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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re S.H. (8/9/2002) sp-5604

In Re S.H. (8/9/2002) sp-5604

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.


In the Matter of S.H.,                        )     Supreme Court
                                   No. S-9633
                                                   )     Superior
                                   Court No.
                              )    3AN-96-1371 PR
                              )    O P I N I O N
________________________________)  [No. 5604 - August 9, 2002]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Karen L. Hunt, Judge.

          Appearances:  Phillip Paul Weidner, Weidner &
          Associates,  Inc., Anchorage, for  Appellant.
          Thomas  V.  Van  Flein,  Clapp,  Peterson   &
          Stowers,  LLC, Anchorage, for Clapp, Peterson
          & Stowers.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.


          I.    S.H.  was  adjudged to be in need  of  a  special

conservator in 1997 regarding litigation he was pursuing  against

Anchorage  Refuse, Inc.  After we affirmed the appointment  of  a

conservator  in  1999,  S.H.s conservator  moved  to  finalize  a

settlement  entered into in 1997.  At that time, S.H.  petitioned

the  superior  court  to terminate the conservatorship,  claiming

that  he was competent to manage his affairs.  The superior court

denied  the  petition to terminate, entered the  settlement,  and

dismissed  S.H.s  litigation  against  Anchorage  Refuse.    S.H.

appeals the superior courts refusal to hold a hearing on the need

for  a conservatorship and its refusal to void the actions of the

conservator  settling the Anchorage Refuse  litigation.   Because

the  conservator  entered into the settlement  in  1997  and  our

decision  in  S.H.  I was a ratification of that  settlement,  we

affirm  the superior courts entry of settlement and dismissal  of

the litigation.


          This  case is before us for a second time.  It concerns

the  superior courts actions following our remand in In  re  S.H.


