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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bravo v. Aker (1/4/2019) sp-7327

Bravo v. Aker (1/4/2019) sp-7327

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



ASHLEY  BRAVO  and                                                   )  

HELEN  BRAVO,  as  next  friend                                      )      Supreme  Court  No.  S-16914  

on  behalf  of  ASHLEY  BRAVO,                                       )  

                                                                     )  

                                Appellants,                                                                 

                                                                     )      Superior Court No. 4FA-13-02889CI  

                                                                     )  

           v.                                                                                   

                                                                     )     O P I N I O N  

                                                                     )  

                                                

SHELBY AKER and FRED AKER,                                                                                       

                                                                     )     No. 7327 - January 4, 2019  

                                                                     )  

                                Appellees.                           )  

                                                                     )  



                                   

                                                                                                          

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                 

                      Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                                   

                      Judge.  



                                                                                                            

                      Appearances:  Appellants Ashley Bravo and Helen Bravo,  

                                                                                                                

                     pro se, Anchorage. Michael J. Hanson, Call & Hanson, P.C.,  

                                                                   

                      Anchorage, for Appellees.  



                                                                                                        

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                           

                      and Carney, Justices.  



                                           

                      STOWERS, Justice.  



I.         INTRODUCTION  



                                                                                                                                       

                      Plaintiffs/appellants are an adult daughter believed to be incompetent and  



                                                                                                                                              

her mother.  After retaining counsel, the mother brought a tort action as the daughter's  



                                                                                                                                  

next friend for in utero injuries to the daughter, which the mother alleged were caused  



                                                                                                                                        

almost 20 years previously in a boating accident.  The defendants filed a motion for  


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 summary judgment, but they also offered to permit the plaintiffs to dismiss the case with                                                                                                                                                                                                                                                                         



 each side to bear its own costs and fees.                                                                                                                                  The plaintiffs' attorney believed that accepting                                                                                                                 



 this walk-away offer was in the daughter's best                                                                                                                                                                             interest, but the mother disagreed.                                                                                                                           



 Facing a conflict of interest between his two clients, the attorney moved to withdraw.                                                                                                                                                                                                                                                                                                    



                                                           The   superior   court   permitted   the   attorney   to   withdraw   and   ultimately  



 granted theunopposed motionfor summary                                                                                                                                                   judgment and awarded                                                                              costs andfees                                              against  



 both plaintiffs.                                                       The mother and daughter appeal.                                                                                                                        We hold that before granting the                                                                                                        



 attorney's  motion   to   withdraw   the   court   should   have   determined   the   daughter's  



 competency,   and   if   she   was   found   incompetent   the   court   should   have   appointed   a  



 guardian ad litem or taken further action to protect her interests pursuant to Alaska Civil                                                                                                                                                                                                                                                                     



 Rule 17(c). We reverse the court's orders granting the motion to withdraw and summary                                                                                                                                                                                                                                                        



judgment, vacate the award of attorney's fees and costs, and remand.                                                                                                                                                                                                   



 II.                          FACTS AND PROCEEDINGS                                          



                              A.                           The Accident And Lawsuit                                                              



                                                           On May 15, 1993, a boat on the Chena River operated by then-17-year-old                                                                                                                                                                           



  Shelby Aker collided with a boat carrying Helen Bravo. Helen was pregnant at the time;                                                                                                                                                                                                                                                                        



 Ashley Bravo was born on November 11, 1993.                                                                                                                                           



                                                           On November 7, 2013 - four days before Ashley turned 20 and the statute                                                                                                                                                                                                                        



 of   limitations   ran   on   her   personal   injury   claims   - attorney                                                                                                                                                                                                      Jeffrey   Barber   filed   a  



 complaint for plaintiffs "Ashley Bravo and Helen Bravo, as next friend on behalf of                                                                                                                                                                                                                                                                                        



 Ashley Bravo."                                                        The Bravos sued Shelby for negligently operating the boat and Fred                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                             1   The lawsuit  

 Aker and John Cooper for negligent entrustment, training, or supervision.                                                                                                                                                                                                                                                                             



 alleged that Helen sustained injuries in the boat collision which in turn caused in utero  

                                                                                                                                                                                                                                                                                                                                                               



                              1  

                                                                                                                                                                                                                                                                                                                       

                                                           The parties later stipulated to Cooper's dismissal from the case.  



