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ENDERS vs. GLEN PARKER (10/14/2005) sp-5947
ENDERS vs. GLEN PARKER (10/14/2005) sp-5947
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
| IRIS ENDERS,
| ) |
|
| ) Supreme Court No. S-
11437 |
|
Appellant, | ) |
|
| ) Superior Court No.
3AN-97-1124 P |
|
v. | ) |
|
| ) O P I N I O
N |
|
GLEN PARKER, Personal | ) |
|
Representative of the Estate of | ) [No. 5947
- October 14, 2005] |
|
JOEL W. KOTTKE, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Timothy R. Byrnes, Hughes
Thorsness Powell Huddleston & Bauman LLC,
Anchorage, for Appellant. C. James Mathis,
Davis & Davis, P.C., Anchorage, for Appellee.
Before: Matthews, Eastaugh, Fabe, and
Carpeneti, Justices. [Bryner, Chief Justice,
not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Alaska Statute 13.16.435 entitles personal
representatives who litigate in good faith to recover attorneys
fees and costs from the estate. Iris Enders was a personal
representative who unsuccessfully challenged Joel Kottkes 1997
will. She argues here that it was error to deny her request for
attorneys fees and costs under the statute. Because the good
faith required by AS 13.16.435 is implied, but not conclusively
established, by the existence of reasonably arguable grounds for
a will challenge, and because good faith requires that a personal
representative act with intent to benefit the successors of the
will the representative seeks to uphold, the superior court
applied the correct analysis. Furthermore, it did not clearly
err in finding that Enders did not act with intent to benefit the
successors. Because Enders was therefore not entitled to recover
fees and costs from the estate under AS 13.16.435, we affirm.
II. FACTS AND PROCEEDINGS
Joel Kottke died in October 1997.1 Per the will he
executed in June 1997, most of his estate went to Connie Parker.
She was a long-time acquaintance of Joel Kottke; she became
closer to him in his later years, developed a relationship with
him very similar to a marriage, and also served as his care-
giver.
The 1997 will replaced a 1983 will that Joel Kottke had
executed while he was married to Martha Kottke. Per the 1983
will, Joel left his entire estate to Martha. Upon her death, the
residual estate was to pass one-half to Marthas children and one-
half to Joels siblings. Martha Kottke died in 1991. Following
Joels death, Iris Enders (Marthas daughter) and Ralph Kottke
(Joels brother) challenged the 1997 will, alleging that Connie
Parker had an undue influence on Joel and that Joel was suffering
from insane delusions when he drafted the 1997 will.
Following a seven-day bench trial, Superior Court Judge
Sen K. Tan ruled that there was inadequate evidence to invalidate
the 1997 will. Enders appealed that ruling. We affirmed.2 The
superior court then denied Enderss request that the estate be
required to pay her attorneys fees and costs under AS 13.16.435.
Enders appealed the denial, and we vacated the order denying her
request because we held that AS 13.16.435 does not require that a
personal representative or nominated personal representatives
actions benefit the estate before the personal representative can
recover expenses.3 We therefore remanded for specific findings
as to whether Enders prosecuted the will contest in good faith.4
The superior court explicitly found on remand that Enders lacked
good faith and again denied Enderss request for attorneys fees
under the statute. Enders now appeals that denial.
III. DISCUSSION
A. Standard of Review
We review questions of law de novo and adopt the rule
of law most persuasive in light of precedent, reason, and policy.5
The parties disagree about how we should review the superior
courts conclusion that Enders lacked good faith. Enders argues
that we should review it de novo, while Parker asserts that we
should apply the clearly erroneous standard. For the reasons set
out below, we conclude that a determination that a personal
representative did or did not act in good faith is a fact finding
that should be reviewed for clear error. A finding of fact is
clearly erroneous when the reviewing court is left with a
definite and firm conviction that the trial court has made a
mistake.6
B. A Good Faith Determination Under AS 13.16.435 Is a
Factual Finding that We Review Under the Clearly
Erroneous Standard.
In enacting AS 13.16.435, Alaska adopted 3-720 of the
Uniform Probate Code (UPC). Alaska Statute 13.16.435 provides
that personal representatives or persons nominated as personal
representatives can receive litigation expenses from the estate
if they can show that they prosecuted or defended proceedings in
good faith.7 We interpreted AS 13.16.435 for the first time in
Enders v. Parker and made a number of observations about the
meaning of the term good faith as it is used in AS 13.16.435.8
We stated that [a]lthough good faith is not defined in the
probate statutes, the statutory obligations of the personal
representative shed light on the meaning of that term.9 Alaska
Statute 13.16.350(a) provides in part: A personal representative
is a fiduciary who shall observe the standards of care applicable
to trustees . . . . We observed that
in the context of two competing wills with
different personal representatives, it is to
be expected that the successors will not be
identical. Each personal representative thus
must act for the best interests of the
successors named in the will which each
personal representative is respectively
seeking to uphold. We hold that good faith
under AS 13.16.435 incorporates the statutory
requirement that a personal representative
act with the intent to benefit successors
named in the instrument the personal
representative seeks to uphold . . . .[10]
We also stated that the superior court, when making its
findings concerning good faith on remand, should consider whether
Enders had reasonably arguable grounds to challenge the 1997
will. Presence of such grounds would imply good faith on her
part; absence of such grounds would imply a lack of good faith.11
Enders contends that the standard of review cannot be
clear error because she asserts that we remanded the case for a
determination of whether she had reasonably arguable grounds to
challenge the will. Enders equates this inquiry to asking
whether the challenge was frivolous; she therefore argues that
the superior court should have taken every factual inference in
her favor and assumed the credibility of her witnesses. In
essence, Enders asserts that reasonably arguable grounds exist if
a claim would have survived summary judgment. Because summary
judgment rulings are reviewed de novo,12 Enders reasons that the
same standard applies to review of the superior courts resolution
of the good faith issue.
