| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ware v. Ware (06/01/2007) sp-6130
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
| SUSAN J. WARE, | ) |
| ) Supreme Court No. S- 11687 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-03-710 CI |
| ) | |
| BRANDIE W. WARE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6130 - June 1, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Susan J. Ware, pro se,
Anchorage. Tucker S. Thompson, Soldotna, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
FABE, Justice, with whom BRYNER, Chief Justice, joins,
dissenting in part.
I. INTRODUCTION
I. In this intra-family dispute, two siblings vie for
control of the family homestead. Susan Ware, a pro se litigant,
sued her brother Brandie Ware on the theory that he unlawfully
exerted his influence and will over their eighty-seven year old
mother, Margaret, and convinced Margaret to give him the family
homestead. Brandie moved for summary judgment, contending that
Susan had not produced any evidence beyond her personal
conviction that Margaret would not have given the land to Brandie
unless she had been unduly influenced. The superior court
granted Brandies motion for summary judgment and awarded Brandie
attorneys fees in excess of the statutory minimum. Because Susan
has not provided any evidentiary support for her claim of undue
influence, we affirm the superior courts grant of summary
judgment. We also affirm the superior courts award of enhanced
attorneys fees because the award was within the courts
discretion.
II. FACTS AND PROCEEDINGS
A. Facts
In 1998 John Wesley Ware and his wife Margaret placed
their homestead in a revocable living trust known as the Ware
Family Trust. The homestead encompasses several acres of land,
five houses, and multiple unimproved lots on the Kenai Peninsula.
John passed away in April 1999. Upon Johns death, Margaret
became owner of the family homestead. In March 2000, when
Margaret was eighty-three years old, she transferred the
homestead and other real and personal property into another
revocable living trust entitled the Margaret Ware Revocable
Living Trust (Trust).1 Margaret was named both grantor and
trustee. Her four children Roger, Brandie, Susan, and Lance
were the named beneficiaries. She had previously executed a will
in which she provided that if her husband were to die before she
did, the home would go to her four children.
The terms of the trust divided the property fairly
evenly. Brandie, Roger, and Lance all own homes on the property,
and under the terms of the trust they would individually acquire
the land on which their homes sit. Susan would acquire the
grantors interest in the family home, as well as a Civil War
powder horn. Roger would receive the family jewelry and Brandie
would get another powder horn.
In February 2003, however, Margaret, in her capacity as
trustee of the Trust, conveyed the entire homestead property to
Brandie for ten dollars. Margaret signed the statutory warranty
deed and recorded it. Upon receiving title to the property,
Brandie quit-claimed his mother a life estate in the property.
Margaret sent a notarized letter to her son Lance in
which she explained her decision to sell the property to Brandie:
Lance,
You must contact Brandie to converse about
any property. My entire homestead property
was sold to Brandie Ware. I am tired of
being bothered by you scaring me into saying
things like the land is mine. I told you on
the telephone you should contact Brandie. I
want you to know I sold all the land to
Brandie. No more stress from you.
Margaret Ware
B. Proceedings
After Margaret deeded the property to Brandie, Susan
sued Brandie on the grounds that he had exerted undue influence
over their mother, and that he had been unjustly enriched as a
result. Brandie denied the allegations and counter-claimed in
order to quiet title.
Susan moved for an injunction in April 2004, requesting
that the court prevent Brandie from taking any more actions,
including property transfers, of the Ware Homestead, during the
pendency of this matter, without notifying the Court, Ms. Ware,
and any interested parties. The court denied Susans motion for
injunction because it is not clear to the court what activities
Plaintiff wishes to prohibit or require of Defendant, and because
Plaintiff does not clearly indicate what sort of irreparable harm
she believes she will suffer without entry of a preliminary
injunction. However, the court invited Susan to file a new
motion specifically addressing these issues.