                                                                                                                                                                                      -2-                                                                                                                                                                                            7327  


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

injuries to Ashley resulting in cognitive defects.  Helen asserted no claims on her own                                                                                  



behalf.  



                  B.               The Akers' Summary Judgment Motion                                                          



                                   In March 2017 the Akers moved for summary judgment.                                                                                                      Based on two                



expert reports, the Akers argued that Ashley was not harmed by the boating accident.                                                                                                                                                 



The Akers pointed out that the Bravos had not offered any expert witness testimony that                                                                                                                                  



the accident was causally linked to Ashley's condition, and they argued that such expert                                                                                                                          



testimony   was   necessary   to   raise   a   genuine   issue   of   material   fact   and   defeat   their  



summary judgment motion.                             



                                   The   Akers'   experts,   clinical   neuropsychologist  Dr.  Paul   Craig   and  



obstetrician-gynecologist Dr. Sima Kahn, reviewed the medical records of Helen and                                                                                                                                      

                                                                                                                                                                                      2    Two days after  

Ashley.   The following facts are taken from Dr. Craig's expert report.                                                                                                                                               



the 1993 accident, Helen stated that she had fallen out of her chair onto the floor of the  

                                                                                                                                                                                                                          



boat, hitting the back of her head and neck.  Three days after the accident, Helen had a  

                                                                                                                                                                                                                               



prenatal checkup; the only mention in the medical record of the accident seems to be the  

                                                                                                                                                                                                                          



fact that it occurred.  

                            



                                   TheDepartment ofPublic Safety issued a report fivedays after theincident.  

                                                                                                                                                                                                                                     



It appears that Helen reported the accident to the Alaska State Troopers on the evening  

                                                                                                                                                                                                             



it occurred.  In the immediate aftermath of the collision, Helen and those on Shelby's  

                                                                                                                                                                                                           



boat confirmed that everyone was "all right" and discussed what had happened.  The  

                                                                                                                                                                                                                       



report states that Helen suffered injuries to her head, back, and ankle.  Dr. Craig noted  

                                                                                                                                                                                                   



that a sticky note had been attached to a second, lower-quality copy of this report and it  

                                                                                                                                                                                                                               



read: "Unconscious, fell swallowed water . . . placental abruption." Dr. Craig concluded  

                                                                                                                                                                                                        



                 2  

                                                                                                                                                                                               

                                   We  do  not  mean  to  imply  that  these  facts  have  been  conclusively  

                                                                                                                                                               

established.  We recite them only to provide context for this appeal.  



                                                                                                             -3-                                                                                                               7327  


----------------------- Page 4-----------------------

                                                                                                                              

that this note had been added later to the original report, and he observed that it was  



                                                                        

neither signed nor dated, unlike the rest of the report.  



                                                                                                                       

                    Dr. Craigreportedthat Ashley'sbirthrecords mentiontheboatingaccident,  



                                                                                                                              

noting Helen's complaints of back, neck, and shoulder pain.   The records state that  



                                                                                                                               

Helen's pregnancy was "benign," there were neither complications during the birth nor  



                                                                                               

"evidence of fetal distress," and the newborn "appeared to be healthy."  



                                                                                                                        

                    Near  Ashley's  third  birthday,  she  was  deemed  "eligible  for  special  



                                                                                                                                 

education as a student with a handicapping condition."  The assessment noted delays in  



                                                                                                                    

Ashley's  mental  and   physical  development  and  diagnosed  her  with  attention- 



                                                                                                                                 

deficit/hyperactivity disorder (ADHD); the assessment also indicated a family history of  



                                                                                                                               

ADHD.  Dr. Craig also noted that medical and other records throughout Ashley's life  



                                                                                                                              

repeat the ADHD diagnosis and place her below average on developmental, social, and  



                         

other cognitive tests.  



