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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 Protective Proceedings of Vernon H. (8/22/2014) sp-6945

In the Matter of the Protective Proceedings of Vernon H. (8/22/2014) sp-6945

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  




In the Matter of the Protective                          )  

Proceedings of Vernon H.,                                )        Supreme Court No. S-14960  


VERNON H. and JUDITH H.,                                 )        Superior Court No. 3AN-12-00209 PR  


                            Appellants,                  )        O P I N I O N  


         v.                                              )        No. 6945 - August 22, 2014  


PETER H.,                                                )  


                            Appellee.                    )  


                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Anchorage, Andrew Guidi, Judge.  

                   Appearances:    Anne  R.  Helzer,  Anchorage,  for  Appellant  

                   Vernon  H.,  and  Kenneth  P.  Jacobus,  Kenneth  P.  Jacobus,  

                   P.C.,  Anchorage,  for  Appellant  Judith  H.    Jonathon  A.  


                   Katcher, Pope & Katcher, Anchorage, for Appellee Peter H.  


                   Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                   Justices.  [Maassen, Justice, not participating.]  

                   FABE, Chief Justice.  


                   An elderly father was hospitalized for medical testing and treatment.  The  


father had previously granted a durable power of attorney to his eldest adult daughter and  


----------------------- Page 2-----------------------

had been residing with his youngest adult daughter and her family.  One of the father's  


adult sons initiated guardianship and conservatorship proceedings over the father.  The  


son's petition alleged that the father was incapacitated and unable to manage his affairs  

or  his  property,  citing  the  hospital's  psychiatric  evaluation  and  the  son's  own  


observations.  The petition also alleged that the eldest and youngest daughters were not  

looking  after  the  father's  best  interests  and  wishes.    The  son  later  terminated  the  

protective proceedings following a neuropsychological evaluation by the father's expert  

that concluded that the father did not need a guardian.  


                    The father and his eldest daughter filed motions for attorney's fees and  


costs incurred in defending against the son's petition.  The superior court denied both  


motions,        concluding         that     Alaska       Civil     Rule       82    was      entirely      displaced        by  


AS 13.26.131(d) and that the son's actions did not meet the standard for fee shifting  

required by that statute:  that the petitioner initiated a proceeding that was "malicious,  

frivolous, or without just cause."  We agree with the superior court's analysis and affirm.  


          A.        Vernon's Family And His Recent Medical Problems  


                    Vernon H.  was born in 1928 and has 15 living adult children.  Vernon  

granted  a  durable  general  power  of  attorney  over  "[a]ll  .  .  .  matters"  to  his  eldest  


daughter, Judith, in 2002.  Since 2002, Vernon has chosen to live with his youngest  

daughter,        Jeannette,       and     her     family.         Vernon        reaffirmed        those      decisions       in  


December 2011.  


                    Peter, one of Vernon's sons, grew increasingly worried about his father's  


decision-making during Vernon's battle with cancer in late 2011 and early 2012.  In  



                    We use initials in lieu of the parties' last names to protect the family's  


                                                              -2-                                                           6945  

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

late  2011,  Vernon  exhibited  confusion,  and  tests  revealed  elevated  calcium  levels;  

consequently, Vernon was hospitalized.  He underwent diagnostic testing and some  

treatment for suspected cancer, and he was later discharged and referred for further  


outpatient oncology testing and treatment.  During Vernon's first stay in the hospital,  


Peter allegedly observed that Vernon "was out of it," that he "could not remember what  


was going on from hour to hour," and that he mistakenly "complained his children were  

not coming to see him."  

                    Vernon's condition appears to have fluctuated following his first discharge  


from the hospital in late 2011.  On one hand, in a pair of emails from Peter to the other  


siblings, Peter stated:  "Dad seems . . . more alert than I've seen him in weeks, maybe a  


month. . . . He spoke clearly, decisively and was able to comprehend everything being  

         2  On the other hand, Vernon's primary physician observed that Vernon "was not  


very alert or himself at all."  Vernon's doctor also recalled that he told Judith that Vernon  


had  to  undergo  several  more  tests,  but  Judith  was  reluctant  to  have  any  more  tests  


performed, claiming that "her dad was a 'very spiritual person, and felt like his problem  


had actually gotten better or gone away.' "  Peter alleges that he was present at a meeting  


with Vernon and Vernon's doctors during which a course of treatment was agreed to, but  

Vernon subsequently canceled the follow-up doctor's appointments because Vernon  


mistakenly  believed "the doctors had given him a clean bill of health."  The doctor  

recalled that Judith did not seek follow-up testing and treatment until the doctor informed  


Judith that Vernon "would likely DIE within a few days if she did not take him to the  

hospital ASAP."  



                    Peter also stated:  "Dad remains very alert and aware of everything around  


him.  He carried on conversations during the entire visit, he answered all of the Dr.'s  


questions, asked his own questions when he had any, and made the final decisions to  

move forward with the upcoming surgery and necessary treatments."  

                                                              -3-                                                            6945  

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

                    On December 19, 2011, Alaska's Adult Protective Services agency received  


a report alleging that Vernon was "mentally incapacitated," that Jeannette and Judith had  


"refused contact with family and have disregarded physician care and advice," and that  

there was "possible [f]inancial [e]xploitation."  Judith recalls that around the same time,  

several  siblings  "paid  an  unannounced  visit  at  [Vernon's]  home"  with  Peter  as  

"spokesperson," trying to "convince [Vernon] to move out of his home and into another  

residence."  Vernon declined.  


                    Vernon  was  readmitted  to  the  hospital  on  January  20,  2012,  with  the  


medical   record   noting   that   he   was   "pleasantly   confused."      Vernon   underwent  


chemotherapy treatment. At one point during this second hospitalization, Judith refused  


morphine for her father, and even physically pushed a nurse away when she was trying  


                                                                                          Judith also tried to exclude  

to administer it, before Vernon countermanded her order. 

the  other  siblings  from  the  hospital  room  until  Vernon  told  her  he  didn't  want  a  


"standoff."    Peter's  affidavit  states  that  Peter  visited  Vernon  during  this  second  


hospitalization and observed that Vernon "was out of it" and "did not know why he was  

in the hospital" and "did not remember from one day to the next."  