In July 2004 Brandie moved for summary judgment,
arguing that Susan had alleged no facts to support her claim of
undue influence. Rather, he argued, [s]he has simply opined that
she doesnt believe that her mother would deed the property to
Brandie unless he unduly influenced her. Brandie cited Margarets
deposition, in which Margaret testified that she had not been
pressured into transferring the deed and that it was her idea to
transfer title to Brandie. Susan replied, The fact that the
parties mother turned over everything to one child in the absence
of a satisfactory explanation sufficiently stands out as to
present a prima facie case of undue influence. The court granted
Brandies motion for summary judgment, finding no genuine issue of
material fact regarding Margarets competence or undue influence,
and dismissed Susans complaint with prejudice.
In addition, the court ordered Susan to pay Brandies
attorneys fees pursuant to Alaska Civil Rule 82, including
enhanced fees under Rule 82(b)(3).
Susan appeals both the summary judgment decision and
the award of augmented attorneys fees.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying
our independent judgment2 and adopting the rule that is most
persuasive in light of precedent, reason, and policy.3 Summary
judgment is affirmed if the evidence in the record fails to
disclose a genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.4 All reasonable
inferences of fact are drawn in favor of the nonmoving party and
against the moving party.5 The moving party has the burden of
proving the absence of issues of material fact.6 Once the moving
party has made a prima facie showing of the absence of a genuine
issue of material fact, the burden shifts to the non-moving party
to show that it can produce admissible evidence reasonably
tending to dispute the movants evidence.7
We review an award of attorneys fees under an abuse of
discretion standard.8 The trial court has broad discretion in
awarding attorneys fees; this court will not find an abuse of
discretion absent a showing that the award was arbitrary,
capricious, manifestly unreasonable, or stemmed from improper
motive.9
IV. DISCUSSION
A. The Superior Court Did Not Err in Granting Summary
Judgment to Brandie on Susans Undue Influence Claim.
1. Inter vivos transfers of property from parents to
children are presumptively gifts.
While we have not previously addressed inter vivos
transfers of property from parents to children, a considerable
body of precedent . . . holds that an unexplained transfer of
property from a parent to a child raises a rebuttable
presumption, or inference, that a gift was intended.10 We adopt
this majority view that transfers of property, including real
property, money, and cash advances, from parent to child are
presumptively gifts.
2. An inter vivos gift may be void if the grantor was
unduly influenced or lacked capacity to make the
gift.
A gift from parent to child may be void if obtained by
improper means or undue influence.11 When examining the
relationship between parent and child for proof of undue
influence, we will consider the effect of the influence which
was, in fact, exerted upon the mind of the [donor], considering
his physical and mental condition, the person by whom it was
exerted, the time and place and all the surrounding circumstances
. . . .12 We have previously held, in the context of testamentary
gifts, that a party challenging the validity of a gift under a
theory of undue influence must produce proof of coercion or
duress which would act as a dominating power over the mind and
act of a [donor].13 Additionally, we have held that a
testamentary gift may be void if the grantor lacked the mental
capacity to understand the nature and extent of the gift he or
she is making.14 We see no reason not to apply this reasoning to
an inter vivos gift such as the one in this case.
In the present case, Margaret gave Brandie the land in
exchange for ten dollars. The first issue we must resolve, then,
is whether Margaret intended to gift the land to Brandie, or to
sell it. To determine whether an individual has gratuitous
intent we ask whether the parties had a close relationship;
whether the plaintiff failed to request compensation; and whether
the services performed were the sort one would expect to receive
as a mere gratuity.15 Margaret and Brandie share a close mother-
son relationship. She testified at her deposition that she
decided, on her own, to transfer the homestead to Brandie, and
that she wanted him to keep it. She stated that even if Brandie
were willing to sign back the deed to her, she would decline.
These facts indicate that Margarets behavior meets the tests for
gratuitous intent.
The only contrary indication is that Brandie paid
Margaret ten dollars for the property and Margaret referred to
having sold the property to Brandie. While the purpose of this
payment is not clear, the amount is so nominal that it should not
invalidate the gratuitous nature of Margarets act.
Based on this analysis, the transfer from Margaret to
Brandie is presumptively a gift. In order to challenge the gift,
Susan bears the burden of proving that Brandie unduly influenced
Margaret to deed him the property. She has attempted to meet
this burden by arguing (1) that Brandie unduly influenced
Margaret by coercing her into giving him the property; (2) that
Brandie breached a fiduciary duty to Margaret; and (3) that
Margaret lacked the mental capacity to make the gift. We analyze
each argument in turn.
a. Susan failed to meet her burden of producing
evidence that Brandie coerced Margaret into
giving him the property.
