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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Guardianship of McGregory (09/19/2008) sp-6307
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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| In the Matter of the Guardianship of: | ) Supreme Court No. S-12597 |
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| LORAINE McGREGORY | ) Superior Court No. 3AN-06- 01045 PR |
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| ) O P I N I O N | |
| ) | |
| ) No. 6307 September 19, 2008 | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Karen Decker-Brown,
individually as Intervenor and as Personal
Representative of the Estate of Loraine
McGregory. Laura C. Bottger, Assistant
Attorney General, Anchorage, Talis J.
Colberg, Attorney General, Juneau, for State
of Alaska.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
The question presented in this appeal is whether
attorneys fees and costs should be awarded as a matter of course
to parties who successfully oppose the States efforts to impose a
guardianship on an allegedly incapacitated person. The pertinent
facts, briefly stated, are as follows.
In 2006 eighty-eight-year-old Loraine McGregory was
moved from the Pioneer Home in Anchorage by her daughter Karen
Decker-Brown. When Decker-Brown refused to tell the State where
McGregory was residing, the State filed a petition for
guardianship under AS 13.26.090. The petition claimed that
McGregory was incapacitated and that it was not known where she
was or who was caring for her. It also alleged that Decker-
Brown, who held McGregorys power of attorney, was not paying
McGregorys bills, including a $27,000 debt to the Pioneer Home,
and that she was making decisions that might not be in McGregorys
best interests.
McGregory and Decker-Brown appeared in the guardianship
proceedings through separate privately retained counsel. Decker-
Brown moved to dismiss the petition and McGregory joined in the
motion. Decker-Brown claimed in support of her motion that the
Pioneer Home had inappropriately moved McGregory to a ward for
severely disabled patients and when the home refused to reverse
the transfer she moved McGregory, with McGregorys consent, to a
private assisted living facility where McGregory was doing well.
She described the outstanding bill to the Pioneer Home as merely
a matter of McGregorys insurer not making payments on time.1
The State filed a non-opposition to the motion to
dismiss, stating that a social worker had visited McGregory and
interviewed her physician and the State had no further concerns
regarding McGregory. The superior court dismissed the
guardianship petition.
Both McGregory and Decker-Brown moved for actual
attorneys fees and costs. McGregory based her motion on Civil
Rule 82, claiming that the States petition was in bad faith.2
She sought fees of $2,500. Decker-Brown based her motion on AS
13.26.131(d), claiming that the petition was malicious,
frivolous, or without just cause.3 She sought fees of $6,500 and
costs of $1,212.50.4
The State opposed both motions. As to McGregorys
motion, the State contended that Rule 82 should not apply to
guardianship proceedings, and even if Rule 82 did apply,
McGregory would not be entitled to full fees because the State
did not act in bad faith. As to Decker-Browns motion, the State
argued that AS 13.26.131(d) did not apply. That statute
addresses whether the State or the respondent should bear the
costs and fees of attorneys and experts appointed by the court to
represent a respondent under AS 13.26.106(b) and AS 13.26.109(d).
Here, the State argued that Decker-Brown was not a respondent and
the attorneys and experts were not court-appointed under those
subsections. The State also argued that even if the statute did
apply, its standard for allocating costs to the State that the
petition be malicious, frivolous, or without just cause was not
met.
After both movants replied, the court denied both
motions finding that AS 13.26.131 did not apply and the petition
was not malicious, frivolous, or without just cause. McGregory
and Decker-Brown appeal these rulings. Pending appeal, McGregory
died and Decker-Brown has been substituted as the personal
representative of McGregorys estate.
On appeal Decker-Brown contends that Civil Rule 82
should apply in guardianship proceedings. She acknowledges that
guardianships are governed by the Probate Rules rather than the
Civil Rules. She relies on Probate Rule 1(e) which provides that
where no procedure is prescribed in the Probate Rules the court
may proceed in any lawful manner, including application of the
Civil . . . Rules, unless a chosen method of proceeding
interfere[s] with the unique character and purpose of probate
proceedings.5 Decker-Brown notes that in Crittell v. Bingo,6 a
will contest case, this court held that Rule 82 applied where a
statutory fee provision did not apply because of the fraud of the
person claiming to be the personal representative.7 Decker-Brown
stresses in her reply brief that guardianship proceedings can be
abused by government agencies and that awarding attorneys fees to
respondents serves to protect them against such abuses.
