  she
was  or  who  was caring for her.  It also alleged  that  Decker-
Brown,  who  held McGregorys power of attorney,  was  not  paying
McGregorys  bills, including a $27,000 debt to the Pioneer  Home,
and that she was making decisions that might not be in McGregorys
best interests.
          McGregory and Decker-Brown appeared in the guardianship
proceedings through separate privately retained counsel.  Decker-
Brown  moved to dismiss the petition and McGregory joined in  the
motion.   Decker-Brown claimed in support of her motion that  the
Pioneer  Home had inappropriately moved McGregory to a  ward  for
severely  disabled patients and when the home refused to  reverse
the  transfer she moved McGregory, with McGregorys consent, to  a
private assisted living facility where McGregory was doing  well.
She  described the outstanding bill to the Pioneer Home as merely
a matter of McGregorys insurer not making payments on time.1
          The  State  filed  a non-opposition to  the  motion  to
dismiss,  stating that a social worker had visited McGregory  and
interviewed  her physician and the State had no further  concerns
regarding   McGregory.    The  superior   court   dismissed   the
guardianship petition.
          Both   McGregory  and  Decker-Brown  moved  for  actual
attorneys  fees and costs.  McGregory based her motion  on  Civil
Rule  82,  claiming that the States petition was in  bad  faith.2
She  sought fees of $2,500.  Decker-Brown based her motion on  AS
13.26.131(d),   claiming   that  the  petition   was   malicious,
frivolous, or without just cause.3  She sought fees of $6,500 and
costs of $1,212.50.4
          The  State  opposed  both motions.   As  to  McGregorys
motion,  the  State contended that Rule 82 should  not  apply  to
guardianship  proceedings,  and  even  if  Rule  82  did   apply,
McGregory  would not be entitled to full fees because  the  State
did  not act in bad faith.  As to Decker-Browns motion, the State
argued   that  AS  13.26.131(d)  did  not  apply.   That  statute
addresses  whether the State or the respondent  should  bear  the
costs and fees of attorneys and experts appointed by the court to
represent a respondent under AS 13.26.106(b) and AS 13.26.109(d).
Here, the State argued that Decker-Brown was not a respondent and
the  attorneys and experts were not court-appointed  under  those
subsections.  The State also argued that even if the statute  did
apply,  its standard for allocating costs to the State  that  the
petition be malicious, frivolous, or without just cause  was  not
          After  both  movants  replied, the  court  denied  both
motions  finding that AS 13.26.131 did not apply and the petition
was  not  malicious, frivolous, or without just cause.  McGregory
and Decker-Brown appeal these rulings.  Pending appeal, McGregory
died  and  Decker-Brown  has  been substituted  as  the  personal
representative of McGregorys estate.
          On  appeal  Decker-Brown contends that  Civil  Rule  82
should apply in guardianship proceedings.  She acknowledges  that
guardianships are governed by the Probate Rules rather  than  the
Civil Rules.  She relies on Probate Rule 1(e) which provides that
where  no procedure is prescribed in the Probate Rules the  court
          may proceed in any lawful manner, including application of the
Civil  .  .  .  Rules,  unless  a  chosen  method  of  proceeding
interfere[s]  with  the unique character and purpose  of  probate
proceedings.5  Decker-Brown notes that in Crittell v.  Bingo,6  a
will  contest case, this court held that Rule 82 applied where  a
statutory fee provision did not apply because of the fraud of the
person claiming to be the personal representative.7  Decker-Brown
stresses in her reply brief that guardianship proceedings can  be
abused by government agencies and that awarding attorneys fees to
respondents serves to protect them against such abuses.
          The  State argues that applying Rule 82 as a matter  of
course  to  guardianship  proceedings would  interfere  with  the
unique  character  and  purpose of  guardianship  proceedings  by
discouraging  good  faith  actions taken  to  protect  vulnerable
adults.   Further, the State argues by analogy to AS 13.26.131(d)
that  except where a petition is malicious, frivolous, or without
just cause, the respondent should bear the costs of her counsel.8
The  State relies on two cases:  Cooper v. State, which held that
child-in-need-of-aid (CINA) proceedings are not subject  to  Rule
82  under  a  CINA  rule  similar  to  Probate  Rule  1(e);9  and
Wetherhorn v. Alaska Psychiatric Institute, which held that civil
commitment proceedings are likewise not subject to Rule 82.10
          We believe that the States position is largely correct.11
A guardianship proceeding is protective in character, as are CINA
proceedings  and  proceedings seeking  the  civil  commitment  of
persons   gravely  disabled  by  mental  illness.  It  would   be
inconsistent  to  exempt CINA proceedings and  civil  commitments
from the routine application of Rule 82 but fail to make the same
exemption  with respect to guardianship proceedings initiated  by
the State.12
          The  rationale  that  we expressed in  Wetherhorn  also
applies to guardianship proceedings and distinguishes Crittell v.
Bingo in terms that are relevant to this case:
               The  superior  court held  that  Probate
          Rule  1(e) prohibited application of Rule  82
          in    civil   commitment   proceedings.    It
          determined that Rule 82 was inconsistent with
          the    purpose   and   character   of    such
          proceedings.  Wetherhorn now argues that  the
          superior   court   erred   in   making   this
               We agree with the superior court.  Civil
          commitment is a unique procedure:
               Unlike  civil or criminal
               proceedings,          the
               interests of the  parties
               to   a  civil  commitment
               proceeding    are     not
               entirely  adverse.    The