Enderss theories rest on a misunderstanding of our
remand instructions in Enders. We did not remand for a
determination of whether Enders had reasonably arguable grounds
to challenge the 1997 will, but rather for specific findings on
the issue of good faith and for consideration of whether Enders
had reasonably arguable grounds for her claims.13 If she had
reasonably arguable grounds, it would imply good faith; if she
did not, it would imply a lack of good faith.14 Enders did not
adopt reasonably arguable grounds as the sole determinant of good
faith under AS 13.16.435. Rather, the presence or absence of
reasonably arguable grounds creates a presumption of good faith
or lack of good faith, respectively. This presumption can be
rebutted by evidence sufficient to establish good faith or lack
thereof, as the case may be.
Nebraska Revised Statute 30-2481 is identical to AS
13.16.435.15 The Nebraska Supreme Court has held that [t]he good
faith required in 30-2481 is an ultimate fact for the courts
decision upon all of the evidence. There are no rules defining
it; rather, it depends upon the peculiar facts and circumstances
existing in each case, including the duties imposed . . . by law.16
Enders held that one such duty requires the personal
representative to act with the intent to benefit successors named
in the instrument the personal representative seeks to uphold
where there are two competing wills with different personal
representatives . . . .17 It would therefore be incorrect to
reduce the entire good faith inquiry to the single question of
whether the personal representative had reasonably arguable
grounds to act. The good faith inquiry requires a factual
determination of intent that we review for clear error.18
Enderss apparent suggestion that Alaska Civil Rule 11
which also contains a good faith standard should dictate de novo
review by analogy, is flawed because we review an award of
sanctions under Civil Rule 11 for abuse of discretion.19
C. Surviving Summary Judgment Does Not Necessarily Mean
Reasonably Arguable Grounds Exist.
As noted above, the presence of reasonably arguable
grounds for a will contest implies that a personal representative
acted in good faith under AS 13.16.435. Enders advances a number
of arguments about how trial courts should decide whether there
are reasonably arguable grounds.
She argues that the superior court, when considering
whether Enders had reasonably arguable grounds, should have
looked at whether Enders raised a genuine issue of material fact.
In other words, she reasons that if the claim survived or would
have survived a motion for summary judgment the superior court
was required to find that reasonably arguable grounds existed.
Enders refers us to Federal Rule of Civil Procedure 11, which
requires that allegations and other factual contentions have
evidentiary support.20 The Advisory Committee notes to the
federal rule state that if a party has evidence with respect to
a contention that would suffice to defeat a motion for summary
judgment based thereon, it would have sufficient evidentiary
support. 21 Enders therefore argues that in considering whether
she had reasonably arguable grounds, the superior court, just as
it would in reviewing an opposing partys motion for summary
judgment, was required to giv[e] every factual inference to [her]
and assume the credibility of her witnesses.
But just because Enderss claim survived, or would have
survived, summary judgment does not establish that there were
reasonably arguable grounds to challenge the will. Upon a motion
for summary judgment, [t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
[or her] favor.22 Any reasonable litigant, especially one
represented by counsel, should know that his or her claim will
not receive these advantages during trial. Moreover,
commentators have observed that [t]he burden on the nonmoving
party is not a heavy one; the nonmoving party simply is required
to show specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.23 In other words,
summary judgment should be relied upon to weed out frivolous
lawsuits and avoid wasteful trials.24 By the same token, a claim
that is dismissed on summary judgment does not necessarily lack
reasonably arguable grounds, because the claim may turn on a
question of law.25
In our view, it would not be sound policy to adopt a
per se rule that reasonably arguable grounds must exist under AS
13.16.435 if a claim survives or would have survived summary
judgment. The Advisory Committee notes to Federal Civil Rule 11
provide that an assertion or claim is deemed to have evidentiary
support if it was capable of surviving a motion for summary
judgment. Important considerations underlie this view, as courts
have expressed concern that the federal rule not stifle creative
advocacy or chill an attorneys enthusiasm in pursuing factual or
legal theories.26 Similar concerns do not arise in the context of
AS 13.16.435. Although we do not wish to discourage pursuit of
meritorious claims, we must also recognize the importance of
upholding the testators intent.27 Personal representatives who
pursue will contests that might survive summary judgment but have
no reasonable chance of succeeding at trial waste the estate and
impede the fulfillment of the testators wishes, all while
conferring no benefit on the successors to whom the personal
representative is a fiduciary. We are therefore unpersuaded by
Enderss argument that reasonably arguable grounds necessarily
exist if a claim was capable of defeating a summary judgment
motion.
