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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Foster v. Professional Guardian Services Corporation (8/19/2011) sp-6589

Foster v. Professional Guardian Services Corporation (8/19/2011) sp-6589, 258 P3d 102

        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,   email 


EVELYNN FOSTER, Personal                       ) 
Representative of the Estate of ANN            )       Supreme Court No. S-13569 
DAVIS,                                         ) 
                                               )       Superior Court No. 3AN-02-00946 PG 
                        Appellant,             ) 
                                               )       O P I N I O N 
        v.                                     ) 
                                               )       No. 6589 - August 19, 2011 
PROFESSIONAL GUARDIAN                          ) 
SERVICES CORPORATION,                          ) 
                        Appellee.              ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, John Suddock, Judge. 

                Appearances: Mary A. Gilson and Allison E. Mendel, Mendel 
                & Associates, Anchorage, for Appellant.  No appearance by 

                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 
                Christen, Justices. [Stowers, Justice, not participating.] 

                CARPENETI, Chief Justice. 


                In   2002,   the   superior   court   appointed  a   professional   conservator   for   a 

mother suffering from dementia.          Her daughter, who also served as special advocate, 

resisted the appointment.       From 2002 onward, the daughter engaged in wide-ranging 

legal   challenges   to   the   conservator's   handling  of   her   mother's   conservatorship.   In 

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response, the conservator incurred large legal fees, paid by the estate, in defending its 

actions.    After the mother's death, the superior court approved the conservator's final 

accounting. The court recognized flaws in the conservator's management of the mother's 

property, including a breach of fiduciary duty.  But based on a prevailing party analysis 

the court approved reimbursement, from the mother's property, for the full attorney's 

fees the conservator expended in defending itself.  Because we conclude that certain of 

the superior court's factual findings may be inconsistent, we remand for the superior 

court   to   clarify   its   findings   or   make   them  consistent. And   because   it   was   error   to 

evaluate     attorney's    fees   under    the   prevailing    party   standard,    we    remand     for 

reconsideration of attorney's fees.        In all other respects we affirm the decision of the 

superior court. 


        A.      Facts 

                Ann   Davis   was   89   years   old   in   August   2002   when   the   superior   court 

appointed      Professional    Guardian     Services   Corporation     (PGSC)      as  her  temporary 

conservator and guardian.   The superior court appointed PGSC permanent guardian and 

conservator in February 2003. 

                Davis's   daughter   Evelynn   Foster   and   son   William   Bryant   were   both 

appointed by the court as special advocates for Davis.             They are estranged from each 

other and disagreed over Davis's care and the management of her property. In particular, 

Foster contested the appointment of PGSC, while Bryant supported it. This appeal stems 

from Foster's broad litigation against PGSC. 

                At some point before PGSC became involved, Foster was Davis's guardian. 

At that time, Foster had the opportunity to go through Davis's home and take items of 

personal property that she wished to keep.            She inventoried the possessions she took. 

                                                  -2-                                            6589

----------------------- Page 3-----------------------

Once PGSC became guardian, Foster again went through the home and was allowed to 

take additional items as she wished. 

                Within 90 days of its appointment, PGSC was required to complete a report 

outlining its plan of care and inventorying Davis's property.  In the report it completed, 

PGSC noted that it moved Davis to an assisted living facility where she was settling in 

well.    The   report   contained   the   required   inventory   section,   where   PGSC   noted   two 

vehicles, but did not further inventory Davis's personal property. PGSC reported Davis's 

monthly income to be about $2,000, based largely on a pension and government benefits. 

Davis's assets totaled approximately $168,000, and consisted of the vehicles, liquid 

assets of about $65,700, a home appraised at $95,000, and a few minor assets (furniture 

and money on deposit) at the assisted living facility.          Davis's monthly expenses at the 

assisted   living   center   were   roughly   $6,700,   much   higher   than   her   $2,000   monthly 

income.  In February 2003 PGSC estimated that Davis's liquid assets would be depleted 

in approximately a year.  The sale of Davis's house would fund her care for roughly two 

and a half years. 

                In part due to legal fees, Davis's liquid assets were rapidly depleted, and by 

May 2003 PGSC had determined it needed to sell Davis's house.                   That month, PGSC 

President   David   Schade   wrote   to   several  attorneys   on   the   case,   including   Foster's 

attorney Allison Mendel, informing them of the need to sell the house.  The letter stated 

that Davis's granddaughter Sandra Foster (Sandra) - who otherwise would inherit the 

house - had asked for a first right to purchase the home, and that she could do so at fair 

market value if she confirmed her intent by June 7 and closed by July 15.  A June 2003 

letter from Schade to Mendel provided further details of the offer.             Ultimately, Sandra 

did not purchase the house, and PGSC sold it instead to a third party. PGSC placed some 

of Davis's remaining household items in storage. 

