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Conservatorship Estate of K.H. v. Continental Insurance Co. (6/20/2003) sp-5708
Conservatorship Estate of K.H. v. Continental Insurance Co. (6/20/2003) sp-5708
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CONSERVATORSHIP ESTATE OF )
K.H., ) Supreme Court Nos. S-
9949/9959
)
Appellant/ ) Superior Court No.
Cross-Appellee, ) 4FA-99-00614 CI
)
v. ) O P I N I O N
)
CONTINENTAL INSURANCE ) [No. 5708 - June 20, 2003]
COMPANY; COMMUNITY )
ADVOCACY PROJECT OF )
ALASKA, INC.; PROFESSIONAL )
GUARDIAN SERVICES )
CORPORATION; and DAVID )
SCHADE, )
)
Appellees/ )
Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Robert S. Noreen, Law Office of
Robert S. Noreen, Fairbanks, for Appellant
and Cross-Appellee. Christopher E.
Zimmerman, McConahy, Zimmerman & Wallace,
Fairbanks, for Appellee and Cross-Appellant
Continental Insurance Company. James D.
Oswald, Song Oswald & Mondress, PLLC,
Seattle, Washington, and Ronald Bliss, Bliss,
Wilkens & Clayton, Anchorage, for Appellee
and Cross-Appellant Community Advocacy
Project of Alaska, Inc. David W. Pease,
Burr, Pease & Kurtz, Anchorage, for Appellees
and Cross-Appellants Professional Guardian
Services Corporation and David Schade.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
K.H.s inheritance was rapidly depleted while he was in
the care of professional guardians. He sued two prior guardians,
the first for breach of fiduciary duty and the second for fraud.
The superior court dismissed the claims against both guardians on
statute of limitations grounds. However, because neither
guardian filed a final accounting that fully disclosed all
financial matters, thus triggering the six-month statute of
limitations, we reverse the order granting summary judgment in
favor of both guardians.
II. FACTS AND PROCEEDINGS
A. Factual History1
1. K.H. s personal background
After K.H. graduated from high school in 1962, he
enlisted in the United States Navy. He served through 1966, at
which time he was honorably discharged. He then moved to Alaska,
and in 1969 he began to experience the onset of the prodromal
phase of schizophrenia. He was first hospitalized at the Alaska
Psychiatric Institute in 1973 after being arrested for
trespassing. He was subsequently hospitalized twelve additional
times in Alaska, and was admitted to a number of Veterans
Administration (VA) hospitals in Wisconsin and Illinois. From
1976 to the present, K.H. participated in various community
mental health programs in Alaska.
K.H. now suffers from paranoid schizophrenia, possible
organic brain syndrome, and glaucoma. His mental illness is
longstanding and chronic. He suffers auditory hallucinations,
diminished concentration and attention span, and periodic
difficulties with anger management. His illness makes it
impossible for him to provide for himself both physically and
financially and, when left alone, he has a tendency to
deteriorate considerably. He is also unable to manage money,
being unaware of the source of his income or monthly expenses.
He currently receives Social Security and a VA pension. After
his expenses are paid, he has approximately $75 left each month.
He has never married, nor had any children. He does not remember
the names or locations of his remaining family members. K.H.
currently resides in a supervised, semi-independent apartment
operated by Fairbanks Community Mental Health Center. He will
always need supervision and a structured environment.
2. The conservatorship and guardianship
In 1992 K.H. received an inheritance of $92,172.32.
This prompted a petition for conservatorship and, in September
1992, the superior court appointed Community Advocacy Project of
Alaska (CAPA) as K.H.s conservator. Shortly thereafter, K.H.
moved to Seward where he resided at Seward Life Action Council
(SLAC). K.H. had difficulties with at least one staff member at
SLAC, so in 1995 CAPA assisted in transferring him to Fairbanks,
where he was placed under the care of Monta Faye Lane of the
Interior Caregivers Association. Although K.H. had $90,241 in a
securities account at the beginning of the CAPA conservatorship
in 1992, that money was gone when he arrived in Fairbanks in
1995.
While at Lanes assisted living home, K.H. intentionally
cut his left wrist. In order to provide better supervision and
care for K.H., CAPA, already his conservator, was appointed
temporary guardian in February 1996. CAPAs guardianship
appointment was finalized on July 10, 1996. Soon thereafter, two
members of CAPA, Michael Schade and B. Jarvi, formed their own
company, Professional Guardian Services Corporation (PGSC).
