author: WINFREE, Justice.

text:
    Chris ROSAUER and Jeanne Rosauer, Appellants, v. Thomas MANOS ; Jody Liddicoat; and Greatland Tree Service, LLC, Appellees.
    Supreme Court No. S-16678
    Supreme Court of Alaska.
    March 8, 2019
    John W. Colver, Colver & McMillan, LLC, Anchorage, for Appellants.
    Timothy J. Lamb and Whitney L. Traeger, Delaney Wiles, Inc., Anchorage, for Appellees Thomas Manos and Jody Liddicoat.
    Kenneth M. Gutsch, Richmond & Quinn, Anchorage, for Appellee Greatland Tree Service, LLC.
    Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices. [Maassen, Justice, not participating.]
   WINFREE, Justice.

I. INTRODUCTION

Homeowners had trees removed from a municipal right-of-way across the road from their home, only obtaining a required permit several months later. Neighbors, whose property abutted the right-of-way and whose house had been behind the removed trees, sued the homeowners and the tree-removal company for damages. The superior court granted summary judgment to the homeowners and the tree-removal company, concluding that the municipality's subsequent permit approving the tree removal negated the neighbors' claim. The neighbors appeal. Because we agree that the municipality's subsequent permit effectively conferred lawful authority to cut the trees, we affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

The material facts of this case are undisputed. Chris and Jeanne Rosauer own a home and underlying property in Girdwood across the municipal roadway from a home and underlying property owned by Thomas Manos and Jody Liddicoat (collectively Manos). The Municipality of Anchorage owns a right-of-way between the Rosauers' property and the municipal roadway.

In August 2015 Manos hired Greatland Tree Service, LLC to remove several cottonwood trees within the municipal right-of-way in front of the Rosauers' property. The Anchorage Municipal Code requires private entities to obtain a permit for the "use" of municipal rights-of-way, including tree removal. Neither Manos nor Greatland obtained a permit before the tree removal, but Greatland later obtained a permit in October.

In April 2016 the Rosauers sued Manos and Greatland, seeking damages under Alaska's timber-trespass statute, AS 09.45.730, which provides, in relevant part: "A person who without lawful authority cuts down, girdles, or otherwise injures or removes a tree, timber, or a shrub on the land of another person or on the street or highway in front of a person's house ... is liable to the owner of that land." The next month Chris Rosauer asked the Municipality to invalidate the permit issued to Greatland. The Municipality denied Rosauer's request, explaining in a permit-inspection report that the trees had been located on a "right of way and not on private property" and that their removal benefitted the Municipality by "improv[ing] maintenance, snow removal, and access to [a] drainage ditch." The report concluded that the Municipality "will not permit the replacement of the trees in the same location." Rosauer did not further administratively challenge the permit.

All parties sought summary judgment on the Rosauers' claims. The motions raised two issues under the statute: whether the retroactive permit negated the requirement that removal be "without lawful authority" and whether the Rosauers could bring a claim under the statute even though they did not own the land from which the trees were removed.

Manos, joined by Greatland, argued that, because the statute does not specify when authority must be obtained, the retroactive permit constituted "lawful authority." The Rosauers countered that, although the statute is silent on timing, the Anchorage Municipal Code requires that a permit be obtained before removing trees from a right-of-way. Manos responded that the code allows the Municipality to waive "any breach of any of the terms or conditions of a permit" and that such terms and conditions include the requirement for obtaining a permit before tree removal. According to Manos, the retroactive permit acted as a waiver of the prior-authorization requirement.

Manos also argued that the Rosauers lacked standing to bring a claim under AS 09.45.730 because they did not own the land from which the trees were removed. Manos interpreted the condition "liable to the owner of that land" to grant a cause of action only to the owners of land from which trees are removed. The Rosauers responded that Manos seemed to ignore the second condition - "or on the street or highway in front of a person's house" - and that the term "owner of that land" also applies to homeowners whose property abuts a street or highway from which trees are removed, thus granting them a cause of action.

The superior court granted summary judgment to Manos and Greatland. The court stated that to "prevail under AS 09.45.730 Plaintiffs are required to show Defendants cut down a tree on the street in front of their house without lawful authority." The court concluded that the retroactive permit conferred lawful authority, negating the Rosauers' claim: "Defendants did not have lawful authority to cut the trees at the time they were cut, but gained lawful authority before this suit was filed, nullifying any cause of action Plaintiffs may have had."

The Rosauers appeal.

III. STANDARD OF REVIEW

"We review a grant of summary judgment de novo, 'affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.' " "In conducting de novo review, we will 'adopt the rule of law that is most persuasive in light of precedent, reason, and policy.' " "Statutory interpretation is also a question of law, which we review de novo." "Ordinary principles of statutory interpretation apply" to municipal ordinances. "We apply our independent judgment to the interpretation of a statute that does not 'implicate an agency's special expertise or determination of fundamental policies.' " "In questions of law involving the agency's expertise, a rational basis standard will be applied and we will defer to the agency's determination so long as it is reasonable."

IV. DISCUSSION

We begin with the question whether the Municipality's retroactive permit constituted lawful authority negating the Rosauers' claim under AS 09.45.730, because the answer decides this case's outcome. The Rosauers seize on the superior court's statement that a valid claim "accrued" on the date the trees were removed, and they suggest that the court prematurely foreclosed adjudication of a valid claim by concluding that the subsequent permit conferred lawful authority. But the Rosauers plainly misconstrue the superior court's ruling, that the permit invalidated their claim by depriving it of the element of unlawfulness.

Manos and Greatland are correct that AS 09.45.730 does not specify when lawful authority must be obtained, and the Rosauers offer no evidence of contrary legislative intent; indeed, they conceded this point in their briefing on summary judgment. The Rosauers instead rely on the Anchorage Municipal Code provision requiring a permit to be obtained prior to removing trees from a right-of-way. They assert that it was "outside of [the municipal agent's] authority" to issue a retroactive permit.

We have recognized "the general principle that municipalities may broadly delegate powers to municipal agencies or officers." Delegation promotes efficient government: As we have explained, "[w]ithout the power to delegate duty and discretion the affairs of [a municipality] could not be carried on." Whether an agency's actions accord with a legislative delegation depends on agency expertise and reasonableness: "In questions of law involving the agency's expertise, a rational basis standard will be applied and we will defer to the agency's determination so long as it is reasonable." The Anchorage Municipal Code delegates significant authority and discretion over public-use permits to the Department of Development Services:

The director of development services may attach to and make a part of the permit any special provisions and stipulations that he deems necessary to protect the public place ... or may specify methods, sequences of construction and materials and other pertinent items, or may require that the applicant enter into an agreement with the municipality which shall contain such provisions and stipulations that he deems necessary.[ ]

This provision broadly entrusts decisions regarding the safe and efficient use of public spaces to the Department. Authority to grant retroactive permits, with terms and conditions necessary to protect the public interest, is consistent with such a policy. Moreover, as the provision granting the Department permitting authority shows, permitting decisions involve agency expertise on public safety issues. This is clearly illustrated by the permit at issue in this case. The subsequent permit-inspection report - created in response to Chris Rosauer's request that the permit be invalidated - noted that the tree removal "improve[d] maintenance, snow removal, and access to [a] drainage ditch." Consequently, at least based on the minimal record before us , the Department's decision to grant a retroactive permit in this case should be reviewed for reasonableness. We cannot say that it is unreasonable to interpret the municipal code provision authorizing waiver of permit terms and conditions to include waiver of the prior-authorization requirement. We therefore conclude that the retroactive permit was validly granted.

The retroactive permit conferred lawful authority for the tree removal. Because the Municipality's retroactive permit deprived the Rosauers of the requirement under AS 09.45.730 that removal be "without lawful authority," we do not reach the question of standing under the statute.

V. CONCLUSION

We AFFIRM the superior court's decision.

      Alaska Statute 09.45.730, Alaska's timber-trespass statute, allows a landowner to recover treble damages from a "person who without lawful authority cuts down ... a tree ... on ... the land of another person or on the street or highway in front of a person's house." The neighbors asserted that landowners covered by the statute include the owners of houses adjoining streets or highways from which trees are removed, even if they do not own the land underlying the trees.

      AMC 24.30.020 (2018) (requiring permit to "use any public place"); AMC 24.30.010 (defining "public place" to include rights-of-way and "use" to include tree removal).