               states  concerns  are  to
               provide  care  to   those
               whose   mental  disorders
               render  them  unable   to
               care  for themselves  and
               to   protect   both   the
               community     and     the
               individuals    themselves
               from            dangerous
               manifestations  of  their
               mental illness. [Goetz v.
               Crosson, 967 F.2d 29, 34-
               35 (2d Cir. 1992).]
               In Cooper v. State, we held that Rule 82
          is   inapplicable   in   child-in-need-of-aid
          (CINA)  cases.  [638 P.2d  174,  178  (Alaska
          1981).]  We reasoned that applying Rule 82 in
          CINA cases would chill the states willingness
          to  perform  a public function   serving  the
          welfare  of  children  by burdening  it  with
          additional  costs  of litigation.  [Id.]   We
          concluded that application of Rule  82  would
          be   inconsistent   with  the   purpose   and
          character  of CINA proceedings. [Id.]   Civil
          commitments  are analogous to CINA  cases  in
          that they are designed to protect the welfare
          of at-risk people.  Application of Rule 82 in
          civil  commitment  hearings  could  similarly
          deter  the  state  from  engaging  in  needed
          protective  litigation.  Thus, as in  Cooper,
          we hold that Rule 82 is inconsistent with the
          character  and  purpose of  civil  commitment
               Wetherhorn relies on Crittell  v.  Bingo
          for   the   proposition  that  Rule   82   is
          applicable in probate proceedings.  [83  P.3d
          532  (Alaska 2004).]  In Crittell, we applied
          Rule  82 in a will contest. [Id.]  We  stated
          that  in  probate proceedings, Civil Rule  82
          governs  the award of fees unless a  specific
          provision of the Probate Rules applies.  [Id.
          at  536]   Wetherhorn  argues  that  Crittell
          stands for the blanket proposition that  Rule
          82 does apply to Probate Court Proceedings.
               Wetherhorns reading of Crittell  is  too
          broad.   Her  interpretation would  eliminate
          that  part of Probate Rule 1(e) that requires
          an inquiry as to whether the application of a
          Civil Rule would be inconsistent or interfere
          with  the unique character of a given probate
          proceeding.  Rule 82 survived this inquiry in
          Crittell  but  not  in Cooper  because  of  a
          fundamental difference between will  contests
          and   CINA  cases.   Will  contests  comprise
          disputes   between  private   litigants.    A
          litigant  in a will contest usually litigates
          only  to  increase his own share of  a  will,
          regardless of the effect this has on  society
          generally.  In contrast, the state in a  CINA
          case  litigates  to  protect  a  childs,  and
          societys,    interests.    This   distinction
          between    beneficent   and   self-interested
          litigation supports the result here.[13]
          The   States   analogy   to   the   policy   underlying
AS 13.26.131(d) is also apt.14 In AS 13.26.131(b) the legislature
has provided that a respondent will ultimately be responsible for
the  costs  of  an  appointed attorney, an  expert  appointed  to
testify  on  behalf  of  a respondent, an appointed  guardian  ad
litem,  and  other guardianship costs.  There are two exceptions:
cases  of  financial hardship as provided in subsection (c),  and
where the initiation of a proceeding was malicious, frivolous, or
without  just  cause  as  provided in  subsection  (d).   If  the
subsection (d) exception is satisfied, the court may require  the
State  to pay all or some of the costs [of the appointed attorney
and  expert.]  There is little reason why prevailing  respondents
who  do not receive appointed counsel should be able to shift the
burden  of  fees  that  they incur, while  respondents  receiving
appointed  counsel, for whom they must pay, may not.   Similarly,
since  respondents receiving appointed counsel  can  shift  their
fees  when the subsection (d) exception is satisfied, respondents
who directly choose their own counsel should likewise be able  to
shift  these  costs to the State when the State acts maliciously,
frivolously, or without just cause.
          It  follows  that  insofar as Rule 82 routinely  awards
fees  in favor of the prevailing party, it should not be used  in
guardianship  cases  because doing so would  interfere  with  the
unique character and purpose of guardianship proceedings.  But to
the extent that Rule 82 permits an award of up to full reasonable
attorneys  fees for vexatious or bad faith conduct or  for  cases
that  are  malicious, frivolous, or brought without just cause,15
utilization  of  the  rule  does not interfere  with  the  unique
character  of  guardianship proceedings and in such circumstances
the  enhanced  fee  shifting contemplated by  Rule  82  could  be
considered  to  be  authorized under  Probate  Rule  1(e)  if  AS
13.26.131(d) is inapplicable.16
          Decker-Brown argues in her reply brief that the  States
petition was without just cause.  This argument is waived because
it  was not presented in her opening brief.17  Further, it  is  a
close  question as to whether, as Decker-Brown characterizes  it,
the  States action was an act of high handed bureaucrats bent  on
collection  of  a  partly unjust bill, or was  justified  by  the
States knowledge of McGregorys fragile condition and concern  for
her   well  being  when  Decker-Brown  would  not  disclose   her
whereabouts.  How the States 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.18
          For the reasons stated the judgment is AFFIRMED.
     1     On  appeal  she  also refers to  the  bill  as  partly
disputed,  due to the increased costs of McGregorys residence  in
the severely disabled ward.