Accordingly, Lane petitioned the superior court to terminate CAPA
as guardian and transfer K.H.s guardianship to PGSC so that K.H.
could continue to receive services from the same people. On
November 12, 1996, the court ordered the transfer of the
conservatorship and guardianship to PGSC.
In December 1996 a standing master for the superior
court ordered the court visitor to report on CAPAs expenditures
of K.H.s assets. The report, filed with the court in February
1997, expressed concern that CAPAs billings presented a
disturbing breakdown of costs, and stated that some fees charged
were unheard of. The court visitor concluded her report by
stating that CAPA spent a large sum of [K.H.s] money in a spend
down fashion rather than using it in a frugal and conscientious
way. In a follow-up report, the court visitor concluded that
CAPA had purchased mental health support services for [K.H.] at a
rate 1500% higher than was necessary. The court visitor
suggested that it was time for an attorney to explore recovery of
K.H.s assets. She expressed doubts about whether Schade was in a
position to do that, as he had been Executive Director of CAPA
while it served as K.H.s conservator and he now served as K.H.s
conservator at PGSC. The court visitors concerns about Schades
possible conflict of interest were heightened when she learned
that Schade had stated in his May 13, 1997 objection to the
masters recommendation that it would not be in [K.H.s] best
interest to get a recovery . . . .
In February 1997, after the conservatorship and
guardianship had been transferred to PGSC, CAPA filed a document
entitled final guardianship report regarding K.H. However, this
report apparently contained a number of errors and
inconsistencies, and CAPA submitted an amended report on May 9,
1997.
At the request of PGSC, Sandra Bolling of the
Department of Veterans Affairs conducted a field examination and
interview with K.H. in April 1997. She recommended that because
PGSC was K.H.s guardian and conservator, it should be appointed
his legal custodian for VA purposes. PGSC signed a VA fiduciary
agreement naming itself as legal custodian and fiduciary for K.H.
Because of continuing concerns that PGSC and CAPA had
not fulfilled their duties as guardians and conservators, and
that K.H.s estate was subject to waste, the superior court
ordered on July 8, 1997 that the Office of Public Advocacy (OPA)
intervene. OPA is K.H.s current guardian and conservator.
In August 1997 PGSC filed a request with the superior
court for approval to pay itself more than $3,000 in
conservatorship fees from K.H.s VA benefits. The request stated
that [t]he VA has authorized [K.H.s] guardianship/conservatorship
fees to be taken from the VA pension funds. In September 1997
the superior court issued an order allowing PGSC to pay its fees
from K.H.s assets as authorized by the Veterans Administration.
The following month, PGSC submitted a final
guardianship/conservatorship report. On behalf of K.H., OPA
requested a hearing to clarify the discrepancies between the
court order allowing fees and PGSCs purported final report. An
evidentiary hearing was held on December 17, 1997, at which it
was revealed that PGSC and Schade still controlled K.H.s VA
benefits.
In February 1998, after OPA had been appointed
guardian, the court visitor closed her investigation into K.H.s
case. In her notice of closed case and further concern, she
remarked that she had additional concerns about CAPAs billing of
K.H. for vague charges for case management services not otherwise
detailed; . . . transaction charges not consistent with the fee
schedule(s) in effect; improper travel charges; and duplicated
charges (more than one staff charging for the same service).
In May 1998 PGSC filed a federal fiduciarys account
with the Department of Veterans Affairs, covering the period from
November 1, 1996 to March 31, 1998. It revealed that PGSC paid
itself $3,672.01 in guardianship fees from the veterans benefits.
Responsibilities for K.H.s veterans benefits were apparently not
transferred from PGSC to OPA until sometime in March 1998.2 At
this time, the Department of Veterans Affairs conducted a second
field examination, but the payee was now listed as OPA rather
than PGSC. In her report, the field examiner addressed Schades
handling of K.H.s VA benefits. She reported that, while Schade
had asserted to the superior court that the VA has authorized
[K.H.s] guardianship/conservatorship fees to be taken from the VA
funds, the field examiner had discovered no evidence of any such
authorization and thought it extremely unlikely that such an
authorization had been given. She added that PGSC signed a VA
form that did not allow for fee payment. She concluded by
stating, I find it is highly likely that Mr. Schade made a false
or misleading statement to the [s]uperior court. I find that VA
funds have been misused. I suspect there is a high possibility
of fraud in this case.
