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Bowman v. Blair (2/17/95), 889 P 2d 1069
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907)264-0607, or fax (907)276-
THE SUPREME COURT OF THE STATE OF ALASKA
ISABEL BOWMAN, re: In the )
matter of the Estate of ) Supreme Court No. S-5328
FRANCISCO X. MONGE, )
) Superior Court No.
Appellant, ) 3AN-91-1185 P
v. ) O P I N I O N
CRYSTAL BLAIR and WILLIAM ) [No. 4169 - February 17, 1995]
RILEY BLAIR, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Brian C. Shortell,
Appearances: Marie Isabel Bowman, pro
se, Anchorage. Paul W. Paslay, Anchorage,
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Isabel Bowman claims the superior court
erroneously failed to order Crystal Blair to return items of
personal property Bowman alleged were owned by Bowman's adult
son, Francisco Monge, at the time Monge died intestate.
II. FACTS AND PROCEEDINGS
Monge and Blair began dating in August 1990. Monge
moved into the Blair household later that year.1 Monge lived
with the Blairs intermittently until approximately two or three
weeks before his death in September 1991.
After Monge's funeral, Monge's mother, Bowman,
attempted to collect from Blair various items Bowman believed had
belonged to Monge. Although Blair surrendered numerous items,
Bowman believes that Blair improperly retained some of Monge's
belongings. After unsuccessfully attempting to collect these
additional items, Bowman filed an "Affidavit and Order for
Collection of Personal Property of the Decedent." Bowman,
accompanied by a police officer, delivered a copy to Blair, who
refused to deliver the disputed items to Bowman.
Probate Master John Duggan presided over a protracted
hearing in 1992 to decide the ownership of the following disputed
items: (a) Alpine car stereo; (b) Cobra car alarm; (c) sleeper
cover for a truck; (d) steering wheel; (e) Kawasaki jet ski;
(f) Nakamichi mini receiver, tape and compact disc player, two
two-way component speakers and twelve-inch pro series sub woofer;
(g) two leather jackets; (h) one pair of new tennis shoes and
other clothing belonging to Monge; (i) $1,450 in cash;
(j) emerald necklace, rubies and diamond ring; and
(k) approximately one hundred compact discs.
The probate master issued a report which contained
specific findings regarding the disputed items and concluded that
Bowman had failed to meet her burden of proving that the disputed
items had belonged to Monge at the time of his death. The
probate master recommended that "no order for deliver[y] of
specific personal property of the decedent be entered at this
time in favor of Ms. Bowman."
Superior Court Judge Brian C. Shortell adopted the
probate master's findings and recommendations in their entirety
and entered an order consistent with the master's report. When
Blair moved for an award of attorney's fees, the probate master
recommended that Bowman be required to pay $2,950, fifty percent
of Blair's actual attorney's fees, pursuant to Alaska Civil Rule
82. The superior court adopted the recommendation.
Bowman appeals both the probate master's findings and
the superior court's order regarding the disputed items. She
also appeals the award of attorney's fees. We affirm the
superior court's order with regard to all of the disputed items
except for the Cobra car alarm, which we reverse and remand for
proceedings consistent with this opinion. We also remand the
issue of attorney's fees.
A. Burden of Proof
Bowman argues that the probate master erred in ruling
that she bore the burden of proof as to all of the disputed
items. According to Bowman, Blair had the burden of proof
because Blair's claim that Monge gave her some of the items
amounted to an affirmative defense. Bowman argues that she
"established a prima facie case by showing that the items were
owned [by Monge] prior to and at the time of [Monge's] death,"
and that therefore the burden of proof shifted to Blair to prove
that Monge had given the items to her.
Bowman's argument is unpersuasive. Bowman did not
prove that Monge owned the items at the time of his death; she
simply established that Monge had owned some of them at some
point prior to his death.2 Under AS 13.16.685, Bowman had the
burden of proving that she has a right to the disputed property,
not merely the burden of establishing a prima facie case.3 There
is a distinction between the burden of proof and the burden of
producing evidence. Although the burden of producing evidence
may have shifted to Blair with respect to her claim that the
items were gifts, the burden of proof remained with Bowman
throughout the trial.4 Therefore, the probate master correctly
concluded that throughout the proceeding, Bowman bore the burden
of proving that (1) Monge owned the contested property items at
the time of his death; (2) the property was in the possession or
control of the Blairs; and (3) the Blairs refused to return the
items upon being presented with Bowman's affidavit.