                                                                                                                         

                    Dr. Craig reported that Helen had been concerned about harm to Ashley  



                                                                                                                               

from the start, but there was circumstantial evidence that Helen began embellishing her  



                                                                                                                                 

memory of the incident.  The sticky note on the 1993 accident report suggests loss of  



consciousness, submersion, and placental damage.  Dr. Craig himself evaluated Helen  



                                                                                                                            

in 1997 (he did not recall this when reviewing the case as an expert witness); at that time,  



                                                                                                              

Helen reported that she lost consciousness during the accident and was submerged for  



                                                                                                              

about five minutes.  An accident report Helen filed with the U.S. Coast Guard in 2008  



                                                                                                                                 

lists injuries including placental abruption.  A 2013 neuropsychological evaluation of  



                                                                                                                        

Ashley was premised entirely on Helen's account of the accident, with no use of primary  



                                                                                                                               

medical records.  For this evaluation, Helen reported that she nearly drowned in the  



                                                                                                                            

accident, a subsequent ultrasound revealed fetal abnormalities, and there was post- 



                                                                                

partum evidence of a condition known as "placenta accreta."  



                                                               -4-                                                         7327
  


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

                                       Dr. Craig and Dr. Kahn rejected acausallinkbetween                                                                                                     theboat collision and                             



 Ashley's cognitive deficits.                                                     Both emphasized the lack of serious injury or fetal harm                                                                                                 



 mentioned in the contemporaneous records and the unremarkable nature of Ashley's                                                                                                                                              



 cesarean section birth. Both also noted the possibility that genetic factors contributed to                                                                                                                                                        



 Ashley's ADHD.   



                    C.                 Barber's Motion To Withdraw                                     



                                       ShortlybeforetheBravos'opposition tothesummary judgmentmotionwas                                                                                                                                        



 due, attorney Barber moved to withdraw and requested additional time for the Bravos to                                                                                                                                                              



 oppose.   On the court's order, Barber filed an affidavit under seal supporting his motion                                                                                                                                           



                                                                                                                                                                                                 3  

 to withdraw, and another judge reviewed and granted this motion.                                                                                                                                                                                   

                                                                                                                                                                                                       Barber alluded to  



                                                                                                                                                                                                                                                 

 "issues of conservator [sic] and guardianship," but his affidavit mostly focused on the  



                                                                                                                  

 breakdown of communication with his clients.  



                                                                                                                                                                                                                                    

                                       After learning that HelenopposedBarber'smotiontowithdraw, theoriginal  

                                                                                                                                                                       4   While the court focused on  

                                                                                                                                                                                                                                                   

judge presiding over the case held a hearing on the matter. 



 communication problems between the clients and their attorney, Barber made clear there  

                                                                                                                                                                                                                                            



 were other concerns:  

                                 



                                       There were really three issues, and I tried to address them as  

                                                                                                                                                                                                             

                                       best I could in the affidavit.  Communication is one of them,  

                                                                                                                                                                                                   

                                       and it has certainly gotten worse since the other issues arose,  

                                                                                                                                                                                                                     

                                       which                   is          issues                  having                     to          do            with                guardianship,  

                                                                                                                                                                       



                    3                  By order dated August 3, 2018, the superior court unsealed the record in                                                                                                                 



 this case for purposes of appellate review.                                                         



                    4                  The time for the Bravos to oppose Barber's motion to withdraw before the  

                                                                                                                                                                                                                                                  

 reviewing judge had lapsed, but the original judge invited the Bravos to file a motion to  

                                                                                                                                                                                                                                                     

 reconsider.  Barber expressed misgivings about the original judge examining his sealed  

                                                                                                                                                                                                                                        

 affidavit, but the Bravos did not share those concerns. Because of this, and believing that  

                                                                                                                                                                                                                                                

 it would be more expedient, the original judge elected to rule on Barber's motion to  

                                                                                                                                                                                                                             

 withdraw after receiving the Bravos' written objections.  

                                                                                                                                   



                                                                                                                         -5-                                                                                                                7327
  


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

                                                                                                         

                    conservatorship,  that  I've  had  concerns  about  since  the  

                                                                                                           

                    get-go.       And  we  appear  to  be  stymied  as  far  as  how  to  

                                                                                            

                    proceed in that regard, and I'm not comfortable representing  

                                                 

                    Ashley's interests through Helen.  Okay?  And I mentioned  

                                                           

                    that in the affidavit that I wrote.  