The standard for determining whether reasonably
arguable grounds existed will vary according to what the personal
representative sought to accomplish. In this case, Enders sought
to defeat the 1997 will, leaving the 1983 will. Because her
claims turned on disputed factual issues, this would have
required her to prevail at trial; the relevant question is
therefore whether there was a reasonable chance the court would
ultimately rule for Enders after trial on either ground she
raised in challenging the 1997 will. A pure question of law,
however, could be resolved on summary judgment. The reasonably-
arguable-grounds inquiry would in that case turn on whether there
was a reasonable chance of prevailing at summary judgment.
We also note that one of Enderss contentions may have
some relevance to the reasonably-arguable-grounds inquiry. She
contends that whether a litigant had reasonably arguable grounds
has to be judged at the outset, based on the witnesses and
evidence of the party whose good faith is challenged. This
implies that reasonably arguable grounds may exist when an action
is first filed but may dissipate as litigation proceeds. A
personal representative could therefore have reasonably arguable
grounds to challenge a will but then learn through discovery that
the claim lacks merit. In considering whether there were
reasonably arguable grounds for the action, the trial court
should examine what the personal representative knew or should
have known about the merits of the claim as it proceeded.
D. The Superior Courts Finding that Enders Lacked Good
Faith Was Not Clearly Erroneous.
Having resolved Enderss contentions regarding the
standard of review and the reasonably-arguable-grounds inquiry,
we turn to her argument that the superior courts findings of fact
were clearly erroneous.28 The superior court found that Enders
did not have reasonably arguable grounds to challenge the 1997
will. It also found that she did not act with the intent to
benefit the successors of the 1983 will because Enders brought
and pursued the will contest for her own personal benefit and
self-interest, motivated by her and her familys personal
animosity and disdain for Connie Parker. Ultimately, the
superior court found that Enders lacked good faith.
1. The superior courts finding that Enders lacked
reasonably arguable grounds to challenge the 1997
will was not clearly erroneous.
Enders disputes the superior court finding that Enders
did not have reasonably arguable grounds to challenge the 1997
will.
a. Undue influence claim
The superior court found that Enderss undue influence
claim was at best weak and not particularly well founded. Enders
argues that this finding falls short of finding the claim was not
supported by reasonably arguable grounds and that the witnesses
she called established by their testimony alone a prima facie
case of undue influence. We have previously discussed the
circumstances that would permit a finding of undue influence:
In situations in which the defendant is the
principal or sole beneficiary, had a
confidential relationship with the testator,
and participated in the drafting of the will,
the defendant is presumed to have exercised
undue influence, and must prove otherwise.
If those circumstances do not apply, to show
undue influence the plaintiff must show that
by reason of influence exercised by [the
defendant], the testator was virtually
compelled to make a will which he would not
have made had he been left to the free
exercise of his own judgment and wishes.[29]
In considering whether Enders had reasonably arguable
grounds to pursue the undue influence theory, the superior court
noted that, before Joel Kottke died, Enders had raised concerns
about undue influence with the Division of Senior Services. One
of the divisions social workers, John Burke, testified that he
had investigated a complaint that Connie Parker was coerc[ing
Joel] into changing his will. Burke testified that he
interviewed Joel and that he concluded in his report that Mr.
Kottke . . . was extremely clear thinking and in control of what
he wanted to do. 30 Burke found no reason to pursue the matter
further. The superior court also observed that Enders had
contacted one of Joel Kottkes friends, Robert Dixon, both before
and after Joels death and claimed that Connie provided inadequate
care for Joel, unduly influenced him, and delayed the provision
of medical attention. Dixon responded that he was not seeing
that. Noting the testimony of Burke, Dixon, and others, the
superior court concluded that Iris Enders knew or should have
known that the grounds for an undue influence claim were not
particularly well founded. Her immense dislike of Connie Parker
apparently blinded her to the strength or weakness of her claim.
Several of Enderss witnesses testified about their
impressions of Connie and Joels relationship, especially their
sense that Connie dominated or controlled Joel. Lois Kottke
testified that she had concerns over the level of control Connie
exercised over Joel. Leonard Klima testified that Connie Parker
was very dominating and almost deceitful in her actions at times.
He believed that the relationship was not loving; rather he
thought [i]t was a little on the mercenary side on the part of
Connie. Ellen Onstott testified that she thought that Connie had
domination over Joel. Ralph Kottke and Iris Enders testified
that they believed Connie Parker was influencing Joel with sex.