      Alaska Statute 09.45.730 is titled "Trespass by cutting or injuring trees or shrubs." We referred to AS 09.45.730 in a past case as a "timber trespass" statute. Wiersum v. Harder , 316 P.3d 557, 559 (Alaska 2013).

      See AMC 24.30.020(A) ("It is unlawful for anyone to use any public place ... without first having applied for and obtained a permit ....").

      AMC 24.30.280.

      Kelly v. Municipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012) (quoting Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134, 138 (Alaska 2008) ).

      State, Div. of Elections v. Green Party of Alaska , 118 P.3d 1054, 1059 (Alaska 2005) (quoting Guin v. Ha , 591 P.2d 1281, 1284 n.6 (Alaska 1979) ).

      Madonna v. Tamarack Air, Ltd. , 298 P.3d 875, 878 (Alaska 2013).

      S. Anchorage Concerned Coal. Inc. v. Municipality of Anchorage Bd. of Adjustment , 172 P.3d 768, 771 (Alaska 2007).

      Municipality of Anchorage v. Suzuki , 41 P.3d 147, 150 (Alaska 2002) (quoting Cissna v. Stout , 931 P.2d 363, 366 (Alaska 1996) ).

      Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1231 (Alaska 2003).

      See supra notes 2 and 4.

      Stevens v. State, Alcoholic Beverage Control Bd. , 257 P.3d 1154, 1157 (Alaska 2011).

      Municipality of Anchorage v. Anchorage Police Dep't Emp. Ass'n , 839 P.2d 1080, 1084 (Alaska 1992) (quoting City of Anchorage v. Richardson Vista Corp. , 242 F.2d 276, 285 (9th Cir. 1957) (second alteration added)).

      Alyeska Pipeline Serv. Co. , 77 P.3d at 1231.

      AMC 24.30.120(A).


source: Caselaw Access Project

license: Public Domain

text:
    Desmond E. SCHACHT, Appellant, v. Terry KUNIMUNE, Appellee.
    Supreme Court No. S-16964
    Supreme Court of Alaska.
    March 15, 2019
    Robert M. Libbey, Robert M. Libbey Law Office, Anchorage, for Appellant. David W. Pease, Burr, Pease & Kurtz, PC, Anchorage, and D. Jason Davis, Davis Law Group, PLC, Pacific Palisades, California, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, and Carney, Justices. [Maassen, Justice, not participating.]
   WINFREE, Justice.

I. INTRODUCTION

A son opened joint checking and savings accounts with his father. A few years later the son was injured in a car accident, settled his claim against the other driver, and deposited the settlement check into his joint savings account. A creditor of the father later levied the joint accounts and obtained approximately $ 90,000-essentially all of it traceable to the son's settlement money-in partial satisfaction of the creditor's judgment against the father. The son intervened in the collection action, arguing that the money should be returned to him because he was the equitable owner of the funds in the accounts.

After the superior court's evidentiary hearing on the son's claims, but before the court issued its ruling, the son sent a letter asking the court to consider AS 13.33.201 - .227 as supplemental legal authority. The cited statutes provide that, in a dispute between joint account owners and creditors and absent clear and convincing evidence to the contrary, the funds in a joint account generally belong to the owners in accordance with their net contributions to the account. Without mentioning the statutes the son cited, the superior court subsequently held by a preponderance of the evidence that the creditor could levy the joint accounts in their entireties because the financial institution's account agreement the father and son signed provided that they each owned the accounts "jointly and equally ... regardless of their net contributions."

We vacate the superior court's decision and remand for further proceedings because we conclude that: (1) the son did not waive his argument regarding AS 13.33.211's applicability; (2) the statute applies to determine the ownership interests of joint account owners in a dispute involving a third-party creditor; and (3) the correct standard of proof was not applied and the requisite statutory findings were not made.

II. FACTS AND PROCEEDINGS

A. The Joint Bank Accounts

In July 2013 Desmond Schacht opened joint checking and savings accounts with his father, Kenneth Schacht, at Alaska USA Federal Credit Union. Desmond signed Alaska USA's Master Joint Account Agreement as the "member" on the accounts, and Kenneth signed as the "joint owner." Under the Agreement only the "member" was permitted to "add, remove[,] or change the status of other joint owners after compliance with applicable Credit Union procedures." The Agreement did not otherwise provide that the member and joint owner would have different rights with respect to the accounts. Regarding account ownership, the Agreement provided:

[T]he member and other joint owners agree that all sums now paid on any account, or which may be paid in on such accounts in the future, by any or all of the joint owners to their credit as such joint owners, together with all earnings and other additions, are and shall be owned by them jointly and equally with right of survivorship regardless of their net contributions.... All accounts covered by this agreement shall be subject to withdrawal or receipt by any of the joint owners , regardless of their net contributions, and payment to any of them ... shall be valid and shall discharge the Credit Union from any further liability for such payment. (Emphases added.)

In August 2016 Desmond was injured in a car accident when another driver crossed into his lane. He settled his claim against the other driver, and in April 2017 he received a $ 126,000 settlement check. He deposited the money in his joint savings account that same month. Immediately before the deposit, the joint savings account's balance was $ 0 and the joint checking account's balance was $ 18.27.

B. Creditor's Lawsuit Against Kenneth

Terry Kunimune and Kenneth met in September 2011 in California to discuss a possible joint business venture in Alaska. Apparently, Terry loaned Kenneth $ 120,000 in January 2012, and Kenneth signed a promissory note agreeing to repay Terry the full loan amount by December 31, 2012.

In March 2014 Terry sued Kenneth in California for breach of contract, requesting the entire principal balance plus interest, attorney's fees, and costs. Kenneth never participated in that case. In June 2016 the California court entered a default judgment in the amount of $ 161,517-the amount of principal, pre-judgment interest, and allowable court costs. Post-judgment interest began accruing at the rate of 10% yearly.

Terry filed his California judgment in the Anchorage superior court in May 2017. He then obtained a writ of execution for $ 179,463.75-the amount of the original judgment plus post-judgment interest and costs. In July 2017 Terry served the writ on Alaska USA, and Desmond and Kenneth's joint bank accounts were levied in the amount of $ 89,297.13 in partial satisfaction of Terry's judgment. That same day Desmond removed Kenneth as a joint account owner.

C. Desmond's Intervention In The Creditor's Lawsuit

Following the levy Desmond filed a request for bond and hearing pursuant to AS 09.35.130. Desmond then filed a third-party claim and affidavit of ownership stating that he was the "sole equitable owner" of the funds in the joint bank accounts that had been levied. The superior court held an evidentiary hearing over two days in October and November 2017 to consider Desmond's claims.

Kenneth testified that he opened joint accounts with Desmond to help him "manage his account[s]" and so that Kenneth could easily make deposits to help Desmond with his expenses. Kenneth believed when they set up the accounts that he would have to go to a bank branch to transfer money if he were not a joint owner. Kenneth testified that he never had a debit card or checks associated with the joint accounts, set up online access for the accounts, or received monthly account statements. He claimed he did not consider himself the owner of the funds in the joint accounts.

Desmond's testimony was consistent with his father's. Desmond testified that he opened the joint accounts with the understanding that they would "provid[e] easy access for funds to be transferred to [his] account[s]" by his father "for [his] support." Desmond said his understanding was that any amounts deposited into his checking account by his father were "intended for [him]," and he had "no obligation to pay [the money] back." Desmond also stated that he did not know about the judgment against his father or his father's business dealings with Terry.

At the close of the evidentiary hearing, the superior court took the matter under advisement, noting it would research legal authority relating to a creditor's garnishment of jointly held property. One week after the hearing, but before the court had ruled on Desmond's claims, he sent the court a letter, pursuant to Alaska Civil Rule 77(l ), citing supplemental authorities for the court to consider regarding a third-party creditor's rights against a non-debtor joint owner of a bank account. Desmond cited AS 13.33.201 - .227, probate code sections applying to single- and multiple-party accounts. This was the first time Desmond had specifically argued that AS 13.33.201.227 applied to this dispute. Terry did not respond to the letter.