                                                                                                                                 

In addition to issues of communication and Ashley's competency, Barber alluded to a  



                                                                                                                             

"fundamental disagreement" with Helen over prosecuting the case. Yet this conflict was  



                                                                               

inextricable from the competency issues, as Barber explained:  



                                                                                         

                    THE COURT:  What are you talking about?  Disagreements  

                                                                                    

                    about motions, about witnesses, stuff like that?  



                                                                                             

                    BARBER:  Well, some of it has to do with the underlying,  

                                                                                                          

                    substantive issues in her case: summary judgment issue for  

                                                                                                         

                    one; options, realistic options; likelihoods of prevailing; and  

                                                                                                         

                    what the best options may be to proceed in handling this case  

                                                                                                          

                    and whether it ought to be even tried or not.  And then the  

                                                                                                     

                    other        one        obviously             has       to     do       with        this  

                                                                                                  

                    guardianship/conservatorship issue, where Helen's capacity  

                                                                                      

                    in this case is really acting on behalf of her daughter.  



                                                                    

                    THE COURT:  With fiduciary duties.  



                                                                                                      

                    BARBER:  Well, there is no conservatorship.  If she had a  

                                                                                                         

                    conservatorship  and  was  appointed  as  guardian  for  her  

                                                                                                

                    daughter,  then  there  would  certainly  be  clear  fiduciary  

                                                                                                            

                    obligations, and it would be blessed by the court - Helen is  

                                                                                                        

                    proceeding, she's acting on behalf.  In the absence of that,  

                                                                                                      

                    I'm Ashley's lawyer - I'm beholden to Ashley, and to the  

                                                                                                     

                    extent that Helen and I don't see eye-to-eye on what should  

                                                                                                       

                    happen in this case and Helen's telling me to do one thing  

                                                                                                       

                    and I'm thinking this is very bad for Ashley . . . I have a huge  

                                                                                

                    problem.  There's no conservatorship.  



                                             

                    THE COURT:  Yeah.  



                                                                                                     

                    BARBER:  Ashley is an adult.  She's over the age of 18.  



                                                               -6-                                                        7327
  


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

                                             

                    THE COURT:  Yeah.  



                                                                                                            

                    BARBER: There's not even - there's not a guardianship or  

                                                                                                       

                    a  conservatorship.              And  these  are  issues  that  we  have  

                    discussed.  



                                                                                                     

                    THE COURT:  Are you saying - so are you saying there's  

                                                                                                

                    not a guardianship either?  Is that what you're -  



                                       

                    BARBER:  No.  



                                                              

                    THE COURT:  Okay.  All right.  



                                                                                                                     

Barber worried that Helen's approach to the case would end up "very bad for Ashley";  



                                                                                                                     

Helen had been "getting away with" speaking for her adult daughter without any legal  



authority.  



                                                                                                       

                    The  superior  court  explained  general  concepts  of  guardianship  and  



                                                                                                                             

conservatorship to Helen, linking them to the tensions with Barber.  Helen pledged that  



                                                                                                                          

she would defer to Barber's judgment about prosecuting the case.  The court then ended  



                                                                                              

the ex parte portion of the hearing to coordinate a scheduling conference.  



                                                                                                                    

                    But  when  the  parties  reconvened,  the  court  learned  that  the  stalemate  



                                                                                                                        

between Barber and Helen had continued.  Barber disclosed that the Akers had offered  



                                                                                                                      

to forgo attorney's fees and costs if the Bravos would dismiss the case. Despite Barber's  



                                                                                                                                

insistence that this was the best outcome available to the Bravos, Helen had refused to  



                                                                                                                              

sign documents accepting the walk-away offer.   At the hearing Barber renewed his  



                                                                                                  

request to withdraw.  The court again wrestled with the issue of Ashley's competency  



                                                                                                                                    

and contemplated appointing a guardian ad litem (GAL) for her, but it did not do so.  



                                                                                                                              

Instead the court granted Barber's motion to withdraw in a written order and gave the  



                                                                                                                       

Bravos  four  weeks  to  find  new  counsel  or  oppose  the  summary  judgment  motion  



                     

representing themselves.  