B. Findings Regarding Specific Items
1. Alpine Car Stereo
The probate master found that the Alpine car stereo was
a gift from Monge to Blair and that Bowman failed to prove
Monge's ownership at the time of his death. This finding is not
clearly erroneous as it was supported by Blair's testimony.5
Blair testified that when Monge sold his Chevy Blazer, "he said
he was planning on buying a new car and a new stereo system . . .
and he said 'I want to put this in your truck for you.'" Blair
also testified that Monge showed the installed car stereo to his
friends and said "Look what I did for my girlfriend." Therefore,
the probate master's finding that Bowman failed to prove
ownership was not clearly erroneous.6
2. Sleeper Cover
The probate master found that Blair bought the sleeper
cover on an installment basis and that although Monge paid one
installment payment toward Blair's balance, he never owned or
claimed an ownership interest in the cover and never requested or
expected repayment from Blair for his contribution. Blair
testified that she negotiated the installment contract with the
seller and made three installment payments, with the rest to come
out of her paychecks in time. Testimony of the seller
contradicted Blair's testimony. It is for the trier of fact to
resolve such disputes. Given Blair's testimony, we cannot say
that the probate master clearly erred.
3. Steering Wheel
The probate master found that Blair did not know the
current whereabouts of Monge's "rally type"steering wheel, and
that although Monge purchased and installed a similar steering
wheel in Blair's truck, Bowman did not establish Monge's
ownership of the disputed steering wheel. This finding is not
clearly erroneous as Blair testified that Monge installed the
similar steering wheel in her truck, which Monge drove when he
was in town, and that Monge never requested that steering wheel
be removed from her truck.
4. Jet Ski
The probate master found that Monge purchased the jet
ski and gave it to Blair as a birthday present. This finding is
not clearly erroneous as Blair and a number of other witnesses
testified that Monge presented the jet ski to Blair as a gift at
her birthday party.
5. Nakamichi Mini Receiver, Tape and
Compact Disc Player, Two Two-way Speakers and
Twelve-inch Pro Series Sub Woofer
The probate master found that Blair did not assert an
ownership interest in the Nakamichi mini receiver, tape and
compact disc player, two two-way speakers and a sub woofer, and
had no knowledge of their whereabouts, and that Bowman had not
established that the items were in Blair's possession or control.
This finding is not clearly erroneous as Blair testified that she
had no knowledge whatsoever of any Nakamichi stereo system and
claimed no ownership interest in it. The probate master also
appropriately ordered Blair to return those items to Bowman if
Blair were to discover them among her possessions.
With regard to the two two-way speakers, the probate
master erroneously grouped these speakers with the Nakamichi
stereo system instead of with the Alpine car stereo.7 However,
because the probate master also found that Bowman failed to prove
Monge's ownership of the Alpine car stereo at the time of his
death, and because the two disputed speakers were part of the car
stereo system, the probate master necessarily must have found
also that Bowman did not prove ownership of the two two-way
speakers. Thus, we affirm the probate master's conclusion that
Bowman is not entitled to any of the stereo system components.
6. Two Leather Jackets
The probate master found that Blair knew of only one
leather jacket. Blair testified that Monge had told her that it
had been stolen after he loaned it to a friend. No evidence
contradicted that testimony. Consequently the finding was not
clearly erroneous. The probate master correctly concluded that
Bowman had not proven that Blair had possession of either jacket.
This finding is not clearly erroneous as Blair's testimony
supports the court's finding. Further, the master appropriately
ordered Blair to deliver the jackets to Bowman in the event she
learned of their whereabouts (i.e., in the event they ever came
into her possession).
7. New Tennis Shoes and Clothing
The probate master found that Blair did not have
possession of any of Monge's personal clothing or his tennis
shoes. Given the testimony of Blair and her father, this finding
is not clearly erroneous.
