VARILEK v. McROBERTS, S-12348 (Alaska 12-10-2008)
Supreme Court No. S-12348.Supreme Court of Alaska.
December 10, 2008.
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon L. Gleason, Judge., Superior Court No. 3AN-02-11939 CI.
Larry Varilek, pro se, Houston. Stephen McAlpine, Law Office of Stephen McAlpine, Anchorage, for Appellees Professional Guardian Services Corporation and David Schade.
Megan R. Webb, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, Juneau, for Appellee John Burke.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*]Page 2I. INTRODUCTION
The personal representative of Martha Dunnagan’s estate brought a wrongful death claim against her guardian, an assisted living home, and a state social worker. The superior court granted summary judgment in favor of the state social worker. After a bench trial, the superior court ruled in favor of the guardian and the assisted living home, holding that both were negligent but that the estate had not presented sufficient evidence to prove that this negligence was the legal cause of Dunnagan’s death. The personal representative appeals. Because the superior court properly denied the personal representative’s motion for continuance and because all of the court’s findings are supported by the evidence, we affirm the superior court’s decision.
John Burke was a social worker with Adult Protective Services (APS). APS is responsible for assisting vulnerable adults who have been abandoned, abused, neglected, or financially exploited. In 1996 Burke received a report alleging that Martha Dunnagan, an eighty-four-year-old woman, was financially vulnerable. Dunnagan came to APS’s attention when a bank employee reported that Dunnagan was seeking to withdraw $29,000 in cash from her account so she could give it to Larry Varilek. Varilek was with Dunnagan at the bank at that time.
During his investigation, Burke learned that Dunnagan was suffering from a variety of health issues. Dunnagan lived on her own but received assistance from Varilek and his wife, Yung Varilek. Dunnagan was neglecting to pay utility bills, apparently as a result of memory loss, and was resisting the idea of paying for services necessary to maintain her health. According to Burke, Dunnagan complained thePage 3
Varileks were pressuring her to sign over her house to them in return for care. Dunnagan also had a substantial savings account and land holdings that appeared to be at risk.
Based on this information, Burke filed a petition to appoint a conservator for Dunnagan on May 10, 1996. Professional Guardianship Services Corporation (PGSC) was appointed to serve as Dunnagan’s conservator on January 2, 1997. Dunnagan’s mental health deteriorated after the petition to appoint a conservator was filed, leading Burke to file a petition for guardianship on June 11, 1996. A court visitor conducted an independent investigation and concluded that a guardian should be appointed. After holding hearings on the matter, the probate master issued a report on May 30, 1997, recommending that the petition for guardianship be granted. On July 29, 1997, the superior court adopted the probate master’s recommendation and appointed PGSC as Dunnagan’s guardian and conservator. David Schade, PGSC’s president, accepted these duties on behalf of PGSC. This appointment was made over Varilek’s objection; he had filed a cross application to have himself appointed as guardian.
Initially, PGSC contracted with Yung Varilek, doing business as Your Home Care, to provide in-home care for Dunnagan. This arrangement worked for a period of time, though there were frequent disputes between PGSC and Varilek over the amount of money owed to the Varileks for their services. Dunnagan’s condition continued to deteriorate, and on September 30, 1999, her physician recommended that she be moved to a licensed assisted living facility.
PGSC moved Dunnagan to Lyn’s Place, an assisted living home near Palmer. Lyn’s Place was owned and operated by Lyn McRoberts. Schade testified that he selected Lyn’s Place because of its rural setting and of his prior experience placing another client in the home, as well as for financial reasons. Varilek strongly objected to placing Dunnagan in an assisted living home.Page 4
Both before and after Dunnagan was moved to Lyn’s Place, Varilek filed numerous complaints against PGSC, including complaints to the Better Business Bureau, the Postmaster General, the Wage and Hour Division, the Office of the Long Term Care Ombudsman, and the Division of Senior Services. Varilek also brought at least one lawsuit in the superior court against PGSC, claiming he and his wife were owed in excess of $50,000. Schade testified that he wanted to move Dunnagan from Lyn’s Place to an upgraded facility, but that Varilek had filed a lawsuit and placed a lien on Dunnagan’s house, her only significant asset. This lien prevented PGSC from selling the house and using the proceeds for Dunnagan’s care.
The superior court heard a wide range of testimony regarding the conditions at Lyn’s Place. Schade testified that both he and his staff visited the facility while Dunnagan was there and indicated that he had not seen reason for concern about the care Dunnagan as receiving. Dr. Linda Sloan, Dunnagan’s attending physician, visited with Dunnagan during a hospital visit in June 2000 and at Lyn’s Place in August and September 2000. She did not note any inadequacies in care during her visit, and she testified that the health care Dunnagan w as receiving at Lyn’s Place appeared appropriate for her circumstances.
The Division of Senior Services (DSS) conducted two relevant inspections of Lyn’s Place. On November 19, 1999, Richard Cinch, R.N., participated in a two-hour inspection of Lyn’s Place. Cinch noted several general concerns during this inspection, including an odor of urine, improper care of medications, poor documentation on clients, and client complaints regarding a lack of food. On August 30, 2000, Cinch participated in an unannounced visit with two other colleagues. The inspectors noted several concerns, including the odor of urine, incomplete and disorganized resident files, and the presence of six residents in a facility licensed for five. The inspectors also noted specificPage 5
concerns with a resident identified as “F.Y.,” who had been left in bed with a urine-soaked diaper and had inadequate food. Cinch further observed that Dunnagan had a swollen arm and hand and a skin tear on her arm. He also noted that she had a decubitus ulcer for which he did not think she was receiving appropriate care. Dunnagan’s health deterioration was not reflected in her assisted living plan, and her quarterly reviews had not been completed. Cinch felt that based on her condition, Dunnagan should have been in a nursing facility, not an assisted living home.