                                                               -7-                                                        7327
  


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

                      D.                    Disposition And Appeal                                                               



                                            The Bravos did not obtain new counsel, but Helen filed motions requesting                                                                                                                                    



Barber's reinstatement and more time to oppose summary judgment.                                                                                                                                                                  The court denied                   



these motions and granted summary judgment without issuing an opinion.  The Akers   



then   moved   for   attorney's   fees   under   Alaska   Civil   Rule   82.    Helen   filed   various  



documents trying to resurrect the Akers' walk-away offer, but the court construed these                                                                                                                                                                                    



as motions for reconsideration and rejected them as untimely and without merit.                                                                                                                                                                                             The  



court entered final judgment against Helen and Ashley in the amounts of $3,605.40 in                                                                                                  



attorney's fees and $1,123.96 in costs.                                                                    



                                            On appeal the Bravos, representing themselves, charge error to the entirety                                                                                                                                            



of the proceedings summarized above.                                                                     



III.                  STANDARD OF REVIEW                                           



                                            We "review de novo issues concerning the interpretation of civil rules,                                                                                                                                                     



 'adopting   the   rule   of   law   that   is   most   persuasive   in   light   of   precedent,   policy   and  

                                5     "We review a ruling by the superior court allowing an attorney to withdraw  

reason.' "                                                                                                                                                                                                                                                  

under the abuse of discretion standard."6  

                                                                                                 



IV.                   DISCUSSION  



                                            We note as a preliminary matter that the Bravos have styled the caption of  

                                                                                                                                                                                                                                                                                    



their appeal "Ashley Bravo, and Helen Bravo, as next friend on behalf of Ashley Bravo."  

                                                                                                                                                                                                                                                                                               



Because she has no claims of her own, Helen has no role in this case but as Ashley's next  

                                                                                                                                                                                                                                                                              



friend.  If Ashley is competent to represent herself, she does not need a next friend.  But  

                                                                                                                                                                                                                                                                               



as we explain below, a parent acting as an incompetent adult child's next friend cannot  

                                                                                                                                                                                                                                                                     



                      5                     Cooper v. Thompson                                                  , 353 P.3d 782, 786 (Alaska 2015) (quoting                                                                                                 Okagawa  



v.  Yaple, 234 P.3d 1278, 1280 (Alaska 2010)).                                                                                   



                      6                      Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1119 (Alaska 2002).  

                                                                                                                                                                                                                                                    



                                                                                                                                         -8-                                                                                                                               7327
  


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

represent the child without counsel.  Thus, the status of these appellants is not entirely         



clear on the record available to us, but judgment was entered against both of them and                                                                                                                                                           



their arguments are before us.                                                            



                                       The Bravos are self-represented litigants, and their brief does not include                                                                                                                    



the level of analysis one would expect had they been represented by counsel. But certain                                                                                                                                                 

                                                                                                                                                                                                        7      In other words,  

arguments are evident, and we extend leniency in construing them.                                                                                                                                                                       



although they do not fully flesh out their arguments in their briefing, we are able to  

                                                                                                                                                                                                                                                      



discern the basis of their contentions. They argue the court erred in allowing Barber to  

                                                                                                                                                                                                                                                      



withdraw, in granting summary judgment against them, and in awarding attorney's fees  

                                                                                                                                                                                                                                                



and costs against them.  

                                                   



                                       When attorney Barber filed his motion to withdraw, the superior court was  

                                                                                                                                                                                                                                                 



immediately faced with a quandary:  could the case proceed with an unrepresented and  

                                                                                                                                                                                                                                                 



presumedly incompetent plaintiff? Everyone involved -the Bravos, their attorney, and  

                                                                                                                                                                                                                                                  



the court - proceeded throughout the case under the apparent assumption that Ashley  

                                                                                                                                                                                                                                       



was incompetent, and the Akers never challenged this assumption in the superior court.  

                                                                                                                                                                                                                                                               



Helen brought the suit as next friend on the theory that Ashley, as an incompetent adult,  

                                                                                                                                                                                                                                            



did not have the capacity to bring the action on her own behalf.  