8. Cash in the Sum of $1,450
The disputed amount of $1,450 concerned a car repair
bill paid by Monge for purchase and installation of a rebuilt
engine in Blair's pickup truck. The probate master found that
Monge, who had occasionally used Blair's pickup truck, was
driving the truck when the replaced engine "blew up"and that the
$1,450 was not a loan. Those findings are not clearly erroneous.
Although the evidence on this dispute is sparse, it did not
require a contrary finding.8 The court did not err in concluding
that Bowman failed to prove that the $1,450 Monge paid toward the
repair of the truck was a loan.
The probate master found that Bowman withdrew her claim
regarding the emerald necklace, rubies and diamond ring, and
acknowledged that these items were not part of the estate.
Bowman does not contest this finding.
10. Approximately 100 Compact Discs
The probate master found that Blair delivered fifty-
five compact discs to Bowman. Although Bowman testified that
Monge owned approximately one hundred compact discs and a friend
of Monge testified that Monge owned approximately eighty compact
discs, the probate master found that Bowman failed to provide a
list of compact discs or any other evidence regarding specific or
additional compact discs owned by Monge.9 The probate master
found that Blair had returned all of Monge's compact discs in her
possession, but directed her that if she discovered the
whereabouts of any more of Monge's compact discs, she was to
deliver them to Bowman.
These findings are not clearly erroneous. Blair stated
that there were approximately seventy compact discs, but that she
owned a small portion of them. She testified that some compact
discs were stolen from her car after Monge's death. Blair stated
that she returned "what was left,"approximately fifty or sixty
compact discs, to Bowman. There was no evidence that Monge owned
any other specific compact discs still possessed by Blair.
11. Cobra Car Alarm
The probate master's report erroneously states that
Blair testified that Monge sold the Cobra car alarm system when
he sold his Chevy Blazer in which the alarm was installed. As
Blair herself pointed out to the superior court in her "Objection
to Master's Report,"Blair did not testify that the Cobra car
alarm was sold with Monge's truck, but rather that Monge asked
Blair to pick out a car alarm, purchased it and installed it in
her truck in a manner which she perceived to indicate that the
car alarm was a gift. She testified that he had sold his car
alarm with his truck, but that was not the disputed Cobra car
alarm system. Because the probate master's finding regarding the
Cobra car alarm is clearly erroneous, we remand to the superior
court for a determination of ownership of the Cobra car alarm
which Monge purchased and installed in Blair's truck.
C. Attorney's Fees
Bowman argues that the superior court erred in issuing
its order awarding attorney's fees to Blair before ten days had
elapsed after Blair filed her motion for attorney's fees. Bowman
asserts that had she been given the opportunity to respond to the
motion, she would have argued that (1) attorney's fees should
have been denied in their entirety because Blair was not the
prevailing party under Civil Rule 82, and (2) in the alternative,
a smaller award should have been granted.
Pursuant to Civil Rules 82(c) and 77(c), parties
opposing a motion for an award of attorney's fees must file such
opposition within ten days after service of the motion. It is
error for the court to rule on a motion for award of attorney's
fees before the opposing party is given an opportunity to
respond. McGill v. Wahl, 839 P.2d 393, 399 (Alaska 1993). The
probate master erred in making his recommendation and the
superior court erred in issuing its order before ten days had
elapsed. Whether that error prejudiced Bowman or was harmless
depends on whether, as a matter of law, Bowman could not have
prevailed on the issue of attorney's fees.
Bowman argues that Blair was not the "prevailing party"
in this matter. The "prevailing party"is the party who is
successful with regard to the main issues in the action, even if
the other party receives some affirmative recovery. Alaska
Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976); Cooper v.
Carlson, 511 P.2d 1305, 1308 (Alaska 1973). Clearly, Blair was
the prevailing party here as she retained ownership of the
majority of the disputed items. That result is not altered by
the probate master's direction that Blair return certain disputed
items to Bowman in the event Blair discovered them in her
possession at a later date. The court necessarily found that
Blair no longer possessed those items. As a matter of law,
Bowman could not be considered the prevailing party.