The State argues that applying Rule 82 as a matter of
course to guardianship proceedings would interfere with the
unique character and purpose of guardianship proceedings by
discouraging good faith actions taken to protect vulnerable
adults. Further, the State argues by analogy to AS 13.26.131(d)
that except where a petition is malicious, frivolous, or without
just cause, the respondent should bear the costs of her counsel.8
The State relies on two cases: Cooper v. State, which held that
child-in-need-of-aid (CINA) proceedings are not subject to Rule
82 under a CINA rule similar to Probate Rule 1(e);9 and
Wetherhorn v. Alaska Psychiatric Institute, which held that civil
commitment proceedings are likewise not subject to Rule 82.10
We believe that the States position is largely correct.11
A guardianship proceeding is protective in character, as are CINA
proceedings and proceedings seeking the civil commitment of
persons gravely disabled by mental illness. It would be
inconsistent to exempt CINA proceedings and civil commitments
from the routine application of Rule 82 but fail to make the same
exemption with respect to guardianship proceedings initiated by
the State.12
The rationale that we expressed in Wetherhorn also
applies to guardianship proceedings and distinguishes Crittell v.
Bingo in terms that are relevant to this case:
The superior court held that Probate
Rule 1(e) prohibited application of Rule 82
in civil commitment proceedings. It
determined that Rule 82 was inconsistent with
the purpose and character of such
proceedings. Wetherhorn now argues that the
superior court erred in making this
determination.
We agree with the superior court. Civil
commitment is a unique procedure:
Unlike civil or criminal
proceedings, the
interests of the parties
to a civil commitment
proceeding are not
entirely adverse. The
states concerns are to
provide care to those
whose mental disorders
render them unable to
care for themselves and
to protect both the
community and the
individuals themselves
from dangerous
manifestations of their
mental illness. [Goetz v.
Crosson, 967 F.2d 29, 34-
35 (2d Cir. 1992).]
In Cooper v. State, we held that Rule 82
is inapplicable in child-in-need-of-aid
(CINA) cases. [638 P.2d 174, 178 (Alaska
1981).] We reasoned that applying Rule 82 in
CINA cases would chill the states willingness
to perform a public function serving the
welfare of children by burdening it with
additional costs of litigation. [Id.] We
concluded that application of Rule 82 would
be inconsistent with the purpose and
character of CINA proceedings. [Id.] Civil
commitments are analogous to CINA cases in
that they are designed to protect the welfare
of at-risk people. Application of Rule 82 in
civil commitment hearings could similarly
deter the state from engaging in needed
protective litigation. Thus, as in Cooper,
we hold that Rule 82 is inconsistent with the
character and purpose of civil commitment
proceedings.
Wetherhorn relies on Crittell v. Bingo
for the proposition that Rule 82 is
applicable in probate proceedings. [83 P.3d
532 (Alaska 2004).] In Crittell, we applied
Rule 82 in a will contest. [Id.] We stated
that in probate proceedings, Civil Rule 82
governs the award of fees unless a specific
provision of the Probate Rules applies. [Id.
at 536] Wetherhorn argues that Crittell
stands for the blanket proposition that Rule
82 does apply to Probate Court Proceedings.
Wetherhorns reading of Crittell is too
broad. Her interpretation would eliminate
that part of Probate Rule 1(e) that requires
an inquiry as to whether the application of a
Civil Rule would be inconsistent or interfere
with the unique character of a given probate
proceeding. Rule 82 survived this inquiry in
Crittell but not in Cooper because of a
fundamental difference between will contests
and CINA cases. Will contests comprise
disputes between private litigants. A
litigant in a will contest usually litigates
only to increase his own share of a will,
regardless of the effect this has on society
generally. In contrast, the state in a CINA
case litigates to protect a childs, and
societys, interests. This distinction
between beneficent and self-interested
litigation supports the result here.[13]
The States analogy to the policy underlying
AS 13.26.131(d) is also apt.14 In AS 13.26.131(b) the legislature
has provided that a respondent will ultimately be responsible for
the costs of an appointed attorney, an expert appointed to
testify on behalf of a respondent, an appointed guardian ad
litem, and other guardianship costs. There are two exceptions:
cases of financial hardship as provided in subsection (c), and
where the initiation of a proceeding was malicious, frivolous, or
without just cause as provided in subsection (d). If the
subsection (d) exception is satisfied, the court may require the
State to pay all or some of the costs [of the appointed attorney
and expert.] There is little reason why prevailing respondents
who do not receive appointed counsel should be able to shift the
burden of fees that they incur, while respondents receiving
appointed counsel, for whom they must pay, may not. Similarly,
since respondents receiving appointed counsel can shift their
fees when the subsection (d) exception is satisfied, respondents
who directly choose their own counsel should likewise be able to
shift these costs to the State when the State acts maliciously,
frivolously, or without just cause.