The superior court issued its findings of fact and conclusions of law in December 2017. Although it stated that "Desmond had contributed essentially all of the funds seized from the two joint accounts as a result of his settlement check," the court applied the preponderance of the evidence standard and held that the Agreement controlled the dispute. Because the Agreement provided no limitations on Kenneth's ownership or ability to access funds in the accounts, the court held that "Terry, as [Kenneth's] creditor, stands in no worse position with regard to the joint account[s] and may garnish up to the entire amount of the funds." The court concluded that Kenneth could not, in an "attempt to limit Terry's rights as [Kenneth's] creditor," "claim a lesser interest in the joint account[s]" than the Agreement provided.

Desmond filed a motion under Alaska Civil Rule 52(b) requesting that the superior court amend its findings. He made "specific objection[s]" to the findings of fact and conclusions of law that he thought were inconsistent with AS 13.33.211. The court denied the motion.

Desmond also filed a reconsideration motion, arguing that an American Law Reports article the court cited in its conclusions of law supported his position that he was the equitable owner of the funds. The superior court denied Desmond's reconsideration motion without explanation.

Desmond appeals.

III. STANDARD OF REVIEW

"We review de novo questions of law, including the interpretation of a statute, adopting the rule of law most persuasive in light of precedent, reason, and policy."

IV. DISCUSSION

A. Desmond Preserved His Argument That AS 13.33.211 Applies.

Terry argues that Desmond forfeited his argument that AS 13.33.211 applies to this dispute by failing to raise it before the superior court. Terry correctly notes that Desmond referenced the statute for the first time in a letter citing supplemental authorities-sent pursuant to Rule 77(l ) -after the evidentiary hearing had concluded. Terry argues that Desmond's letter was improper, alleging that it was not sent in connection with a motion as required under Rule 77(l ). Terry also contends that the arguments in Desmond's motion requesting amendment of the superior court's findings and his motion for reconsideration were untimely.

We reject Terry's contention that Desmond's letter was not permitted by Rule 77(l ). The rule permits parties to provide the superior court supplemental legal authority relating to a previously filed memorandum or to a point made at oral argument. Desmond's letter provided supplemental authority relating to both previous memoranda he had filed and points he had made at the evidentiary hearing. We therefore must conclude that Desmond has not forfeited his argument that AS 13.33.211 applies to this dispute. Forfeiture rules are based on the principle that it is unfair to the trial court and unjust to the opposing litigant for an appellate court to rule on a ground that was not presented below. In this case there is no such unfairness or injustice. Desmond's Rule 77(l ) letter alerted the superior court to the statute's existence before the court issued its findings of fact and conclusions of law. Because Terry was permitted to respond to Desmond's letter and the superior court was able to consider the statute before ruling on his claims, he properly raised the argument before the superior court. This also resolves Terry's contentions that Desmond's arguments in his post-judgment motions were untimely.

B. Alaska Statute 13.33.211 Governs The Ownership Interests Of Joint Account Owners In A Dispute With A Third-Party Creditor.

Desmond's principal argument is that the superior court erred by not applying AS 13.33.211 to find that he was the equitable owner of the funds in the account and ordering Terry to return the money. We first consider whether the statute applies to this case. "In interpreting a statute we 'look to the plain meaning of the statute, the legislative purpose, and the intent of the statute.' " We apply a sliding-scale approach where "[t]he plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be" to rebut that meaning. For a statute based on a uniform act, official comments are "of persuasive assistance" in interpreting the act, but are not "controlling."

Alaska Statute 13.33.211(a) provides that, "[d]uring the lifetime of all parties, an account belongs to the parties in proportion to the net contribution[ ] of each to the sums on deposit, unless there is clear and convincing evidence of a different intent." The statute defines "account" as a "contract of deposit between a depositor and a financial institution" and includes "multiple-party account[s]," which are "account[s] payable on request to one or more of two or more parties whether or not a right of survivorship is mentioned." Desmond and Kenneth's joint accounts were "accounts" under AS 13.33.201 because they were "contract[s] of deposit between" them and Alaska USA that were "payable on request to" either of them. The statute applies to disputes between the joint account owners and their creditors, but not to disputes between account owners or between account owners and their financial institution.

After examining the statute's plain language, we conclude that the statute applies to determine the ownership of joint account funds in disputes, such as the one in this case, between a creditor and an owner of a joint bank account. Consistent with our precedent, the statute implicitly recognizes a distinction between account ownership and ownership of the money in an account. The statute contemplates that some "accounts" will be payable to more than one owner, yet it still provides that in a dispute between account owners and a creditor those accounts "belong[ ] to [the account owners] in proportion to the net contribution of each," absent "clear and convincing evidence" that the owners had a different intent. "[B]elongs to" in this context refers to equitable, not legal, ownership of the funds in an account.

This interpretation is also compelled by AS 13.33.206's limitation on subsection .211's scope and our reluctance to adopt "statutory constructions that reach absurd results." Alaska Statute 13.33.206 provides that subsection .211's provisions concerning the beneficial ownership of joint accounts "apply only to controversies between [beneficial account owners] and their creditors and other successors." (Emphasis added.) Subsection .211 does not determine a joint account owner's rights against a co-owner or against a financial institution. It consequently is difficult to imagine cases in which subsection .211 would apply if not for disputes, like this one, between a joint account owner and a creditor. Interpreting the statute to not apply to this situation risks turning it into a nullity.

We note that, although this is an issue of first impression for us, distinguishing between the legal and equitable interests of joint bank account owners is consistent with the majority practice of courts around the country and with existing Alaska law. We have identified appellate courts in at least 29 states that have made such a distinction. In 12 states, appellate courts have applied their versions of the Uniform Multiple-Person Accounts Act to determine a creditor's right to garnish funds from joint bank accounts. In another 17 states, appellate courts have applied common law principles or other state statutes to allow joint account owners to establish their equitable ownership of joint account funds in response to a creditor's garnishment action.

The State already has interpreted AS 13.33.211 to apply to actions in which the Department of Revenue, Child Support Services Division seizes joint bank accounts to satisfy past-due child support obligations. In those situations, the Division "apportion[s] money among the joint owners in accordance with AS 13.33.211." Differentiating between legal and equitable ownership of the funds in joint accounts is also consistent with Alaska cases recognizing that it is possible for a joint owner of property to commit a crime if that owner infringes on another owner's interest in the property. Those cases implicitly recognize that legal title does not conclusively establish an owner's right to exercise the entire "bundle" of rights accompanying property ownership.

In summary, courts considering a challenge by a joint account owner to a creditor's levying of funds from a joint account presumptively must apply AS 13.33.211 and calculate the "net contributions" of each account owner to determine the amount of funds subject to levy. A creditor can, in turn, rebut the presumption that joint owners own the account in accordance with their net contributions by providing "clear and convincing evidence of a different intent."

C. We Remand To Allow The Superior Court To Make Findings Under The Correct Standard Of Proof.

Having determined that the superior court should have applied AS 13.33.211, we must vacate the court's conclusions and remand the case for appropriate findings and application of the correct legal standard. The superior court made all of its findings under the lower "preponderance of the evidence" standard, rather than the "clear and convincing" standard required by AS 13.33.211(a). And the court made no factual findings about Desmond's and Kenneth's intents as the statute requires. On remand the court should determine whether Terry established by clear and convincing evidence that Desmond's and Kenneth's intents rebutted AS 13.33.211(a)'s ownership presumption. In making findings about intent, the court should consider the parties' testimony about their intents, the Agreement, and any "extrinsic evidence regarding the parties' intent at the time the contract was made." "The extrinsic evidence that may be considered includes 'the language and conduct of the parties, the objects sought to be accomplished and the surrounding circumstances at the time the contract was negotiated,' as well as the conduct of the parties after the contract was entered into."

D. Desmond Did Not Waive AS 13.33.211's Application By Signing The Agreement, And The Legal Authority Terry Cites Is Distinguishable From This Case.

Terry appears to argue that-even if AS 13.33.211 applies-we can affirm the superior court's decision because (1) by signing the Agreement, Desmond waived any rights that AS 13.33.211 might have provided him, and (2) von Gemmingen v. First National Bank of Anchorage and several out-of-state cases require us to hold that the Agreement controls Desmond's and Kenneth's ownership interests in the joint accounts. We disagree for the reasons detailed below.