Bowman also argues that the award was an abuse of
discretion because the probate master considered Blair's pre-
litigation attorney's fees and relied on the fact that the
dispute required "extensive hearing time and accumulation of
In cases where the prevailing party recovers no money
judgment, Alaska Civil Rule 82 provides for award of attorney's
fees based on a percentage of the party's "actual attorney's fees
which are necessarily incurred." Alaska R. Civ. P. 82(b)(2).
Bowman incorrectly assumes that the trial court, in
awarding partial fees, cannot consider fees incurred before
formal litigation begins. All attorney's fees incurred in
connection with litigation are not necessarily incurred after
formal commencement of the litigation. It is within the trial
court's discretion to consider a party's pre-litigation fees in
determining the award. Blair's attorney submitted an affidavit
stating that all of his listed hours were "spent in defending
[Crystal] against the claim of Isabel Bowman . . . ." Bowman
offered no evidence otherwise and has not demonstrated that she
could have offered contrary evidence if the court had not ruled
prematurely. Thus, as a matter of law, Bowman could not have
prevailed on this argument.
Nonetheless, Bowman may have been prejudiced by the
probate master's and superior court's premature actions. In
recommending that the court award Blair attorney's fees of
$2,950, fifty percent of the fees actually incurred, the probate
master cited the "extensive hearing time and accumulation of
documents." Bowman argues that Blair was responsible for those
factors. The superior court should have had an opportunity to
consider that argument.10 Thus, we cannot say that as a matter of
law, Bowman was not prejudiced by the superior court's premature
order awarding Blair $2,950 in attorney's fees.11
We AFFIRM the superior court's findings regarding all
of the disputed items except for findings regarding the Cobra car
alarm, which we REVERSE and REMAND for further findings
consistent with our discussion above. We REMAND the issue of
attorney's fees so that Bowman can be given the opportunity to
oppose Blair's motion.
1 The Blair household consisted of Crystal Blair and her
parents, William Riley Blair and Dorothy Blair.
2 Bowman argues that Blair's assertion that some of the
disputed items were, in fact, gifts constitutes an affirmative
defense. In Rollins v. Leibold, 512 P.2d 937, 940 (Alaska 1973),
An affirmative defense can generally be
defined as new matter not set forth in the
complaint which constitutes a defense; or new
matter which, assuming the complaint to be
true, is a defense to it.
In her complaint, Bowman asserted that the disputed items
belonged to Monge at the time of his death. Blair contested
Bowman's claims of Monge's ownership. In doing so, Blair
contested a matter asserted in the complaint and did not assume
the complaint to be true. Therefore, Blair's assertions did not
amount to an affirmative defense.
3 AS 13.16.685, regarding collection of personal
property of a decedent, provides in part:
If any person to whom an affidavit is
delivered refuses to pay, deliver, transfer,
or issue any personal property or evidence of
it, it may be recovered or its payment,
delivery, transfer, or issuance compelled
upon proof of their right in a proceeding
brought for the purpose by or on behalf of
the persons entitled to it.
AS 13.16.685 (emphasis added).
4 See Chism v. Steffens, 797 S.W.2d 553, 558 (Mo. App.
1990) ("The burden of evidence may shift to the defendant with
respect to the defendant's claim of gift, but the burden of proof
remains throughout the trial with the plaintiff."); Lappin v.
Lucurell, 534 P.2d 1038, 1044 (Wash. App. 1975) ("When plaintiff
as administratrix sued the defendants on what she claimed was a
loan made to them by the decedent before his death, and where
there was no real issue other than whether the money was a loan
or a gift, it was error to instruct the jury that defendants had
the burden of proving that the money was a gift."); Estate of
Robinson v. Morris, 201 N.E.2d 248, 250 (Ill. App. 1964) ("the
burden of proof--as distinguished from the burden of going
forward with evidence--always remained with the plaintiff");
Adams v. Gilmore, 161 N.E.2d 553, 554 (Ohio App. 1959) ("The
burden of proof was, under the pleadings, upon the plaintiff to
prove the defendant his debtor, and not upon the defendant to
prove a gift of money."); see also 38 C.J.S. Gifts 65b (1943).