B. Procedural History
On March 18, 1999, OPA filed a complaint on behalf of
K.H. to recover money overcharged by CAPA and PGSC.3 It alleged
that CAPA breached its fiduciary duty by charging excessive fees,
diverting K.H.s assets to SLAC, and paying itself fees without
written order of the court. K.H. further asserted that PGSC and
Schade committed fraud and misrepresentation by telling the court
that the VA had authorized them to take fees from VA pension
funds. This, K.H. alleges, resulted in the conversion of
$5,020.87 of his VA benefits.
PGSC filed a motion for summary judgment, arguing that
res judicata barred K.H.s fraud and misrepresentation claims.
PGSC and Schade claimed that this cause of action was litigated
and decided by the September 1997 court order that permitted PGSC
to pay itself fees as authorized by the Veterans Administration.
The superior court denied the motion on the basis that neither
the doctrine of res judicata nor Alaska Civil Rule 60(b)
precluded a claim that a prior judgment was obtained by fraud or
misrepresentation.
PGSC filed a motion for reconsideration of the denial
of summary judgment, arguing that the savings clause in Rule
60(b) was used only in rare and unusual circumstances not present
in this case. The allegations in this case, PGSC argued,
amounted only to common law fraud, taking the case out of the
realm of fraud upon the court. The superior court denied the
motion for reconsideration without comment.
CAPA moved for summary judgment based on its assertion
that the statute of limitations had expired. It argued that the
court visitors report constituted a final account for the
purposes of AS 13.36.100, and that since K.H.s claim was not
filed within six months of that report, it was time barred. K.H.
responded that since no final accounting had ever been submitted,
the motion should be denied. PGSC joined in CAPAs motion for
summary judgment based on the statute of limitations. The
superior court granted the motion for summary judgment and
dismissed all claims against PGSC, David Schade, and CAPA.
K.H. appeals the grant of summary judgment in favor of
PGSC, Schade, and CAPA. PGSC cross-appeals the denial of summary
judgment based on res judicata.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo and view
the facts in the light most favorable to the non-moving party.4
When reviewing a grant of summary judgment, we must determine
whether any genuine issue of material fact exists and whether the
moving party is entitled to judgment as a matter of law.5
Summary judgment may be affirmed on grounds other than those
relied upon by the superior court.6
IV. DISCUSSION
A. The Statute of Limitations Does Not Bar K.H.s Claim
Because Neither CAPA Nor PGSC Filed a Final Report
Fully Disclosing All Financial Matters.
The crux of the dispute before us is whether CAPA or
PGSC filed a final accounting or other statement fully disclosing
the matter sufficient to trigger the six-month limitations
period. Alaska Statute 13.36.1007 provides for a limitations
period of six months after receipt of a final account that fully
discloses all pertinent matters upon termination of the trust
relationship:
Unless previously barred by adjudication,
consent or limitation, any claim against a
trustee for breach of trust is barred as to
any beneficiary who has received a final
account or other statement fully disclosing
the matter and showing termination of the
trust relationship between the trustee and
the beneficiary unless a proceeding to assert
the claim is commenced within six months
after the receipt of the final account or
statement.
Even if a trustees final account or statement does not amount to
a full disclosure, the beneficiary must file suit within three
years of receipt of the final account or other statement as long
as the trustee has made all records available for examination by
the beneficiary:
In any event and notwithstanding lack of full
disclosure, a trustee who has issued a final
account or statement received by the
beneficiary and has informed the beneficiary
of the location and availability of records
for examination by the beneficiary is
protected after three years.[8]
Because K.H.s relationships with CAPA and PGSC spanned different
periods, we will address the statute of limitations issue
separately for each defendant.