                                                                                                                                                                     



                                       Our  opinion  in  Shields v.  Cape Fox Corporation  provides part of the  

                                                                                                                                                                                                                                                  



solution to the court's quandary.   In Shields, a Native village corporation filed suit  

                                                                                                                                                                                                                                                



against the former manager of one of its stores, her teenage daughter, and the manager's  

                                                                                                                                                                                                                              

brother-in-law for losses at the store.8  The manager, without counsel, filed an answer on  

                                                                                                                                                                                                                                                     



                    7                  Mitchell v. Mitchell                                     , 370 P.3d 1070, 1083 (Alaska 2016) ("[W]e consider                                                                                



pro se pleadings liberally in an effort to determine what legal claims have been raised."                                                                                                                                             

(quoting  Briggs v. City of Palmer                                                                , 333 P.3d 746, 747 (Alaska 2014))).                                               



                    8                  42 P.3d 1083, 1085 (Alaska 2002).  

                                                                                                                          



                                                                                                                          -9-                                                                                                                7327
  


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

                                                                                            9  

her daughter's behalf as her "next friend."                                                     A jury ultimately returned a verdict in favor                                        



                                                                                                                                                                                             10  

of the Native village corporation and awarded damages against the three defendants.                                                                                                                



On appeal, the appellants argued among other things that the judgment against the  

                                                                                                                                                                                          



teenage daughter was void because she was a minor when she was sued and the absence  

                                                                                                                                                                                

of an attorney or GAL rendered the judgment void.11  

                                                                                                        

                              We held that "Alaska Civil Rule 17(c) governs this issue."12                                                                         We explained  

                                                                                                                                                                             



that "[t]he second sentence of this rule makes clear that while a 'next friend' may sue on  

                                                                                                                                                                                            

behalf of a minor, she may not defend a suit against a minor."13   Anticipating a case like  

                                                                                                                                                                                         



this one, we also stated that "a next friend cannot generally represent a minor, even as  

a plaintiff, without counsel."14  

                                                                      



                              We cited and discussed several cases from the federal courts of appeal in  

                                                                                                                                                                                             

                                                      15  In Johns v. County of San Diego, the Ninth Circuit reaffirmed  

support of this principle.                                                                                                                                                

                                  



               9              Id . at 1086.     



               10  

                                           

                              Id . at 1085.  



               11  

                                           

                              Id . at 1086.  



               12             Id . Civil Rule 17(c) provides: "Whenever an infant or incompetent person                                                                            



has a representative, such as a general guardian, committee, conservator, or other like                                                                                                  

fiduciary, the representative may sue or defend on behalf of the infant or incompetent                                                                                

person.   An   infant   or  incompetent   person   who   does   not   have   a   duly   appointed  

representative may sue by a next friend or by a guardian ad litem. The court shall appoint                                                                                       

a guardian ad litem for an infant or incompetent person not otherwise represented in an  

                                                                                                                                                                                            

action or shall make such other order as it deems proper for the protection of the infant  

                                                                                                                                                                                    

or incompetent person."  

                                    



               13             Shields, 42 P.3d at 1086.  

                                                                         



               14             Id .  



               15             Id . at 1086 n.3 (citing Johns v. Cty. of San Diego, 114 F.3d 874, 876-77  

                                                                                                                                                                                 

                                                                                                                                                                   (continued...)  



                                                                                            -10-                                                                                      7327
  


----------------------- Page 11-----------------------

 its prior holding that "a non-lawyer 'has no authority to appear as an attorney for others                                               



                           16  

 than himself.' "                                                                                                                        

                                The Tenth Circuit adopted a similar rule that "a minor child cannot  



                                                                                                                                                

bring suit through a parent acting as next friend if the parent is not represented by an  

                  17  The Second Circuit provided a rationale for this rule: "The choice to appear  

 attorney."                                                                                                                              



pro  se  is  not  a  true  choice  for  minors  who  .  .  .  cannot  determine  their  own  legal  

                                                                                                                                           



 actions. . . . It goes without saying that it is not in the interests of minors or incompetents  

                                                                                                                              

 that they be represented by non-attorneys."18  The Third Circuit adopted this reasoning,19  

                                                                                                                                



                                                                            20  

 and the Ninth Circuit followed suit in Johns .  