                    On  January  26,  2012,  Peter  drafted  an  email  to  the  other  siblings  


summarizing his recent discussions with Vernon's doctors. In the email, Peter stated that  

Vernon said he " 'pretty much' understands what the doctor is explaining" and that  


"Judy will remain 'point person' for the family."  Judith alleges that Peter was "playing  

both sides of the fence" and that three days earlier, Peter and many other siblings had  

"tried to force" Vernon to sign a new durable general power of attorney they had drafted.  



                    The hospital appears to have filed a notice of harm with Adult Protective  

Services following this incident.  

                                                               -4-                                                             6945  

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


Peter also alleges that on January 26, Vernon asked him to confer with Vernon's attorney  

and help manage and distribute some financial assets.  


                    On January 28, 2012, Vernon executed a will while still in the hospital.  


Peter's affidavit states that he was in the room and observed that Vernon "was sluggish,"  

took "several minutes to write his name" and "more than a minute to initial each of the  


pages," had to be coached on how to spell his name, did not have his hearing aids in, and  


did not have reading glasses on for execution of two of the three copies of the will.  The  

superior  court  later  reviewed  a  video  of  the  will  execution  and  described  Peter's  


"characterization of the events in the video as accurate."  Peter requested a copy of the  

will,4 and Vernon allegedly refused to provide it.5  

                    In order to "assess [Vernon's] capacity to accept/refuse pain medication and  


other minor issues such as dietary care," the hospital had a nurse practitioner perform a  


psychiatric  evaluation  of  Vernon  on  January  30,  2012.     The  evaluation  noted  that  


Vernon was "notably confused and delirious prior to his last admission in December,"  

that he had been "pleasantly confused" at the time of his readmission in January, and that  


"[h]is mental status has varied somewhat since admission, with some definite clearing . . .  


from [January] 25th through the 28th." The report stated that Judith claimed that Vernon  


"is more confused [today] than  he usually is and that this is not his baseline mental  

          4         Peter stated in an affidavit that he asked for the will because he assumed  

that  he  "could  use  the  will  to  fulfill  [Vernon's]  wishes  for  [Peter]  to  deal  with  the  


[financial assets]" that Vernon had allegedly asked him to manage a few days earlier.  

          5         A few days later, Peter's attorney demanded that Vernon's lawyer provide  


a copy of the will to Peter, stating the attorney's belief that Vernon "directed [Vernon's  


attorney] repeatedly to provide a copy of the document to Peter."  Vernon's lawyer  

responded saying that Vernon clearly stated at the will execution that Peter was not to  

have a copy of the will.  

          6         The evaluation was co-signed by a doctor.  

                                                               -5-                                                         6945

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


status."  Judith explained that Vernon's cognitive abilities had "worsened significantly"  



since the day before.             The hospital's psychiatric evaluation recorded that on January 30,  


2012, Vernon was "displaying a significantly fluctuating span of attention, an inability  

to encode or recall information, and general cognitive disorganization" and that "[h]is  

insight is poor" and "[h]is judgment is impaired."  


                     The hospital's psychiatric evaluation concluded that Vernon's symptoms  


that day were "very consistent with delirium" and that "[a]t this time, the patient is not  

able  to  demonstrate  that  he  can  retain  and  weigh  the  risks  and  benefits  of  any  

information,  and  actually  does  not  demonstrate  capacity  regarding  the  potential  


consequences  of  pain  management  on  an  acute  basis."    The  report  described  this  


delirious condition as "acute" and subject to short-term fluctuation.   The evaluation's  


conclusions were borne out by observations of doctors and hospital staff over the next  

few days.9  

          7         Vernon  was  allegedly  given  Benadryl  one  and  a  half  days  before  the  

psychiatric  evaluation,  and  Vernon's  medical  expert,  Dr.  Paul  Craig,  subsequently  


determined that Benadryl "can result in an acute confusional state" in an elderly patient  


that would be "consistent with Vernon's reported comportment following the dose of  

Benadryl in January [2012]."  

          8          The  same  nurse  practitioner  stated  in  a  follow-up  note  in  the  medical  

records that she was "certainly not encouraging seeking guardianship at this time, based  


on the description of his high functioning prior to delirium by Judy and his physicians."  




                     Medical progress notes from one of Vernon's doctors on January 30, 2012  


state that Vernon had "a fluctuating mental status" and was "competent to make limited  


decisions about care of himself, such as pain[,] likes[, and] dislikes," but the doctor did  


"not feel that [Vernon] is competent to discuss complicated medical issues and evaluate[]  

risk-benefit."    Similarly,  on  February  1,  2012,  one  of  Vernon's  doctors  noted  in  a  


medical record that Vernon displayed "[s]table delirium and lethargy," while Vernon's  

dietician noted his "fluctuating mental status."  

                                                                -6-                                                          6945

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

          B.	       Peter  Petitions  For  Guardianship  And  Conservatorship  But  Later  

                    Withdraws The Petitions.  

                    Two days after the January 30, 2012 psychiatric evaluation, Peter10 filed  


emergency   and   long-term   petitions   for   guardianship   over   Vernon   pursuant   to  


AS      13.26.105           and   for      conservatorship            over     Vernon's         property       pursuant   to  

                      12	                                                                 13 

AS 13.26.180.             Peter alleged that Vernon was incapacitated                        and unable to manage his  


property.         Peter's petition characterized the hospital's "[n]europsych evaluation" of  

          10        Peter and another sibling allege in affidavits that Peter had the support of  

all of the surviving adult siblings, save Judith and Jeannette.  One of the siblings alleged  


in an affidavit that she and the other siblings supported Peter's guardianship petition  


because Vernon "appeared . . . to be mentally compromised" and because they were  

"very concerned that Judith has repeatedly demonstrated a profound inability to take care  


of Vernon's health care best interests."  