We note that many of the witnesses called by Enders
admitted to having spent a relatively minimal amount of time
observing Joel and Connies relationship. Eunice Kottke visited
Joel once in 1996 and possibly saw him twice in Minnesota during
the 1990s. Lois Kottke only observed Joel and Connie together
for a total of twenty days during the entire 1990s. Leonard
Klimas only in-person contact with Joel was during a seven-day
period shortly before Joel died. Richard and Ellen Onstott saw
Joel Kottke once, maybe twice a year during the 1990s. As a
result, we cannot say that the superior court erred in finding
that Enders had no reasonably arguable grounds to pursue the
undue influence claim. The testimony of a few witnesses who had
limited exposure to Joel and Connies relationship does not leave
us with a definite and firm conviction that the superior court
made a mistake, especially given evidence that a disinterested
professional, John Burke, investigated Enderss claim and found no
reason for concern.
b. Insane delusions claim
The superior court found that Enderss claim of insane
delusions was even weaker than the claim of undue influence and
concluded that [n]o evidence indicates that Mr. Kottke was insane
or suffered from any delusion. Enders states that she decided
not to brief this issue on appeal due to space limitations and
because it is not necessary[] to prove good faith. In any case,
the superior courts finding was not clearly erroneous.
The superior court observed that [t]he basis for this
claim was Mr. Kottkes belief that Ms. Enders had rifled his safe
and taken his will. The superior court pointed out that Enderss
own actions had provided a basis for Kottkes belief she had
removed items from his house on at least two occasions. The fact
that Kottkes friends and other independent witnesses unanimously
testified that they never observed any delusional behavior from
Joel Kottke confirms that Enderss insane delusions claim was
extremely tenuous. Roxanne Olson testified that Joel Kottke was
truly coherent a few days before he died. Linda Plettner and
Peggy Bell testified that they never observed any delusional
behavior from Joel Kottke. Dr. John Wrigley, Joel Kottkes
urologist, testified that he never saw any evidence of insane
delusions. Max Gruenberg, Jr., an attorney initially approached
by Kottke about drafting a new will, testified that Kottke
appeared alert and that he wanted to have a will done.
Although we had not yet addressed the issue of insane
delusions when Enders challenged the 1997 will,31 she would not
have had reasonably arguable grounds to pursue an insane
delusions claim under any standard we might have adopted.32
2. The superior courts finding that Enders acted out
of animosity and disdain was not clearly
erroneous.
The superior courts finding that Enders did not have
reasonably arguable grounds to challenge the 1997 will implied
that she did not act with an intent to benefit the successors and
therefore lacked good faith. For Enders to have prevailed, there
must have been sufficient evidence to overcome the resulting
presumption.
The superior court, however, found that Enderss real
motivation was the personal animosity and disdain she and her
family had for Connie Parker. Enders argues that she had no such
ulterior motive and sincerely expected and hoped to prevail on
the merits. The superior court also found that Enders brought
and pursued the will contest for her own personal benefit and
self-interest. We need not address this finding because we
conclude that the superior court did not clearly err in finding
that Enders acted out of animosity and disdain for Parker; she
therefore failed to rebut the implication that she did not act
with the intent to benefit the successors of the 1983 will.
The superior court observed that Ms. Enders and her
family were outspoken in their animosity towards Connie Parker.
This animosity was clear from Ms. Enders and her witnesses from
their demeanor on the witness stand. Evidence supported these
findings. For example, Greg Enders, Iriss son, testified that he
thought Connie Parker was an intrusive person and a decrepit old
woman. He felt that Connie Parker was just unreal. He testified
that he was almost in shock just to even be in the same room with
the woman [Connie] and that he was offended by her even before
her relationship with Joel Kottke. Iris Enders testified that
she felt Parker was abrasive with her and that she didnt have to
like [Parker] even though she could accept Joels decision to
remain with her. Enders also testified that, because of the type
of person Parker was, she did not think Joel would have stayed
with Parker if Parker was not providing sex to him.
The superior court also noted that Enders called many
witnesses at trial to testify that [] Connie Parker was not good
enough for Joel Kottke, that he had no affection for Parker, and
that their relationship was a travesty. For example, Eunice
Kottke testified that she thought that Connie and Joels
relationship was not up to my [Eunices] standards. Leonard Klima
testified that Parker couldnt carry a conversation with [Joel]
because she wasnt up to his intellect. Greg Enders testified
that he thought Joel and Connies relationship was a joke and that
she was forcing herself on [Joel] all the time. The superior
court rejected this testimony as highly inaccurate, instead
finding that Joel Kottke and Connie Parker lived and aged
together and enjoyed a loving and committed intimate
relationship.