Sharon White-Wheeler, an inspector with Assisted Living Licensing (ALL), visited Lyn’s Place numerous times in 1999 and 2000. She received multiple complaints regarding Lyn’s Place. She substantiated some complaints, including some of the violations noted by other inspectors, but not others. Neither DSS nor ALL communicated any of these findings regarding Lyn’s Place to PGSC, nor did any representative of the state notify PGSC of the state’s intention to seek revocation of Lyn’s Place’s assisted living license.
The state licensing office issued A Notice of Violations and Notice of Imposition of Administrative Sanctions against Lyn’s Place on September 18, 2000. Related to the care being received by Dunnagan, the notice stated:
5. Resident M.D. had a decubitis. This had not been cared for properly by the assisted living home within the previous 24 hours. There was no documentation verifying that the administrator or staff had individually received nurse delegation to perform wound care for the decubitis ulcer.
. . . .
6. Resident M.D. is dying. She shares a room with another elderly woman and a young woman with an infant. She is not afforded any privacy.
. . . .Page 6
8. Resident files were not complete and were disorganized. The caregivers do not have ready access to resident information as resident paperwork is stored in various areas of the home.
. . . .
11. Resident M.D. receives health related services from the assisted living home and M.D.’s assisted living plan of care does not reflect that M.D.’s health has deteriorated significantly nor that quarterly reviews have been completed as required by AS 47.33.230-240.
The notice further stated that the sanction being imposed for these violations was the revocation of the assisted living license for Lyn’s Place. McRoberts failed to request a hearing to appeal this sanction within ten days of receiving the notice. As a result, the assisted living home license for Lyn’s Place was revoked on October 17, 2000.
Dunnagan died on October 16, 2000. She was survived by no spouse, children, or other dependents. She had named Varilek as her personal representative in her will. Varilek had last seen Dunnagan about three months before her death.
Dr. Sloan completed Dunnagan’s death certificate. On the death certificate, she indicated that the immediate causes of death were cerebrovascular accident (stroke) with onset eight hours before death and atrial fibrillation with onset four months before death. Dr. Sloan also indicated that other contributing factors were nutritional deficiency due to swallowing problems, presacral decubitis ulcer, dementia, aspiration risk, and osteoporosis. At trial, Dr. Sloan testified that Dunnagan died of natural causes.
Varilek, acting pro se, filed an action for wrongful death on October 15, 2002. He brought the complaint as the personal representative of the Estate of Martha Dunnagan, a position to which he was appointed on August 27, 2002. Varilek claimed that McRoberts “neglected, failed, or refused” to comply with controlling Alaska assistedPage 7
living home regulations and that this failure caused Dunnagan’s death. Varilek also claimed that PGSC and Schade had “neglected, failed, or refused” to perform their duty of placing Dunnagan in an assisted living home that was in compliance with state regulations, and that this failure contributed to Dunnagan’s death. In addition, Varilek asserted that Burke violated his duty to the clients of Lyn’s Place by “neglect[ing,] fail[ing,] or refus[ing]” to suspend McRoberts’s license to operate Lyn’s Place, and that this failure helped cause Dunnagan’s death.
On May 16, 2003, the superior court issued a Notice and Order of Dismissal for Failure to Serve Defendant. Varilek filed a response with the superior court on June 16, 2003, explaining his difficulty in locating some of the defendants, but the superior court issued a Renewed Notice of Intent to Dismiss with regard to McRoberts, Burke, and Schade on June 23, 2003. On July 24, 2003, the superior court noted that it had received a nonconforming answer from McRoberts on July 2, and that the court was accepting that answer as filed. The superior court also noted that while it had stated in its prior order that Schade had not been properly served, this finding was in error because Schade had filed an answer with the court in December 2002. Finally, the superior court dismissed Burke, but reversed that decision on August 8, 2003, noting that Varilek had filed proof of service on Burke the same day that the dismissal order had been entered.
On December 8, 2003, the court entered a Routine Pretrial Order, scheduling trial for November 1, 2004. Burke filed a motion for summary judgment on the claims against him on June 17, 2004. Varilek did not oppose this motion, and the superior court granted it on July 15, 2004, dismissing Burke from the case.
No party appeared at the October 22, 2004 pretrial conference, leading the superior court to vacate the November trial date. After a February 2005 pretrialPage 8
conference at which Varilek appeared, the superior court set a new trial for September 26, 2005.
On September 2, 2005, Varilek filed a request for a six-month continuance. He requested the continuance because he believed his health issues, including treatment for a chronic cough, had hampered his ability to prepare pretrial orders and to present his case in court. Varilek also stated that he had consulted with an attorney, who had agreed to represent him if an extension was granted. Varilek did not attend the scheduled September 14, 2005 pretrial conference. As a result, the superior court heard arguments from the parties on Varilek’s request for continuance at the calendar call on September 26, 2005.