5 We review the probate master's findings under the
clearly erroneous standard of review. See Estate of Gregory, 487
P.2d 59, 64 (Alaska 1971) (applying clearly erroneous standard of
review to the findings of the master accepted by the superior
court). Due regard shall be given to the opportunity of the
master to judge the credibility of the witnesses. See Alaska R.
Civ. P. 52(a) ("Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses."); Parker v. Northern Mixing Co., 756 P.2d 881, 892
(Alaska 1988) ("it is the function of the trial court, not of
this court, to judge witnesses' credibility and to weigh
conflicting evidence"); Sheridan v. Sheridan, 466 P.2d 821, 824
(Alaska 1970) ("great weight must be accorded to the trial
judge's experience and to his evaluation of the demeanor
6 Although the probate master found that Bowman failed
to prove Monge's ownership at the time of his death, he also
stated that the issue of whether the car stereo should be
returned is moot, presumably because the car stereo components
were stolen from Blair's vehicle two weeks before she testified
at the hearing. Bowman argues that the probate master's
conclusion regarding mootness is erroneous because if Blair
wrongfully assumed control of the stereo after Monge's death, she
should be held to have been a constructive trustee of the item
and, thus, liable to Bowman for its value. See 76 Am. Jur. 2d,
Trusts, 229 (1992) ("A constructive trust may arise where one
wrongfully . . . assumes . . . control of property of another.");
see also AS 13.16.685 ("any person to whom an affidavit is
delivered [who] refuses to pay, deliver transfer, or issue any
personal property . . . is answerable and accountable for it to
any personal representative of the estate") (emphasis added).
Although a finding that Blair wrongfully withheld
property of a decedent may support imposition of a constructive
trust, there was no such finding here. A person "does not
wrongfully take possession or assume control of property within
the [meaning of the constructive trust] rule where [s]he, in good
faith, assumes possession and control of property under a claim
of title in [her]self wholly adverse to . . . that which may turn
out to be the true title." 76 Am. Jur. 2d, Trusts, 229. It is
evident from the probate master's findings that Blair believed
that the disputed items belonged to her. Thus, even if the
probate master had ultimately determined that the items belonged
to Monge at the time of his death, Blair would not be held
accountable for their loss through theft.
7 Blair disclosed this error to the probate master in
her "Objection to Master's Report."
8 Bowman incorrectly asserts that the mechanic who
installed the rebuilt engine "testified that Francisco loaned
Crystal Blair that money to rebuild the engine of her truck and
she was supposed to pay him back." The mechanic testified that
Monge had paid $1,450 toward the repair bill and Blair later paid
the balance of a "couple hundred dollars"when she picked up the
truck. He did not testify that Monge's contribution was a loan.
Exhibit 5, a typewritten statement signed by Spearman at some
point prior to the hearing, was never admitted into evidence, and
consequently was not considered by the master or the superior
court and is not part of the record on appeal. The mechanic
testified that he thought Monge had said he "would work out a
deal"with Blair's father to work off their payments or whatever.
Although that somewhat equivocal evidence would have supported
finding by the probate master that Monge loaned Blair the money,
it did not compel such a finding.
9 The probate master also noted that at the time of his
death, Monge had been in the process of moving out of the Blairs'
residence and had already removed some of his personal items,
thus suggesting that Monge could have removed some of the compact
10 Although we have previously upheld awards of
attorney's fees in excess of fifty percent based on such factors,
that is not the relevant issue here. The superior court should
have considered Bowman's argument at the time the award was made.
11 Bowman also argues that "the Probate Master Should
Have Excused Himself" from the case because of an alleged
"friendship between Master Duggan and [Bowman's] husband and
their families." Because this issue was never raised below and
the record is devoid of any reference to this issue, we will not
consider it on appeal. Adoption of F.H., 851 P.2d 1361, 1364 n.4
(Alaska 1993); Zemen v. Lufthansa German Airlines, 699 P.2d 1274,
1280 (Alaska 1985).