It follows that insofar as Rule 82 routinely awards
fees in favor of the prevailing party, it should not be used in
guardianship cases because doing so would interfere with the
unique character and purpose of guardianship proceedings. But to
the extent that Rule 82 permits an award of up to full reasonable
attorneys fees for vexatious or bad faith conduct or for cases
that are malicious, frivolous, or brought without just cause,15
utilization of the rule does not interfere with the unique
character of guardianship proceedings and in such circumstances
the enhanced fee shifting contemplated by Rule 82 could be
considered to be authorized under Probate Rule 1(e) if AS
13.26.131(d) is inapplicable.16
Decker-Brown argues in her reply brief that the States
petition was without just cause. This argument is waived because
it was not presented in her opening brief.17 Further, it is a
close question as to whether, as Decker-Brown characterizes it,
the States action was an act of high handed bureaucrats bent on
collection of a partly unjust bill, or was justified by the
States knowledge of McGregorys fragile condition and concern for
her well being when Decker-Brown would not disclose her
whereabouts. How the States conduct should be characterized was
a question of fact for the superior court, and its finding that
the petition was not malicious, frivolous, or without just cause
is not clearly erroneous.18
For the reasons stated the judgment is AFFIRMED.
_______________________________
1 On appeal she also refers to the bill as partly
disputed, due to the increased costs of McGregorys residence in
the severely disabled ward.
2 Civil Rule 82 calls for the award of partial attorneys
fees to a prevailing party in civil litigation as a matter of
course. In cases of vexatious or bad faith conduct or in the
presence of other equitable factors deemed relevant, an enhanced
fee of up to and including actual reasonable attorneys fees may
be awarded. See Alaska R. Civ. P. 82(b)(3)(G) & (K).
3 AS 13.26.131 provides:
(a) Subject to (d) of this section, the
state shall bear the costs of the visitor and
expert appointed under AS 13.26.106(c).
(b) Subject to (c) and (d) of this
section, the respondent shall bear the costs
of the attorney appointed under AS
13.26.106(b), of the expert appointed under
AS 13.26.109(d), of the guardian ad litem
appointed under AS 13.26.025, and of other
court and guardianship costs incurred under
this chapter.
(c) The state shall pay all or part of
the costs described in (b) of this section if
the court finds that the payment is necessary
to prevent the respondent from suffering
financial hardship or from becoming dependent
upon a government agency or a private person
or agency.
(d) The court may require the petitioner
to pay all or some of the costs described in
(a) and (b) of this section if the court
finds that the petitioner initiated a
proceeding under this chapter that was
malicious, frivolous, or without just cause.
4 Costs are awarded to prevailing parties under Civil
Rule 79 as a matter of course under generally the same
circumstances that awards are made under Civil Rule 82 as to
attorneys fees. In this opinion references to Civil Rule 82 as
to fees should be understood to include references to Civil Rule
79 pertaining to costs.
5 Probate Rule 1(e) provides:
Where no specific procedure is
prescribed by these rules, the court may
proceed in any lawful manner, including
application of the Civil and Evidence Rules,
applicable statutes, the Alaska and United
States Constitutions or common law. Such a
procedure may not be inconsistent with these
rules and may not unduly delay or otherwise
interfere with the unique character and
purpose of probate proceedings.
6 83 P.3d 532 (Alaska 2004).
7 Id. at 536.
8 Both parties agree that AS 13.26.131 does not apply to
the fees of counsel who are privately retained by a respondent.
For the purposes of this case we accept this position. We note,
however, that it is possible that the fees of privately retained
counsel are encompassed within the phrase other . . .
guardianship costs in subsection (b).
9 638 P.2d 174, 178 (Alaska 1981).
10 167 P.3d 701, 703 (Alaska 2007). Wetherhorn was
decided after the State filed its appellees brief. The State
submitted Wetherhorn as supplemental authority pursuant to
Appellate Rule 212(c)(12).
11 The questions presented for review are questions of law
to which we apply our independent judgment. Crittell, 83 P.3d at
535 n.10 (citing Enders v. Parker, 66 P.3d 11, 13-14 (Alaska
2003)). Under this standard, we adopt the rule of law that is
most persuasive in light of precedent, reason, and policy. Frank
E. v. State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs., 77 P.3d 715, 717 (Alaska 2003) (quoting Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979)).
12 Since this case involves a guardianship petition
initiated by the State, we express no view as to whether the
holding of this opinion should be extended to guardianship
proceedings initiated by private parties.
13 Wetherhorn, 167 P.3d at 703-04.
14 See supra note 3.
15 The standard for the exception in AS 13.26.131(d) may
be considered encompassed within Civil Rule 82(b)(3)(G) and (K).
16 See supra note 8.
17 See In re Dissolution of Marriage of Alaback, 997 P.2d
1181, 1184 n.3 (Alaska 2000) (Points given only a cursory
treatment in the argument portion of a brief will not be
considered on appeal, even if developed in the reply brief.).
18 See, e.g., Fyffe v. Wright, 93 P.3d 444 (Alaska 2004)
(findings of fact are reviewed for clear error).
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