                                                  -3-                                           6589

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                Approximately 13 months before Davis's death, the federal government 

erroneously concluded that she had passed away and stopped paying her pension. PGSC 

did not timely rectify the error.  The missed payments were not paid until after Davis's 

death,   at   which   time   the   funds   were  split   evenly   between   Bryant   and   Foster,   the 

beneficiaries listed on Davis's pension form. 

                Davis passed away in November 2004.              PGSC's final accounting for its 

conservatorship expenses is the subject of the present appeal. 

        B.      Proceedings 

                1.      Judge Reese's rulings concerning PGSC's conservatorship 

                After Superior Court Judge John Reese appointed PGSC as guardian over 

Foster's objections, Foster filed a petition to remove PGSC for cause.  The court held a 

hearing in February 2004 and denied Foster's request, finding PGSC to have "acted 

appropriately, reasonably, and in the best interests of Ann Davis in all aspects of its 

service as guardian and personal representative."           Judge Reese's order from the bench 

was severely critical of Foster, accusing her of "selfish manipulations" and "hypocrisy," 

and referring to her "mixed motives and contentious personality."               Judge Reese ruled 

against Foster on every issue, stating:   "Ms. Foster's personality is the reason PGSC was 

appointed in the first place.     PGSC's job is not to confront Ms. Foster but to help Ann 

Davis." Discussing a problem with the insurance on Davis's house, the court held Foster 

partly   responsible,   stating   that   she   "interfered   in   PGSC's   work."    The   court   also 

suggested that Foster's interference was "a transparent attempt to get the house to her 

daughter through inheritance rather than purchase or rent and was contrary to the current 

need of Ann Davis to benefit from her own asset." 

                Because Davis passed away in November 2004, a few months after Judge 

Reese's written order, Foster's appeal from that order to this court was dismissed as 

                                                  -4-                                           6589

----------------------- Page 5-----------------------

moot. But we granted Foster the right to preserve the issues she raised for the anticipated 

conservatorship proceedings regarding PGSC's accounting. 

                2.      Judge Suddock's hearing and initial ruling from the bench 

                PGSC petitioned for approval of its final accounting, and the case came 

before   Superior   Court   Judge   John   Suddock,   who   conducted   a   two-day   evidentiary 

hearing in February 2008. 

                At    the  close   of  the  hearing,    Judge   Suddock      ruled  from    the  bench, 

extensively addressing each of Foster's points.            Regarding PGSC's inventory, which 

listed only two cars and not Davis's smaller items, the court stated that it would have 

been prudent for PGSC to create a better inventory, and that such an inventory was 

"normally and appropriately done by conservators." But there was no harm, because the 

court found that Foster had taken the items important to her while going through the 

house.   The court also indicated that PGSC had a good reason not to inventory:  PGSC's 

reasonable belief that Foster "had gotten what she thought was important to keep." 

                Regarding PGSC's use of paid storage for Davis's household items, the 

court held storage to be a reasonable expense during Davis's life, particularly in light of 

the contentious situation in the family.          But the court found it unreasonable to pay for 

storage once Foster had been appointed personal representative, after Davis's death. The 

cost of unnecessary storage may have been up to $500. 

                Regarding   PGSC's   failure   to   quickly   correct   the   federal   government's 

cessation of Davis's pension payments, the court postponed decision on the matter to see 

if PGSC could still obtain the funds or if the parties could work out an agreement. 

                Regarding the sale of the house to a third party, and not to Sandra, the court 

found PGSC's actions not to be a breach of PGSC's fiduciary duty.                    Specifically, the 

court indicated it was reasonable for PGSC to assume that its letter to Mendel, containing 

a   written   offer,   would   be   communicated   to   Sandra.    The   court   also   noted   that   past 

                                                  -5-                                             6589

----------------------- Page 6-----------------------

transactions with Sandra had failed, and that it would have been reasonable for PGSC to 

conclude that Sandra was not a serious business partner. 

               Regarding attorney's fees, the court found that it was reasonable for PGSC 

to retain counsel to defend its actions.    In addition, although Foster prevailed on a few 

issues,   the  court  indicated   those  were   rather  insignificant   and  that  "[PGSC]    has 

overwhelmingly prevailed on the global attack on [its] handling of the matter." 