The superior court determined that it would be reasonable to condition the grant of a continuance on the payment of $5,000 to the lawyer for PGSC and Schade by the end of the following business day. When the superior court asked Varilek if he could so pay the lawyer for PGSC and Schade, Varilek responded that he could not pay $5,000 so soon. The superior court therefore denied Varilek’s request for a continuance.
Trial began on September 28, 2005, and continued on September 29. On September 30 Varilek did not appear in court. An hour and a half after the scheduled start, Varilek telephoned the court to say that he had gone to the VA hospital to pick up a nebulizer because he had run out of the Prednisone used to treat his cough. The superior court decided to continue the case to October 25, 2005. Trial concluded on October 25, and the superior court asked each side to submit proposed written findings. Varilek submitted a “Written Rebuttal,” which the court accepted. But the court noted that it was not considering “the additional factual documentation with regard to this case that was appended to the filing [because the] evidence in this case was closed at the end of the trial.”Page 9
The superior court entered its written Findings of Fact and Conclusions of Law on May 19, 2006. The superior court found, in part, that “there were many times at which the standard of care at Lyn’s Place . . . was inadequate.” The superior court also noted that Dr. Sloan had testified that Dunnagan had died of natural causes, and that Varilek had presented “no testimony or other evidence at trial as to the cause of Ms. Dunnagan’s death.”
Based in part on these findings, the superior court concluded that McRoberts violated state statutes and administrative provisions related to assisted living homes and was negligent on that basis. The superior court also concluded that PGSC failed to meet its duty to ensure Dunnagan’s care, comfort, and maintenance. The superior court noted that PGSC was negligent in selecting the particular home where it placed Dunnagan, but that PGSC was not negligent in deciding generally to place her in an assisted living home. The superior court found that Varilek had not proven that Schade had a duty of care to Dunnagan in his individual capacity.
Despite concluding that PGSC and McRoberts had been negligent, the superior court found that Varilek had failed to meet his burden of proving by a preponderance of the evidence that their negligence was the legal cause of Dunnagan’s death. The superior court also found that Varilek had not presented evidence of damages recoverable in a wrongful death action when the decedent is not survived by a spouse, child, or other dependent. Because Varilek failed to prove either the causation or damages necessary to prevail in an action for wrongful death, the superior court entered judgment in favor of Burke, McRoberts, Schade, and PGSC.[fn1]Page 10
IV. DISCUSSION A. The Superior Court Did Not Violate Varilek’s Due Process Right toCounsel by Denying His Motion for Continuance To Obtain Counsel.
Varilek argues that the superior court erred by not granting his request for a continuance to obtain counsel and that this denial violated his due process right to counsel. PGSC responds that the superior court’s denial of a continuance was proper. We agree with PGSC.
We review constitutional issues de novo; constitutional issues reviewed under this standard include a litigant’s due process right to counsel in a civil case.[fn2]
The superior court initially scheduled trial in this case for November 1, 2004. After Varilek showed good cause for missing the initial pretrial conference, the superior court rescheduled trial for September 26, 2005. On September 2, 2005, Varilek filed a request for a six-month continuance, basing his request on alleged health issues impairing his ability to prepare for trial and on his statement that an attorney had agreed to represent him if an extension was granted. After hearing arguments from the parties on this motion at the calendar call on September 26, 2005, the superior court denied Varilek’s request for a continuance based on the fact that no counsel was present to makePage 11
an appearance, the case had previously been continued and had been pending for three years, and because the case was going to be a bench trial, the court was certain Varilek’s cough would not impede it from rendering a decision.[fn3]
We have adopted the Mathews v. Eldridge[fn4] balancing test to determine whether due process requires a right to counsel in civil cases.[fn5] Under this balancing test, we evaluate three factors: (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens, that additional or substitute procedural requirements would entail.[fn6]
The superior court’s denial of Varilek’s motion for continuance did not deny Varilek’s due process right to counsel. Varilek’s wrongful death action does not fall within one of the categories of civil cases recognized by this court as conferring a due process right to counsel.[fn7] Nor does applying the Mathews v. Eldridge balancing testPage 12
lead to recognizing another class of cases that confer a due process right to counsel. Here, there is no official state action affecting the liberty interests or fundamental rights of an individual, nor is there a private action being supported by the state to such an extent that the private action is de facto state action affecting these interests.[fn8]
Rather than defending himself against an official action affecting his liberty interests (or the liberty interests of the estate of Martha Dunnagan), Varilek is prosecuting a private claim for his own potential financial benefit.
We therefore hold that the superior court’s denial of Varilek’s motion for continuance did not violate his due process right to counsel.Page 13
B. The Superior Court Did Not Abuse Its Discretion by Conditioning ItsGrant of Varilek’s Motion for Continuance on His Ability To Pay $5,000by the Next Day.
Varilek also argues that the superior court abused its discretion by conditioning the grant of his requested continuance on his payment of $5,000 by the close of business on the following day. PGSC responds that the superior court appropriately balanced the rights of all parties by imposing this condition on the grant of a continuance. We do not find an abuse of discretion because the superior court could have simply denied Varilek’s motion for continuance.
