ASHLEY BRAVO and HELEN BRAVO, as next friend on behalf of ASHLEY BRAVO v. SHELBY AKER and FRED AKER
Supreme Court No. S-16914
Superior Court No. 4FA-13-02889CI
THE SUPREME COURT OF THE STATE OF ALASKA
January 4, 2019
Opinion No. 7327
STOWERS, Justice.
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 corrections@akcourts.us. Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Appearances: Appellants Ashley Bravo and Helen Bravo, pro se, Anchorage. Michael J. Hanson, Call & Hanson, P.C., Anchorage, for Appellees. Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
Plaintiffs/appellants are an adult daughter believed to be incompetent and her mother. After retaining counsel, the mother brought a tort action as the daughter‘s next friend for in utero injuries to the daughter, which the mother alleged were caused аlmost 20 years previously in a boating accident. The defendants filed a motion for summary judgment, but they also offered to permit the plaintiffs to dismiss the case with each side to bear its own costs and fees. The plaintiffs’ attorney believed that accepting this walk-away offer was in the daughter‘s best interest, but the mother disagreed. Facing a conflict of interest between his two clients, the attorney moved to withdraw.
The superior court permittеd the attorney to withdraw and ultimately granted the unopposed motion for summary judgment and awarded costs and fees against both plaintiffs. The mother and daughter appeal. We hold that before granting the attorney‘s motion to withdraw the court should have determined the daughter‘s competency, and if she was found incompetent the court should have appointed a guardian ad litem or taken further action to protect her intеrests pursuant to
II. FACTS AND PROCEEDINGS
A. The Accident And Lawsuit
On May 15, 1993, a boat on the Chena River operated by then-17-year-old Shelby Aker collided with a boat carrying Helen Bravo. Helen was pregnant at the time; Ashley Bravo was born on November 11, 1993.
On November 7, 2013 — four days before Ashley turned 20 and the statute of limitations ran on her personal injury claims — attоrney Jeffrey Barber filed a complaint for plaintiffs “Ashley Bravo and Helen Bravo, as next friend on behalf of Ashley Bravo.” The Bravos sued Shelby for negligently operating the boat and Fred Aker and John Cooper for negligent entrustment, training, or supervision.1 The lawsuit alleged that Helen sustained injuries in the boat collision which in turn caused in utero injuries to Ashley resulting in cognitive defects. Helen asserted no claims on her own behalf.
B. The Akers’ Summary Judgment Motion
In March 2017 the Akers moved for summary judgmеnt. Based on two expert reports, the Akers argued that Ashley was not harmed by the boating accident. The Akers pointed out that the Bravos had not offered any expert witness testimony that the accident was causally linked to Ashley‘s condition, and they argued that such expert testimony was necessary to raise a genuine issue of material fact and defeat their summary judgment motion.
The Akers’ experts, clinical neuropsychologist Dr. Paul Crаig and obstetrician-gynecologist Dr. Sima Kahn, reviewed the medical records of Helen and Ashley. The following facts are taken from Dr. Craig‘s expert report.2 Two days after the 1993 accident, Helen stated that she had fallen out of her chair onto the floor of the boat, hitting the back of her head and neck. Three days after the accident, Helen had a prenatal checkup; the only mention in the medical record оf the accident seems to be the fact that it occurred.
The Department of Public Safety issued a report five days after the incident. It appears that Helen reported the accident to the Alaska State Troopers on the evening it occurred. In the immediate aftermath of the collision, Helen and those on Shelby‘s boat confirmed that everyone was “all right” and discussed what had happened. The report states that Helen suffered injuries to her head, back, and ankle. Dr. Craig noted that a sticky note had been attached to a second, lower-quality copy of this report and it read: “Unconscious, fell swallowed water . . . placental abruption.” Dr. Craig concluded that this note had been added later to the original report, and he observed that it was neither signed nor dated, unlike the rest of the report.
Dr. Craig reported that Ashley‘s birth records mention the boating accident, noting Helen‘s complaints of back, neck, and shoulder pain. The records state that Helen‘s pregnancy was “benign,” there were neither complications during the birth nor “evidence of fetal distress,” and the newborn “appeared to be healthy.”
Near Ashley‘s third birthday, she was deemed “eligible for special education as a student with a handicapping condition.” The assessment noted delays in Ashlеy‘s mental and physical development and diagnosed her with attention-deficit/hyperactivity disorder (ADHD); the assessment also indicated a family history of ADHD. Dr. Craig also noted that medical and other records throughout Ashley‘s life repeat the ADHD diagnosis and place her below average on developmental, social, and other cognitive tests.