               3.	    Judge   Suddock's   second   ruling   from   the   bench,   concerning 
                      pension payments 

               A week after the first ruling from the bench, the court convened to address 

the pension issue, which it had given the parties additional time to negotiate.  The court 

held that PGSC's failure to timely address the pension checks "did not comport with [its] 

high duty of care" as a fiduciary.     But before issuing a ruling against PGSC, the court 

requested that PGSC attempt to correct the problem.  Foster subsequently received half 

($6,323.91) of the errant pension benefits but failed to notify PGSC of her receipt of the 


               4.	    Judge Suddock's final written decision 

               PGSC eventually filed a renewed motion for closure, which Foster opposed 

in part.   On June 1, 2009, the court issued its written decision, from which Foster has 

taken this appeal.    The court found Foster's receipt of the pension funds to be in bad 

faith, and to have caused unnecessary cost to PGSC.           Because Foster kept the funds 
instead of depositing them into the estate,1 the court held that she had breached her 

fiduciary duty to the estate. 

        1      The     superior   court   referred   variously    to  "the   estate"   and   "the 

conservatorship account." 

                                               -6-	                                          6589 

----------------------- Page 7-----------------------

                In determining damages from the receipt of the pension funds, the court 

looked to what would have happened with the funds had they been collected by the 

conservatorship and passed to probate. The court determined that improper disbursement 

to   Foster   had   led   to   damages   of  only   $1,323.91. The   court   did   not   alter   its   earlier 

conclusion that PGSC was the prevailing party in the litigation.              Because Foster still 

owed the estate unpaid damages and attorney's fees from her litigation before Judge 

Reese, the court tallied the amounts Foster and PGSC each owed and offset them, with 

the result that Foster owed the estate $1,448.  The court found the reimbursement by the 

estate of all of PGSC's attorney's fees reasonable, and noted that the conservatorship 

account would be exhausted after these payments. 

                Foster now appeals several of Judge Suddock's rulings.  Specifically, she 

claims that PGSC breached its fiduciary duty by failing to inventory Davis's belongings, 

by paying storage fees for Davis's belongings, and by not selling the house to Sandra; 

that the superior court should not have applied probate law to the pension dispute; and 

that PGSC should not receive attorney's fees if it breached its fiduciary duty. 


                We review the superior court's factual findings for clear error, reversing 

only if we have a definite and firm conviction that based on the record as a whole a 
mistake has been made.2 

                "Questions regarding the interpretation and application of a statute are 
questions of law to which we apply our independent judgment."3 

        2       Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791, 794 (Alaska 


        3       Mat-Su Valley Med. Ctr., LLC v. Advanced Pain Ctrs. of  Alaska, Inc., 218 

P.3d 698, 700 (Alaska 2009) (citing State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007)). 

                                                 -7-                                              6589 

----------------------- Page 8-----------------------

                To the extent that Foster contests the reasonableness of attorney's fees, and 

not the interpretation of an attorney's fees statute, we review for abuse of discretion, 
reversing only if the award is "manifestly unreasonable."4 


                Foster raises five issues on appeal. 

                The first four concern PGSC's performance as conservator.                  In general, 

Foster argues that the superior court erred by being excessively lenient in its evaluations 

of PGSC's performance and by refusing to recognize the damages to Davis's estate 

caused by PGSC's performance. Specifically, Foster argues that PGSC breached its duty 

to Davis by (1) failing to conduct an adequate inventory of Davis's property, (2) paying 

for storage of Davis's property when free storage was available, (3) failing to correct in 

a timely manner the misrouting of Davis's pension payments, and (4) violating Davis's 

wishes regarding the offering of her house to her granddaughter. 

                The    practical   significance     of  Foster's   complaints     regarding    PGSC's 

performance lies in Foster's fifth issue on appeal, the superior court's approval of the 

reimbursement   of   PGSC's   attorney's   fees.       Foster   recognizes   that   a   conservator   is 

entitled to "reasonable" attorney's fees under AS 13.26.230.                But she asserts that the 

superior   court   erred   in   allowing   PGSC   to   reimburse   itself   from   Davis's   estate   for 

attorney's fees accrued in defense of PGSC's mismanagement of the conservatorship. 

PGSC breached its duty to Davis, Foster argues, and "fees incurred by a conservator in 

an unsuccessful defense of a breach cannot be said to be reasonable."  Thus Foster seeks 

to   reverse   the  superior    court's   decision   regarding    the   reimbursement      of  PGSC's 

attorney's fees. 

        4       DeNardo v. Cutler, 167 P.3d 674, 677-78 (Alaska 2007) (quoting Marron 

v. Stromstad, 123 P.3d 992, 998 (Alaska 2005)) (internal quotation marks omitted). 