1. Desmond did not knowingly and voluntarily agree to waive AS 13.33.211's application by signing the Agreement.

Terry argues that parties to a contract can waive statutory protections, citing several Alaska cases in which he claims we found such waivers were valid and enforceable. He claims that Desmond waived any rights he may have had under AS 13.33.211 by signing the Agreement. Terry is correct that "parties may agree to waive statutory rights unless a question of public policy is involved, or where rights of third parties, which the statute was intended to protect, are involved." However such waivers "must be knowing and voluntary." We agree with Desmond that, if he did waive any rights, he did not do so knowingly; the Agreement does not reference AS 13.33.211, waiver, equitable ownership, or the rights of third-party creditors. And the cases Terry cites are not relevant to this dispute; in each case, a party or a party's representative agreed to waive statutory rights knowingly and voluntarily in the course of a negotiation.

2. The cases Terry cites requiring courts to look solely to account agreements to determine a debtor's ownership interest in an account are inapposite.

Terry contends that von Gemmingen stands for the proposition that an account agreement like the Agreement in this case determines a debtor's interest in a levied account. He also cites out-of-state cases that he contends stand for the same proposition. But von Gemmingen is distinguishable from this case. In von Gemmingen the accounts at issue were escrow accounts, not joint bank accounts, and there were no relevant statutory provisions, as there are here, dictating the parties' ownership interests in a dispute with creditors. More importantly, we recognized in von Gemmingen that "judgment debtors may not have a right to all of the money deposited to the account," and a "judgment creditor may attach only property actually owned by the judgment debtor." In this case a statute controls how a court should determine what property the judgment debtor "actually owns."

None of the out-of-state cases Terry cites in his brief supports his argument that an account agreement conclusively establishes owners' interests in a joint account. Wagner v. State stands for the opposite proposition; the Maryland Court of Appeals did find that an agreement controlled a dispute between co-owners, but it was an informal verbal agreement between co-owners about their intent in opening the account, not the formal account documents. The court in Wagner upheld the joint account owner's theft conviction because of unauthorized withdrawals from the account. In Signature Bank v. HSBC Bank USA, N.A. the New York Supreme Court Appellate Division upheld a creditor's right to levy an entire joint bank account, but only because the joint owners failed to "provid[e] direct proof that no joint tenancy was intended or substantial circumstantial proof that the joint account had been opened for convenience only." In New York joint account owners are permitted to provide extrinsic evidence to rebut an initial presumption that a joint account is a "joint tenancy." In the last case Terry cites, Fleet Bank Connecticut, N.A. v. Carillo , the Connecticut Supreme Court reached its result by relying on the state's bank protection laws, not the parties' account documents, and the case represents a minority position that we decline to follow.

E. We Decline to Determine The Correct Fund-Tracing Method.

Desmond also argues in his brief that, to determine a joint owner's "net contributions" under AS 13.33.211, we should adopt fund-tracing methods that Texas courts have used. Because the superior court found that Terry was entitled to levy all of the money in the joint accounts, it did not trace the funds in the accounts to determine Desmond's and Kenneth's respective ownership interests according to their net contributions. Accordingly, the issue of the correct fund-tracing method to use in these circumstances is not properly before us, and we decline to consider it.

V. CONCLUSION

The superior court's decision with respect to Desmond's ownership interest in the joint bank accounts is VACATED and this case is REMANDED for further proceedings consistent with this opinion.

      See AS 13.33.206, .211.

      AS 09.35.130 provides:
      If property levied upon is claimed by a third person as the person's property ... that person shall release the property. However, the plaintiff, on demand of the person, may give the person an undertaking executed by two sufficient sureties in a sum equal to double the value of the property levied upon.

      Alaska R. Civ. P. 77(l ) ("When pertinent authorities come to the attention of a party after the party's memorandum has been filed, or after oral argument but before decision, the party may promptly advise the court, by letter, with a copy to adversary counsel, setting forth the citations.").

      Alaska Statute 13.33.211(a) provides that, "[d]uring the lifetime of all parties, an account belongs to the parties in proportion to the net contribution of each to the sums on deposit, unless there is clear and convincing evidence of a different intent." It applies to "controversies between [account owners] and their creditors and other successors." AS. 13.33.206.

      Martha A. Churchill, Annotation, Joint Bank Account as Subject to Attachment, Garnishment, or Execution by Creditor of One Joint Depositor , 86 A.L.R.5th 527 (2001).

      Toliver v. Alaska State Comm'n for Human Rights , 279 P.3d 619, 622 (Alaska 2012) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275 (Alaska 2004) ).

      Alaska R. Civ. P. 77(l ).

      See Harvey v. Cook , 172 P.3d 794, 802 (Alaska 2007) ("[P]ermitting a party to claim error regarding a claim not raised and litigated below 'is both unfair to the trial court and unjust to the opposing litigant.' " (quoting In re Marriage of Walker , 138 Cal. App. 4th 1408, 1418, 42 Cal.Rptr.3d 325 (2006) )); 5 Am. Jur. 2d Appellate Review § 574 (2018) ("[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.").

      Rule 77(l ) provides that "[a]ny response must be made promptly."

      State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co. , 262 P.3d 593, 597 (Alaska 2011) (quoting Premera Blue Cross v. State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. , 171 P.3d 1110, 1115 (Alaska 2007) ).

      Id. (quoting Gov't Emp. Ins. Co. v. Graham-Gonzalez , 107 P.3d 279, 284 (Alaska 2005) ).

      Alaska Statutes 13.33.201 -.227 went into effect in 1996 as part of the Alaska legislature's enactment of the revised Uniform Probate Code. Ch. 75, § 13, SLA 1996. The section of the Uniform Probate Code that was enacted as AS 13.33.201 -.227 is also known as the Uniform Multiple-Person Accounts Act. See Unif. Probate Code §§ 6-201 to -227 ( Unif. Law Comm'n 1989).

      ABM Escrow Closing & Consulting, Inc. v. Matanuska Maid, Inc. , 659 P.2d 1170, 1172 (Alaska 1983) (quoting Morrow v. New Moon Homes, Inc. , 548 P.2d 279, 287 n.24 (Alaska 1976) ).

      "Net contribution" means
      the sum of all deposits to an account made by or for the party, less all payments from the account made to or for the party that have not been paid to or applied to the use of another party and a proportionate share of any charges deducted from the account, plus a proportionate share of any interest or dividends earned, whether or not included in the current balance.
      AS 13.33.211(d).

      AS 13.33.201(1).

      AS 13.33.203(a) ("An account may be for a single party or multiple parties. A multiple-party account may be with or without a right of survivorship between the parties.").

      AS 13.33.201(5).

      See AS 13.33.201(1), (5).

      AS 13.33.206 ("The provisions of AS 13.33.211 -13.33.216 concerning beneficial ownership as between parties or as between parties and beneficiaries apply only to controversies between those persons and their creditors and other successors....").

      See Unif. Probate Code § 6-211 cmt. ( Unif. Law Comm'n 1989) ("The section does not undertake to describe the situation between parties if one party withdraws more than that party is then entitled to as against the other party.... Rights between parties in this situation are governed by general law other than this part.").

      Id. (" 'Net contribution' as defined by subsection (a) has no application to the financial institution-depositor relationship.").

      See von Gemmingen v. First Nat'l Bank of Anchorage , 890 P.2d 60, 63 (Alaska 1995) (recognizing that "judgment debtors may not have a right to all of the money deposited to [an] account").

      See AS 13.33.203(a).

      See AS 13.33.211(a).

      See Unif. Probate Code § 6-211 cmt. (noting that this subsection reflects assumption that joint owners of a bank account "usually intend[ ] no present change of beneficial ownership" of funds in the account); see also Craig v. Hastings State Bank , 221 Neb. 746, 380 N.W.2d 618, 622-23 (1986) ("No reasonable person would attach a meaning for 'belongs to[ ]' ... other than 'to be the property of' a person." (quoting Webster's Third New International Dictionary, Unabridged 201 (1981))).

      Premera Blue Cross v. State, Dep't of Commerce, Cmty. &Econ. Dev., Div. of Ins. , 171 P.3d 1110, 1120 (Alaska 2007).

      Unif. Probate Code § 6-211 cmt. ("The section does not undertake to describe the situation between parties if one party withdraws more than that party is then entitled to as against the other party.").

      Id. (" 'Net contribution' as defined by subsection (a) has no application to the financial institution-depositor relationship.").

      See Premera Blue Cross , 171 P.3d at 1120 (declining to adopt interpretation of statute that would render statute "a nullity").