The superior court noted that several of Joel and
Connies close friends testified that the couple had a loving
respectful relationship. The superior court found that these
friends, as disinterested witnesses, [were] highly credible.33
Robert Dixon testified that Joel and Connie treated each other
with respect and that they had a loving relationship. Maureen
Morgan testified that Joel and Connie seemed compatible and happy
and that they treated each other with respect, compassion, and
affection. Peggy Burgin testified that Joel and Connie seemed
like a very happy couple. The superior court found that Enderss
strategy of mischaracteriz[ing] Joel and Connies relationship
illustrated her and her familys complete inability to accept
Connie Parker and the intimate and important role she played in
Joels life.
There was some testimony that tended to show that
Enders challenged the 1997 will because she believed it was
invalid. For example, Enders testified that [t]his case is about
[Joels] will being upheld, his original will, which is what he
really, truly wanted. When asked about her ultimate goal in
litigating the case, Enders responded:
The ultimate goal is that Connie Parker
withheld from the family his illness. She
let Joel believe that we were not there for
him, that we did not care for him, she
wouldnt tell us when he was sick, she didnt
tell us who his doctors were, she wouldnt let
us speak to him on the phone, she wanted to
get a restraining order against me to keep me
from coming up to the hospital, she didnt
call me when he went to the hospital.
On the one hand, this testimony indicates that Enders challenged
the will because she believed that Parker unduly influenced Joels
decision to disinherit his family by obstructing the familys
access to Joel. On the other hand, much of this testimony
relates to Enderss dissatisfaction with the way Parker treated
Enders and her family during the late stages of Joels illness,
after he had executed the 1997 will.34
In the end, the superior court found that Enders was
motivated by animosity toward Parker and by Enderss familys
refusal to respect and accept Mr. Kottkes decision about what he
wanted to do in the will. It made this finding after hearing
testimony for several days and observing the demeanor of numerous
witnesses. Because there was sufficient evidence that Enders and
her family intensely disliked Connie Parker, we cannot say that
we are left with a definite and firm conviction that the superior
court erred in finding that Enderss real motivation was animosity
and disdain for Connie Parker.
3. The superior courts denial of prevailing-party
fees to Parker and the fact that sanctions were
not imposed against Enderss attorney have no bearing
on the superior courts finding that Enders lacked
good faith.
Enders claims that because the superior court did not
order her to pay Parkers attorneys fees under Alaska Civil Rule
82, the superior court must have viewed bad faith under AS
13.16.435 as something less than bad faith under Rule 82. Enders
views this distinction as having no basis in law because bad
faith is bad faith. But the superior courts decision not to
grant Parkers Rule 82 motion had nothing to do with good faith or
bad faith; in denying the motion, the court explained that Rule
82 applies [e]xcept as otherwise provided by law35 and that AS
13.16.435 provides a specific statutory scheme for costs and
fees.36 In other words, AS 13.16.435 governs here.
We also reject Enderss argument that it was
inconsistent for the superior court to find that Enders lacked
good faith but not to sanction her attorney for violating Alaska
Civil Rule 11.37 Even if Enderss attorney had violated Rule 11,
sanctions are not mandatory38 and a trial courts imposition or
non-imposition of sanctions [is] subject to review only for abuse
of discretion.39 We express no opinion about whether sanctions
would have been appropriate here and note only that the absence
of sanctions against Enderss attorney does not mean that the
superior court somehow erred in finding that Enders lacked good
faith.
E. Declining To Hold an Evidentiary Hearing or Address
Post-Trial Affidavits on Remand Was Not an Abuse of
Discretion.
Enders argues that the superior court erred by ignoring
post-trial affidavits in which Enders and her counsel asserted
that Enders had acted in good faith. The superior court also
declined to hold an evidentiary hearing. Enders relies on
Luedtke v. Nabors Alaska Drilling, Inc., in which we held that
Luedtke should have been given the opportunity to contest the
[Civil Rule 11] sanction award at a hearing, and the superior
court should have indicated its reasons for imposing the
sanction.40 Even if we assume that Luedtke is analogous, it is
inapposite because the superior court conducted a hearing during
which Enders had the opportunity to contest the good faith issue.
The superior court also provided a detailed and thorough
explanation for its findings.
Moreover, we have held that a remand for additional
findings does not [ordinarily] obligate the trial court to hear
new evidence 41 and that [w]e will reverse a trial courts refusal
to receive new evidence on remand only when the refusal
constitutes an abuse of discretion, unless we have expressly
called for a new trial or evidentiary hearing. 42 In this case,
we remanded for specific findings as to whether Enders prosecuted
the will contest in good faith and a redetermination of the AS
13.16.435 claim.43 We did not mandate an evidentiary hearing.
The superior court therefore had discretion to decide whether to
conduct an evidentiary hearing or accept additional evidence on
the question of good faith.44
The superior court stated that it did not initially
make an explicit finding of bad faith because it hoped that by
making implicit findings, Ms. Enders would retain her dignity and
that the court would not have to explicitly find bad faith. We
observed in Enders that the issue of good faith had already been
extensively litigated.45 Following remand, the superior court
reviewed the trial transcript, held oral argument, and accepted
briefs and additional materials from the parties. Given these
circumstances, it was not an abuse of discretion for the superior
court to not hold an evidentiary hearing and to not explicitly
address in its findings the affidavits submitted by Enders.46
F. The Superior Court Complied with Our Remand
Instructions.