                                                  -8-                                               6589 

----------------------- Page 9-----------------------

                We address the first two issues in tandem, and the remaining three issues 

individually.   Regarding the first two issues - the cursory inventory and the use of paid 

storage - we conclude that two factual findings -               (1) that the failure to sufficiently 

inventory was harmless because there was nothing of value in Davis's house, and (2) that 

the use of paid storage was reasonable because there were valuable items in Davis's 

house - may be inconsistent with each other.              We thus remand for resolution of the 

apparent inconsistency in the superior court's factual findings.  With regard to the third 

and fourth issues - the pension funds and the house sale - we affirm the superior 

court's conclusions.       With regard to the fifth issue - attorney's fees - we hold as a 

matter of first impression that AS 13.26.230 invites an analysis that is distinct from the 

"prevailing party" analysis of attorney's fees under Alaska Civil Rule 82.               We remand 

to the superior court for a new calculation of PGSC's reimbursable attorney's fees in 

light of (1) the need to revisit the factual findings, and (2) our clarified standard for the 

reimbursement of conservator attorney's fees under AS 13.26.230. 

        A.	     The   Superior   Court's   Factual   Findings   Regarding   The   Value   Of 
                Davis's Property Appear Inconsistent And Require Clarification. 

                We   first   discuss   the   superior   court's   findings   regarding   inventory   and 

storage.      In  light  of  the  apparent    inconsistency     in  the  findings,   we   remand     for 


                1.	     The superior court correctly concluded that PGSC's inventory 
                        did not satisfy the requirements of AS 13.26.250. 

                Foster   first   claims   PGSC's   cursory   inventory   breached   AS   13.26.250. 

Though Foster cited to AS 13.26.250, the superior court did not explicitly interpret the 

statute, which requires a conservator to complete an inventory of the ward's property 

within 90 days of the conservator's appointment.             PGSC's initial inventory listed two 

vehicles and made the following statement:              "PGSC's staff have not completed the 

                                                  -9-	                                           6589

----------------------- Page 10-----------------------

personal property inventory, but found no significant personal property during our initial 

review."      PGSC's   CEO   testified   that   he   did   not   individually   list   the   small   items   of 

personal property - those less than $400 in value - because it would not have been a 

cost-effective use of the guardian's funds to pay an appraiser to do so.  Although PGSC 

did not respond to this appeal, it appears that PGSC claimed in the superior court that 

National Guardianship Association Standards require an inventory only of items valued 

over $400 - a contention disputed by Foster. 

                PGSC's decision not to list anything under $400 is not supported by any 

language in AS 13.26.250. In fact, PGSC's own inventory form suggests listing any item 

over   $200.      As   the   superior   court   persuasively   suggests,   PGSC   could   have   cost- 

effectively inventoried the property by video or by listing contents by genre ("cooking 

ware,"   "flatware,"   and   so   on).   We   thus  affirm   the   superior   court's   conclusion   that 

PGSC's cursory personal property inventory, which listed only two vehicles, was not 

sufficient to satisfy the standards of AS 13.26.250.  But this does not settle the issue of 

whether the inventory caused harm to Davis's estate. 

                2.	     Viewed in isolation, there may be sufficient evidence to conclude 
                        that PGSC's cursory inventory was harmless. 

                Foster claims that PGSC's failure to inventory harmed the estate because 

it is now uncertain whether a fur coat, bible, or other unspecified sentimental items were 
lost during PGSC's control of the property.5          The superior court found that the evidence 

        5       Foster presents PGSC's failure to inventory as a breach of fiduciary duty. 

But "[w]here a point is not given more than a cursory statement in the argument portion 
of a brief, the point will not be considered on appeal."  Petersen v. Mutual Life Ins. Co. 
of N.Y., 803 P.2d 406, 410 (Alaska 1990).   In making her argument, Foster has not cited 
any legal authority on the nature of a conservator's fiduciary duty, nor any legal authority 
suggesting what would constitute a breach of such a duty.  Rather, Foster simply asserts 

                                                  -10-	                                               6589 

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does not support a conclusion that PGSC lost those items. Among other possibilities, the 

court noted that Davis could have lost or given away the items before PGSC took control. 

              Viewed in isolation, the superior court's finding is adequately supported. 

The court noted that Foster had been through the house before PGSC's involvement, and 

again after PGSC took over, and that Foster could - and did - take any items she 

wanted. The court found it was reasonable for PGSC to conclude that Foster "had gotten 

what she thought was important to keep." Further, based on this finding, the court found 

it likely that the items in question were not present in the home when PGSC took over. 

Foster's appeal disputes none of these assertions. 