                                                                                 



                       We think it is evident these considerations apply equally to incompetent  

                                                                                                                               



 litigants:  Civil Rule 17(c) expressly equates "incompetent persons" with "infants."  In  

                                                                                                                                                 



            15         (...continued)  



                                                                                                                                     

 (9th Cir. 1997)).  Federal courts have repeatedly dealt with related issues in applying  

                                                                                                                                         

 Federal Rule of Civil Procedure 17(c), which mirrors its Alaska counterpart nearly  

                                                                                                                                             

 verbatim.  Compare Alaska R. Civ. P. 17(c) ("Infants or Incompetent Persons"), with  

                                                                                                                                        

 Fed. R. Civ. P. 17(c) ("Minor or Incompetent Person").  Because of this, we look to  

                                                                                                                                             

 federal interpretations to inform our own.  See, e.g., Drickersen v. Drickersen, 546 P.2d  

                                                                                     

 162, 167 n.9 (Alaska 1976) ("[W]e view federal decisional law construing the Federal  

                                                                                                                                   

 Rules of Civil Procedure, and commentary regarding these rules, as relevant authorities  

                                                                                                                                 

 for purposes of construing Alaska's Rules of Civil Procedure."); Burns v. Anchorage  

                                                                                                                                              

Funeral Chapel, 495 P.2d 70, 72-73 (Alaska 1972) (analyzing Alaska Civil Rule 17 and  

                                  

 Federal Civil Rule 17).  



            16          114 F.3d at 877 (quoting C.E. Pope Equity Tr. v. United States, 818 F.2d  

                                                                                                                                             

 696, 697 (9th Cir. 1987)).  

                                               



            17         Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986).  

                                                                                                            



            18         Cheung v. Youth Orchestra Found. of Buffalo,Inc., 906 F.2d59, 61 (2d Cir.  

                                                                                                                                              

 1990) (italics in original).  

                                               



            19         Osei-Afriyie by Osei-Afriyie v. Med Coll. of Pa., 937 F.2d 876, 882-83 (3d  

                                                                                                                                               

 Cir. 1991).  

         



            20          114 F.3d at 876.  

                                            



                                                                       -11-                                                                7327
  


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

light of          Shields  and the federal cases cited therein, the superior court in this case should                                                                                     



have recognized that if the Bravos' lawyer was permitted to withdraw, Ashley - a                                                                                                                        



presumed incompetent person - could not be represented by her mother.                                                                                                             But could   



Ashley represent herself?                 



                               The answer is no.                             Incompetent persons cannot represent themselves in                                                                       

                                                                                                                                                                  21    However, "the  

court; they must bring and defend actions through a competent adult.                                                                                                                             

general rule is  that  the next friend must retain counsel."22                                                                                     This is also the rule in  

                                                                                                                                                                                                      



                  23  

Shields.  



                                So what was the superior court to do? If there was any substantial question  

                                                                                                                                                                                       



about Ashley's competence, the court should have ordered a competency examination  

                                     

and conducted a competency hearing.24                                                          If the court found that Ashley was competent,  

                                                                                                                                                                                 



then she could proceed as plaintiff representing herself, and the court's quandary (at least  

                                                                                                                                                                                                 



as to the existential question whether the litigation could proceed if Barber withdrew)  

                                                                                                                                                                 



would be resolved.  

                        



                               On the other hand, if there was a finding that Ashley was not competent -  

                                                                                                                                                                                                      



or if the court determined to continue under the assumption, apparently shared by all, that  

                                                                                                                                                                                                   



Ashley was not competent - what should the court have done?  The answer is found,  

                                                                                                                                                                    



again, in Civil Rule 17(c)'s final sentence:  "The court shall appoint a guardian ad litem  

                                                                                                                                                                                               



                21              1 S    TEVEN   S. G                ENSLER, Rule 17, F                            ED. R        ULES OF   CIV. P                   ROC., R           ULES AND   



COMMENT. 470-71 (2018).                       



                22             Id . at 471.     



                23             Shields v. Cape Fox Corp.                                     , 42 P.3d 1083, 1086 (Alaska 2002).                                    



                24             Allen  v.  Calderon ,  408  F.3d  1150,  1153  (9th  Cir.  2005)  ("[W]hen  a  

                                                                                                                                                                                                       

substantial question exists regarding the mental competence of a party proceeding pro           

se, the proper procedure is for the district court to conduct a hearing to determine  

                                                                                                                                                                                   

competence, so a guardian ad litem can be appointed, if necessary.").  