1. Community Advocacy Project of Alaska
CAPA served as conservator for K.H. from September 1992
to November 1996. CAPA served as guardian for K.H. from February
1996 to November 1996. The court visitor filed her first report
on May 24, 1996, and, on December 10, 1996, the standing master
issued a second order appointing the same court visitor to review
prior expenditures made on behalf of K.H. That report, filed on
February 17, 1997, examined CAPAs expenditures for K.H. and
concluded that it presented a disturbing breakdown. For example,
the court visitor expressed concerns that CAPA paid SLAC $54,759
for services, while at the same time paying itself $27,437 under
a category entitled other. In just one year, CAPA paid SLAC
almost $22,000, or $80 per hour, for non-professional services
such as training K.H. to do his laundry. The court visitor
reported that the fees charged for such services were unheard of,
and pointed out that K.H. was being charged for these services
while he was already paying for twenty-four-hour assisted living.
She also noted that CAPAs billing statements for its services
during this period were not specific, usually indicating only
guardianship services or conservatorship services without
breaking down the nature of assistance and cost per hour. The
court visitor concluded her report by observing that CAPA had
dissipated large sums of K.H.s money in a spend down fashion
rather than using it in a frugal and conscientious way.
In her follow-up report, issued on February 27, 1997,
the court visitor reported her discovery that K.H. should have
been charged $5 per hour for the services he received at SLAC.
In the court visitors view, the securities account where K.H.s
money was held should not have been touched and interest income
on those securities should only have been used if it was
distributed to K.H. The visitor concluded that CAPA purchased
mental health support for [K.H.] at a rate 1500% higher than was
necessary.
On February 26, 1997, the day before the visitors
follow-up report was filed, CAPA filed a document entitled final
guardianship report in the superior court. That report was
challenged by K.H.s then-guardian and conservator, PGSC, which
requested that the report be rejected because it contained
numerous errors. CAPA subsequently filed an amended final report
in the superior court on May 9, 1997.
CAPA does not point to its own amended final report as
the accounting that triggers the six-month statute of
limitations; rather, CAPA claims that the February 27, 1997 court
visitors report constitutes a final account or other statement
fully disclosing the matter within AS 13.36.100 and that K.H. had
six months from that report to file a claim. Because suit was
not filed until March 18, 1999, more than eighteen months after
the six-month limitation, CAPA argues that it is time barred. To
support its argument, CAPA points out that in his complaint, K.H.
simply reiterated the allegations made by the court visitor in
her February 27, 1997 report and addendum. CAPA adds that K.H.
offered no evidence that he had learned of any additional facts
regarding CAPAs performance as conservator between February 27,
1997, the date of the visitors report and addendum, and March 18,
1999, the date the lawsuit was filed.
However, CAPAs argument that the February 27, 1997
court visitors report constitutes a final account or other
statement fully disclosing the matter under AS 13.36.100, thus
triggering the six-month limitations period, is not convincing.
The statute contemplates that the final account or statement
triggering the statute of limitations must be submitted by the
trustee. Indeed, the statutory provision explicitly provides in
its second sentence that a trustee who has issued a final account
or statement is protected after three years provided that the
trustee has informed the beneficiary of the location and
availability of information. (Emphasis added.) It is the
trustee, not a third person such as a court visitor, who must
issue the final account or other statement fully disclosing the
matter in order to trigger the applicable statute of limitations.
The trustee is the party with the knowledge, access, and
information available to make a full disclosure under the statute
and is therefore the party who is required to provide a full and
final account.
CAPA was apparently aware that it was required to file
the final account, as it filed two final guardianship report
forms in the superior court. These forms provide a special
section for the final accounting. CAPA filed its amended final
guardianship report on May 9, 1997, after the court visitors
February 27, 1997 addendum and report. This undercuts CAPAs
contention that the visitors report constitutes a statement fully
disclosing the matter; CAPA was still working on its own
accounting in the K.H. conservatorship almost three months after
the court visitors report.
Finally, CAPA does not argue that its own final
guardianship report is the triggering event for the six-month
statute of limitations. This report could not be viewed as
providing full disclosure, particularly when Schade, who was
director of CAPA while it served as K.H.s guardian, called the
report incomplete. Indeed, CAPAs counsel submitted an affidavit
to the trial court in September 2000, stating that he had learned
that SLAC overcharged K.H.: My review of [the SLAC fee payment
policy] and [K.H.s] circumstances supports a good faith argument
that SLACs charges to [K.H.] in 1992 and 1993 violated the SLAC
contract with [K.H.]. Thus, new facts have come to light during
the course of this litigation which indicate that CAPAs own
report is not a statement fully disclosing the matter which would
trigger the six-month limit.