      See Harvey v. Harvey , 841 P.2d 375, 378 (Colo. App. 1992) ; Lamb v. Thalimer Enters., Inc. , 193 Ga.App. 70, 386 S.E.2d 912, 914 (1989) ; Browning & Herdrich Oil Co. v. Hall , 489 N.E.2d 988, 991-92 (Ind. App. 1986) ; Brown v. Commonwealth , 40 S.W.3d 873, 881-82 (Ky. App. 1999) ; Szelenyi v. Miller , 564 A.2d 768, 770-71 (Me. 1989) ; Enright v. Lehmann , 735 N.W.2d 326, 331 (Minn. 2007) ; Craig , 380 N.W.2d at 622-23 ; Alcantar v. Sanchez , 150 N.M. 146, 257 P.3d 966, 972 (N.M. App. 2011) ; Deutsch, Larrimore & Farnish, P.C. v. Johnson , 577 Pa. 637, 848 A.2d 137, 142-43 (2004) ; RepublicBank Dallas v. Nat'l Bank of Daingerfield , 705 S.W.2d 310, 311-12 (Tex. App. 1986) (interpreting prior Texas Probate Code Ann. § 438(a) (1979), which has been reenacted as Texas Estates Code Ann. § 113.102 (2012)); In re Estate of Maxfield , 856 P.2d 1056, 1059 (Utah 1993) ; Lewis v. House , 232 Va. 28, 348 S.E.2d 217, 219 (1986).

      See Amarlite Architectural Prod., Inc. v. Copeland Glass Co. , 601 So.2d 414, 416 (Ala. 1992) ; Hayden v. Gardner , 238 Ark. 351, 381 S.W.2d 752, 753 (1964) ; Tinsley v. Bauer , 125 Cal.App.2d 724, 271 P.2d 116, 121 (1954) ; Antuna v. Dawson , 459 So.2d 1114, 1116-17 (Fla. Dist. App. 1984) ; Traders Travel Int'l, Inc. v. Howser , 69 Haw. 609, 753 P.2d 244, 248 (1988) ; Highsmith v. Dep't of Pub. Aid , 345 Ill.App.3d 774, 281 Ill.Dec. 248, 803 N.E.2d 652, 657 (2004) ; Walnut Valley State Bank v. Stovall , 223 Kan. 459, 574 P.2d 1382, 1386 (1978) ; Morgan Stanley & Co. v. Andrews , 225 Md.App. 181, 123 A.3d 640, 650 (2015) ; Danielson v. Lazoski , 209 Mich.App. 623, 531 N.W.2d 799, 802 (1995) ; Delta Fertilizer, Inc. v. Weaver , 547 So.2d 800, 802-03 (Miss. 1989) ; Esposito v. Palovick , 29 N.J.Super. 3, 101 A.2d 568, 572 (1953) ; Jimenez v. Brown , 131 N.C.App. 818, 509 S.E.2d 241, 246 (1998) ; Baker v. Baker , 710 P.2d 129, 134 (Okla. Civ. App. 1985) ; Greenwood v. Beeson , 253 Or. 318, 454 P.2d 633, 636 (1969) ; Barrup v. Barrup , 198 Vt. 25, 111 A.3d 414, 422 (2014) ; Fireman's Fund Ins. Co. v. Nw. Paving & Const. Co. , 77 Wash.App. 474, 891 P.2d 747, 749-50 (1995) ; Hancock v. Stockmens Bank & Tr. Co. , 739 P.2d 760, 762-63 (Wyo. 1987).

      See 15 Alaska Administrative Code 125.463(f) (2018).

      Id.

      See Hughes v. State , 56 P.3d 1088, 1094 (Alaska App. 2002) (affirming defendant's conviction for criminal mischief for damaging the property of another even though the defendant was the co-owner of the property at issue); LaParle v. State , 957 P.2d 330, 333-34 (Alaska App. 1998) (affirming defendant's conviction for theft of marital assets); cf. State v. Gagne , 165 N.H. 363, 79 A.3d 448, 456 (2013) ("The fact that the defendant did not need the victim's permission in order to withdraw funds from the account, however, does not mean that the defendant was privileged to appropriate the victim's interest in those funds.").

      63C Am. Jur. 2d Property § 1 (2018) (footnotes omitted) ("A common idiom describes property as a 'bundle of sticks,'-a collection of individual rights which, in certain combinations, constitute property, and which ... can be divided in terms of dimension, duration, and scope.").

      AS 13.33.211(d).

      AS 13.33.211(a).

      See Roberson v. Manning , 268 P.3d 1090, 1093 (Alaska 2012) (vacating and remanding because "additional findings of fact [we]re required to correctly apply the law"); cf. Veselsky v. Veselsky , 113 P.3d 629, 634 n.16 (Alaska 2005) ("We have held that the trial court, not this court, is in the best position to judge witnesses' credibility and evaluate their testimony.").

      See AS 13.33.211(a) (providing that "an account belongs to the parties in proportion to the net contribution of each ... unless there is clear and convincing evidence of a different intent").

      Fairbanks N. Star Borough v. Tundra Tours, Inc. , 719 P.2d 1020, 1024 (Alaska 1986) (citing Norton v. Herron , 677 P.2d 877, 879-80 (Alaska 1984) ).

      Nautilus Marine Enters., Inc. v. Exxon Mobil Corp. , 305 P.3d 309, 316 (Alaska 2013) (quoting Peterson v. Wirum , 625 P.2d 866, 870 n.7 (Alaska 1981) ).

      890 P.2d 60 (Alaska 1995).

      See Ramsey v. City of Sand Point , 936 P.2d 126, 130 (Alaska 1997) (quoting 17A Am. Jur. 2d Contracts § 256, at 259-60 (1991) ).

      Deptula v. Simpson , 164 P.3d 640, 644 (Alaska 2007) ; see also Ramsey , 936 P.2d at 130 (describing waiver as "the intentional relinquishment of a known right" (quoting Milne v. Anderson , 576 P.2d 109, 112 (Alaska 1978) )).

      See Ramsey , 936 P.2d at 130-31 (upholding police chief's agreement to waive statutory "just cause" termination protections in exchange for six months of severance pay); Deptula , 164 P.3d at 645 (holding that home buyer's waiver of statutory disclosure rights pursuant to "unambiguous" waiver agreement was valid and enforceable); Blackburn v. State, Dep't of Transp. & Pub. Facilities , 103 P.3d 900, 905 (Alaska 2004) (holding that union's waiver of member's statutory arbitration rights in collective bargaining agreement was valid and enforceable).

      890 P.2d at 64.

      See id. at 63.

      Id.

      Id.

      See 445 Md. 404, 128 A.3d 1, 19 (2015) ("[T]he titling of the Account, listing Father and Wagner as 'joint owners,' did not create an ownership interest in the funds in the Account, as Father and Wagner agreed that the funds belonged to Father.").

      Id. at 20.

      67 A.D.3d 917, 889 N.Y.S.2d 242, 244 (2009) (quoting Fragetti v Fragetti , 262 A.D.2d 527, 692 N.Y.S.2d 442, 443 (1999) ).

      See Viggiano v. Viggiano , 136 A.D.2d 630, 523 N.Y.S.2d 874, 875 (1988) (holding that account was a "convenience account" because owner rebutted presumption that joint account was intended).

      240 Conn. 343, 691 A.2d 1068, 1072 (1997).

      See Morgan Stanley & Co. v. Andrews , 225 Md.App. 181, 123 A.3d 640, 647 n.8 (2015) (declining to follow Fleet Bank as "an outlier with respect to garnishability of jointly[ ]titled accounts").

      Cf. Nelson v. Municipality of Anchorage , 267 P.3d 636, 645 (Alaska 2011) (holding that plaintiff's claim was not ripe for review because he had not yet litigated his claim below).


author: MAASSEN, Justice.

text:
    In the MATTER OF the Necessity for the Hospitalization of CONNOR J.
    Supreme Court No. S-16847
    Supreme Court of Alaska.
    March 22, 2019
   MAASSEN, Justice.

I. INTRODUCTION

The superior court issued a 30-day involuntary commitment order after finding that the respondent was gravely disabled and there were no less restrictive alternatives to hospitalization. The respondent appeals, arguing that it was plain error to find he waived his statutory right to be present at the commitment hearing, that it was clear error to find there were no less restrictive alternatives, and that the commitment order should be amended to omit a finding that he posed a danger to others, a finding the superior court meant to reject.