Enders argues that in Enders v. Parker we ordered Judge
Tan to analyze evidence he had previously ignored and that he
simply cited evidence that we had already ruled did not amount to
bad faith. She compares the superior courts decision with the
actions of the judge in Davis v. Hallett.47 We there reversed an
award of full attorneys fees and remanded for consideration of a
partially compensatory award.48 The superior court on remand
reduced the previous award of $11,519.15 by only $19.15.49 We
held that this violated both the letter and spirit of our prior
decision and that it was an apparent flouting of our mandate.50
We clearly stated in Enders that we were remanding for
explicit findings on the question of good faith.51 We did not
hold or suggest that the evidence cited by the superior court in
its first set of findings could not establish bad faith or that
the superior court had to examine other evidence.52 We requested
specific findings because we were unable to say that the court
would have explicitly found a lack of good faith had it applied
the appropriate legal standard.53 The superior court therefore
complied with our instructions when it specifically found that
Enders lacked good faith. Nor does the record permit any
reasonable inference that the superior court was biased against
Enders, as she seems to imply. Accordingly, Enderss argument
that the superior court flouted our mandate is wholly without
merit.
IV. CONCLUSION
We therefore AFFIRM the superior courts decision
denying appellant an award under AS 13.16.435.
_______________________________
1 We set out the facts of this case in greater detail in
Enders v. Parker, 66 P.3d 11 (Alaska 2003), and In re Estate of
Kottke, 6 P.3d 243 (Alaska 2000).
2 Estate of Kottke, 6 P.3d at 247.
3 Enders, 66 P.3d at 13.
4 Id.
5 Catalina Yachts v. Pierce, 105 P.3d 125, 128 (Alaska
2005).
6 McComas v. Kirn, 105 P.3d 1130, 1132 (Alaska 2005).
7 AS 13.16.435 discusses recovery of a personal
representatives expenses in estate litigation and 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.
8 Enders v. Parker, 66 P.3d 11, 16-17 (Alaska 2003).
9 Id. at 16.
10 Id. at 17 (emphasis added). We note that the legal
fees incurred in this case unfortunately threaten to exhaust the
proceeds of Joel Kottkes estate. We have no occasion here to
consider whether a representative owes duties to inform the
successors of a disputed will of the expected litigation costs
relative to the size of the estate, or to what extent a
representative may exhaust the estate in an attempt to uphold the
will.
11 Id. (emphasis added).
12 See, e.g., Alaska Ctr. for Envt v. Rue, 95 P.3d 924,
926 (Alaska 2004) (We review the superior courts decision on
summary judgment de novo.).
13 Enders, 66 P.3d at 17.
14 Id.
15 The statutes are the same, except that Alaska has
incorporated gender-neutral language in its version of UPC 3-
720.
16 In re Estate of Odineal, 368 N.W.2d 800, 803 (Neb.
1985) (citation omitted).
17 Enders, 66 P.3d at 17.
18 Courts in other jurisdictions that have adopted UPC 3-
720 similarly apply the clearly erroneous standard when reviewing
a finding of good faith. See In re Estate of McMurchie, 89 P.3d
18, 22 (Mont. 2004); In re Estate of Watkins, 501 N.W.2d 292, 297
(Neb. 1993); In re Estate of Hass, 643 N.W.2d 713, 720 (N.D.
2002). Other courts review for abuse of discretion. See In re
Estate of Herbert, 979 P.2d 1133, 1135 (Haw. 1999); Matter of
Eliasens Estate, 668 P.2d 110, 117 (Idaho 1983).
19 See Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989). We
will find an abuse of discretion only if, based on a review of
the whole record, we are left with a definite and firm conviction
that a mistake has been made. Alden H. v. State, Office of
Childrens Servs., 108 P.3d 224, 228 (Alaska 2005).
20 Fed. R. Civ. P. 11(b)(3). Federal Rule of Civil
Procedure 11 differs from Alaskas corresponding rule. Federal
Rule 11 provides in relevant part:
By presenting to the court (whether by
signing, filing, submitting, or later
advocating) a pleading, written motion, or
other paper, an attorney or unrepresented
party is certifying that to the best of the
persons knowledge, information, and belief,
formed after an inquiry reasonable under the
circumstances, . . . the claims, defenses,
and other legal contentions therein are
warranted by existing law or by a
nonfrivolous argument for the extension,
modification, or reversal of existing law or
the establishment of new law . . . [and that]
the allegations and other factual contentions
have evidentiary support or, if specifically
so identified, are likely to have evidentiary
support after a reasonable opportunity for
further investigation or discovery . . . .
(Emphasis added.)
Alaska Civil Rule 11 provides in relevant part:
The signature of an attorney or party
constitutes a certificate by the signer that
the signer has read the pleading, motion, or
other paper; that to the best of the signers
knowledge, information, and belief formed
after reasonable inquiry it is well grounded
in fact and is warranted by existing law or a
good faith argument for the extension,
modification, or reversal of existing
law . . . .