     A.   In re S.H.

          After working at Anchorage Refuse, Inc. (ARI) from 1991

to  1993,  S.H.  sued  ARI in April 1995  alleging,  among  other

things,  that his fellow employees sadistically mistreated  him.2

His  attorneys  in that action were from the law firm  of  Clapp,

Peterson, & Stowers (CPS).3  Between May 1995 and December  1996,

CPS  attorneys Marcus Clapp and Thomas V. Van Flein  grew  uneasy

with  S.Hs  increasing  obsession with  the  case.4   S.H.  began

showing  signs  of  instability, including  irrational  behavior,

paranoia,  inclinations  toward  gratuitous  dismissal   of   his

personal  injury suit, a tendency to threaten his own  witnesses,

the  desire  to  initiate direct and inappropriate dealings  with

opposition  counsel  and  the  judge,  and  a  marked   lack   of


          In  1996 and 1997 psychiatric experts examined S.H.  in

connection with the ARI litigation and because CPS was  concerned

with  S.H.s  behavior.6  The majority of these doctors  concluded

that  S.H. had a mental impairment that made him unable to  think

rationally  at times.7  Only one doctor found S.H. to be  capable

of dealing rationally with the settlement proceedings.8

          Mediation between S.H. and ARI began in December  1996,

and led to a $500,000 settlement offer by ARI.9  S.H. refused  to

accept  the  offer,  however, believing  his case  was  worth  $2

          million.10  CPS then filed a Petition for Appointment of Limited

Conservator/Guardian Ad Litem of a Person due to its belief  that

S.H.  was  incapable of handling his affairs.11   Superior  Court

Judge  Karen L. Hunt appointed Ernest Schlereth to act  as  S.H.s

attorney   in  the  conservatorship/guardianship  proceeding   on

December  30.12   In  March 1997 Phillip  Paul  Weidner  replaced

Schlereth  as  S.H.s attorney in the conservatorship/guardianship


          Master   Andrew  Brown  commenced  a  hearing  on   the

conservatorship/guardianship petition in July 1997, at which time

S.H.  requested a jury trial.14  Master Brown denied the  request

for  a  jury trial and issued his report in August after a three-

day  hearing.15   He  recommended that a special  conservator  be

appointed  to  act on S.H.s behalf for the purposes  of  the  ARI

litigation  and that the costs of that conservator be imposed  on

CPS.16   The  superior court adopted Master Browns recommendation

and appointed Paul Cossman as S.H.s special conservator.17  After

reviewing S.H.s case against ARI, Cossman concluded that  it  was

in  S.Hs best interests to accept the $500,000 settlement offer18

and approved the settlement.  The settlement funds were placed in

the  court registry in order to allow S.H. to appeal the decision

to  appoint  a  special conservator and CPS to  cross-appeal  the

imposition of the conservators costs on CPS.19

          In  August  1999  we decided S.H. I.  We  held  that  a

conservator has the authority to settle a lawsuit; that the court

properly  considered  S.H.s  ability to  make  litigation-related

decisions, as opposed to his ability to make a rational  decision

in  general;  and that an inability to manage ones property  need

not be long-term to justify a conservatorship.20  We further held

that  the  conservator has the authority to waive  the  protected

persons   jury  trial  rights,  reasoning  that  otherwise,   the

protected person, who had already [been] deemed incapable in  the

laws  eyes, would retain control of the case.21  Regarding  S.H.s

request  for  a  jury  trial  on the conservatorship/guardianship

          petition, we held that his request, coming more than twenty days

after  service  of  the first pleading and not before  the  first

hearing, was untimely under Alaska Probate Rule 11.22  Finally, we

held   that  it  was  improper  to  impose  the  costs   of   the

conservatorship  on  CPS and remanded the case  to  the  superior

court to impose those costs in accordance with AS

     B.   On Remand

          Judge  Hunt conducted the remand hearing on October  7,

1999.   On  the remanded cost issue, she directed CPS to  file  a

proposed  order imposing the conservatorship costs on  S.H.,  and

indicated  that  she  would refer the case back  to  the  probate

master,  who  had  handled the conservatorship, for  all  further

proceedings.  At this time, Weidner indicated that S.H. was fully

competent  to  handle the ARI litigation.  CPS filed stipulations

for  dismissal with prejudice and to distribute settlement  funds

that same day.

          Prior  to  the hearing before the probate master,  S.H.

filed   a  demand  for  jury  trial  and  an  objection  to   the

stipulations  for  dismissal with prejudice and  distribution  of

settlement funds filed by CPS, Cossman, and ARI.  At the  hearing

on   October   27,   1999,  Master  Brown  indicated   that   his

responsibilities were limited, by our remand instructions, to the

imposition  of  conservatorship costs.   He  approved  the  costs

submitted by CPS and Cossman and told S.H. that, if he wished  to

change  the  conservatorship order, he needed to file  a  written


          In  November  1999  S.H. filed an objection  to  Master

Browns  failure  to  address his objections to  the  stipulations

entered into by CPS, Cossman, and ARI.  S.H. also filed a  motion

that  month  to  set aside the conservatorship and  to  void  the

conservators  decisions.  Judge Hunt denied  the  motion  to  set

aside  the  conservatorship  and issued  an  order  imposing  the

conservators  costs  on  S.H.  and reaffirming  the  conservators

authority to settle the ARI litigation.

          As  the  ARI  litigation was settled and  an  order  of

dismissal  was signed by Superior Court Judge Peter A.  Michalski

in   November   1999,  CPS  refiled  the  stipulation   for   the

distribution  of  settlement proceeds in March 2000.   In  April,

Judge  Hunt  signed the order distributing settlement  funds  and

terminating the appointment of the conservator.  S.H. appeals.


                We apply our independent judgment to questions of

statutory interpretation.24  In interpreting statutes, we look to

the  meaning  of the language, the legislative history,  and  the

purpose of the statute in question.25  Whether a trial court acted

inconsistently with our mandate is a question of law.26  We adopt

the  rule  of law that is most persuasive in light of  precedent,

reason and policy.27


     A.   Weidner Has the Authority To Act as S.H.s Counsel in this


          A.   CPS argues that S.H. I granted S.H.s conservator the

authority  to  make  litigation decisions on  S.H.s  behalf.   It

contends that, because Weidner never obtained the approval of the

conservator  to  file the present action, the  appeal  should  be

dismissed.  S.H. responds that Weidners representation is  proper

and protected by the conservatorship statutes.

          CPS  cites In re Conservatorship of Nelsen28 as support

for  its argument that Weidner has no authority to represent S.H.