          11        AS 13.26.105(a) provides that "[a]ny person may petition the court for a  


finding of incapacity and the appointment of a guardian . . . for another person," and  


AS  13.26.105(c)  provides  that  "[t]he  petition  may  also  .  .  .  include  a  request  for  


temporary guardianship . . . if the petitioner believes there is an imminent danger that the  

physical  health  or  safety  of  the  respondent  will  be  seriously  impaired  during  the  

pendency of the guardianship proceeding."  

          12        AS  13.26.180(a)  provides  that  "any  person  who  would  be  adversely  

affected by lack of effective management of the property and affairs of the person to be  


protected, may petition  for  the appointment of a conservator," and AS 13.26.180(c)  


provides that "[t]he petition may include a request for temporary conservatorship . . . if  


it appears that the respondent's property is likely to be wasted or dissipated during the  

pendency of the conservatorship proceeding."  



                    AS 13.26.005(5) defines an "incapacitated person" as " a person whose  


ability to receive and evaluate information or to communicate decisions is impaired . . .  


to the extent that the person lacks the ability to provide the essential requirements for the  

person's physical health or safety without court-ordered assistance."  



                    AS 13.26.165(2) provides that a conservator may be appointed "if the court  


                                                               -7-	                                                        6945

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


January 30, 2012, as determining that Vernon "is not competent to make treatment or  


financial decisions," and he further alleged that Judith "is attempting to remove [Vernon]  

from  [a  healthcare  facility]  against  [Vernon's]  express  wishes  and  against  medical  


advice."  Peter also alleged that Vernon owned a one-percent interest in a natural gas  


lease that was "currently in the process of distribution" and that Vernon "directed [Peter]  

to become the trustee" and "manage this investment."  


                    Vernon,  through  his  privately  retained  attorney,  moved  to  dismiss  the  

petition, stating that Vernon was lucid and competent, wished to retain Judith as his  


durable power of attorney, wished to continue living with Jeannette, and intended to  


argue that Peter brought the petition in bad faith to gain control of Vernon's assets to pay  


Peter's personal debts.  Judith, through her separate lawyer, stated that Judith concurred  


in the motion to dismiss.  Vernon supported the motion with an affidavit of his own,  

along with affidavits from 16 other people attesting to his capacity.  


                     In a preliminary report from the court visitor dated February 7, 2012, the  

visitor  noted  that  Peter  filed  the  petition  "out  of  concern  for  [Vernon's]  medical  


well-being" and that Judith had been "controlling  and difficult," had "refuse[d] pain  

medication for her father despite hospital standards of care," and had "reportedly pushed  


a nurse[']s hand away when attempting to administer morphine."  The visitor observed  


that Vernon was "cognitively impaired (at varying degrees)" but that this impairment  


may  have  been  temporary  due  to  his  hospitalization.    The  visitor  recommended  a  


continuance to give Vernon a chance to "regain his cognitive abilities after treatment."  


The visitor later conducted interviews to follow up on the two reports of harm filed with  


determines that (A) the person is unable to manage the person's property and affairs  


effectively . . . ; and (B) the person has property that will be wasted or dissipated unless  


proper management is provided . . . ."  

                                                                -8-                                                              6945  

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

Adult  Protective  Services  and  concluded  that  "[t]he  reports  of  harm  were  not  

substantiated and Adult Protective Services has not filed as a party to this matter though  


they are informed of these proceedings."  In late March, the visitor notified counsel for   

Vernon, Judith, and Peter that a full neurological assessment by Vernon's expert was  


forthcoming and that in the meantime the court visitor's "current recommendation is that  

a guardian[] not be appointed."  

                    On April 4, 2012, Judith's attorney submitted to the superior court and  

opposing         counsel       a    report      from      Dr.     Paul     Craig,       a   board-certified          clinical  

neuropsychologist.    Vernon's  attorney  secured  Dr.  Craig  as  an  expert,  and  after  

conducting  two  lengthy  interviews  and  administering  a  battery  of  cognitive  tests,  


Dr. Craig concluded that Vernon was "unequivocally competent" and met "all criteria  

for being his own guardian, making his own decisions, and making informed choices  


regarding   his   health   care."      Dr.   Craig   expressly   concurred   with   the   previous  


determination  by  one  of  Vernon's  doctors  expressed  in  a  medical  record  dated  

February  21,  2012,  that  Vernon  "is  fully  competent  to  carry  out  complex  decision  


making.  He is cognizant of the risk/benefits and has good insight into what is happening  

to  him  medically  and  psychologically."  Dr.  Craig  noted  that  Vernon  suffered  from  


"emotional distress" stemming from Peter's petition that put "his ability to make his own  

decisions . . . in dispute."  Finally, Dr. Craig specifically noted that Vernon was happy  


with the services Judith and Jeannette were giving him:  Vernon "was very clear about  


his positive relationship with [Jeannette and her family] with whom he [was] residing"  


and "ha[d] no interest in relocating," and Vernon "expressed confidence about [Judith]."  


                    On  April  9,  2012,  one  day  before  trial  was  scheduled  to  begin,  Peter  


notified the superior court that he wanted to withdraw his petitions and terminate the  

proceedings.  The superior court signed the proposed order on April 11.  

                                                              -9-                                                        6945

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

          C.	      The  Superior  Court  Denies  Vernon's  And  Judith's  Motions  For  

                   Attorney's Fees And Costs.  

                   Vernon moved for full attorney's fees and for costs related to Dr. Craig's  


expert  report.           The  motion  alleged  that  Peter  petitioned  for  guardianship  and  

conservatorship knowing that Vernon was not incapacitated or incompetent and that  


Peter's true purpose was "to cause deliberate harm and emotional distress" to Vernon,  

Judith, and Jeannette "because [Vernon] would not allow [Peter] to view [Vernon's]  


will." The motion also alleged that Peter initiated the proceedings "for the malicious and  


selfish purpose of obtaining his father's assets in a thoughtless effort to preserve [Peter's]  


own rapidly declining financial situation."  The motion stated that Vernon was entitled  

                                                                                       16	                              17 

to  attorney's  fees  and  costs  under  both  AS  13.26.131(d)                            and  Civil  Rule  82.  


