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Bravo v. Aker

Supreme Court of Alaska

January 4, 2019

ASHLEY BRAVO and HELEN BRAVO, as next friend on behalf of ASHLEY BRAVO, Appellants,

          Appeal from the Superior Court No. 4FA-13-02889CI of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge.

          Appellants Ashley Bravo and Helen Bravo, pro se, Anchorage.

          Michael J. Hanson, Call & Hanson, P.C., Anchorage, for Appellees.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.




         Plaintiffs/appellants are an adult daughter believed to be incompetent and her mother. After retaining counsel, the mother brought a tort action as the daughter's next friend for in utero injuries to the daughter, which the mother alleged were caused almost 20 years previously in a boating accident. The defendants filed a motion for summary judgment, but they also offered to permit the plaintiffs to dismiss the case with each side to bear its own costs and fees. The plaintiffs' attorney believed that accepting this walk-away offer was in the daughter's best interest, but the mother disagreed. Facing a conflict of interest between his two clients, the attorney moved to withdraw.

         The superior court permitted the attorney to withdraw and ultimately granted the unopposed motion for summary judgment and awarded costs and fees against both plaintiffs. The mother and daughter appeal. We hold that before granting the attorney's motion to withdraw the court should have determined the daughter's competency, and if she was found incompetent the court should have appointed a guardian ad litem or taken further action to protect her interests pursuant to Alaska Civil Rule 17(c). We reverse the court's orders granting the motion to withdraw and summary judgment, vacate the award of attorney's fees and costs, and remand.


         A. The Accident And Lawsuit

         On May 15, 1993, a boat on the Chena River operated by then-17-year-old Shelby Aker collided with a boat carrying Helen Bravo. Helen was pregnant at the time; Ashley Bravo was born on November 11, 1993.

         On November 7, 2013-four days before Ashley turned 20 and the statute of limitations ran on her personal injury claims - attorney Jeffrey Barber filed a complaint for plaintiffs "Ashley Bravo and Helen Bravo, as next friend on behalf of Ashley Bravo." The Bravos sued Shelby for negligently operating the boat and Fred Aker and John Cooper for negligent entrustment, training, or supervision.[1] The lawsuit alleged that Helen sustained injuries in the boat collision which in turn caused in utero injuries to Ashley resulting in cognitive defects. Helen asserted no claims on her own behalf.

         B. The Akers' Summary Judgment Motion

         In March 2017 the Akers moved for summary judgment. Based on two expert reports, the Akers argued that Ashley was not harmed by the boating accident. The Akers pointed out that the Bravos had not offered any expert witness testimony that the accident was causally linked to Ashley's condition, and they argued that such expert testimony was necessary to raise a genuine issue of material fact and defeat their summary judgment motion.

         The Akers' experts, clinical neuropsychologist Dr. Paul Craig and obstetrician-gynecologist Dr. Sima Kahn, reviewed the medical records of Helen and Ashley. The following facts are taken from Dr. Craig's expert report.[2] Two days after the 1993 accident, Helen stated that she had fallen out of her chair onto the floor of the boat, hitting the back of her head and neck. Three days after the accident, Helen had a prenatal checkup; the only mention in the medical record of the accident seems to be the fact that it occurred.

         The Department of Public Safety issued a report five days after the incident. It appears that Helen reported the accident to the Alaska State Troopers on the evening it occurred. In the immediate aftermath of the collision, Helen and those on Shelby's boat confirmed that everyone was "all right" and discussed what had happened. The report states that Helen suffered injuries to her head, back, and ankle. Dr. Craig noted that a sticky note had been attached to a second, lower-quality copy of this report and it read: "Unconscious, fell swallowed water... placental abruption." Dr. Craig concluded that this note had been added later to the original report, and he observed that it was neither signed nor dated, unlike the rest of the report.

         Dr. Craig reported that Ashley's birth records mention the boating accident, noting Helen's complaints of back, neck, and shoulder pain. The records state that Helen's pregnancy was "benign," there were neither complications during the birth nor "evidence of fetal distress," and the newborn "appeared to be healthy."

         Near Ashley's third birthday, she was deemed "eligible for special education as a student with a handicapping condition." The assessment noted delays in Ashley's mental and physical development and diagnosed her with attention-deficit/hyperactivity disorder (ADHD); the assessment also indicated a family history of ADHD. Dr. Craig also noted that medical and other records throughout Ashley's life repeat the ADHD diagnosis and place her below average on developmental, social, and other cognitive tests.

         Dr. Craig reported that Helen had been concerned about harm to Ashley from the start, but there was circumstantial evidence that Helen began embellishing her memory of the incident. The sticky note on the 1993 accident report suggests loss of consciousness, submersion, and placental damage. Dr. Craig himself evaluated Helen in 1997 (he did not recall this when reviewing the case as an expert witness); at that time, Helen reported that she lost consciousness during the accident and was submerged for about five minutes. An accident report Helen filed with the U.S. Coast Guard in 2008 lists injuries including placental abruption. A 2013 neuropsychological evaluation of Ashley was premised entirely on Helen's account of the accident, with no use of primary medical records. For this evaluation, Helen reported that she nearly drowned in the accident, a subsequent ultrasound revealed fetal abnormalities, and there was post-partum evidence of a condition known as "placenta accreta."

         Dr. Craig and Dr. Kahn rejected a causal link between the boat collision and Ashley's cognitive deficits. Both emphasized the lack of serious injury or fetal harm mentioned in the contemporaneous records and the unremarkable nature of Ashley's cesarean section birth. Both also noted the possibility that genetic factors contributed to Ashley's ADHD.

         C. Barber's Motion To Withdraw

         Shortly before the Bravos' opposition to the summary judgment motion was due, attorney Barber moved to withdraw and requested additional time for the Bravos to oppose. On the court's order, Barber filed an affidavit under seal supporting his motion to withdraw, and another judge reviewed and granted this motion.[3] Barber alluded to "issues of conservator [sic] and guardianship," but his affidavit mostly focused on the breakdown of communication with his clients.

         After learning that Helen opposed Barber's motion to withdraw, the original judge presiding over the case held a hearing on the matter.[4] While the court focused on communication problems between the clients and their attorney, Barber made clear there were other concerns:

There were really three issues, and I tried to address them as best I could in the affidavit. Communication is one of them, and it has certainly gotten worse since the other issues arose, which is issues having to do with guardianship, conservatorship, that I've had concerns about since the get-go. And we appear to be stymied as far as how to proceed in that regard, and I'm not comfortable representing Ashley's interests through Helen. Okay? And I mentioned that in the affidavit that I wrote.

         In addition to issues of communication and Ashley's competency, Barber alluded to a "fundamental disagreement" with Helen over prosecuting the case. Yet this conflict was inextricable from the competency issues, as Barber explained:

THE COURT: What are you talking about? Disagreements about motions, about witnesses, stuff like that?
BARBER: Well, some of it has to do with the underlying, substantive issues in her case: summary judgment issue for one; options, realistic options; likelihoods of prevailing; and what the best options may be to proceed in handling this case and whether it ought to be even tried or not. And then the other one obviously has to do with this guardianship/conservatorship ...

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