     2     Civil Rule 82 calls for the award of partial attorneys
fees  to  a  prevailing party in civil litigation as a matter  of
course.   In cases of vexatious or bad faith conduct  or  in  the
presence  of other equitable factors deemed relevant, an enhanced
fee  of up to and including actual reasonable attorneys fees  may
be awarded.  See Alaska R. Civ. P. 82(b)(3)(G) & (K).

     3    AS 13.26.131 provides:

               (a)  Subject to (d) of this section, the
          state shall bear the costs of the visitor and
          expert appointed under AS 13.26.106(c).
               (b)  Subject  to  (c) and  (d)  of  this
          section, the respondent shall bear the  costs
          of    the   attorney   appointed   under   AS
          13.26.106(b),  of the expert appointed  under
          AS  13.26.109(d),  of the guardian  ad  litem
          appointed  under AS 13.26.025, and  of  other
          court  and guardianship costs incurred  under
          this chapter.
               (c)  The state shall pay all or part  of
          the costs described in (b) of this section if
          the court finds that the payment is necessary
          to  prevent  the  respondent  from  suffering
          financial hardship or from becoming dependent
          upon  a government agency or a private person
          or agency.
               (d) 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.
     4     Costs  are  awarded to prevailing parties under  Civil
Rule   79  as  a  matter  of  course  under  generally  the  same
circumstances  that awards are made under Civil  Rule  82  as  to
attorneys fees.  In this opinion references to Civil Rule  82  as
to  fees should be understood to include references to Civil Rule
79 pertaining to costs.

     5    Probate Rule 1(e) provides:

               Where    no   specific   procedure    is
          prescribed  by  these rules,  the  court  may
          proceed   in  any  lawful  manner,  including
          application of the Civil and Evidence  Rules,
          applicable  statutes, the Alaska  and  United
          States  Constitutions or common law.  Such  a
          procedure may not be inconsistent with  these
          rules  and  may not unduly delay or otherwise
          interfere  with  the  unique  character   and
          purpose of probate proceedings.
     6     83 P.3d 532 (Alaska 2004).

     7    Id. at 536.

     8     Both parties agree that AS 13.26.131 does not apply to
the  fees  of counsel who are privately retained by a respondent.
For  the purposes of this case we accept this position.  We note,
however,  that it is possible that the fees of privately retained
counsel  are  encompassed  within  the  phrase  other   .   .   .
guardianship costs in subsection (b).

     9    638 P.2d 174, 178 (Alaska 1981).

     10     167  P.3d  701,  703 (Alaska 2007).   Wetherhorn  was
decided  after  the State filed its appellees brief.   The  State
submitted  Wetherhorn  as  supplemental  authority  pursuant   to
Appellate Rule 212(c)(12).

     11    The questions presented for review are questions of law
to which we apply our independent judgment.  Crittell, 83 P.3d at
535  n.10  (citing  Enders v. Parker, 66 P.3d 11,  13-14  (Alaska
2003)).   Under this standard, we adopt the rule of law  that  is
most persuasive in light of precedent, reason, and policy.  Frank
E. v. State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs.,  77 P.3d 715, 717 (Alaska 2003) (quoting Guin v. Ha,  591
P.2d 1281, 1284 n.6 (Alaska 1979)).

     12     Since  this  case  involves a  guardianship  petition
initiated  by  the State, we express no view as  to  whether  the
holding  of  this  opinion  should be  extended  to  guardianship
proceedings initiated by private parties.

     13    Wetherhorn, 167 P.3d at 703-04.

     14    See supra note 3.

     15     The standard for the exception in AS 13.26.131(d) may
be considered encompassed within Civil Rule 82(b)(3)(G) and (K).

     16    See supra note 8.

     17    See In re Dissolution of Marriage of Alaback, 997 P.2d
1181,  1184  n.3  (Alaska  2000) (Points  given  only  a  cursory
treatment  in  the  argument portion  of  a  brief  will  not  be
considered on appeal, even if developed in the reply brief.).

     18     See, e.g., Fyffe v. Wright, 93 P.3d 444 (Alaska 2004)
(findings of fact are reviewed for clear error).

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