(Emphasis added.)
Enders relies on the evidentiary support language found
in the federal rule, but not in the Alaska rule, in arguing that
reasonably arguable grounds existed if a claim would have
survived summary judgment. Enders also claims that because both
AS 13.16.435 and Alaska Civil Rule 11 contain the phrase good
faith, the superior court erred by denying her statutory fee
application even though it did not sanction her attorney under
Alaska Civil Rule 11. We discuss this contention in Part
III.D.3.
21 Fed. R. Civ. P. 11(b) advisory committees note (1993
amend.).
22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
23 10A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2727 (3d ed. 1998). It is at least as easy to
defeat a summary judgment motion in Alaska as it is under the
federal rules. See, e.g., Alakayak v. British Columbia Packers,
Ltd., 48 P.3d 432, 449 (Alaska 2002) (stating non-movant must
present enough evidence to reasonably tend[] to dispute or
contradict the evidence presented by the [movant]) (quoting
Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990)).
24 10A Wright, Miller & Kane, Federal Practice and
Procedure: Civil 2712 (3d ed. 1998).
25 Id. at 2725.
26 Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187,
1194 (5th Cir. 1996). See also Hartmarx Corp. v. Abboud, 326
F.3d 862, 867 (7th Cir. 2003) ([Rule 11] sanctions are to be
imposed sparingly, as they can have significant impact beyond the
merits of the individual case and can affect the reputation and
creativity of counsel.) (internal quotation marks omitted).
27 This observation relates to Enderss suggestion that one
of the intended purposes of AS 13.16.435 is to encourage [w]ill
contests and that disallowing an AS 13.16.435 claim by a losing
[w]ill contestant would have a chilling effect. AS 13.16.435
encourages good faith will contests in part, to discover and make
effective the intent of a decedent. Enders, 66 P.3d at 15 n.14
(emphasis added) (quoting AS 13.06.010(b)(2)). Denying a request
for fees from a personal representative who acts in bad faith,
implied by a lack of reasonably arguable grounds, does not chill
this purpose.
28 Enderss briefs and citations to supplemental authority
point to cases that supposedly do not support the superior courts
decision. She places particular emphasis on Crittell v. Bingo,
83 P.3d 532 (Alaska 2004), and Alaska Wildlife Alliance v. State,
74 P.3d 201 (Alaska 2003). We held in Crittell that AS 13.16.435
did not apply to the interested parties [Bingo et al.] request
for fees, since they did not bring their case as personal
representatives and did not claim to be persons nominated as
personal representatives. 83 P.3d at 536. Crittell claimed to
be a personal representative, but we affirmed the superior courts
finding that he had acted fraudulently in claiming to represent
the estate under this will and that the will itself was
fraudulent. Id. Thus, Crittell never addressed good faith under
AS 13.16.435. In Alaska Wildlife Alliance, we reversed an award
of fees against a public interest litigant under Alaska Civil
Rule 82 for bringing claims in bad faith because we concluded
that the claims were reasonably debatable. 74 P.3d at 208. Good
faith under AS 13.16.435 was therefore not at issue.
Most of the other cases cited by Enders similarly
involved non-fiduciaries and disputes about whether they acted in
good faith. See Hammond v. State, Dept of Transp. & Pub.
Facilities, 107 P.3d 871 (Alaska 2005); Alderman v. Iditarod
Props., Inc., 104 P.3d 136 (Alaska 2004); In re Estate of
Bickling, 2004 WL 1813291, *15 (Del. Ch. 2004); In re Estate of
Delaney, 819 A.2d 968, 977-78 & 998-99 (D.C. 2003); In re Estate
of Marquis, 822 A.2d 1153, 1159 (Me. 2003); In re Estate of
Fields, 46 P.3d 176, 177 (Okla. Civ. App. 2001); Estate of Davis
v. Cook, 9 S.W.3d 288, 291-92 & 297-98 (Tex. App. 1999). They
therefore do not apply to this case, because Enderss fiduciary
duty required her to act with the intent to benefit the
successors. The superior court did in fact find that Enderss
actions were intentional, so Martin v. Dieringer, 108 P.3d 234,
240 (Alaska 2005), is inapposite.
Enders also cites In re Estate of Falck, 665 N.W.2d 440
(Iowa App. 2003) (table), and In re Estate of Kessler, 977 P.2d
591 (Wash. App. 1999). Iowas good faith standard is an objective
one, not a reference to the personal representatives reasonable
belief. Matter of Estate of Olson, 479 N.W.2d 610, 614 (Iowa
App. 1991). Because we look to the personal representatives
subjective intent, Falck does not apply. Washington law provides
that an unsuccessful will contestant may be assessed costs unless
it appears that the contestant acted with probable cause and in
good faith. Revised Code of Washington 11.24.050. At issue in
Kessler was whether the contestants had raised debatable issues,
not whether they acted in good faith. 977 P.2d at 605.