              Thus the record contains support for the court's findings that Foster had not 

demonstrated PGSC was responsible for the loss of any items, and that the items in 

question may have been gone before PGSC took over.            Based on these findings, the 

court's conclusion that PGSC's inadequate inventory caused no damage to the estate, 

standing alone, might not have been clearly erroneous.       The problem with the court's 

       5      (...continued) 

that PGSC owed the "highest duty of  diligence and care" to Davis, and that PGSC 
breached that duty. 

              Other states have addressed the issue of the fiduciary duty of conservators. 
California, for example, requires both good faith and objective reasonableness in the 
conservator context, and has held that "as a fiduciary, a conservator is bound to act with 
reasonable prudence and pursuant to a good-faith belief that its actions will tend to 
accomplish the purpose of its trust by benefiting the conservatee."     Conservatorship of 
Lefkowitz, 58 Cal. Rptr. 2d 299, 301 (Cal. App. 1996).  More leniently, Illinois requires 
guardians to use the same prudence with the protected person's property as the guardian 
would with his or her own property.  Parsons v. Wambaugh's Estate, 442 N.E.2d 571, 
573 (Ill. App. 1982).   But we decline to reach the issue as a matter of first impression in 
Alaska on the basis of the cursory briefing before us.    We consider the present case in 
terms of PGSC's alleged harm to Davis's estate rather than in terms of PGSC's alleged 
breach of fiduciary duty. 

                                            -11-                                       6589

----------------------- Page 12-----------------------

finding lies in its relation to the court's findings on the issue of storage, as described 


                3.	     Viewed in isolation, there may be sufficient evidence to conclude 
                        that PGSC's use of paid storage was reasonable. 

                Asserting that free storage was available at her own house, Foster claims 

it was unreasonable for PGSC to pay storage fees for Davis's items.                     Foster claims 

PGSC's use of paid storage created unnecessary expense and breached PGSC's fiduciary 


                The superior court found storage reasonable, writing that "given family 

contention, it was appropriate to store these items at a neutral locale."             Foster does not 

dispute the superior court's assertions regarding contentiousness in the family or the 

litigiousness of the situation.  It appears that the strife between Foster and Bryant was so 

strong   that   staff   at   Davis's   assisted   living   facility   had   to   intervene   between   them   a 

number of times, and considered evicting Davis due to the strife between her children. 

Viewed in isolation, there would thus be adequate support in the record for the superior 

court's finding that PGSC's use of paid storage was reasonable. 

                4.	     But     viewed    together,     the  superior     court's    factual   findings 
                        regarding inventory and storage appear inconsistent. 

                We will not disturb the factual findings of a trial court unless they are 

clearly   erroneous.      One   sign   of   such   error  is   an   inconsistency   between   two   factual 

findings - even if each one, standing alone, would be sufficiently supported by the 
record so as not to constitute clear error.6         In this case, the trial court found both that 

        6       Cf.   Anderson   v.   City  of   Bessemer   City,   470   U.S.   564,   575-76   (1985) 

(suggesting that internal inconsistency between factual findings can establish clear error 
(citing United States v. Aluminum Co. of Am., 148 F.2d 416, 433 (2d Cir. 1945); Orvis 
v. Higgins, 180 F.2d 537, 539-40 (2d Cir. 1950))); accord Al-Babtain v. Banoub, 410 F. 

                                                  -12-	                                              6589 

----------------------- Page 13-----------------------

PGSC "could reasonably conclude . . . that [Foster] had gotten what she thought was 

important to keep," and that PGSC "reasonably believed that Ms. Foster wanted some 

of that stuff and that, therefore, it was necessary to retain it."  The first finding supports 

the superior court's conclusion that PGSC's statutorily inadequate inventory did not 

result in damages to Davis's estate.  The second finding supports the court's conclusion 

that PGSC's use of paid storage did not breach its duty to Davis. 

                But it may not have been reasonable for PGSC to have believed that there 

was nothing in the house of value to Foster while placing the items in costly storage 

because of their high value.  PGSC cannot be allowed to present its failure to inventory 

as harmless by asserting there was nothing valuable in the house and then, in the next 

breath, defend its use of a costly storage facility by asserting that the valuable items in 

the house required preservation. On remand, the superior court must clarify or otherwise 

resolve this apparent inconsistency. 