Separately, Judith also moved for full attorney's fees, incorporating and reiterating the  

arguments made in Vernon's motion.18  

                   Peter opposed the motions, denying Vernon's and Judith's allegations that  


he initiated the proceedings for an improper purpose. Peter argued that when he filed his  


petition on February 1, "he had a good faith, non-frivolous belief, based on substantial  


evidence,  that  Vernon  was  an  incapacitated  person  in  need  of  a  guardian  and  a  

          15       He sought $20,408.50 in attorney's fees and $5,657.50 for Dr. Craig's  


          16       AS 13.26.131(d) provides:  "The court may require the petitioner [in a  

protective proceeding] 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."  

          17       Alaska R. Civ. P. 82(a) provides:  "Except as otherwise provided by law  

or agreed to by the parties,  the prevailing part             y in a civil case shall be awarded attorney's  

fees calculated under this rule."  

          18       She sought $13,117.50.  

                                                          -10-	                                                    6945

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

conservator."  Peter further argued that Civil Rule 82 was displaced by AS 13.26.131(d)  

and that no fees should be awarded under AS 13.26.131(d) because "[a]t the time he  

initiated his petition Peter had abundant evidence that Vernon was incompetent and that  


Judith was not taking good care of him" and because there was "no evidence" of an  


improper  purpose.    Peter  pointed  to  his  own  affidavits  about  his  contemporaneous  


observations of his father's condition, as well as the corroborating psychiatric evaluation  


performed by the hospital.  He also argues that his subjective beliefs were objectively  


reasonable given the confirming notes of Vernon's confused mental state in Vernon's  

medical  records  prior  to  Peter's  filing  of  the  petition,  as  well  as  Vernon's  general  


practitioner's description of events after Vernon's first hospitalization.  He argues that  


because he didn't have access to all of Vernon's medical records until after he filed the  

petition, he had no reason to believe that "Vernon's delirium could be temporary."  

                   The superior court denied Vernon's and Judith's motions for attorney's fees  


and costs.  The superior court first ruled that Civil Rule 82 could not apply in this case  


because AS 13.26.131(d) "sets out 'a specific statutory scheme for awarding attorney's  

                                                                             19   The superior court further ruled  

fees' . . . [and] therefore . . . displaces Civil Rule 82."     

that    attorney's        fees     of   privately       retained       counsel       may      be    recovered         under  

                         20  The superior court then concluded that "there is insufficient evidence  

AS 13.26.131(d). 

to support a finding that [Peter] instituted this proceeding 'maliciously, frivolously, or  

without just cause.' "  On the contrary, the superior court stated that "[t]he detailed  

evidence presented by [Peter] makes out a prima facie  case that this action was not  

initiated  maliciously,  frivolously  or  without  just  cause,"  noting  that  Peter  had  an  

          19       The superior court quoted Enders v. Parker , 66 P.3d 11, 14 (Alaska 2003).     



                   The superior court cited In re Guardianship of McGregory , 193 P.3d 295,  

298 (Alaska 2008).  

                                                            -11-                                                          6945  

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

objectively   reasonable   basis   to   support   his   subjective   belief   that   Vernon   was  

incapacitated and that Judith was not adequately protecting Vernon.21  

                     Vernon and Judith appeal, filing their briefs jointly.  


                     "Determinations               of    which        legal     authorities         apply       in    a   case      and  

interpretations of what those legal authorities mean are questions of law subject to de  

                       22  "When construing the meaning of a statute under this standard, we look  

novo review."                                                                       

to the meaning of the language, the legislative history, and the purpose of the statute and  


adopt the rule of law that is most persuasive in light of precedent, reason, and policy."23  


                     Whether a litigant's conduct is malicious, frivolous, or without just cause  

within the meaning of AS 13.26.131(d) is a question of fact that we review for clear  


             A superior court's factual finding "is clearly erroneous when a review of the  


entire record leaves us with the 'definite and firm conviction' that a mistake has been  




           21        Vernon and Judith moved for reconsideration, but the motions were denied   

by operation of Alaska Civil Rule 77(k)(4) when the superior court did not grant the   

motions within 30 days.  



                      ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d  

 114, 122 (Alaska 2014) (citations omitted).  



                     Enders , 66 P.3d at 13-14 (internal quotation marks and citations omitted).  

           24        In re McGregory , 193 P.3d at 300.  



                      Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Wee v.  

Eggener , 225 P.3d 1120, 1124 (Alaska 2010)).  

                                                                  -12-                                                            6945

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


          A.	      The Superior Court Did Not Err By Denying Vernon's And Judith's  

                   Motions For Attorney's Fees And Costs Under AS 13.26.131(d).  

                   Alaska Statutes 13.26.131(a) and (b) allocate certain categories of costs in  


guardianship          proceedings         to    the     state,    respondent,         and     petitioner.          Alaska  


Statute 13.26.131(d) enables the court to shift those costs to the petitioner:  "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."  

                   1.	       The  fees  of  a  respondent's  privately  retained  attorneys  and  

                             experts can qualify for fee shifting under AS 13.26.131(d) as  

                             "other court and guardianship costs" listed in AS 13.26.131(b).  

                   The costs and fees identified in AS 13.26.131(a) and (b) - which are  

subject to shifting under AS 13.26.131(d) - include the costs of court visitors, experts,  


and attorneys "appointed" under various sections of the guardianship chapter of Title 13  


of the Alaska Statutes.  Nothing in AS 13.26.131 expressly discusses fees and costs of  


a respondent's privately retained  counsel or experts.  But subsection (b) includes a catch- 

all provision providing that normally "the respondent shall bear . . . other court and  

guardianship costs incurred under this chapter."   


                   Previously, in In re Guardianship of McGregory , we declined to decide  


whether  the  costs  of  privately  retained  counsel  or  experts  fell  within  one  of  the  


enumerated categories of costs in subsections (a) or (b) that could be shifted pursuant to  

                         26   Both parties in that appeal agreed that the costs of privately retained  

AS 13.26.131(d).                                

counsel or experts did not fall within AS 13.26.131(a) or (b) and were therefore not  


shiftable under AS 13.26.131(d), and "[f]or the purposes of this case we accept[ed] this  


          26        193 P.3d at 298 n.8.  