CAPAs suggestion that the six-month limitations
period is triggered here because the subsequent conservator may
have been aware of alleged misconduct is also unavailing. The
statute requires more than just inquiry notice. Rather, the
statute specifically provides that the six-month limitations
period begins to run only after the ward or beneficiary receives
a statement by the trustee that provides full disclosure of all
financial matters. In the absence of full disclosure, the three-
year limitations period is available.
Because the trustee failed to issue a final report
making full disclosure under AS 13.36.100, the six-month limit
was not triggered. The court visitors report cannot satisfy the
statutes requirement that the trustee issue the report.
Therefore, the trial court erred in granting summary judgment in
favor of CAPA on statute of limitations grounds.
2. Professional Guardian Services Corporation and
David Schade
PGSC served as guardian and conservator for K.H. from
November 12, 1996 to July 8, 1997. The court visitor filed one
report in K.H.s case while PGSC was guardian and conservator. In
that report, she reiterated the questionable and excessive
expenditures made by CAPA. She also concluded that since Schade
was director of CAPA at the time, and now served as K.H.s
guardian at PGSC, there was a possible conflict of interest,
particularly given Schades apparent reluctance to sue to recover
K.H.s assets. As a result, the superior court removed PGSC and
appointed OPA to serve as K.H.s guardian and conservator.
PGSC immediately filed a motion for approval of payment
of guardianship and conservatorship fees, announcing that [t]he
VA has authorized [K.H.s] guardianship/conservatorship fees to be
taken from the VA pension funds. On September 9, 1997, the court
issued an order allowing PGSC to take its fees as authorized by
the Veterans Administration. PGSC filed a three-page final
guardianship/conservatorship report in the superior court on
October 30, 1997. K.H. objected to the report, arguing that the
VA funds taken pursuant to the September 9, 1997 order were not
included in PGSCs October 30 final report and requested a
hearing. During the hearing, held on December 17, 1997, Schade
did not substantiate his claim of authorization to use VA
benefits to pay his fees. Moreover, OPA was unable to obtain
PGSCs fiduciary agreement with the VA until March 1998. OPA
claims that it did not receive PGSCs federal fiduciary account
statement until June 30, 1998.
K.H. contends that the trial court erred in granting
summary judgment to PGSC because, like CAPA, PGSC failed to file
a final accounting or other statement fully disclosing all
financial matters of the guardianship and conservatorship. K.H.
points out that after PGSC filed a final report on October 30,
1997, K.H. objected, and a hearing was held. The standing master
asked for further reporting. There was never a follow-up or
amended report. In addition, K.H. argues that a VA inquiry into
the expenditure of funds was still ongoing in 1998.
PGSC and Schade maintain that there is no question that
the October 30, 1997 final report constitutes a final accounting
of activities conducted on behalf of K.H., thus triggering the
six-month limit. PGSC argues that K.H. has previously
acknowledged the report as a final accounting and that the six-
month limit began to run on October 30, 1997, the date the report
was filed. PGSC also argues that at the December 17, 1997
hearing it disclosed the VA as the source of fees it was
receiving and that Schade answered any questions regarding those
fees. PGSC adds that [t]here is no indication that any
information was withheld from the final accounting. Thus, PGSC
argues, there was no lack of disclosure which would extend the
limit from six months to three years.
Alaska Statute 13.36.100 requires full disclosure of
all financial matters upon termination of the trust relationship
between the trustee and the beneficiary. Here, PGSCs October 30,
1997 final report failed to explain the $3,329 in fees it paid
itself out of K.H.s VA funds. Schade did not reveal that he was
still receiving K.H.s VA checks until the December 17, 1997
hearing. Moreover, OPA did not receive PGSCs fiduciary agreement
with the VA until March 1998 and was apparently unable to obtain
PGSCs federal fiduciary account statement until June 30, 1998.
None of this information was included in the final accounting.
The final report thus could not constitute full disclosure.