        B.	     The Superior Court Did Not Err In Determining Damages Related To 
                The Missed Pension Payments. 

                Because the federal government thought Davis passed away before she 

actually did, 13 monthly pension payments totaling $12,647.82 were not sent to Davis's 

conservatorship,   and   instead   were   later   paid   out   directly   to   Foster   and   Bryant,   the 

        6       (...continued) 

App'x 179, 183 (11th Cir. 2010).   We routinely review factual findings for consistency 
and have rejected findings that were internally inconsistent.  See, e.g., Tara U. v. State, 
Dep't of Health & Soc. Servs., Office of Children's Servs., 239 P.3d 701, 705 (Alaska 
2010) (vacating order based on "unexplained apparent inconsistencies" that prevented 
effective appellate review of factual findings); Fletcher v. Trademark Constr., Inc., 80 
P.3d 725, 732 (Alaska 2003) (upholding factual findings after concluding in part that 
they were not "internally contradictory"); Silvers v. Silvers, 999 P.2d 786, 791 (Alaska 
2000) (ordering reconsideration on remand of factual issue where trial court's ruling was 

                                                 -13-	                                           6589

----------------------- Page 14-----------------------

beneficiaries of Davis's pension plan.           The superior court found PGSC responsible for 

not correcting the issue in a timely manner, resulting in the payment of $6,323.91 each 

to Foster and Bryant instead of to the conservatorship.                 Foster and Bryant would not 

agree to return the money to the conservatorship, but the court found little harm on the 

theory that in the probate proceedings AS 13.12.403 would have split $10,000 of the 

funds   between   them   in   any   event,   as   the   decedent's   children,   because   the   personal 

property remaining in the estate was "essentially worthless" and because there were no 
other assets at the end of the conservatorship subject to probate administration.7   Thus 

only $2,647.82 was misallocated to Foster and Bryant, or $1,323.91 each.  Because the 

court had jurisdiction over Foster, the court ordered Foster to return her extra $1,323.91 

to the estate, which left only Bryant's extra $1,323.91 as damages from PGSC's failure 

to respond in a timely manner.           Thus, the superior court correctly concluded that the 

missed pension payments caused $1,323.91, and not $12,647.82, in damage to the estate. 

                 Foster also argues that the superior court erred in applying AS 13.12.403 

- because it is a probate law and therefore part of a separate statutory scheme that is not 

        7        AS 13.12.403 provides that 

                 the decedent's surviving spouse is entitled from the estate to 
                 a value, not exceeding $10,000 in excess of security interests 
                 in the items, in household furniture, automobiles, furnishings, 
                 appliances,   and   personal   effects.   If   there   is   no   surviving 
                 spouse,   the   decedent's   children   are   entitled   jointly   to   the 
                 same value. If encumbered chattels are selected and the value 
                 in   excess   of   security   interests,   plus   that   of   other   exempt 
                 property, is less than $10,000, or if there is not $10,000 worth 
                 of exempt property in the estate, the spouse or children are 
                 entitled   to   other   assets   of   the   estate,   if   any,   to   the   extent 
                 necessary to make up the $10,000 value. 

                                                    -14-                                              6589

----------------------- Page 15-----------------------

applicable   to   a   conservatorship   case   -  and   in   requiring   Foster   to   relinquish   her 

overpayment.  But Foster failed to raise these arguments before the superior court, and 
they are therefore waived.8 

        C.	     The Superior Court Did Not Err In Concluding That PGSC Did Not 
                Breach Any Duty In The Way It Sold Davis's House. 

                Davis's will stated that, after her death, her house should go to Foster's 

daughter Sandra.   But because Davis's liquid assets were exhausted and PGSC needed 

to pay for Davis's care, PGSC decided to sell Davis's house while Davis was living. 

PGSC had a market analysis done on the house, and in letters dated May and June 2003 

PGSC offered the house to Sandra for $135,500 - the $138,000 market analysis value 

minus the cost of roof repairs.  PGSC sent the letters to Foster's lawyer, Allison Mendel. 

Because Sandra did not come forward to buy the house, PGSC sold it to a third party. 

                Foster claims Davis's house should have been sold to Sandra, not to a third 

party via a real estate broker. The alleged damages include real estate brokerage fees and 

the fees paid to PGSC for the time it spent conducting the sale.               Specifically, Foster 

claims that AS 13.26.295 required PGSC to adhere to Davis's estate plan, and that PGSC 

was therefore bound to sell Davis's house to Sandra, who would have inherited the home 

had it gone through probate. 

                We conclude that AS 13.26.295 did not require selling the house to Sandra. 

Our case law does not squarely address the legal issue of what duty is imposed by section 

.295, and Foster briefs this question only in cursory fashion.               Section .295 requires 

conservators to take the protected person's estate plan into account when "investing the 

estate," "selecting assets of the estate for distribution under AS 13.26.285(a) and (b)," 

        8       Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) ("A party 

may not raise an issue for the first time on appeal.").  Although the record shows PGSC 
raised AS 13.12.403, Foster did not contest the statute's applicability. 

                                                 -15-	                                             6589 

----------------------- Page 16-----------------------

and in certain other circumstances.     Section .285(a) gives conservators the ability to 

distribute income or principal from an estate in order to care for the protected person. 