In   Nelsen,  the  Minnesota  court  of  appeals  held  that  the

conservatee  could not contractually retain an  attorney  without

the  approval  of  either the conservator or the  court.29   This

reasoning, CPS argues, should apply to the instant case.

          The court in Nelsen, however, based its decision on the

conservatorship order, which required the conservator to  approve

any contract, except for necessities, which the conservatee might

make.30  The order appointing S.H.s conservator was not as  broad

as  the  order  in Nelsen.  Rather than granting the  conservator

          authority over all contracts, S.H.s conservator was only given

the  authority to make all necessary decisions on [S.H.s]  behalf

in  the  ARI  Case,  including but not  limited  to  accepting  a

settlement offer in the ARI Case or proceeding to trial with that

litigation.    Given   the   more   limited   nature   of   S.H.s

conservatorship, Nelsen does not apply.

          Furthermore,   AS   13.26.195  grants   a   prospective

protected  person  the  right to counsel in  the  conservatorship

proceedings.31   Weidner  is S.H.s counsel  under  this  statute,

having substituted in for the original counsel appointed for S.H.

by the court.  While Weidner could not take part in any aspect of

the  ARI  litigation,  he is properly representing  S.H.  in  the

probate  proceedings, including S.H.s petition to  terminate  the

conservatorship and this appeal.

     B.   S.H. I Controls this Case.

                   S.H. argues that the conservator did not  have

the  authority  to  settle  the case with  CPS  and  ARI,  as  he

petitioned for termination of his conservatorship.  S.H.  further

argues  that the superior court erred in granting the  order  for

distribution of settlement funds and terminating the  appointment

of the conservator.

               In 1997 the special conservator stated that it was

in S.H.s best interest to accept the settlement offer of $500,000

and that S.H.s chances of recovering a judgment in excess of that

offer were basically nonexistent.32  Accordingly, the conservator

approved the settlement on behalf of S.H.   The conservator, CPS,

and ARI then stipulated to interplead the settlement funds.33  The

settlement  monies  were deposited with the  court  registry  and

awaited distribution pending S.H.s appeal to this court.34

          Our decision upholding the appointment of a conservator

and ratifying his authority to enter into the settlement with ARI

was  announced  in August 1999.  On October 7, 1999  the  special

conservator  and  CPS  filed a stipulation  for  distribution  of

settlement  funds.  That same day, S.H. petitioned  to  have  the

          conservatorship revoked. However, as the settlement had been

entered into in 1997, S.H.s claim had already been disposed of by

the conservator.  When this court upheld the conservatorship, the

settlement  funds in the court registry became S.H.s.   As  such,

with the distribution of funds, S.H. no longer had an interest in

the  ARI  litigation and the conservatorship was to  end  by  the

order of the appointment.


                 Because  S.H.s  claims  were  settled   by   the
conservator  in  1997 prior to his petition for termination,  the
superior court did not err in failing to hold a hearing on  S.H.s
petition.   Accordingly, we AFFIRM the decisions of the  superior
     1    987.P.2d 735 (Alaska 1999).

     2     Id.  at  737.  S.H. also named individual ARI officers
and employees in that suit.  Id.

     3    Id.

     4    Id.

     5    Id. (internal footnotes omitted).

     6    Id.

     7    Id. at 738.

     8    Id.

     9    Id.

     10    Id.

     11    Id.

     12    Id.

     13    Id.

     14    Id.

     15    Id.

     16    Id.

     17    Id.

     18    Id.

     19    Id.

     20    Id. at 739-40 (internal quotation marks omitted).

     21    Id. at 741.

     22    Id. at 742.

     23    Id.

     24     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  380
(Alaska 2001).

     25     Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).

     26    Gaudiane v. Lundgren, 754 P.2d 742, 744 (Alaska 1988).

     27    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1977).

     28    587 N.W.2d 649 (Minn. App. 1999).

     29    Id. at 650.

     30    Id. at 651.

     31     AS 13.26.195(b) states in part:  Unless the person to
be  protected  has counsel of the persons own choice,  the  court
must  appoint a lawyer to represent the person who then  has  the
power and duties of a guardian ad litem.

     32    S.H. I, 987 P.2d at 738.

     33    Id.

     34    Id.