                                                            -13-	                                                        6945  

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



position."         But we noted, without reaching the legal issue, "that it is possible that the  


fees  of  privately  retained  counsel  are  encompassed  within  the  phrase  'other  .  .  .  


guardianship costs' in subsection (b)."                         


                    Today we decide what we hinted at in McGregory :  The fees of privately  


retained counsel and experts qualify for fee shifting pursuant to AS 13.26.131(d) if the  


other requirements of that subsection are also satisfied.  Those fees and costs constitute  


"other court and guardianship costs incurred under this chapter" within the meaning of  

AS  13.26.131(b).    Our  interpretation  of  AS  13.26.131(b)  is  consistent  with  our  


                                                                                                                 As  we  have  

interpretation  of  other  statutes  allowing  for  the  shifting  of  "costs." 


routinely held, "the term 'costs' is generally construed in Alaska to include attorney's  



                    In this case, Vernon, the respondent, retained counsel and an expert.  The  


fees  and  costs  Vernon  paid  are  "other  court  and  guardianship  costs"  enumerated  in  


          27        Id.  

          28        Id. (omission in original).  

          29        For example, AS 29.45.500(a) provides that a taxpayer who "pays taxes  

under protest," "bring[s] suit in the superior court . . . for recovery of the taxes," and  


prevails, is entitled to a refund, interest, and "costs."  We have interpreted the allowance  


for "costs" to include attorney's fees.  See Kenai Peninsula Borough v. Port Graham  


Corp., 871 P.2d 1135, 1141 (Alaska 1994); see also Fairbanks N. Star Borough v. Dena  


Nena  Henash ,  88  P.3d  124,  142  (Alaska  2004);  Ketchikan  Gateway  Borough  v.  

Ketchikan Indian Corp. , 75 P.3d 1042, 1049 (Alaska 2003).  

                     Similarly, AS 42.06.610 provides that " the commission may reallocate the  

cost  of  the  proceeding  [under  the  Pipeline  Act]  among  the  parties,  including  the  

commission, as is just under the circumstances."  We have interpreted "costs" as used in  


AS 42.06.610 to include attorney's fees.  Amerada Hess Pipeline Corp. v. Alaska Pub.  


Utils. Comm'n, 711 P.2d 1170, 1182 (Alaska 1986). 

          30         Kenai Peninsula Borough, 871 P.2d at 1141.  

                                                               -14-                                                         6945

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

AS 13.26.131(b), normally borne by the respondent.  These fees and costs are eligible  

for shifting onto the petitioner, Peter, if the requirements of AS 13.26.131(d) are met.  

                   2.	       The superior court considered all three of the statutory factors  

                             required by AS 13.26.131(d):  whether the petitioner initiated a  


                             proceeding  that  was  "malicious,  frivolous,  or  without  just  


                   Vernon's first substantive argument for reversal is his allegation that the  

superior court's order denying his motion for fees and costs considered only whether the  


litigation  initiated  by  Peter  was  "malicious"  but  failed  to  consider  whether  it  was  

"frivolous, or without just cause."   Peter maintains that Vernon misunderstands  the  


superior court's "repeated references to all three criteria."  


                   We  reject Vernon's reading of the superior court's order. The superior  


court correctly stated all three prongs of the AS 13.26.131(d) standard: "In guardianship  

proceedings, fees and costs may be awarded only if the Court finds that the petitioner  


initiated the proceeding maliciously, frivolously, or without just cause."  After reviewing  


the factual record, the superior court then found that "[t]he detailed evidence presented  


by Petitioner makes out a prima facie  case that this action was not initiated maliciously,  


frivolously or without just cause."  Nothing in the superior court's order purports to  

restrict its analysis or findings to the maliciousness prong.  

                   3.	       The  superior  court  did  not  impermissibly  consider  matters  


                             unknown  to  Peter  at  the  time  he  initiated  the  guardianship  

                             petition in the course of deciding that Peter's petition was not  

                             initiated maliciously, frivolously, or without just cause.  


                   Vernon's second substantive argument for reversal is his allegation that the  

superior court - to support its conclusion that Peter's filing for guardianship was not  


malicious, frivolous, or without merit - impermissibly relied on evidence that was not  


known to Peter at the time of his filing of the petition for guardianship.  Vernon asserts  

that  AS  13.26.131(d)'s  adjectives  -  malicious,  frivolous,  or  without  just  cause  -  

                                                            -15-	                                                      6945

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


"appl[y] to the 'initiation' of the guardianship proceeding" and that therefore only those  


things known to Peter at the time of his filing of the guardianship petition can properly  


be considered to determine if that filing was malicious, frivolous, or without just cause.  


Vernon further argues that (with the exception of the psychiatric evaluation performed  


by the hospital) Peter never saw the medical records detailing doctors' observations of  


Vernon's mental health before Peter filed his petition; Vernon argues that the superior  


court therefore erred by considering those documents in the course of concluding that  

Peter did not initiate his petition maliciously, frivolously, or without just cause.  

                    We   conclude   that   the   superior   court   did   not   improperly   consider  


information that Peter did not yet know in  concluding that Peter did not initiate the  

petition  maliciously,  frivolously,  or  without  just  cause.    Instead,  the  superior  court  


properly found that Peter had a good-faith basis for filing his petition based on Peter's  


own  repeated  personal  observations  and  his  access  to  the  hospital's  psychiatric  

evaluation.    The  superior  court  then  concluded  that  this  subjective  concern  for  his  


father's mental condition was corroborated by objectively reasonable indicators such as  

the medical reports that were not available to Peter at the time he filed his petition.  

Vernon  misreads  the  order,  mistaking  what  is  really  support  drawn  from  objective  

indicators  reinforcing  the  reasonableness  of  Peter's  subjective  concerns  and  instead  

viewing it as improperly imputing knowledge to Peter that Peter could not possibly have  


known.  But as the superior court clearly stated:  "The medical records . . . strongly  


support [Peter's] contention that there was a legitimate concern over [Vernon's] mental  


clarity and capacity at the time this petition was filed" as well as concern that Judith "was  


not adequately protecting [Vernon]."  Information developed through discovery can, as  

here,  support  a  petitioner's  good-faith  and  objectively  reasonable  belief  about  the  

necessity of a guardianship.  