Section .285(b) allows the conservator to make distributions to charity as the protected 

person would have. 

              Given the depletion of Davis's assets, a conflict arose between Davis's 

welfare and her stated intention to leave her house to her granddaughter. One reasonable 

way to resolve the conflict was to offer the house to Sandra for sale.  The superior court 

specifically found that PGSC went to adequate lengths to offer the house to Sandra, even 

though PGSC addressed the letters containing the offer to Foster's attorney rather than 

directly to Sandra.   The superior court found that it was "reasonable . . . to group mother 

and    daughter   together,"  and   that  communication     with   an  attorney   constitutes 

communication with the party. 

              Foster admits that PGSC made an offer to Sandra through Foster's attorney. 

Because Foster did not appeal the superior court's finding that it was reasonable that 

PGSC treated Foster and Sandra as a single party, represented by Foster's attorney, we 

affirm the superior court's conclusion that PGSC fulfilled any obligation to Sandra. 

              In addition, the superior court did not err in finding PGSC's decision not 

to have the house appraised reasonable.     Although PGSC may not have appraised the 

house, a market analysis was performed on the property, and Foster admits that the house 

sold at that price, which was well above earlier estimates.  Foster has not indicated why 

an appraisal would have been required, how the market assessment was insufficient, or 

that the home could have sold for more. 

              Foster also asserts that the superior court erred in finding that Sandra was 

not interested in the house.   But the superior court made no such finding.  Rather, Judge 

Suddock noted that Judge Reese - who hadheard more testimony - found that Sandra 

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 did not express interest in the property.  But Judge Suddock explicitly declined to give 

 preclusive effect to that finding.  Accordingly, there is no error because the court did not 

 find Sandra uninterested, and declined to rely on an earlier court's finding to that effect. 

                In conclusion, we affirm the superior court's ruling that PGSC's sale of 

 Davis's home was reasonably conducted. 

        D.	     It Was Error To Evaluate PGSC's Attorney's Fees Under Civil Rule 
                82's "Prevailing Party" Standard. 

                A prevailing party before Alaska trial courts may receive attorney's fees 

 from the opposing party under Alaska Civil Rule 82.              In such a case, we give the trial 
 court wide discretion.9     To determine whether a party was a prevailing party, the court 

 looks generally to whether the party was successful on the main issue of the action, 

 whether the party successfully defended the action, and whether judgment was entered 
 in favor of the party.10 

                PGSC instead received a reimbursement of its attorney's fees from Davis's 

 estate through AS 13.26.230, which provides that "[i]f not otherwise compensated for 

 services rendered, any . . . lawyer . . . [or] conservator . . . is entitled to reasonable 

 compensation from the estate." The superior court apparently approached AS 13.26.230 

        9       See Marron, 123 P.3d at 998 (citing Cizek v. Concerned Citizens of Eagle 

River Valley, Inc., 71 P.3d 845, 848 (Alaska 2003)).              Where fees have been awarded 
 under   a   statute,   this   court   has   looked   to   whether   the   superior   court's   findings   were 
 sufficient to meet the terms of the statute. Jones v. Jones, 925 P.2d 1339, 1343 (Alaska 

         10      Wooten v. Hinton, 202 P.3d 1148, 1152 (Alaska 2009) (citing Alaska Ctr. 

for the Env't v. State , 940 P.2d 916, 921 (Alaska 1997)). 

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by conducting a Rule 82-like "prevailing party" analysis, where the conservator can lose 
on a number of issues and still collect full fees.11 

                Foster disputes the superior court's analysis, arguing that compensation is 

not "reasonable" under AS 13.26.230 if it stems from unsuccessfully defending a breach 

of fiduciary duty.  This is a question of first impression.  We have only once previously 

addressed AS 13.26.230, holding that conservatorship funds should normally be used for 
attorney's fees incurred by the conservator.12  But that case did not involve a conservator 

breaching its fiduciary duty or otherwise doing anything wrong.13 

                 The policies underlying Rule 82 and AS 13.26.230 are very different. 

"Rule 82's primary purpose is to partially compensate a prevailing party for attorney's 

fees incurred in enforcing or defending the party's rights . . . .              Without the rule, the 

rights   of   the   prevailing   party   would   be  less   completely   vindicated   because   of   the 
uncompensated expense of litigation."14           By contrast, AS 13.26.230 is a part of Alaska's 

statutory scheme for protecting the property of incapacitated persons.                 Under Rule 82, 

the   interests   of   the   prevailing   party   are   paramount,   while   under   AS   13.26.230,   the 

paramount interest is protecting the incapacitated person's estate. 

