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Crittell v. Bingo (01/02/2004) sp-5767
Crittell v. Bingo (01/02/2004) sp-5767
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
EDMOND CRITTELL and ELMA )
CRITTELL, ) Supreme Court No. S-10642
)
Appellants, ) Superior Court No.
) 3AN-98-59 PR
v. )
)
LAURA BINGO, THOMAS BINGO, )
ALICE MASUYAMA, COLLEEN )
NISHIYAMA, ELAINE SAKAITANI, ) O P I N I O N
and LEATRICE TAKEUCHI, )
Interested Parties, and the ESTATE OF ) [No. 5767 - January 2,
2004]
VIOLET M.B. HOUSSIEN, Deceased, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Michael Cohn and George E.
Goerig, Goerig & Associates, LLC, Anchorage,
for Appellants. Richard G. Haggart, Law
Offices of Richard G. Haggart, P.C.,
Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Edmond and Elma Crittell, the proponents of a will held
to be invalid and fraudulent, appeal the superior court's award
of full attorney's fees under Alaska Civil Rule 82, contending
that the rule does not apply to probate proceedings.
Alternatively, the Crittells argue that the trial court abused
its discretion by awarding enhanced fees under Rule 82. Because
Rule 82 fees may be awarded under the probate code in cases of
fraudulently brought claims, we affirm the trial court's award.
II. FACTS AND PROCEEDINGS
This is the second time this case has come before us on
appeal. The underlying case involved a probate contest between
the beneficiaries of competing wills of Violet Houssien. We
summarized the relevant facts in the first appeal (Crittell I) as
follows:
Shortly after Houssien died, Edmond
Crittell petitioned the superior court to
appoint him as the personal representative of
Houssien's estate and to accept for informal
probate a will that Houssien had executed on
March 22, 1995. The 1995 will left a modest
sum of cash to each of Houssien's six
siblings and gave the rest of Houssien's
[approximately $1.59 million] estate to Elma
Crittell. The will named Edmond Crittell as
executor and designated him as a contingent
beneficiary in the event of a default by
Elma.
Edmond Crittell's petition for informal
probate was challenged by two of Houssien's
sisters. The interested parties, Houssien's
sisters, . . . alleged that Houssien lacked
testamentary capacity and acted under undue
influence in executing the will. In lieu of
the 1995 will, the interested parties offered
for probate a prior will and codicil -
executed by Houssien in 1989 and 1990 - that
left the bulk of Houssien's estate to her
family.
. . . .
In opposing the 1995 will at the trial,
the interested parties . . . sought to
establish that the will was a fraud. Their
theory was that Houssien lacked testamentary
capacity when she signed the will, and that
she acted out of undue influence as a result
of the Crittells' fraudulent conduct. To
support this theory, the interested parties
presented evidence tending to show that the
Crittells befriended Houssien and
deliberately curried her favor at a point in
her life when she was particularly isolated,
frail, and mentally vulnerable; that they
reduced her to a state of dependency and
tricked her into signing papers in blank;
that on March 22, 1995, they appeared with
Houssien at . . . Mail Boxes, Etc., with two
witnesses - one Elma Crittell, the other
unknown - who signed the will in front of a
notary but fraudulently misrepresented their
true identities; that the Crittells
thereafter arranged to have the Mail Boxes,
Etc. store burglarized in order to remove the
records of notarization, which might have
allowed the fraudulent witnesses to be
identified; and that they subsequently kept
Houssien from contacting an attorney to
change the 1995 will.[1]
After a two-week bench trial in July 1999, the superior
court ruled in favor of the interested parties, finding fraud,
lack of testamentary capacity, and undue influence.2 The court
found that the Crittells had engaged in a fraudulent scheme to
induce Violet to execute the 1995 will, had fabricated documents
associated with the will, and had provided false testimony
regarding their participation in the fraudulent scheme.3 The
superior court then awarded attorney's fees under Alaska Civil
Rule 68's offer of judgment provision and costs under Rule 79.