                                                              -16-                                                         6945

----------------------- Page 17-----------------------

                    4.	       Vernon has not satisfied his burden on appeal of showing that  

                              the superior court's factual finding - that Peter did not initiate  


                              his petition maliciously, frivolously, or without just cause - was  


                              clearly erroneous.  

                    The superior court determined that "[t]he detailed evidence presented by  


[Peter]  makes  out  a prima  facie   case  that  this  action  was  not  initiated  maliciously,  


frivolously or without just cause."  The superior court noted that Peter "relied upon his  


own observations" of his father's declining cognitive condition while in the hospital; that  

Peter  also  relied  on  the  observations  "of  qualified  medical  personnel"  [that  is,  the  


hospital's  psychiatric  evaluation];  that  the  court  had  reviewed  the  video  of  the  will  

execution  and  found  Peter's  "characterization  of  the  events  in  the  video  [indicating  

Vernon's apparent cognitive impairment] as accurate"; and that Peter's own observations  


of Vernon's cognitive decline and Peter's reliance on third-party observations available  


to him at the time were supported by the additional third-party observations found in  

Vernon's  medical  records.    The  superior  court  also  noted  that  Peter  "has  presented  

sufficient  evidence  to  establish  an  objectively  reasonable  basis  for  his  belief  that  


Judith . . . was not adequately protecting [Vernon]."  The superior court concluded that  


Vernon "has not presented sufficient evidence to the contrary" to persuade the superior  

court to find that Peter's petition was malicious, frivolous, or without just cause.  

                    On  appeal,  Vernon  must  demonstrate  that  the  superior  court's  factual  

finding   -   that   Peter's   guardianship   proceeding   was   not   initiated   maliciously,  



frivolously, or without just cause - was clearly erroneous.                                   We conclude that he has  

not done this.   



                    In re McGregory , 193 P.3d at 300 ("How the State's 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.").  

                                                              -17-	                                                            6945  

----------------------- Page 18-----------------------

                    Ample  record  evidence  supports  the  superior  court's  findings,  belying  


Vernon's assertion that Peter "simply [had] no evidence on February 1, 2012, to establish  


that Vernon . . . needed a guardian."  First, evidence supports the superior court's finding  


that Peter had a good-faith concern about his father's mental capacity.  Peter stated in an  

affidavit  that  he  repeatedly  observed  his  father  in  a  state  of  apparent  cognitive  


impairment during December 2011 and January 2012.  His concerns about his father's  

mental  condition  were  supported  by  the  hospital's  January  30,  2012  psychiatric  



evaluation,         which he cited in his February 1 petition.  Second, evidence supports the  

superior  court's  finding  that  Peter's  belief  was  objectively  reasonable,  such  as  the  


hospital's  evaluation  to  which  Peter  had  access  as  well  as  many  contemporaneous  


observations  of  Vernon's  declining  cognitive  condition.    And  the  court  visitor's  

          32        Vernon  argues  that  the  hospital's  evaluation  "did  not  even  support  

incapacity, but does say that Vernon . . . is oriented, able to make his needs known, and  

that guardianship is not needed or recommended at this time."  This characterization is  

misleading.    The  report  never  disavowed  the  need  for  guardianship;  that  was  a  

subsequent note added to the medical records.  And a fair reading of the evaluation itself  


shows grave concerns about Vernon's mental condition.  Even if the report, standing on  


its own, was not sufficient to support an order imposing guardianship, it is certainly  

enough to generate a good-faith and objectively reasonable belief by Peter that there was  


a sufficient risk that Vernon needed a guardian to justify his initiation of guardianship  



                    Vernon also argues that Peter "falsely characterized that consultation as a  


'neuropsychological  evaluation'  "  in  his  petition.    But  the  document  itself  is  titled  

"Psychiatric Consultation," so Peter's characterization hardly seems out of line.  

                    Finally, Vernon argues that Peter "secured" the hospital's evaluation in  


violation  of  federal  law.    But  the  report  indicates  the  psychiatric  evaluation  was  

generated by referral from one of Vernon's physicians.  Nothing in the record indicates  


that Peter played a role in "secur[ing]" the report.  And even if he had initiated the  

hospital's evaluation, we do not understand how that could help demonstrate that Peter's  


reliance on the hospital's evaluation could not be reasonable as a basis for his good-faith  


belief that his father needed a guardian.  

                                                              -18-                                                         6945

----------------------- Page 19-----------------------

preliminary  report  even  stated  that  Peter  initiated  the  petition  "out  of  concern  for  

[Vernon's] medical well-being."  

                   By  contrast,  Vernon  identifies  little,  if  any,  evidence  supporting  his  

contention that the superior court clearly erred.  Vernon claims on appeal that Peter's  


intent was to gain control of assets, citing Peter's petition.  But Peter's petition merely  

alleged that Vernon wanted Peter to help Vernon distribute some of Vernon's assets.  


This  view  is  bolstered  by  the  court  visitor's  preliminary  report,  which  discusses  an  

interview with Vernon in which Vernon said, "Peter is helping with investments."  


                   Vernon further argues that even if there is no evidence of an improper  


motive, there are two reasons to conclude that Peter could not have had a proper  motive  

because he knew that Vernon had no need of protective proceedings.  


                   First, he argues that Peter knew that Adult Protective Services had "closed  


its file on abuse claims against Vernon['s] . . . primary care givers in January 2012 for  


lack of substantiation of abuse."  But nothing in the record indicates that Peter knew that  

the investigation had been closed.  And nothing in the record indicates that the end of the  

investigation resulted from a conclusion that no guardian was needed. Further, the fact  

that claims of abuse are not substantiated in an initial investigation does not mean that  

a petitioner cannot have a good-faith and objectively reasonable concern about the need  

for a guardian.  