Dr. Craig reported that Helen had been concerned about harm to Ashley from the stаrt, but there was circumstantial evidence that Helen began embellishing her memory of the incident. The sticky note on the 1993
C. Barber‘s Motion To Withdraw
Shortly before the Bravos’ opposition to the summary judgment motion was due, attorney Barber moved to withdraw and requested additional time for the Bravos to oppose. On the court‘s order, Barber filed an affidavit under seal supporting his motion to withdraw, and another judge reviewed and granted this motion.3 Barber alluded to “issues of conservator [sic] and guardianship,” but his affidavit mostly focused on the breakdown of communication with his clients.
After learning that Helen opposed Barber‘s motion tо withdraw, the original judge presiding over the case held a hearing on the matter.4 While the court focused on communication problems between the clients and their attorney, Barber made clear there were other concerns:
There were really three issues, and I tried to address them as best I could in the affidavit. Communication is one of them, and it has certainly gotten worse since the other issues arose, which is issues having to do with guardianship, conservatorship, that I‘ve had concerns about since the get-go. And we appear to be stymied as far as how to proceed in that regard, and I‘m not comfortable representing Ashley‘s interests through Helen. Okay? And I mentioned that in the affidavit that I wrote.
In addition to issues of communication and Ashley‘s competency, Barber alluded to a “fundamental disagreement” with Helen over prosecuting the case. Yet this conflict was inextricable from the competency issues, as Barber explained:
THE COURT: What are you talking about? Disagreements about motions, about witnesses, stuff like that?
BARBER: Well, some of it has to do with the underlying, substantive issues in her case: summary judgment issue for one; options, realistic options; likelihoods of prevailing; and what the best options may be to proceed in handling this case and whether it ought to be even tried or not. And then the other one obviously has to do with this guardianship/conservatorship issue, where Helen‘s capacity in this case is really acting on behalf of her daughter.
THE COURT: With fiduciary duties.
BARBER: Well, there is no conservatorship. If she had a conservatorship and was appointed as guardian for her daughter, then there would certainly be clear fiduciary obligations, and it would be blessed by the court — Helen is proceeding, she‘s acting on behalf. In the absence of that, I‘m Ashley‘s lawyer — I‘m beholden to Ashley, and to the extent that Helen and I don‘t see eye-to-eye on what should happen in
this case and Helen‘s telling me to do one thing and I‘m thinking this is very bad for Ashley . . . I have a huge problem. There‘s no conservatorship. THE COURT: Yeah.
BARBER: Ashley is an adult. She‘s over the age of 18.
THE COURT: Yeah.
BARBER: There‘s not even — there‘s not a guardianship or a conservatorship. And these are issues that we have discussed.
THE COURT: Are you saying — so are you saying there‘s not a guardianship either? Is that what you‘re —
BARBER: No.
THE COURT: Okay. All right.
Barber worried that Helen‘s aрproach to the case would end up “very bad for Ashley“; Helen had been “getting away with” speaking for her adult daughter without any legal authority.
The superior court explained general concepts of guardianship and conservatorship to Helen, linking them to the tensions with Barber. Helen pledged that she would defer to Barber‘s judgment about prosecuting the case. The court then ended the ex parte portion of the heаring to coordinate a scheduling conference.
But when the parties reconvened, the court learned that the stalemate between Barber and Helen had continued. Barber disclosed that the Akers had offered to forgo attorney‘s fees and costs if the Bravos would dismiss the case. Despite Barber‘s insistence that this was the best outcome available to the Bravos, Helen had refused to sign documents accepting thе walk-away offer. At the hearing Barber renewed his request to withdraw. The court again wrestled with the issue of Ashley‘s competency and contemplated appointing a guardian ad litem (GAL) for her, but it did not do so. Instead the court granted Barber‘s motion to withdraw in a written order and gave the Bravos four weeks to find new counsel or oppose the summary judgment motion representing themselves.
D. Disposition And Appeal
The Bravos did not obtain new counsel, but Helen filed motions requesting Barber‘s reinstatement and more time to oppose summary judgment. The court denied these motions and granted summary judgment without issuing an opinion. The Akers then moved for attorney‘s fees under
On appeal the Bravos, representing themselves, charge error to the entirety of the proceedings summarized above.