Moreover, OPA does not appear to have taken over for PGSC as VA
fiduciary until March 1998. While K.H. may have been made aware
that PGSC was paying itself with his fees in September of 1997,
it took almost six more months to obtain a copy of PGSCs
fiduciary agreement and have a VA examiner determine if and when
PGSC received the alleged authorization to take their fees from
K.H.s VA benefits. Thus, not only did PGSC fail to include in
its final report the fact that it continued to receive K.H.s VA
benefit checks, it also apparently continued in its capacity as
fiduciary for K.H.s VA benefits well into 1998 at least six
months after filing the alleged final report. Thus, the trust
relationship between K.H. and PGSC had not terminated at the time
the final report was filed.
Therefore, the trial court erred in granting summary
judgment to PGSC on statute of limitations grounds. PGSCs final
report failed to make a full disclosure in its omission of the
fact that it was still receiving K.H.s VA benefits, and the
relationship between K.H. and PGSC continued beyond the date of
the final report.
B. K.H.s Claim Against PGSC Is Not Barred by Res Judicata.
PGSC appeals the denial of the motion for summary
judgment based on res judicata. PGSC argues that K.H. is in
effect trying to relitigate the September 1997 court order
awarding PGSC $3,020.97 for conservatorship fees. The present
action to recover those fees, PGSC contends, involves the same
parties and the same issue and is therefore barred by res
judicata. PGSC maintains that if K.H. thought the fee award was
obtained improperly, he had one year to challenge the order under
Civil Rule 60(b).9 However, Rule 60(b) contains a savings clause
which permits the court to set aside a judgment for fraud upon
the court:
This rule does not limit the power of a court
to entertain an independent action to relieve
a party from a judgment, order or proceeding,
or to grant relief to a defendant not
personally served, or to set aside a judgment
for fraud upon the court.
PGSC asserts that the savings clause in Rule 60(b) is only to be
employed in extraordinary circumstances, such as when a fraud on
the court would result in manifest injustice. Thus, PGSC
maintains that because K.H.s allegations would only amount to
common law fraud, he is not entitled to take advantage of the
savings clause and his present claim should have been dismissed.
We need not reach the issue of whether PGSCs conduct
amounted to fraud upon the court because we conclude that the
September 1997 order approving fees was not a final judgment for
purposes of res judicata. Res judicata is a judicial doctrine
that prevents the relitigation of the same claim between the same
parties or those in privity with them.10 However, only a valid,
final judgment on the merits presents an absolute bar to a
subsequent action.11 The September 1997 order allowing PGSC to
take fees from K.H.s VA benefits was an interim order not
appealable under Appellate Rule 202.12 It does not constitute a
valid, final judgment on the merits and thus res judicata does
not apply. The superior courts ruling in favor of K.H. on the
issue of res judicata is affirmed.
V. CONCLUSION
Neither CAPA nor PGSC filed final accountings which
fully disclosed K.H.s financial matters. Summary judgment as to
both is REVERSED and this case is REMANDED for further
proceedings in accordance with this opinion.
The court order that authorized PGSC and Schade to pay
itself from K.H.s VA benefits was not a final judgment for
purposes of res judicata. The denial of summary judgment based
on res judicata is AFFIRMED.
_______________________________
1 In reviewing a grant of summary judgment, we draw all
reasonable inferences in favor of the non-moving party. Nichols
v. State Farm Fire & Cas. Co., 6 P.3d 300, 303 (Alaska 2000).
Therefore, K.H. receives the benefit of all factual inferences.
2 Although OPA had replaced PGSC as guardian and
conservator on July 8, 1997, and PGSC filed a final guardianship
report dated October 30, 1997, PGSC retained control of K.H.s VA
benefits.
3 The complaint against CAPA also names their bonding
agency, Continental Insurance.
4 Nichols, 6 P.3d at 303.
5 R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994); see
also Alaska R. Civ. P. 56(c).
6 Hernandez v. Lambert, 951 P.2d 436, 439 n.5 (Alaska
1998) (citing James v. McCombs, 936 P.2d 520, 523 n.2 (Alaska
1997)).
7 Both parties agree that this is the applicable statute
of limitations.
8 AS 13.36.100.
9 Civil Rule 60(b) provides in part:
The motion shall be made within a
reasonable time, and for . . . [fraud or
misrepresentation] not more than one year
after the date of the notice of the judgment
or orders as defined in Civil Rule 58.1(c).
10 Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981).
11 Id.
12 Appellate Rule 202 provides in part:
(a) An appeal may be taken to the
supreme court from a final judgment entered
by the superior court, in the circumstances
specified in AS 22.05.010.