The Crittells appealed. We affirmed the trial court's
decision on the merits, finding "ample evidence" to support the
superior court's finding of testamentary incapacity and
"compelling evidence" of undue influence.4 We stated that "[o]ur
review of the record convinces us that the trial court's findings
are supported by overwhelming circumstantial evidence that the
Crittells overbore Houssien's free will by their fraudulent
conduct."5 Applying the commonly recognized earmarks of fraud,
we found ample evidence of fraudulent influence:
Judged by these common earmarks of fraudulent
influence, the record easily supports the
superior court's finding of undue influence.
First, although Houssien had employed
attorneys to draft her prior wills, the 1995
will was produced without the aid of counsel;
further, the record contains substantial
evidence suggesting that the Crittells
impeded Houssien's access to counsel after
the will was signed. Second, the drafting,
execution, and publication of the 1995 will
were shrouded in secrecy, haste, and
suspicious circumstances. Third, the will
exhibited an unexplained - or at least
irrationally explained - change in Houssien's
attitude toward others. Fourth, the 1995
will reflects a sudden change in Houssien's
prior plan of disposition. Fifth, the will's
gift to Elma Crittell - almost completely
excluding all other beneficiaries - certainly
seems unnatural and unjust. And sixth, as we
have previously discussed, Houssien's
physical and mental impairments made her
particularly susceptible to - and a natural
target of - undue influence.[6]
Although we affirmed the merits of the superior court's
ruling, we vacated the judgment and remanded on the issue of
attorney's fees, finding that the court's award violated Rule
68(b)(2).7 We declined to decide other potential attorney's fees
issues because neither party had adequately briefed them, but we
noted that an award of fees might be appropriate under Rule
82(b), and we indicated that the trial court would not be
precluded on remand from reconsidering its initial decision to
deny enhanced fees under Rule 82(b)(3).8
On remand, the Houssiens moved for enhanced attorney's
fees under Rule 82(b)(3). The superior court granted the motion
and awarded the Houssiens their full reasonable fees; using the
Houssiens' counsel's total hours and standard rate to calculate
their fees, the court entered a fee award of $338,668.35.
III. DISCUSSION
A. Civil Rule 82 Attorney's Fees May Be Awarded in
Probate Proceedings for Fraud Upon the Court.
The Crittells argue that the trial court erred by
awarding Civil Rule 82 attorney's fees because the civil rules do
not apply to probate proceedings. They further contend that
awards under Rule 82 are barred by AS 13.16.435, a provision of
the probate code.9 Neither argument is persuasive.10
In contending that Rule 82 does not apply to probate
contests the Crittells insist that probate proceedings are not
civil actions, and so should not be governed by the civil rules.
They note that Rule 82, by its own terms, provides for awards of
fees to a prevailing party only in a "civil case."11
But our Civil Rules use the term "civil action" the
same way that the Federal Rules of Civil Procedure use it.
Alaska Civil Rule 2 provides: "There shall be one form of action
to be known as a `civil action.' " Federal Rule of Civil
Procedure 2 omits the "a" before "civil action," but otherwise
contains identical language.12 The federal rule has been
interpreted broadly:
A number of important consequences follow
from [Federal Rule of Civil Procedure 2]: the
forms of action are abolished, the separate
equity practice of the federal courts is
eliminated, the old equity rules are
superseded, . . . and the significance of the
term "cause of action," which formerly was a
matter of serious dispute, has been
eliminated. Today, there is a single
procedural framework for all federal civil
proceedings, regardless of the substantive
claim at issue . . . .[13]
The broad meaning ascribed to "civil action" in Federal Rule 2
would seem to encompass probate actions. Here, the Crittells
advance no good reason to interpret Alaska Civil Rule 2 more
narrowly than its federal counterpart.