We review a trial court’s procedural decisions, including denial of a continuance, for abuse of discretion.[fn9] A denial of a motion for continuance is an abuse of discretion “when a party has been deprived of a substantial right or seriously prejudiced.”[fn10] An abuse of discretion occurs when we are “left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.”[fn11]
Here, the superior court determined that it would be reasonable to condition the grant of Varilek’s requested continuance on the payment of $5,000 to the lawyer of PGSC and Schade by the end of the following business day. The superior court based this decision on PGSC’s estimate of its attorney’s fees related to a six-month continuance and the status of the case, including the fact that the case had previously been continued,Page 14
had been pending for three years, and there did not appear to be any reason that Varilek could not have retained counsel earlier. When Varilek stated that he did not have the funds available to pay $5,000 by the next day, the superior court denied the continuance without any further discussion.
Varilek argues that the superior court should have known that he was not in a position to pay $5,000 on short notice, pointing out that the wrongful death action had been filed at public expense, and that therefore imposing this condition was an abuse of discretion. We recognize that the superior court did not state its basis for requiring the payment to be made immediately, as opposed to at the end of the case. But a superior court does not necessarily abuse its discretion when it denies a motion to continue trial until counsel is available.[fn12]
It was arguably inappropriate for the superior court to impose this condition without considering Varilek’s inability to pay. But any error in this respect was harmless error. The superior court’s reasons for conditioning the grant of continuance were also sufficient to support a decision to deny Varilek’s request for continuance. The superior court’s leniency in proposing an additional opportunity for Varilek to obtain a continuance should not undercut the ultimate action of the court, which was to deny the continuance.
C. Any Error Made by the Superior Court in Finding that Varilek WasNot Generally Interested in Martha Dunnagan’s Care Was Harmless.
Varilek argues that the superior court erred in finding that he was not generally interested in Dunnagan’s care.[fn13] However, Varilek has not explained any wayPage 15
in which overturning this finding would impact the legal conclusion that the placement of Dunnagan at Lyn’s Place was not the legal cause of her death. Thus, we agree with PGSC that this finding was not central to the resolution of the case, and we therefore hold that any possible error in the superior court’s factual findings on this issue was of no consequence.
D. The Superior Court Did Not Err by Ruling that PGSC Was Not Negligentin Deciding To Place Dunnagan in an Assisted Living Home.Page 16
Varilek argues that the superior court erred in ruling that PGSC was not negligent in deciding to place Dunnagan in an assisted living home.[fn14] He first argues that PGSC was negligent because it placed Dunnagan in an assisted living home without prior specific court approval in violation of a probate court order. He further argues that PGSC’s decision to place Dunnagan in an assisted living home must have been negligent because it was negligent in its selection of the assisted living home in which she was placed. We disagree with both of these contentions.
With regard to Varilek’s first argument, PGSC decided to place Dunnagan in an assisted living home on the advice of her physician. Therefore, although the probate master’s guardianship appointment order stated that “Dunnagan shall not be required to move from her home without prior specific court approval” and PGSC did not obtain this approval before moving Dunnagan to Lyn’s Place, [fn15] we can see no reasonPage 17
to expect that the probate court would not have approved the move if PGSC had requested it.
In addition, the doctor who completed Dunnagan’s death certificate testified that Dunnagan had died of natural causes, and the superior court found that Varilek presented no testimony or other evidence at trial regarding the cause of Dunnagan’s death. Thus, Varilek has not proven that PGSC’s violation of the probate court’s order and its placement of Dunnagan in an assisted living home was a proximate cause of Dunnagan’s death. Therefore, even if PGSC’s decision to place Dunnagan in an assisted living home without prior court approval was sufficient to prove negligence, the superior court’s finding that this decision was not negligent was harmless error.
Varilek’s second argument is also unavailing. As the superior court recognized, the decision to place a person in an assisted living home rather than maintain the person at home is distinct from the selection of a particular assisted living home in which to place a person. Therefore, Varilek’s arguments that Lyn’s Place was negligent in its care of Dunnagan and that PGSC was negligent in selecting Lyn’s Place becausePage 18
it was not licensed to administer medications are not relevant to the claim that PGSC’s decision to place Dunnagan in an assisted living home was negligent.
We therefore hold that the superior court did not err in holding that PGSC was not negligent in deciding to place Dunnagan in an assisted living home instead of maintaining the home health care that the Varileks had provided.
E. The Superior Court Did Not Err by Granting Judgment in Favor of LynMcRoberts Despite Her Failure To Appear at Trial.
Varilek argues that the superior court erred by not granting judgment against Lyn McRoberts because McRoberts failed to appear and defend herself at trial. While McRoberts’s only participation in this case was the filing of a non-conforming answer at the beginning of the proceedings, we believe that the superior court’s grant of judgment in her favor was appropriate because Varilek did not meet his evidentiary burden.
Varilek’s argument rests on the assumption that the superior court may not find in favor of a non-participating defendant. This assumption is erroneous. As we recently discussed in Pomeroy v. Rizzo, [fn16] under Alaska Civil Rule 77 only the moving party, in this case Varilek, is responsible for providing points and authorities to the court.[fn17] The superior court does not need to accept one party’s assertions as to the present state of the law simply because the opposing party fails to adequately respond to those assertions.[fn18] Nor must the superior court grant a motion as a matter of rightPage 19
simply because it is unopposed.[fn19] Thus, the superior court was not required to enter judgment against McRoberts as a matter of law simply because she failed to participate at trial.