                Rule 82 offers partial attorney's fees for wrongly sued defendants, even if 

they   end   up   losing   on   some   points.  It   would   be   unwise   to   provide   wrongly   sued 

        11      The superior court did not explicitly cite to AS 13.26.230 in its opinion, 

though it did refer to "reasonable" fees.  Nevertheless, the superior court's language in 
its ruling from the bench makes clear that it was correctly relying upon the "reasonable 
compensation" standard from AS 13.26.230. 

        12      In re S.H., 987 P.2d 735, 742 (Alaska 1999). 

        13      See id. at 737-38. 

        14      State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 398 (Alaska 2007). 

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conservators      with   exactly   the  same    relief,  given   that   the  attorney's    fees  in 

conservatorship cases will not be coming out of the unjustified plaintiff's pocket, but out 

of the pocket of an innocent third party, the incapacitated person.  The reimbursement of 

conservator attorney's fees simply does not serve to impose a cost upon a party, like 

Foster, for deploying a wasteful and destructive litigation strategy. 

               In the present case, the superior court noted that the litigation that had 

occurred was a "tragedy," but recognized that in light of the litigation, PGSC needed to 

hire an attorney in order to "preserve the estate."  The superior court compared Foster's 

wide-ranging, often unclear litigation to the Allied invasion of Europe during World War 

II: "You couldn't tell where the invasion was going to be, whether it was going to be 

Normandy or Omaha Beach or somewhere on the other side of the peninsula, but you 

knew it was coming."  The court tallied the small issues on which Foster prevailed, and 

concluded that "[PGSC] overwhelmingly prevailed on the global attack on [its] handling 

of the matter."   The court also noted that in this case "it's impossible to divide out the 

component of representation that can be allotted to the bare handful of issues on which 

Ms. Foster here prevails."   Finally, the court stated that any deduction it could take from 

PGSC's billing would constitute "an equitable kick in the pants" merely because PGSC's 

"handling of the matter was not perfect." 

               But in light of the purposes of AS 13.26.230, an equitable rebuke to PGSC 

may indeed be in order.  PGSC conducted a statutorily inadequate inventory, may have 

caused damage to Davis's estate through this inventory and through its decision to use 

paid storage, and caused damage to the estate by failing to correct the misdirection of 

Davis's pension funds. It would be unreasonable to reimburse PGSC from Davis's estate 

for attorney's fees spent in defense of actions that harmed the estate in these ways.  We 

                                               -19-                                          6589

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thus remand to the superior court to deduct from PGSC's reimbursed fees those that it 

incurred in defending actions that caused significant harm to Davis's estate. 

                It may be that these fees are difficult to calculate, or are quite small.           But 

they should nevertheless be deducted based on the principle that it is unreasonable and 

therefore impermissible under AS 13.26.230 to require a protected person to fund a 

conservator's defense of actions that damaged the protected person's estate, even if that 

defense was undertaken in good faith. 

                Based   on   the   partial   briefing   before   us,   we   decline   to   reach   the   more 

abstract issues of whether a conservator's breach of a statutory obligation must always 

also be a breach of fiduciary duty, and whether a conservator's defense of a breach of 

fiduciary duty must under every circumstance result in a loss of reimbursement for 

attorney's fees.     It is enough in the present circumstances to conclude that under the 

"reasonable compensation" standard of AS 13.26.230, a conservator may not obtain from 

the   estate   reimbursement   for   attorney's   fees   spent   in   the   unsuccessful   defense   of 
conservator actions that caused significant harm to the estate.15 


                Because the superior court did not err in its treatment of the pension funds 

and the house, we AFFIRM its holdings with regard to those matters.                       Because the 

        15      Because the reimbursement of conservator attorney's fees derives from 

statutory authority, we will review trial courts' application of the standard laid out in this 
decision not for abuse of discretion, but as a mixed question of law and fact.  That is, we 
will review for clear error the trial court's factual findings regarding the nature and extent 
of any harm to the conservatorship estate caused by the conservator's actions; and we 
will review de novo the trial court's legal conclusions regarding whether any harm was 
sufficiently     significant   as  to  render    compensation      for  the   defense    of  that  harm 
"unreasonable" under the terms of AS 13.26.230.               See Jones v. Jones, 925 P.2d 1339, 
1343 (Alaska 1996) ("[T]he question is whether . . . the superior court's findings are 
sufficient to support an award of attorney's fees under [the relevant statute]."). 

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court's factual findings regarding the value of Davis's property appear inconsistent, we 

REMAND   for   clarification   of   those   findings. We   likewise   REMAND   for   a   new 

calculation of PGSC's reimbursable attorney's fees under AS 13.26.230. 

                                             -21-                                       6589
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