Moreover, Alaska's Probate Rules confirm that the Civil
Rules apply in Alaska probate cases when the Probate Rules fail
to include a controlling provision:
Where no specific procedure is prescribed by
these rules, the court may proceed in any
lawful manner, including application of the
Civil and Evidence Rules, applicable
statutes, the Alaska and United States
Constitutions or common law. Such a
procedure may not be inconsistent with these
rules and may not unduly delay or otherwise
interfere with the unique character and
purpose of probate proceedings.[14]
In the present case, then, Civil Rule 82 governs the award of
fees unless a specific provision of the Probate Rules applies.
The Crittells argue that AS 13.16.435 controls the award of fees
and renders Rule 82 inapplicable. Section .435 provides:
If any personal representative or person
nominated as personal representative defends
or prosecutes any proceeding in good faith,
whether successful or not, that person is
entitled to receive from the estate necessary
expenses and disbursements including
reasonable attorney fees incurred.[15]
Relying on the provision, the Crittells maintain that a
prevailing party in a will contest cannot claim Rule 82 fees from
the competing party but must instead seek reimbursement of fees
from the estate. To support this proposition, the Crittells cite
our recent decision in Enders v. Parker.16 But the Crittells
overstate the holding in Enders.
There, we held that a personal representative in a will
contest cannot claim attorney's fees from a competing personal
representative under Civil Rule 82; we reasoned that section .435
specifically governs the situation, requiring the estate to
reimburse a personal representative or a person nominated as a
personal representative.17 We held that section .435 establishes
three requirements for recovering fees from an estate: "[I]n
order for the claimant to recover, (1) he or she must be a
personal representative or nominated as a personal
representative; (2) he or she must have brought or defended the
proceeding in good faith; and (3) expenses must be `necessary'
and attorney's fees `reasonable.' "18
But here, section .435 did not apply to the interested
parties' request for fees, since they did not bring their case as
personal representatives and did not claim to be persons
nominated as personal representatives under either of Violet's
wills.19 And while Edward Crittell did claim to be the personal
representative under Violet's 1995 will, the superior court ruled
Crittell had acted fraudulently in claiming to represent the
estate under this will and that the will itself was fraudulent.
Given these findings, which have already been determined to be
well supported by the evidence, section .435 could not apply to
the Crittells, since Edward Crittell failed to meet that
provision's first requirement: he was neither the personal
representative of the estate nor a person nominated as the
personal representative. Because section .435 did not apply in
this case, it follows that the superior court properly concluded
that Civil Rule 82 governed the interested parties' right to
recover fees.
B. Awarding Enhanced Fees Was Not an Abuse of
Discretion.
The Crittells alternatively argue that, even if Rule 82
applies in this case, the superior court abused its discretion by
awarding enhanced fees under 82(b)(3).20 The superior court
awarded the interested parties their full reasonable attorney's
fees "based on the complexity of the case, the reasonableness of
[counsel's] hours and hourly fees, the vexatiousness and bad
conduct of the Crittells, and the likelihood that this
enhancement would chill the exercise of true rights and claims
before the court." The court explained its reasoning for the
enhanced fee award as follows:
This case was brought to the court and
resulted in part due to bad conduct of the
Crittells. While it is without a doubt that
they helped Violet Houssien and were kind to
her, it is also true that they were involved
in the preparation, execution, and submission
to the court of a document which took
advantage of her infirmities. . . .
. . . .
The claims of the interested parties
were reasonable. The conduct of the
Crittells was very questionable, given their
involvement, but denial of involvement, in
the preparation of the will in question.
The court finds that the behavior of the
Crittells was vexatious and in bad faith to
the extent they falsely represented
throughout - and continue to this day - to
deny their involvement in the will's
preparation and execution. Such conduct is
vexatious and in bad faith and affected the
length, complexity and need for a trial.
The Crittells contend initially that the superior court
misapplied the phrase "vexatious or bad faith conduct" because,
as used in Rule 82(b)(3), the phrase applies only to a party's
conduct in litigating a case; it does not refer to the underlying
conduct upon which the claim is based. Here, the Crittells
assert, even if their underlying claims were meritless, the
claims were not litigated vexatiously or in bad faith.