The superior court concluded that the evidence presented at trial showed that McRoberts “violated state statutes and administrative provisions with respect to the assisted living home,” and that “she was negligent on that basis.” At the same time, PGSC presented evidence at trial that tended to support the contention that McRoberts’s negligence had not been the cause of Dunnagan’s death. The superior court relied on this testimony — and the lack of contradictory testimony presented by Varilek on the issue of causation — to support its finding that Varilek had failed to prove by a preponderance of the evidence that “McRoberts'[s] violations of the state law and administrative provisions were legal causes in bringing about the death of Martha D unnagan.” Therefore, because Varilek failed to meet his evidentiary burden, we uphold the superior court’s entry of judgment in favor of McRoberts despite her failure to appear at trial.
F. The Superior Court Did Not Err by Not Admitting Evidence ofDunnagan’s Visits to Valley Hospital.
Varilek argues that the superior court erred by not admitting into evidence medical records from Dunnagan’s visit to Valley Hospital.[fn20]
PGSC responds that the superior court did not abuse its discretion by excluding the use of the records to cross-examine Schade because the questions should properly have been put to a previous witness. We believe that PGSC has the better of this argument.Page 20
We review a trial court’s decision on the admissibility of evidence for abuse of discretion.[fn21] Alaska Evidence Rule 611(b) states that:
Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
On October 25, 2005, the defense called Schade as a witness. On cross-examination, Varilek attempted to question Schade regarding medical records from Dunnagan’s visit to Valley Hospital in June 2000. Those records supported earlier testimony from the treating physician that the physician had called Schade to get approval for treatment over the phone.[fn22] Varilek asserted that he should be allowed to ask Schade questions relating to these documents because he did not have them available at the time the doctor had testified. The defense objected, arguing that questions pertaining to the documents should have been asked of the doctor. The superior court allowed Varilek to question Schade for about four minutes on the issue of whether Schade recalled authorizing treatment for Dunnagan. At that point, the superior court ended the questioning on this issue, noting that it was inappropriate for a plaintiff to seek to enter new evidence at the conclusion of the defendant’s case and that Varilek’s questions went beyond the scope of the direct examination.
Varilek argues that the hospital records should have been admitted into evidence and that he should have been permitted to question Schade about their contents.Page 21
Varilek argues this evidence would have shown that Schade was often unaware of the care that Dunnagan was receiving. Even assuming this argument is correct, Varilek still fails to demonstrate that it was an abuse of discretion for the superior court to exclude the evidence as outside the scope of the direct examination of Schade. The defense’s direct examination of Schade focused on the appointment of PGSC as guardian for Dunnagan, the ongoing conflicts between PGSC and Varilek related to Dunnagan, and PGSC’s knowledge of the conditions at Lyn’s Place.[fn23] The direct examination does not appear to have dealt with Dunnagan’s hospitalization at Valley Hospital or PGSC’s role in authorizing care while she was there. Nor is it readily apparent that the contents of the medical records should have put PGSC on notice of the conditions at Lyn’s Place.
In addition, the superior court found that PGSC was negligent, but that Varilek had not proved that its negligence was the legal cause of Dunnagan’s death. The medical records do not contain any information demonstrating that Dunnagan did not die of natural causes. Thus, any error committed by the superior court in excluding the medical records and questions to Schade pertaining to these records was harmless error.
In his reply brief, Varilek argues that the superior court erred because it allowed the treating physician, Dr. Sloan, to testify relying on her medical records without having provided these documents to Varilek during discovery. Varilek also states that he still does not have a copy of these records. Because Varilek says he does not have a copy of these records, he must be referring to medical records other than thePage 22
ones that he attempted to enter into evidence at trial. Thus, he is raising this claim for the first time in his reply brief, and therefore this claim is waived.[fn24]
We therefore hold that the superior court did not abuse its discretion by not admitting evidence of Dunnagan’s visit to Valley Hospital.
G. The Superior Court’s Finding that Varilek Had Not Proven that theNegligence of PGSC and McRoberts Caused Dunnagan’s Death Was Not ClearlyErroneous.
Varilek argues that the superior court erred by not finding Schade to be individually responsible for Dunnagan’s death. Varilek further argues that the superior court erred by granting judgment in favor of Schade and PGSC despite finding that PGSC did not meet its duty of care to ensure that Dunnagan received appropriate care. Varilek also argues that the superior court erred by granting judgment in favor of McRoberts despite finding that McRoberts was negligent based on her violation of state statutes and administrative provisions regarding assisted living homes. PGSC responds that the superior court correctly granted judgment in favor of PGSC, Schade, and McRoberts because no testimony was presented that any acts of negligence were the legal cause of Dunnagan’s death. PGSC also argues that judgment in favor of the defendants was appropriate because Varilek presented no evidence of damages. We agree with PGSC.