Accordingly, Kessler has no bearing on the present case.
Finally, Enders refers to In re Estate of Johnson, __
P.3d __ , Op. No. 5928, 2005 WL 1793123 (Alaska, July 29, 2005),
in support of her arguments that (1) we should review the
superior courts finding de novo; (2) the superior court ignored
evidence and failed to conduct an evidentiary hearing or permit
discovery; (3) Parker argues for a finding of bad faith against
Enders to protect Parkers attorneys fees; (4) Parker mismanaged
the Kottke estate by refus[ing] to countenance the possibility of
any settlement; and (5) we should not remand this case for
further review of the good faith question but should instead
reverse and award full fees to Enders. Having considered these
contentions, we conclude that Johnson does not affect the outcome
of this case.
29 Helgason v. Merriman, 36 P.3d 703, 708 (Alaska 2001)
(quoting Paskvan v. Mesich, 455 P.2d 229, 232-33 (Alaska 1969),
and In re Estate of Kraft, 374 P.2d 413, 417 (Alaska 1962)).
30 Burkes investigation was not an extensive one, however.
He testified that his interview with Joel probably was in the
area of 15 minutes.
31 We first discussed a claim of insane delusions in In re
Estate of Kottke, 6 P.3d 243 (Alaska 2000). We held that
an insane delusion is a belief which has
absolutely no foundation in fact, and even
slight evidence which provides a basis for
the belief negates the existence of a
delusion. Beliefs based on fact but derived
from faulty logic or distorted by emotion
will not support a claim of insane delusions.
Thus, the belief must be totally devoid of
reason and must lack even a glimmer of a
factual basis.
Id. at 246 (quoting Dillon v. Phillips, 756 P.2d 1278, 1279 (Or.
App. 1988)) (citation omitted).
32 See 1 William J. Bowe & Douglas H. Parker, Page on the
Law of Wills 12.30, at 718-20 (rev. ed. 1960), 718-20 (2003)
(listing various definitions courts have applied to insane
delusions); 12.35, at 730 (observing that if a belief is based on
some evidence, though possibly insufficient, it does not amount
to an insane delusion).
33 Witness credibility decisions are left to the trial
court. Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1087
(Alaska 2001).
34 Joel executed his last will on June 10, 1997.
According to his medical records, Joel was feeling well as of
June 16, 1997. He was hospitalized for four days in late July
after suffering a small stroke. Joel was also hospitalized in
early September, during which his progressive cancer was
described as approaching end-stage. Joel was admitted to the
hospital in late September for the final time; he died on October
1.
35 Alaska R. Civ. P. 82(a).
36 We affirmed this analysis in Enders v. Parker, holding
that Civil Rule 82 does not apply when expenses are recoverable
under AS 13.16.435. 66 P.3d at 17.
37 See supra note 20 for the relevant text of Alaska R.
Civ. P. 11. Unlike its federal counterpart, Alaska Civil Rule 11
does not provide for sanctions. Instead, Alaska Civil Rule 95
states that a court may withhold or assess costs or attorneys
fees for any infraction of these rules, including Civil Rule 11.
38 [T]he court may withhold or assess costs or attorneys
fees as the circumstances of the case and discouragement of like
conduct in the future may require; and such costs and attorneys
fees may be imposed upon offending attorneys or parties. Alaska
R. Civ. P. 95(a) (emphasis added).
39 Alaska Fed. Sav. & Loan Assn of Juneau v. Bernhardt,
794 P.2d 579, 583 (Alaska 1990); see also In re Schmidt, 114 P.3d
816, 819 (Alaska 2005) (We review awards of attorneys fees and
sanctions for abuse of discretion.).
40 Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,
1227 (Alaska 1992).
41 R.J.M. v. State, Dept of Health & Soc. Servs., 973 P.2d
79, 86 (Alaska 1999) (quoting Murray v. Murray, 856 P.2d 463, 466
(Alaska 1993)).
42 Id.
43 Enders, 66 P.3d at 17.
44 [A] trial court has no authority to deviate from a
specific mandate of the supreme court but may take actions not
inconsistent with [the supreme courts] decision. R.J.M., 973
P.2d at 86 (quoting A.M. v. State, 945 P.2d 296, 300-01 (Alaska
1997)).
45 Enders, 66 P.3d at 16.
46 Enders also cites Hammond v. State, Dept of Transp. &
Pub. Facilities, 107 P.3d 871 (Alaska 2005), in support of her
argument that the superior court was required to consider the
affidavits. Hammond held that an arbitration decision did not
preclude statutory claims from being pursued in court so long as
the statutory claims were not clearly and unmistakably submitted
to arbitration. Id. at 872. There is no question of res
judicata here; Hammond is not applicable.
47 Davis v. Hallett, 630 P.2d 1 (Alaska 1981).
48 Id. at 2.
49 Id.
50 Id.
51 Enders, 66 P.3d at 16, 17.
52 Id.
53 Id. at 16.