III. STANDARD OF REVIEW
We “review de novo issues concerning the interpretation of civil rules, ‘adopting the rule of law that is most persuasive in light of precedent, policy and reason.’ ”5 “We review a ruling by the superior court allowing an attorney to withdraw under the abuse of discretion standard.”6
IV. DISCUSSION
We note as a preliminary matter that the Bravos have styled the caption of their appeal “Ashley Bravo, and Helen Bravo, as next friend on behalf of Ashley Bravo.” Because she has no claims of her own, Helen has no role in this case but as Ashley‘s next friend. If Ashley is competent to represent herself, she does not need a next friend. But as we explain below, a parent acting as an incompetent adult child‘s next friend cannot rеpresent the child without counsel. Thus, the status of these appellants is not entirely clear on the record available to us, but judgment was entered against both of them and their arguments are before us.
When attorney Barber filed his motion to withdraw, the superior court was immediately faced with a quandary: could the case proceed with an unrepresented and presumedly incompetent plаintiff? Everyone involved — the Bravos, their attorney, and the court — proceeded throughout the case under the apparent assumption that Ashley was incompetent, and the Akers never challenged this assumption in the superior court. Helen brought the suit as next friend on the theory that Ashley, as an incompetent adult, did not have the capacity to bring the action on her own behalf.
Our opinion in Shields v. Cape Fox Corporation provides part of the solution to the court‘s quandary. In Shields, a Native village corporation filed suit against the former manager of one of its stores, her teenage daughter, and the manager‘s brother-in-law for losses at the store.8 The manager, without counsel, filed an answer on her daughter‘s behalf as her “next friend.”9 A jury ultimately returned a verdict in favor of the Native village corporation and awarded damages against the three defendants.10 On appeal, the appellants argued among other things that the judgment against the teenage dаughter was void because she was a minor when she was sued and the absence of an attorney or GAL rendered the judgment void.11
We held that ”
Wе cited and discussed several cases from the federal courts of appeal in support of this principle.15 In Johns v. County of San Diego, the Ninth Circuit reaffirmed its prior holding that “a non-lawyer ‘has no authority to appear as an attorney for others than himself.’ ”16
We think it is evident these considerations apply equally to incompetent litigants:
The answer is no. Incompetent persons cannot represent themselves in court; they must bring and defend actions through a competent adult.21 However, “the general rule is that the next friend must retain counsel.”22 This is also the rule in Shields.23
So what was the suрerior court to do? If there was any substantial question about Ashley‘s competence, the court should have ordered a competency examination and conducted a competency hearing.24 If the court found that Ashley was competent, then she could proceed as plaintiff representing herself, and the court‘s quandary (at least as to the existential question whether the litigation could proceed if Barber withdrew) would be resolved.
On the other hand, if there was a finding that Ashley was not competent — or if the court determined to continue under the assumption, apparently shared by all, that Ashley was not competent — what should the court have done? The answer is found, again, in
Additionally, a GAL — or the court on its own pursuant to
THE COURT: And then with Ashley we‘ve got the issue about competency. Is that an accurate way to describe it, Mr. Barber?
BARBER: Yes.
THE COURT: And the issue about, there‘s no guardian, no conservator. One thing to do is, as I sit here, I‘m not sure a guardian ad litem — whether there‘s authority to appoint [the Office of Public Advocacy] as a guardian ad litem here in a case like this. But that would be one thing that we can do, and I think that would help alleviate the concerns that Mr. Barber has.
But no GAL was appointed. Upon granting Barber‘s motion to withdraw, the superior court was left with a civil action where the plaintiff could not represent herself and had no GAL or other proper representative. Under this circumstance, the court could not, consistent with its duty to “protect the . . . incompetent person,” rule on the defendants’ summary judgment motion or award fees and costs against the incompetent person. It was error to do so.
Barber‘s motion to withdraw as counsel was based, in part, on “communication” issues and a “fundamental disagreement” over litigation strategy. Barber faced a genuine conflict of interest between his two clients, and under ordinary circumstances withdrawal would have been appropriate. But these were not ordinary circumstances due to the third basis for Barber‘s motion: unresоlved questions about Ashley‘s competency and her mother‘s ability to represent her. We conclude it was an abuse of discretion to grant Barber‘s motion to withdraw without first resolving the threshold question of Ashley‘s competency and considering the need for a GAL to represent her.
V. CONCLUSION
We REVERSE the superior court‘s orders granting the attorney‘s motion to withdraw and granting summary judgment. We VACATE the award of attorney‘s fees and costs. We REMAND the case to its status quo ante the order granting the attorney‘s motion to withdraw. On remand the superior court shall conduct further proceedings consistent with this opinion.