We have held that to prevail in negligence cases, the plaintiff must show proximate causation.[fn25] Whether a negligent act was a proximate cause — an action so important in bringing about an injury that a reasonable person would regard it as a causePage 23
and attach responsibility to it — is normally a question of fact, but becomes a matter of law where reasonable minds could not differ.[fn26]
“We review findings of fact for clear error.”[fn27] A factual finding is only clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been made.[fn28] “We do not weigh the evidence anew on appeal, but only determine whether the trial court’s findings are supported by the record.”[fn29]
Varilek, in his capacity as personal representative, brought a claim for wrongful death. The superior court found that Varilek did not prove that Schade, in his personal capacity, had a duty of care to Dunnagan. The superior court further found that McRoberts violated relevant state statutes and administrative provisions related to assisted living homes and was negligent on that basis. The superior court found that PGSC should have known of the shortcomings in care provided at Lyn’s Place, and thus the court found that in this regard PGSC had breached its duty of care to assure Dunnagan’s care. The superior court noted that the doctor issuing the death certificate testified that Dunnagan had died of natural causes and that Varilek presented no evidence as to the cause of Dunnagan’s death. The superior court further held that the types of losses alleged by Varilek were not for the types of damages recoverable by a personal representative in an action for wrongful death. Based on these findings, the superior court concluded that “[Varilek] has the burden to establish by a preponderance of thePage 24
evidence, both causation and damages. In the instant case, [Varilek] has proved neither with respect to PGSC and with respect to Ms. McRoberts.”
The superior court’s conclusion was not clearly erroneous. First, though Varilek asserts that Schade should have been found negligent, Schade was not Dunnagan’s guardian. PGSC was Dunnagan’s appointed guardian; Schade was acting on PGSC’s behalf. Varilek does not provide any support for the proposition that Schade’s actions were performed in his individual capacity, rather than on behalf of PGSC.
Second, to recover in an action for wrongful death, a plaintiff must prove that a party was negligent and that the negligence was the legal cause of the wrongful death. The damages recoverable are limited to those that are the natural and proximate consequence of the negligent act.[fn30] At trial, testimony was admitted that Dunnagan died of natural causes. Varilek did not submit contradictory evidence regarding the cause of death.
On appeal, Varilek focuses the majority of his argument on asserting the negligence of Schade, PGSC, and McRoberts, rather than on how this negligence caused Dunnagan’s death. Varilek correctly points out that the death certificate indicates that Dunnagan suffered from “nutritional deficiency” as a contributing cause of death and implies that this nutritional deficiency resulted from her care at Lyn’s Place. Varilek fails to note that the death certificate indicates that the “nutritional deficiency [was] due to swallowing problems” and that it was listed under “OTHER SIGNIFICANT CONDITIONS contributing to death but not resulting in the underlying cause.” InPage 25
addition, the doctor who filled out the death certificate testified that Dunnagan died of natural causes.
Varilek also asserts that even if the cause of death was a stroke, the staff at Lyn’s Place failed to take the appropriate measures in response to the stroke, such as calling for an ambulance. However, Varilek does not provide any support for his conclusory statement that the staff at Lyn’s Place did not act appropriately in this respect.
Because substantial evidence indicated that Dunnagan died of natural causes, the superior court’s finding that Varilek had not proven that the negligence of PGSC and McRoberts caused Dunnagan’s death was not clearly erroneous.
H. The Superior Court Did Not Abuse Its Discretion by AwardingAttorney’s Fees to Schade and PGSC.
Varilek argues that the superior court abused its discretion by awarding attorney’s fees to Schade and PGSC. Varilek argues that because the superior court found that PGSC was negligent, he should have been found to be the prevailing party and awarded attorney’s fees.
We review a trial court’s prevailing party determination in the context of awarding attorney’s fees for abuse of discretion.[fn31] “Prevailing party determinations will ordinarily be overturned only if they are manifestly unreasonable.”[fn32] A prevailing party determination is based on which party prevails on the main issues.[fn33]Page 26
Varilek, in his capacity as personal representative, brought a claim for wrongful death seeking nearly $250,000 in damages. Although the superior court found that PGSC and McRoberts breached their respective duty of care to Dunnagan, the superior court found that Varilek had failed to prove either that their negligence was the legal cause of Dunnagan’s death or the existence of recoverable damages.
Because Varilek prevailed on only one of the required elements of his claim for wrongful death and lost on the others, he was not the prevailing party. Further, it was not an abuse of discretion for the superior court to award thirty percent of their attorney’s fees to Schade and PGSC. This award was consistent with Alaska Civil Rule 82(b)(2).[fn34]
I. The Superior Court Did Not Err by Ruling in Favor of Schade, PGSC,and McRoberts.
Varilek makes a separate, general argument that the superior court erred by ruling in favor of Schade, PGSC, and McRoberts. He argues that this ruling was in error because PGSC was negligent in placing Dunnagan at Lyn’s Place, PGSC placed Dunnagan in an assisted living home without prior court approval, the superior court did not admit Dunnagan’s medical records into evidence, and Dunnagan received negligent care at Lyn’s Place, leading to her death. We have addressed each of these contentions above, and for the reasons previously stated, we hold that the superior court did not err by ruling in favor of Schade, PGSC, and McRoberts.
J. The Superior Court Did Not Err by Granting Summary Judgment inFavor of John Burke.Page 27
In his brief, Varilek asserts that the superior court erred by granting summary judgment to Burke. However, he does not provide a legal argument relating to the superior court’s summary judgment ruling in Burke’s favor. Instead, he describes the superior court’s findings regarding Schade and PGSC. The only other references to Burke that are found in Varilek’s opening brief are the statements located in the conclusion that “the Supreme Court should find that [the other defendants] and John Burke are all negligent and contributed in some manner to the death of Martha Dunnagan,” and that “John Burke should be found negligent in that he granted the license to Lyn’s Place.” In his reply brief, Varilek briefly mentions Burke in connection with PGSC’s statement of the case. Varilek also asserts in the conclusion to his reply brief that Burke should be held liable for initiating an unwarranted guardianship.