                   Second, Vernon argues that Peter sent emails to the family in December and  

January  indicating  his  contemporary  knowledge  that  Vernon  was  not  cognitively  

impaired and was content with Judith's and Jeannette's help.  But the fact that Peter saw  


his  father  on  some  of  his  good  days  and  reported  as  much  to  the  family  does  not  

undermine Peter's observations of his father on his bad days.  Vernon's doctors noted  

his  "fluctuating  mental  status"  several  times  during  January.    Peter's  occasional  

observations of his father's cognitive ability do not undermine Peter's or others' contrary  

                                                          -19-                                                    6945

----------------------- Page 20-----------------------


observations  at  other  times,  and  does  nothing  to  undermine  Peter's  good-faith  and  


reasonable concerns.  They certainly do not compel us to conclude that the superior court  

clearly erred.  


                    Finally, Vernon argues that the superior court "should have considered"  

other  pieces  of  evidence  that  allegedly  tend  to  show  that  Peter  acted  maliciously,  


frivolously, or without just cause, such as affidavits supporting Vernon's capacity filed  


with Vernon's motion to dismiss, or Dr. Craig's report. But those sources were available  


to Peter only after Peter initiated this action and thus are irrelevant to Vernon's claim that  


Peter initiated his action maliciously, frivolously, or without just cause.  And even if  


Peter had been aware of the information in those affidavits and in Dr. Craig's report, the  


mere presence of countervailing evidence does not compel a conclusion that the superior  


court's finding of good faith was clearly erroneous.                             

                    In sum, we conclude that Vernon has not met his burden of showing that  


the superior court clearly erred when it found that Peter did not initiate his petition for  

guardianship  maliciously,  frivolously,  or  without  just  cause  and  therefore  could  not  

receive attorney's fees and costs under AS 13.26.131(d).34  

          33        Appellants' attorneys incorrectly characterize Dr. Craig's report when they  

state that Dr. Craig found that Vernon "had full capacity at all times before, during and  

following  the  initiation  of  the  proceeding."    Dr.  Craig's  report  concluded  only  that  

Vernon had capacity at the time of Dr. Craig's evaluation.  

          34        Peter also argues on appeal that Judith is ineligible to receive attorney's fees  

or  other  costs  under  AS  13.26.131(d)  because  Vernon,  rather  than  Judith,  was  the  


"respondent" in the protective proceedings.  We do not reach this issue because we  

conclude that the standard for fee shifting under AS 13.26.131(d) has not been met.  

                                                             -20-                                                        6945

----------------------- Page 21-----------------------


          B.	       The Superior Court Did Not Err By Concluding That AS 13.26.131(d)  


                    Entirely   Displaces   Alaska   Civil   Rule   82   In   Guardianship   And  

                    Conservatorship Proceedings. 


                     Two fee-shifting provisions are potentially applicable in this case:  Alaska  


Rule of Civil Procedure 82 and AS 13.26.131(d).  As discussed above, AS 13.26.131(d)  

provides  for  fee  and  cost  shifting  only  where  the  petitioner  initiated  a  protective  


proceeding that was malicious, frivolous, or without just cause.  Civil Rule 82(a), by  


contrast, states:  "Except as otherwise provided by law . . . , the prevailing party in a civil  


case shall be awarded attorney's fees calculated under this rule."  Civil Rule 82 thus  


                                                                                 It  also  gives  the  superior  court  

permits  partial  fee  shifting  as  a  matter  of  course.                                          

discretion  to  impose  enhanced  (or  diminished)  fee  awards  based  on  several  factors,  


including  "the  reasonableness  of  the  claims  and  defenses  pursued  by  each  side,"  


"vexatious or bad faith conduct," and "other equitable factors deemed relevant."36  

                    In deciding the applicability of Civil Rule 82 in this case, we are guided by  


two statutory commands.  First, we have stated as a general proposition that "[i]f a  

specific  statutory  scheme  for  attorney's  fees  exists,  Civil  Rule  82  does  not  apply"  


because fees would thus be "otherwise provided by law" within the meaning of Civil  


                     Second, Alaska Rule of Probate Procedure 1(e) provides that "[w]here no  

Rule 82(a).                                                                                              

specific procedure is prescribed by these [Probate] rules, the court may proceed in any  


lawful manner, including application of the Civil . . . Rules," but "[s]uch a procedure  

          35        For example, in a case involving no   claim   for money judgment that is  

resolved  without  trial  (such  as  the  instant  case),  the  prevailing  party  shall  receive  

"20 percent of its actual attorney's fees which were necessarily incurred."  Alaska R.  


Civ. P. 82(b)(2).  

          36        Id. 82(b)(3)(F), (G), & (K).  

          37        Enders v. Parker , 66 P.3d 11, 17 (Alaska 2003).  

                                                             -21-	                                                       6945

----------------------- Page 22-----------------------

may not be inconsistent with these rules and may not unduly delay or otherwise interfere  

with the unique character and purpose of probate proceedings."  

                   We      first    addressed         the    relationship         between        Civil      Rule      82,  


AS 13.26.131(d), and Probate Rule 1(e) in In re Guardianship of McGregory .                                      In that  

case, the state initiated a petition for guardianship but later did not oppose a motion to  


dismiss  after  a  social  worker  determined  that  the  respondent  was  not  in  need  of  a  



guardian.        Rather than move for attorney's fees under AS 13.26.131(d), the respondent  

                                                          40   We held that routine awards of partial Civil  


moved for fees pursuant to Civil Rule 82.  

Rule 82 fees as a matter of course to the prevailing party were not available because such  


routine  fee  shifting  would  "interfere  with  the  unique  character  and  purpose  of  


                                                                                                    We  noted  that  

guardianship  proceedings"  in  violation  of  Probate  Rule  1(e). 

AS 13.26.131 normally leaves enumerated costs with the state or respondent as outlined  

in the statute (unless shifted pursuant to AS 13.26.131(c) or (d)), making routine fee  


shifting  to  the  prevailing  party  under  Civil  Rule  82  at  odds  with  the  more-specific  

                                                    42  And we distinguished between typically self- 

statutory mandate of AS 13.26.131.     

interested civil proceedings and beneficent guardianship proceedings, which "are not  

entirely adverse" and in which "application of [Civil] Rule 82 . . . could . . . deter the  


state from engaging in needed protective litigation."                         