We conclude that it was not plain error to find that the respondent waived his presence at the hearing. We further conclude that it was not clear error to find that there were no less restrictive alternatives to a 30-day hospital commitment. However, because there is no dispute that the "danger to others" finding should not be included in the commitment order, we remand for issuance of a corrected order.

II. FACTS AND PROCEEDINGS

A. Petitions For Evaluation, 30-Day Commitment, And Medication

Connor J. was living at Covenant House, an Anchorage shelter for homeless youth, when his psychiatric condition allegedly began to deteriorate. A social worker at Southcentral Foundation filed a petition in superior court seeking authority to hospitalize Connor for evaluation. The petition alleged that Connor was "exhibiting increasing[ly] more bizarre and disturbing behavior," that he was "hearing and responding to auditory hallucinations," and that he was exhibiting "persecutory delusions." It alleged that Connor believed he had "planned and carried out the '9/11' attacks," that the government was "monitoring him," and that staff were "out to get him." It noted that Connor had a history of suicidal thoughts; that he had been diagnosed at various times with depression, anxiety, post-traumatic stress disorder, and oppositional defiant disorder ; and that he had been treated for mental illness in the past at a hospital and several counseling centers.

On the basis of the petition and supporting medical records, the superior court ordered that Connor be transported to Alaska Psychiatric Institute (API) for an evaluation. A few days later API filed a petition for 30-day commitment and a petition for approval to administer medication without Connor's consent. The commitment petition again described Connor's delusions and paranoia and alleged that he was gravely disabled as a result of mental illness. The medication petition alleged that Connor was incapable of giving or withholding informed consent to the administration of a necessary psychotropic drug.

B. Proceedings Before The Master

The Public Defender Agency was appointed to represent Connor at the hearing, and his lawyer and the State stipulated to a one-day continuance to "allow consultation." The hearing was held on August 10, 2017, before a standing master. Also present at the start of the hearing were the State's attorney, Connor's attorney, and the State's witness, Gerald Martone, a psychiatric nurse practitioner who treated Connor at API. Connor was not present, but Martone told the master that he would be coming. Someone-apparently Connor's attorney-responded, "Oh, he wants ... he wants to come down? Okay." The master addressed a few preliminary matters, after which Martone said, "Can I just call and find out what ..."; and the State's attorney completed the thought: "what the status is? Sure." When Martone returned, he reported, "He has declined to ..."; and Connor's attorney responded, "All right, that was my understanding."

The master then stated, "As I understand it, the patient has declined to be present at the hearing." Neither party objected or otherwise challenged this statement, and the hearing proceeded. It was interrupted partway through when Connor called the courtroom on the telephone. The master gave Connor's counsel "a break ... to speak with him." When the hearing resumed, the only further mention of Connor's presence or absence was his counsel's statement near the end of the hearing that "he's not here in person."

The State called only Martone to testify in support of the petition for a 30-day commitment. Martone was qualified as an expert in the field of psychiatry and testified that he had the opportunity, as Connor's direct provider, to observe and evaluate his behavior. Martone testified that he diagnosed Connor with "unspecified psychosis" because he had "very paranoid delusions," "appear[ed] to be responding to hallucinations," was "unable to judge what is real and what is not real," at times appeared catatonic, and would get very angry and agitated without warning. He explained that Connor in the past had "plucked out all his eyebrows and eyelashes," believed one of his teeth was "a transmitter to the FBI," and had "been trying to pull his own tooth out." Martone testified that Connor remained "very paranoid and delusional," had a "fixed belief that he was in the back of the plane on September 11th and [was] culpable in the Trade Center attacks," often looked away as if reacting to hallucinations, and said "weird" and incomprehensible things.

Martone testified that he did not believe Connor could provide for himself outside the hospital setting. He testified that Connor could be treated on an outpatient basis "[i]f he took medications" but that Connor had refused to do so. He testified that he had tried to talk to Connor about outpatient treatments but had to break off the conversation and leave the room because of Connor's anger and hostility.

According to Martone, Connor would benefit from a continued stay at API because "[h]is lifetime prognosis would be greatly improved if he's assertively treated"-meaning if he was administered medication. But he also testified that Connor would improve from treatment at API even without medication because "a structured safe setting, no access to drugs, and a predictable routine would be helpful to him," clarifying that the setting and routine were "supportive" while only medication was "remedial."

The master made oral findings on the record at the close of the commitment phase of the hearing. Her first finding was that "the patient's waived his presence." No one objected, and the master did not expand on the issue. The master then found by clear and convincing evidence that Connor suffered from a mental illness-an "unspecified psychosis"-that made him gravely disabled, and that his "severe and abnormal mental disorder ... [or] distress ... is associated with significant impairment of judgment, reason, or behavior [which] causes a substantial deterioration of [his] previous ability to function independently." The master also found that there was "not a less restrictive placement at this time."

The proceeding then turned to the issue of the involuntary administration of medication; a court visitor and Martone both testified. The master again placed her decision on the record, finding insufficient evidence that Connor was incapable of giving informed consent. She noted, however, that because "it sounds like there was some difficulty in communicating with the patient today ... [,] [she was] going to deny the petition for medication without prejudice," and that it might be appropriate for API to refile the petition "after the patient is really given all of the necessary information about the risks [and] benefits of the medication."

C. Superior Court Orders

The master issued written proposed orders consistent with her oral findings, recommending that the superior court grant the petition for 30-day commitment and deny the medication petition. The written order also made a finding that Connor's "assaultive conduct toward Mr. Martone" made it likely that he would "cause serious harm to others," and it made that finding one of the bases for commitment. The superior court signed the proposed orders without modification. In a subsequent order, however, "[a]fter reviewing the whole hearing," the court expanded on its reasoning and specifically addressed written objections Connor had made to the master's oral findings on the 30-day commitment. Citing In re Hospitalization of Stephen O. , the court first concluded that the State had proved by clear and convincing evidence that Connor was gravely disabled because he "could not live safely outside of a controlled environment, and had a condition of mental illness that, if left untreated, would cause him to suffer significant impairment of judgment, reason, or behavior." The court noted that the master was not able to personally observe Connor because he waived his presence, citing Connor's statutory right to remain silent under AS 47.30.735(b)(8). The court stated that it would "not adopt" the finding that Connor was a danger to himself or others, because the State had not alleged that as a basis for its petition. Finally, the court concluded that there were no less restrictive treatment alternatives to hospitalization, relying on Martone's testimony that Connor's psychosis would improve even without medication if he was "provided a structured setting, no access to drugs[,] and a routine." The court found that the Brother Francis Shelter was Connor's only alternative for shelter because he was barred from returning to Covenant House and that placement at the Brother Francis Shelter would "not provide the structured, drug[-]free[,] and routine environment necessary to help [Connor]."

Connor appeals. He challenges the finding that he waived his statutory right to be present at the commitment hearing, the finding that there was no less restrictive alternative to hospitalization, and the court's failure to amend the commitment order to correctly reflect its later rejection of the "harm to himself or others" finding.

III. STANDARD OF REVIEW

" 'Factual findings in involuntary commitment or medication proceedings are reviewed for clear error,' and we reverse those findings only if we have a 'definite and firm conviction that a mistake has been made.' " "Whether those findings meet the involuntary commitment and medication statutory requirements is a question of law we review de novo."

We review issues raised for the first time on appeal for plain error.

IV. DISCUSSION

A. It Was Not Plain Error To Find That Connor Waived His Right To Be Present At The Commitment Hearing.

By statute, a person who is the subject of a petition for an involuntary 30-day commitment has the right to be present at the commitment hearing. The statute further provides:

[T]his right may be waived only with the respondent's informed consent; if the respondent is incapable of giving informed consent, the respondent may be excluded from the hearing only if the court, after hearing, finds that the incapacity exists and that there is a substantial likelihood that the respondent's presence at the hearing would be severely injurious to the respondent's mental or physical health.[ ]

The master found that Connor waived his right to attend the hearing based apparently on the representation of Connor's counsel that that is what her client wanted. But the master made no findings about whether the waiver was based on "informed consent." Connor contends this was error: that the superior court should have inquired into, and made findings about, the basis for Connor's apparent waiver. We do not need to decide whether this was error, but we assume it was for purposes of the following discussion.