Although this court judges a pro se appellant’s performance liberally, even a pro se appellant’s argument will be considered waived when the pro se appellant cites to no authority and fails to provide anything that might pass for a legal theory in support of his argument.[fn35]
Here, Varilek’s references to Burke do not amount to a recognizable argument. He has therefore waived his right to challenge on appeal the grant of summary judgment to Burke.
K. The Superior Court Did Not Abuse Its Discretion by AwardingAttorney’s Fees to Burke.
Varilek asserts that the superior court erred in granting attorney’s fees to Burke and that he should have been awarded attorney’s fees instead. Varilek does not mention Burke by name, but states that the superior court “should not have granted attorney fees to any of the Defendants.” Varilek further argues that “none of the Defendants prevailed in the litigation.”Page 28
We review the superior court’s prevailing party determination in the context of awarding attorney’s fees for abuse of discretion.[fn36]
“Prevailing party determinations will ordinarily be overturned only if they are manifestly unreasonable.”[fn37] We also review the superior court’s award of attorney’s fees pursuant to Rule 82 under an abuse of discretion standard.[fn38]
To the extent that Varilek’s argument is intended to apply to Burke and is not waived, his argument has no merit. The claims against Burke were dismissed on a motion for summary judgment. It was thus clearly within the superior court’s discretion to find that Burke was a prevailing party[fn39] and to award him, as it did under Rule 82(b)(2), twenty percent of his actual fees.[fn40]
For these reasons, we hold that the superior court did not abuse its discretion by awarding attorney’s fees to Burke.
For the reasons given above, we AFFIRM the decision of the superior court.
[fn*] Entered pursuant to Appellate Rule 214.
[fn1] The superior court’s final judgment did not mention McRoberts. Based on the superior court’s conclusions of law — including its statement that “judgment should be entered in favor of all defendants” — and the positions taken by the parties on appeal, it is clear that the failure to name McRoberts was an oversight and that judgment was entered in her favor.
[fn2] See Wyatt v. Wyatt, 65 P.3d 825, 828, 830 (Alaska 2003). We note that Bustamante v. Alaska Workers’ Compensation Board, 59 P.3d 270
(Alaska 2002), incorrectly refers to the decision to appoint counsel for a civil litigant as a procedural decision reviewed for abuse of discretion. Id. at 272. Bustamante itself applies a due process analysis despite referring to the decision as being a procedural one. Id.
[fn3] In his reply brief, Varilek asserts for the first time that he was denied his constitutional right to a jury trial. Because Varilek did not assert this claim in his opening brief, this argument is waived. See
Alaska R. App. P. 212(c)(3) (“This [reply] brief may raise no contentions not previously raised in either the appellant’s or appellee’s briefs.”);Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 819 (Alaska 2005) (holding an appellant’s argument, first raised in his reply brief, to be waived).
[fn4] 424 U.S. 319 (1976).
[fn5] See Bustamante, 59 P.3d at 274 (citing In re K.L.J., 813 P.2d 276,279 (Alaska 1991)).
[fn7] See V.F. v. State, 666 P.2d 42, 44-45 (Alaska 1983) (holding that the due process clause of the Alaska Constitution guarantees indigent persons the right to court appointed counsel in proceedings for the termination of parental rights); Flores v. Flores, 598 P.2d 893, 895
(Alaska 1979) (holding that “due process requires the state to appoint counsel whenever an indigent parent, unable to present his or her case properly, faces a substantial possibility of the loss of custody or of prolonged separation from a child,” and stating that “[t]he interest at stake in this case is one of the most basic of all civil liberties, the right to direct the upbringing of one’s child”); Reynolds v. Kimmons,569 P.2d 799, 801, 802 (Alaska 1977) (announcing that the right to counsel existed in paternity suits after noting that “we have held that the principles justifying appointment of counsel in criminal cases also apply to certain civil or quasi-civil proceedings,” and that “a determination of one of society’s most important relationships, that of parent-child, [was] at stake”); Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974) (“The potential deprivation of liberty in nonsupport contempt proceedings is as serious a matter as the restraint of liberty possible in criminal, juvenile, and criminal contempt proceedings. Therefore, we hold that in the case before us due process of law requires the assistance of counsel.”). But see Bustamante, 59 P.3d at 274 (stating that this court has “allowed” appointed counsel in some types of civil cases rather than stating that due process required a right to counsel in these cases).
[fn8] Cf. Flores, 598 P.2d at 895 (recognizing wife’s right to counsel in child custody case when father who initiated proceedings was represented by counsel appointed by a public agency).
[fn9] See Brandner v. Agre, 80 P.3d 691, 694 n. 12 (Alaska 2003) (citingGregoire v. Nat’l Bank of Alaska, 413 P.2d 27, 33 (Alaska 1966)).
[fn10] Id. (quoting Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982)) (internal quotation marks omitted).
[fn11] Bethel Family Clinic v. Bethel Wellness Assocs., 160 P.3d 142,144 (Alaska 2007) (quoting City of Kenai v. Friends of the RecreationCtr., Inc., 129 P.3d 452, 455 (Alaska 2006)) (internal quotation marks omitted).