But our case law establishes that an award of enhanced
fees under Rule 82 may be based on vexatious and bad faith
litigation "both as to the filing of the case and the prosecution
of it."21 In awarding enhanced fees in the present case, the
superior court relied on both the fraudulent nature of the
Crittells' underlying claims and the fraudulent manner in which
they prosecuted their claims. And as we have already indicated,
ample evidence supports the court's findings that the will
advocated by the Crittells was both conceived in fraud and
advanced at trial through the Crittells' fraudulent actions.22
Thus, the superior court properly applied the concept of
vexatious and bad faith conduct in enhancing the attorney's fee
award.
The Crittells separately claim that the superior
court's award of enhanced fees was an unlawful award of punitive
damages and violated their right of access to the courts, as
guaranteed by article IV, section 3 of the Alaska Constitution
and the due process clauses of the Alaska and United States
Constitutions. But these claims lack merit. While "[w]e have
expressed concern that `financially ruinous' fee awards against
good faith civil litigants could deter access to the courts,"23
the superior court determined that the Crittells are not good-
faith litigants. As the superior court noted, an award of full
fees against bad-faith claimants is unlikely to deter good-faith
claims, because "[p]arties who have not created false claims and
who do not testify falsely will not hesitate to defend or bring
cases to the court."
Last, the Crittells assert that the attorney's fee
award will unjustly enrich the estate because the superior court
failed to reduce the amount of full reasonable fees to account
for an estimated tax deduction that the estate could purportedly
claim for the amount of the contingent-fee obligation. But an
allegation of unjust enrichment will succeed only when "the
defendant has received a benefit from the plaintiff and it would
be inequitable for defendant to retain the benefit without
compensating plaintiff for its value."24 Here, the interested
parties plausibly argue that, because the superior court based
its award of full reasonable fees on their attorney's billable
time rather than on the amount due under the contingent-fee
contract, the award of nominally full fees falls several hundred
thousand dollars short of the amount that they will actually owe
for fees. According to the estate, then, the fee award would not
result in a net benefit, even assuming that the estate is
eligible to receive a tax deduction for fees.
The Crittells do not refute this argument; nor do they
explain why it would be unjust for the estate to retain any
benefit received under these circumstances. Because the
Crittells have failed to establish either that the full_fee award
will result in a net benefit to the estate or that it would be
unjust for the estate to retain any benefit it might receive, we
find no merit to the Crittells' unjust enrichment claim.25
IV. CONCLUSION
For these reasons, we AFFIRM the superior court's award
of attorney's fees.
_______________________________
1Crittell v. Bingo, 36 P.3d 634, 636-37 (Alaska 2001).
2Id. at 637-38.
3Id. at 647-52 (appendix containing superior court's findings).
4Id. at 641-42.
5Id. at 642.
6Id.
7Id. at 636, 643.
8Id. at 643.
9The Crittells make parallel arguments regarding the trial
court's award of Rule 79 costs. Because the Crittells neither
appealed the cost award in Crittell I nor adequately raised the
issue on remand, the Crittells have waived any claim as to costs.
See State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d
851, 873-74 (Alaska 2003) (holding that state had waived argument
because it could have been raised in an earlier appeal but was
not and because it fell outside the scope of remand); Brandon v.
Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (stating that
an argument not raised below is waived).
10We review a trial court's interpretation of statutes and court
rules under the independent judgment standard. Enders v.
Parker, 66 P.3d 11, 13-14 (Alaska 2003); see also Fleegel v.
Estate of Boyles, 61 P.3d 1267, 1270-71 (Alaska 2002) (statutory
interpretation and application is a question of law); Reich v.
Cominco Alaska, Inc., 56 P.3d 18, 21 (Alaska 2002)
(interpretation of civil procedure rule is a question of law).
11Alaska Civil Rule 82 provides, in part:
(a) Allowance to Prevailing Party. Except
as otherwise provided by law or agreed to by
the parties, the prevailing party in a civil
case shall be awarded attorney's fees
calculated under this rule.