Connor observes correctly that we subject the waiver issue to "plain error" review because he did not object at the time. "A plain error involves an 'obvious mistake' that is 'obviously prejudicial.' " Connor contends that both prongs of the plain error test are met. He asserts that the mistake was obvious because the wording of AS 47.30.735 is clear and yet the court made no inquiry into the basis for his waiver. And he asserts that the "obvious prejudice" prong is met because if he had been present "he would have had the opportunity to assist his attorney in challenging the petition, either in providing information that might have helped his attorney present evidence or cross-examine Martone or-more importantly-through the opportunity to testify on his behalf," which may "have resulted in a different outcome."

But we cannot conclude that the assumed error was either obvious or obviously prejudicial. We have not had occasion to explore the requirements of AS 47.30.735(b)(1), nor have we delineated a procedure for complying with it. The statute itself requires the court to make specific findings about the respondent's incapacity "if the respondent is incapable of giving informed consent," but it does not tell the court what to do if the respondent is capable of giving informed consent. Here, with regard to the administration of medication, the master concluded that the evidence did not support a finding that Connor was "[in]capable of giving informed consent"; the superior court adopted this finding, and neither party appealed it. Although Connor appears to argue on appeal that the court should have made findings about his capability, he notably does not argue that an inquiry would have reached a different conclusion with regard to waiving his presence than it did with regard to consenting to medication.

While the statute's requirement of "informed consent" is indeed clear, a court in most civil contexts may justifiably assume that a lawyer who waives a client's right has the client's informed consent to do so. This assumption arises in part from attorneys' professional duties. Rule 1.4(a) of the Alaska Rules of Professional Conduct requires an attorney to "explain a matter [to the client] to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 1.4(b) requires more specifically that the attorney "promptly inform the client of any decision or circumstance that requires the client's informed consent" and "refrain from taking binding action on the matter" until informed consent has been given. Courts may generally assume that attorneys are aware of and complying with these professional duties, absent evidence to the contrary.

Here, the master was not made aware of any "evidence to the contrary." Connor does not point to anything in the record suggesting that his counsel did not comply with her professional duties; rather, the record supports the conclusion that she consulted with Connor about the issues pertinent to the hearing and that he made an informed decision to waive his presence. The hearing was continued for a day to "allow consultation," which is not otherwise explained but reasonably implies an attorney-client meeting about the impending proceedings. At the outset of the next day's hearing, the audio record appears to show Connor's counsel's surprise that her client "want[ed] to come" to the hearing, given her "understanding" that he did not wish to be present. The master was there to observe counsel's reaction to this news. When the master noted later that Connor had "declined to be present at the hearing," his counsel did not object, question her client's capability of giving informed consent, or otherwise challenge the master's understanding. The hearing proceeded in Connor's absence until it was interrupted by his telephone call, and the court recessed to allow him another opportunity to consult with his attorney. The hearing then resumed, again in Connor's absence and again without objection. And when the master made an essential finding of fact at the close of the commitment hearing that Connor had "waived his presence," his counsel again raised no objection and made no request for further findings about her client's capability.

Given this factual setting, the attorney's duties to her client, the express statutory requirement of a factual inquiry "if the respondent is incapable of giving informed consent,"

and the absence of statutory language or case law requiring a specific inquiry if the respondent is capable of giving informed consent, we conclude that the assumed error in this case was not obvious for purposes of the plain error test.

Nor can we conclude that the assumed error was obviously prejudicial. Connor asserts that if he had been present he may have been able to assist his attorney with her presentation of evidence or the cross-examination of Martone, or he may have testified himself, and that this may have affected the hearing's outcome. But Connor notably does not assert that he wanted to be present at the hearing. And the error alleged is not that he was wrongly excluded, but rather that the master failed to inquire into whether he waived his presence with informed consent; Connor does not suggest what such an inquiry would have uncovered. He notably does not allege that it would have resulted in a finding that he lacked the capability to give informed consent (the opposite of what he argued successfully in the medication phase of the hearing).

In Remy M. v. State, Department of Health & Social Services, Office of Children's Services , we declined to adopt a rule that the trial court in a child in need of aid case must directly address the parent to determine whether he or she wishes to testify before allowing that right to be waived by the parent's attorney. We held that the parent had "not even made the threshold allegation that he wished to testify and that his attorney 'unlawfully usurped [his] decision,' " and thus, "even if [the parent] had the same right as a criminal defendant to make the final decision whether to testify, he [had] not established any violation of that right." Here, similarly, Connor has not even made the "threshold allegation" that he wished to be present and that the master's ruling-that he had waived his presence-was contrary to his wishes. While Connor argues that this case is distinguishable from Remy M. because, unlike the parent in Remy M. , he is simply arguing for the enforcement of a statutory process, this argument overlooks the nature of plain error review, where obvious prejudice is a necessary prong. Connor cannot establish obvious prejudice if he does not even allege that an inquiry into his capability would have made a difference to the proceedings.

We conclude that, assuming it was error not to inquire further about Connor's capability in the context of his waiver of his presence at the hearing, it was not plain error requiring reversal of the 30-day commitment order.

B. The Superior Court Did Not Err In Finding By Clear And Convincing Evidence That No Less Restrictive Placement Alternatives Were Available.

In a proceeding for a 30-day commitment order, "a petitioner must prove, by clear and convincing evidence, the petition's allegation that there are no less restrictive alternatives." "Finding that no less restrictive alternative exists is a constitutional prerequisite to involuntary hospitalization." The "least restrictive alternative" is the one that is "no more harsh, hazardous, or intrusive than necessary to achieve the treatment objectives of the patient" and "involve[s] no restrictions on physical movement nor supervised residence or inpatient care except as reasonably necessary for the administration of treatment or the protection of the patient or others from physical injury."

At Connor's hearing, the master found there was no "less restrictive placement [than API] at this time," and the superior court adopted the master's explanation that Connor "had been staying at Covenant House but [was] not welcome back there" because of his "anger and violence." The court expanded on this two weeks later in its order on Connor's objections. It found, based on Martone's testimony, that Connor's "psychosis will improve if he is provided a structured setting, no access to drugs[,] and a routine." It found that because Connor could not return to the Covenant House, his only alternative for housing outside of API was the Brother Francis Shelter, which would "not provide the structured, drug[-]free[,] and routine environment necessary to help [Connor]."

Connor argues that these findings were inadequate. He observes that the initial petition to have him evaluated by API recited his earlier outpatient treatment at a hospital and two mental health counseling centers, but at the hearing API presented no evidence that it had contacted these other providers "to learn what the course of [outpatient] treatment had been or how compliant or consistent Connor was with treatment[,] or to determine whether any of these providers would be willing to provide treatment to Connor." Connor also contends that the record does not support a finding that he needed to be confined: "According to Martone, the only treatment that would be beneficial to Connor was medication, regardless of whether he was in a residential treatment program or an outpatient treatment program," and Connor "could be treated on an outpatient basis" as long as he was "willing to take medication." And Connor argues that because the court ultimately found that he could not be medicated involuntarily, the only benefits Connor could possibly receive from confinement at API were, in Martone's words, "a structured safe setting, no access to drugs, and a predictable routine," benefits that do not directly address Connor's mental illness and are not sufficient to justify involuntary confinement.

We conclude, however, that the "least restrictive alternative" finding is supported by clear and convincing evidence. The court found that Connor was "gravely disabled": this finding itself presupposes an inability to "live safely outside of a controlled environment." Connor does not challenge the "gravely disabled" finding on appeal, and it has significant support in Martone's testimony. Martone testified that he "doubt[ed] [Connor] would be able to negotiate getting food on his own" or otherwise provide for himself outside of the hospital, and he agreed that Connor was "not able to safely survive if released to the community at this time," in part because he was barred from returning to Covenant House "because of his violence." Martone's descriptions of Connor as hallucinating, volatile, and sometimes catatonic support his opinion that Connor could not live safely on his own. While Martone also agreed that Connor seemed able to take care of some of his basic needs, "we will not reweigh [the] evidence if the record supports the court's finding," which it does.

Martone also testified that hospitalization was the least restrictive alternative available. He testified that Connor could improve as an outpatient, but only "[i]f he took medications," and that Connor had refused medication on an outpatient basis and was currently refusing it at API.