[fn12] Cf. Brandner, 80 P.3d at 694.
[fn13] The superior court made two findings of fact relevant to this claim of error:
11. Larry Varilek voiced strong objections to the relocation of Ms. Dunnagan to the assisted living home. Although it is Mr. Varilek’s position that these objections were made with Martha Dunnagan’s best interest in mind, it cannot escape notice that Martha’s relocation meant the end of a regular paycheck for the Varileks.
12. Mr. Varilek made numerous complaints after Ms. Dunnagan moved to the assisted living home. He complained to the Better Business Bureau; he complained to the Postmaster General; he brought a complaint to the Wage and Hour Division claiming that Yung Varilek had not been properly paid as an employee of PGSC; he complained to the office of the Long Term Care Ombudsman and to the Division of Senior Services; and he brought at least one lawsuit in the Superior Court claiming that he and Yung Varilek were owed an amount in excess of $50,000. Based on all the evidence presented, this court finds that Mr. Varilek was not genuinely interested in Ms. Dunnagan’s welfare. Instead, his primary motivation has been his own financial position. This is well-illustrated in Mr. Varilek’s Written Rebuttal, which contains extensive discussion as to the compensation that Mr. Varilek felt he was due for taking care of Ms. Dunnagan during her life, as opposed to the circumstances of her death.
[fn14] In its conclusions of law, the superior court held that PGSC had a duty of care to Dunnagan as her guardian, but that its decision to place her in an assisted living home was not negligent. The superior court stated:
The guardianship order required PGSC to “assure the care, comfort and maintenance of the ward.” Based on this court’s review of the evidence presented at trial, this court finds that PGSC failed to meet this duty. Even if Mr. Schade, on behalf of PGSC, did not know about the shortcomings at Lyn’s Place, PGSC should have known of those shortcomings and taken steps to assure Ms. Dunnagan’s care and comfort by selecting an alternative assisted living home. In this regard, PGSC was negligent. However, PGSC was not negligent in deciding to place Ms. Dunnagan in an assisted living home instead of maintaining the home health care that the Varileks had provided. Its negligence was as to the selection of the particular assisted living home only.
[fn15] On September 30, 1999, PGSC notified the superior court that Dunnagan was going to be temporarily placed at Lyn’s Place. On November 22, 1999, the superior court held that the guardianship plan authorized PGSC to make placement, housing, and health care decisions for the ward, and that the temporary placement of Dunnagan in an assisted living home to ensure timely medical examination and treatment was permissible under the guardianship plan. Thus, the superior court appears to have approved of the placement, at least temporarily, but did not give prior approval.
The superior court further stated that it would reappoint the court visitor to conduct further proceedings if PGSC indicated it was planning to make the placement permanent and an objection was raised to this decision. We have not found any indication in the record that PGSC ever informed the court that it intended to make the placement permanent.
[fn16] Pomeroy v. Rizzo ex rel. C.R., 182 P.3d 1125 (Alaska 2008).
[fn17] Id. at 1130.
[fn19] Id. at 1131.
[fn20] In his briefs, Varilek refers to Valley Hospital as Palmer Hospital. Valley Hospital is located in Palmer.
[fn21] Landers v. Municipality of Anchorage, 915 P.2d 614, 616 n. 1 (Alaska 1996).
[fn22] It is not clear, but it appears the purpose of this testimony was to demonstrate that Schade was, or should have been, aware of Dunnagan’s poor physical health and therefore should have moved her to a “suitable” care facility.
[fn23] Varilek only requested that five minutes of Schade’s forty-minute direct examination be transcribed. As a result, we rely on the in-court deputy’s summary of proceedings for our description of the contents of Schade’s direct examination.
[fn24] See supra note 3.
[fn25] See Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841 (Alaska 2001).
[fn27] Diblik v. Marcy, 166 P.3d 23, 25 (Alaska 2007).
[fn28] Id. at 25-26.
[fn29] Id. at 26.
[fn30] AS 09.55.580(b).
[fn31] Interior Cabaret, Hotel, Rest. Retailers Ass’n v. Fairbanks N.Star Borough, 135 P.3d 1000, 1002 (Alaska 2006).
[fn33] Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989) (citing Continental Ins. Co. v. U.S. Fid. Guar. Co., 552 P.2d 1122,1125 (Alaska 1976)).
[fn34] Civil Rule 82(b)(2) provides that “[i]n cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party’s reasonable actual attorney’s fees which were necessarily incurred.”
PGSC and Schade moved for enhanced fees pursuant to Rule 82(b)(3), but the superior court did not grant this motion.
[fn35] See Peterson v. Ek, 93 P.3d 458, 464 n. 9 (Alaska 2004).
[fn36] Interior Cabaret, Hotel, Rest. Retailers Ass’n,135 P.3d at 1002.
[fn37] Id. (citing Jerue v. Millett, 66 P.3d 736, 740 (Alaska 2003)).
[fn38] See Sisters of Providence in Wash. v. A.A. Pain Clinic, Inc.,81 P.3d 989, 1011 (Alaska 2003).
[fn39] See Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1262 (Alaska 2001) (“Having been awarded summary judgment, UAF is clearly a prevailing party. . . .”).
[fn40] “In cases in which the prevailing party recovers no money judgment, the court . . . shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney’s fees which were necessarily incurred.” Alaska R. Civ. P. 82(b)(2).