                                                                                                                                    



                                                                                                 -12-                                                                                          7327
  


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

for an . . . incompetent person not otherwise represented in an action or shall make such                                                                          



                                                                                                                                                              25  

other order as it deems proper for the protection of the . . . incompetent person."                                                                                The  



                                                                                                                                                                       26  

                                                                                                                                                           

court is to exercise its discretion in accommodating the incompetent person's needs. 



                                                                                                                                                             

                          Additionally, a GAL - or the court on its own pursuant to Rule 17(c)'s  



                                                                                                                                                                        

final sentence - could have initiated the process of appointing a long-term guardian or  



                                                                                                                                                                             

conservator for Ashley.  The court has many tools available to solve such a quandary.  



                                                                                                                                                                        

Unfortunately, the superior court missed an opportunity to use those tools, as shown in  



         

this colloquy:  



                                                                                                                                       

                          THE COURT:  And then with Ashley we've got the issue  

                                                                                                                                          

                           about competency. Is that an accurate way to describe it, Mr.  

                          Barber?  



                                                  

                          BARBER:  Yes.  



                                                                                                                                             

                          THE COURT:  And the issue about, there's no guardian, no  

                                                                                       

                          conservator.  One thing to do is, as I sit here, I'm not sure a  

                                                                                                                                          

                          guardian ad litem - whether there's authority to appoint [the  

                                                                                                                                          

                          Office of Public Advocacy] as a guardian ad litem here in a  

                                                                                                                                           

                          case like this.  But that would be one thing that we can do,  

                                                                                                                                          

                           and I think that would help alleviate the concerns that Mr.  

                                          

                          Barber has.  



                                                                                                                                                           

But no GAL was appointed.  Upon granting Barber's motion to withdraw, the superior  



                                                                                                                                                                     

court was left with a civil action where the plaintiff could not represent herself and had  



                                                                                                                                                                    

no GAL or other proper representative.  Under this circumstance, the court could not,  



             25           The Ninth Circuit has explained that Rule 17(c) directs courts to protect                                                           



incompetent parties.                      See, e.g.         ,  Davis v. Walker                , 745 F.3d 1303, 1310 (9th Cir. 2014).                                         

However, Rule 17(c) does not require courts to appoint a GAL for every party who lacks                                                                            

                        ENSLER, supra note 21, at 472-73.  

capacity.   G                                                               



             26           See GENSLER, supra note 21, at 472; see also Johnson v. Johnson, 544 P.2d  

                                                                                                                                                                   

65, 74 (Alaska 1975) ("The determination of the need for a guardian ad litem is left  

                                                                                                                                                                

within the sound discretion of the trial judge.").  

                                                                              



                                                                                  -13-                                                                           7327
  


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

consistent with its duty to "protect the . . . incompetent person," rule on the defendants'                                                                                                   



summary judgment motion or award fees and costs against the incompetent person.  It  

                                                                                                                                                                 



was error to do so.  

                                                  



                                  Barber's    motion   to   withdraw    as    counsel    was    based,    in    part,    on  



"communication" issues and a "fundamental disagreement" over litigation strategy.                                                                                                                                             



Barber faced a genuine conflict of interest between his two clients, and under ordinary  

                                                                                                                                                                                                      



circumstances withdrawal would have been appropriate.  But these were not ordinary  

                                                                                                                                                                                                      



circumstances due to the third basis for Barber's motion:                                                                                           unresolved questions about   



Ashley's competency and her mother's ability to represent her.                                                                                                   We conclude it was an                                



abuse of discretion to grant Barber's motion to withdraw without first resolving the  

                                                                                                                                                                                                                   



threshold question of Ashley's competency and considering the need for a GAL to                                                                                                                                       



represent her.                       



V.               CONCLUSION  



                                  We REVERSE the superior court's orders granting the attorney's motion  

                                                                                                                                                                                                          



to withdraw and granting summary judgment.  We VACATE the award of attorney's  

                                                                                                                                                                                                  



fees and costs.                            We REMAND the case to its                                                    status quo ante                           the order granting the                           



attorney's motion to withdraw.                                                      On remand the superior court shall conduct further                                                                    



proceedings consistent with this opinion.                                                                  



                                                                                                         -14-                                                                                                  7327
  

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