As Connor correctly points out, Martone's testimony in favor of hospitalization was premised largely on his expectation that Connor could be "assertively treated" at API with medication against his will, which the court ultimately refused to allow. But there was no evidence that Connor's treatment objectives could be achieved anywhere else, including Covenant House and the Brother Francis Shelter. And API at least afforded Connor the "structured[,] safe setting, [with] no access to drugs, and a predictable routine" that Martone testified would be "helpful" and "supportive" while protecting him from harm. Martone also testified that he would continue to offer Connor medications "every night." When, as here, there appear to be no good options that will both "achieve the [patient's] treatment objectives" and protect him "from physical injury," the least restrictive alternative may be the one that at least keeps the patient safe while his providers attempt treatment.

Martone's failure to contact Connor's previous outpatient providers (other than Covenant House) does not alter our conclusion. Martone believed medication to be the only "remedial" approach to Connor's psychosis, and he testified that he had talked to Connor about taking medication on an outpatient basis and Connor refused to consider it. The court was entitled to rely on Martone's expert opinion that outpatient services-regardless of their identity and regardless of whether they had treated Connor before-were not a realistic option.

In In re Hospitalization of Mark V. , we affirmed a finding that there were no less restrictive alternatives to hospitalization. The respondent argued that the superior court erred in finding that he was unable to fend for himself because the court "failed to account for his family support and thus required him to function successfully alone." But we concluded that the finding was supported by testimony about the respondent's need for medication and his unwillingness to follow an outpatient regimen.

In In re Hospitalization of Joan K. , we affirmed a finding that there were no less restrictive alternatives that would adequately protect both the respondent and the public. The respondent argued that the superior court erred by ruling out outpatient treatment or a home placement even though the testifying physician did not contact the family or prior psychiatrist to ask about the respondent's potential for success in these alternative settings. We noted witnesses' testimony that the respondent needed reliably administered medication to bring her manic symptoms under control; that constant surveillance and care were necessary to ensure the success of this regimen; and that the respondent's "changeable emotions" and "lack of insight" into her own behavior made it " 'very unlikely' [that] she would follow through with outpatient treatment even if she said she would."

We recognize the difference between these two cases and this one. Unlike the respondents in In re Mark V. and In re Joan K. , Connor was refusing medication at API, and thus hospitalization did not guarantee that he would receive the remedial treatment Martone considered necessary to his recovery. But as in In re Mark V. and In re Joan K. , the evidence here supports the court's finding that the hospital provided structure and safety, at least temporarily, along with the possibility of improvement he could not get elsewhere. That finding is supported by clear and convincing evidence.

C. The Commitment Order Should Be Corrected To Omit The Finding The Trial Court Ultimately Rejected.

Finally, Connor challenges the finding-first made by the master and then adopted by the superior court when it signed the proposed orders-that he was "likely to cause serious harm to others." Connor objected to this finding on the ground that it was not included in the commitment petition as a basis for a finding of mental illness and he thus had no notice that he was required to defend against it. The State agreed with Connor on this point, and the superior court, in deciding Connor's objections, stated that it would "not rely upon this finding in its decision." But the court did not correct the 30-day commitment order under which Connor had been hospitalized. On appeal the State argues that the superior court's decision on Connor's objections makes clear its intent to disregard this finding, but the State "does not object to [this court] remanding for a more explicit correction of this aspect of Connor's commitment order."

We agree with Connor that the proper course is for the superior court to correct the "harm to others" finding by issuing an amended 30-day commitment order. We remand for that limited purpose.

V. CONCLUSION

The case is REMANDED to the superior court for the limited purpose of amending the 30-day commitment order to omit the mistaken finding of fact. In all other respects we AFFIRM the judgment of the superior court.

Order

Withdraw an Opinion

IT IS ORDERED, SUA SPONTE :

1. Opinion No. 7329, issued on January 18, 2019, is WITHDRAWN and Opinion No. 7345 is issued in its place.
2. References to the standard of review have been modified on pages 12, 14, and 17.

Entered by direction of the court.

Clerk of the Appellate Courts

/s/ Meredith Montgomery

Meredith Montgomery

      We use a pseudonym to protect the respondent's privacy.

      314 P.3d 1185, 1195 (Alaska 2013).

      In re Hospitalization of Jacob S. , 384 P.3d 758, 763-64 (Alaska 2016) (quoting Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 375 (Alaska 2007) ).

      Id. at 764.

      Wetherhorn , 156 P.3d at 379.

      AS 47.30.735(b)(1).

      Id.

      In re Hospitalization of Gabriel C. , 324 P.3d 835, 838 (Alaska 2014).

      Cf. Lee v. State , 509 P.2d 1088, 1092 (Alaska 1973) (holding that attorney may effectively waive client's right to be present in noncapital criminal case if "(1) the defendant has given counsel express authority in a knowing and intelligent manner, (2) the defendant is present at the time of the waiver, has clearly been informed of his rights, and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in a knowing and intelligent manner").

      AS 47.30.735(b)(1).

      See In re Conservatorship of John L. , 48 Cal.4th 131, 105 Cal.Rptr.3d 424, 225 P.3d 554, 569 (2010) ("[I]n the absence of any contrary indication, the superior court may assume that an attorney is competent and fully communicates with the [respondent] about the entire proceeding."); Sun Country Sav. Bank of N.M., F.S.B. v. McDowell , 108 N.M. 528, 775 P.2d 730, 734 (1989) ("The authority of an attorney to enter an appearance, receive notice, and to act on behalf of the client at hearings may be inferred by the court from the actions of the attorney" but "may be dispelled by evidence that the acts of the attorney were not in fact authorized by the client...."); cf. Haziel v. United States , 404 F.2d 1275, 1278 (D.C. Cir. 1968) (observing that in criminal context, "the client may be bound by his counsel's calculated decision when trial tactics are involved," whereas "[i]n other circumstances we rely upon counsel to speak for his client not because we believe the attorney must make the decision, but because we assume the attorney has consulted with his client, advised him of what is at stake, and helped him toward a wise decision").

      See, e.g. , State ex rel. Means v. King , 205 W.Va. 708, 520 S.E.2d 875, 883 (1999) ("We presume ... that lawyers will follow the ethical tenets of our profession."); Henderson v. State , 708 So.2d 642, 644-45 (Fla. Dist. App. 1998) ("We presume attorneys will follow the rules of professional conduct" with regard to discovery obligations in criminal cases.).

      356 P.3d 285, 288-89 (Alaska 2015).

      Id. at 289 (quoting LaVigne v. State , 812 P.2d 217, 220 (Alaska 1991) ).

      In re Hospitalization of Gabriel C. , 324 P.3d 835, 838 (Alaska 2014).

      In re Hospitalization of Mark V. , 375 P.3d 51, 58 (Alaska 2016).

      Id. at 59.

      AS 47.30.915(11).

      In re Hospitalization of Stephen O. , 314 P.3d 1185, 1195 (Alaska 2013) ; see also AS 47.30.915(9)(B) (defining "gravely disabled" as "a condition in which a person as a result of mental illness ... will, if not treated, suffer or continue to suffer severe ... distress ... associated with significant impairment of judgment, reason, or behavior causing a substantial deterioration of the person's previous ability to function independently ") (emphasis added); AS 47.30.915(9)(A) (defining "gravely disabled" as "a condition in which a person as a result of mental illness ... is in danger of physical harm arising from such complete neglect of basic needs for food, clothing, shelter, or personal safety as to render serious accident, illness, or death highly probable if care by another is not taken ") (emphasis added).

      In re Hospitalization of Jacob S. , 384 P.3d 758, 766 (Alaska 2016).

      Cf. Bigley v. Alaska Psychiatric Inst. , 208 P.3d 168, 186 (Alaska 2009) (describing "the state's parens patriae power" as "the 'inherent power and authority of the state to protect "the person and property" of an individual who "lack[s] legal age or capacity" ' " (alterations in original) (quoting Myers v. Alaska Psychiatric Inst. , 138 P.3d 238, 249 (Alaska 2006) )).

      See AS 47.30.915(11)(A)-(B).

      375 P.3d 51, 59-60 (Alaska 2016).

      Id. at 59.

      Id. at 60.

      273 P.3d 594, 601-02 (Alaska 2012).

      Id. at 601.

      Id. at 602.

      See Keturi v. Keturi , 84 P.3d 408, 415 n.16 (Alaska 2004) (remanding in child support case for limited purpose of correcting mistake in father's income identified by this court on appeal).