12Fed. R. Civ. P. 2.
134 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure 1042 (3d ed. 2002); see also Copper Valley Trading
Co. v. Kratz, 513 P.2d 1113, 1115 (Alaska 1973) (quoting very
similar passage from another federal treatise and citing Wright &
Miller 1042); cf. Milwaukee County v. M.E. White Co., 296 U.S.
268 (1935) ("[S]uits of a civil nature within the meaning of
[section 24(1) of the Judicial Code] are those which do not
involve criminal prosecution or punishment, and which are of a
character traditionally cognizable by courts of common law or of
equity.").
14Alaska Probate Rule 1(e).
15AS 13.16.435 (emphasis added).
1666 P.3d 11, 17 (Alaska 2003).
17Id. at 17.
18Id. at 15.
19The Crittells cursorily argue that the interested parties acted
as de facto personal representatives and should be treated as
personal representatives because the nominal personal
representative ratified their litigation. But the Crittells
failed to raise this argument in the trial court, and they
developed it on appeal primarily in their reply brief. We
therefore conclude that the argument has been waived. See, e.g.,
Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1255 n.61 (Alaska
2001) ("This court will not consider arguments on appeal that
were not raised below unless the new issues either establish
plain error or do not depend on new or controverted facts, are
closely related to the appellant's arguments at trial, and could
have been gleaned from the pleadings."); Adamson v. Univ. of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point is
given only a cursory statement in the argument portion of a
brief, the point will not be considered on appeal."); Alaska R.
App. P. 212(c)(3) (providing that reply brief "may raise no
contentions not previously raised in either the appellant's or
the appellee's briefs").
20Civil Rule 82(b)(3) provides, in relevant part:
(3) The court may vary an attorney's fee
award calculated under subparagraph (b)(1) or
(2) of this rule if, upon consideration of
the factors listed below, the court
determines a variation is warranted:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys'
hourly rates and the number of hours
expended;
. . . .
(F) the reasonableness of the claims and
defenses pursued by each side;
(G) vexatious or bad faith conduct;
. . . .
(I) the extent to which a given fee award
may be so onerous to the non-prevailing party
that it would deter similarly situated
litigants from the voluntary use of the
courts.
An award of full attorney's fees is manifestly
unreasonable in the absence of a finding of bad faith or
vexatious conduct. Marathon Oil Co. v. ARCO Alaska, Inc., 972
P.2d 595, 605 (Alaska 1999); State, Child Support Enforcement
Div. v. Allsop, 902 P.2d 790, 795 (Alaska 1995); Demoski v. New,
737 P.2d 780, 788 (Alaska 1987). An award of full, actual
attorney's fees due to bad faith or vexatious conduct is reviewed
for abuse of discretion. E.g., Allsop, 902 P.2d at 795.
21Garrison v. Dixon, 19 P.3d 1229, 1234 (Alaska 2001).
22Although the Crittells insist that they did not litigate their
claims vexatiously or in bad faith, they focus their argument on
their attorney's conduct and rely on cases construing Alaska
Civil Rule 11 to support the conclusion that their attorney did
nothing improper. But the professionalism and conduct of the
Crittells' attorney was never at issue here. As the trial court
stated, "The enhancement of attorney fees against a party is due
to the parties' behavior, not the conduct of counsel." Nothing
in the superior court's ruling or in this opinion suggests any
impropriety on the part of the Crittells' counsel. Thus, Civil
Rule 11, which governs the conduct of attorneys, not clients, has
no relevance here.
23Reid v. Williams, 964 P.2d 453, 462 (Alaska 1998) (emphasis
added).
24Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988); see also
Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101,
107 (Alaska 2001) ("[T]he doctrine of unjust enrichment is
predicated on the theory of restitution: When a party unjustly
receives, retains, or appropriates property or a benefit, the
party should repay the source of the property or benefit.").
25See id.