         38        193 P.3d 295 (Alaska 2008).

         39        Id. at 297.

         40        Id.

         41        Id. at 300.  

         42        Id. at 299-300.  

         43        Id.  at 299 (quoting  Wetherhorn v. Alaska Psychiatric Inst., 167 P.3d 701,   


                                                          -22-                                                     6945

----------------------- Page 23-----------------------


                    But McGregory did not close the door entirely on applying Civil Rule 82  


in guardianship and conservatorship proceedings.  We suggested that "to the extent that  

[Civil] Rule 82 permits an award of up to full reasonable attorney's fees for vexatious  

or bad faith conduct or for cases that are malicious, frivolous, or brought without just  


cause, utilization of the rule does not interfere with the unique character of guardianship  


proceedings and in such circumstances the enhanced fee shifting contemplated by [Civil]  


Rule 82 could be considered to be authorized under Probate Rule 1(e) if AS 13.26.131(d)  


                            But this suggested role for Civil Rule 82 to provide enhanced fees  

is inapplicable."                                                                          

where AS 13.26.131(d) was "inapplicable" was predicated on the stipulation by the  

parties in that case that AS 13.26.131(d) did not apply to the fees of privately retained  


                                   Addressing that legal issue on the merits for the first time, we  

counsel and experts. 

hold that the fees and costs of privately retained counsel and experts may be shifted  



pursuant to AS 13.26.131(d).                   Thus, AS 13.26.131(d) applies in this case, as it does in  


every guardianship or conservatorship case.  Accordingly, McGregory 's allowance for  


Civil Rule 82 fee enhancements where AS 13.26.131(d) is "inapplicable" describes an  

empty set.   


                    We hold that AS 13.26.131(d) forecloses any role for Civil Rule 82 in the  

guardianship and conservatorship context.  Anything in McGregory that would leave a  


703-04   (Alaska   2007)).      We   expressly   invoked   analogous   holdings   about   the  

inapplicability of routine Civil Rule 82 fee shifting in the child-in-need-of-aid and civil- 


commitment contexts.  Id. at 298 (citing  Wetherhorn, 167 P.3d at 703 (commitment);  

Cooper v. State, 638 P.2d 174, 178 (Alaska 1981) (child-in-need-of-aid)).  

          44       Id. at 300 (footnotes omitted).  

          45       Id. at 298 n.8.  



                    See supra section IV.A.1, text accompanying notes 26-30.  

                                                             -23-                                                       6945

----------------------- Page 24-----------------------


role for Civil Rule 82, based on an incorrect stipulation of law by the parties in that case,  


is abrogated.  We reaffirm McGregory 's core conclusion:  application of Civil Rule 82  


would "interfere with the unique character and purpose of guardianship proceedings" in  



violation  of  Probate  Rule  1(e).                      We  expand  this  core  holding  to  foreclose  all  


applications of Civil Rule 82, including for enhanced attorney's fees.  And we clarify  


that  Civil  Rule  82  is  inapplicable  in  guardianship  or  conservatorship  proceedings  

regardless of whether the state or a private party initiated the petition.48  

                    In sum, AS 13.26.131(d) entirely displaces Civil Rule 82 in guardianship  


and conservatorship proceedings, for two reasons.  First, AS 13.26.131(d) is a specific  


statutory scheme that triggers Civil Rule 82(a)'s provision that Civil Rule 82 shall not  


apply when fee shifting is "otherwise provided by law."  Second, application of Civil  

Rule 82 would "interfere with the unique character and purpose" of guardianship and  

conservatorship proceedings and is thus impermissible under Probate Rule 1(e).  


                    Here, the superior court determined that it could not apply Civil Rule 82 in  

these guardianship and conservatorship proceedings.  We affirm.49  

          47        In re McGregory , 193 P.3d at 300.  

          48        We noted in McGregory that the proceedings in that case were "initiated  

by the State" and "express[ed] no view as to whether the holding of this opinion should  


be extended to guardianship proceedings initiated by private  parties."  Id.  at 298 n.12  


(emphasis  added).    But  the  logic  of McGregory  applies  equally  well  in  both  cases.  


Guardianship proceedings initiated by a private party are similarly beneficent and "not  


entirely  adverse,"  and  "application  of  [Civil]  Rule  82  .  .  .  could  .  .  .  deter  [private  


petitioners] from engaging in needed protective litigation" as much as it could deter  

beneficent state action.  Id. at 299 (citation omitted).  

          49        Because we conclude that Civil Rule 82 is inapplicable, we do not address  

Peter's  argument  that  Judith  is  not  a  party  and  is  thus  ineligible  for  an  award  of  


attorney's fees under Civil Rule 82.  Similarly, we do not address Vernon and Judith's  


                                                              -24-                                                         6945

----------------------- Page 25-----------------------

V.        CONCLUSION  

                    For these reasons, we AFFIRM the superior court's order denying Vernon's  

and Judith's motions for attorney's fees and other costs.  


arguments that they satisfied the requirements for routine or enhanced fees under Civil  


Rule 82.  

                    Vernon  and  Judith  also  argue  that  the  superior  court  erred  by  not  


considering the applicability of Civil Rule 82 for Peter's conduct after the initiation of  


the proceedings.  They reason that AS 13.26.131(d) focuses narrowly on the initiation  


of  a  petition  but  "has  no  application  regarding  the  conduct  of  the  parties  or  on  the  


proceeding as a whole.  This is where [Civil] Rule 82 applies."  Because they raised this  


argument for the first time in their reply brief, it is waived.  Oels v. Anchorage Police  

Dep't Emps. Ass'n , 279 P.3d 589, 598-99 (Alaska 2012).  But even if this argument were  


properly before us, it would be unavailing on the merits.  McGregory 's core logic, and  


today's holding, forecloses the application of Civil Rule 82 in guardianship proceedings.  

                                                             -25-                                                          6945  

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