The party challenging a gift has the burden of showing
that the grantor was virtually compelled to make a [gift] that
[she] would not have made if left to the free exercise of [her]
own judgment and wishes.16
Margaret robustly denied that she was unduly influenced
by Brandie. Indeed, she testified that the transfer to Brandie
had been her idea. Susan concedes that her mother decided to
give the property to Brandie rather than Susan because she felt
Susan couldnt take care of the place. While Susan may disagree
with her mothers assessments that Susan is not hardy enough to
put up with the hardships of living [as Margaret did] with a wood
stove for heat and hot water or that she cannot afford to pay the
taxes on the house, these facts do not show compulsion by
Brandie.
Susan asserts that Brandie coerced their mother into
giving him the property by convincing her that it was necessary
in order to avoid being placed in a nursing home. Susans only
proffered evidence, however, is that Margaret was told by Roger
that Lance wanted to put her in a nursing home. This convoluted
statement is hardly sufficient to implicate Brandie in a scheme
to unduly influence Margaret.
Thus, even if the facts alleged by Susan are true, they
do not show compulsion by Brandie.
b. Susan provided no evidence that Brandie owed
fiduciary duties to their mother.
Susan asserts that Brandie and Margaret shared a
confidential relationship, and that Brandie used his power over
their elderly mother to unduly influence her. A confidential
relationship exists when one imposes a special confidence in
another, so that the latter, in equity and good conscience, is
bound to act in good faith and with due regard to the interests
of the one imposing the confidence.17 We have recognized
confidential or fiduciary relationships between business partners
or co-owners, between professionals such as lawyers and their
clients, and in relationships involving trusts and guardianships.18
Although the existence of a confidential relationship alone does
not create a presumption of undue influence, when a principal in
a confidential relationship benefits from that relationship, a
presumption of undue influence arises.19 Accordingly, if Brandie
and Margaret shared a confidential relationship, the transfer of
property would create a rebuttable presumption of undue
influence.
However, there is no evidence of a confidential or
fiduciary relationship between Brandie and Margaret. The mere
fact of a parent-child relationship does not necessarily create
fiduciary duties.20 In the case of Salvner v. Salvner,21 a father
who wanted to recover property he gave to his children asserted
that he had a fiduciary relationship with them.22 The Michigan
Supreme Court rejected this claim, explaining that although the
children assisted their father in many ways, the record falls far
short of establishing that [the father] was governed by their
advice or that he depended on them in the making of decisions
concerning his business affairs, or otherwise.23 The court
concluded that the father, notwithstanding his physical
condition, was able to determine for himself what he wished to do
and to refuse to act against his own inclinations. What
defendants did to assist him amounted to no more than would be
prompted normally by the existing relationship.24
Similarly, Brandies filial relationship with Margaret
does not create any inherent fiduciary duties. Susan failed to
provide evidence that Margaret was controlled by Brandie or
depended on Brandie in making business decisions. Indeed,
Margaret asserted in her deposition that she made her own
decisions regarding the property, without advice from any of the
children. While the record shows evidence of Brandie helping
Margaret by checking her oil, cutting wood, and purchasing a new
washing machine for her, these activities, like those of the
children in Salvner, do not change the relationship from parent-
child to that of a fiduciary. There is no evidence of a
confidential relationship in this case.
Susan relies on a Third Circuit decision, Francois v.
Francois,25 to support her assertion that Brandie owes Margaret
confidential duties, but that case is of no assistance to her.
In Francois v. Francois a husband claimed to have been defrauded
by his wife. Although the court evaluated the husbands claim of
unjust enrichment, it noted that marriage does not automatically
give rise to a confidential relationship.26 Rather, a
confidential relationship arises when one party places confidence
in the other with a resulting superiority and influence on the
other side.27
Susan has offered no evidence that Brandie held a
superior, influential position with their mother. She simply
states that Brandie benefitted handsomely from his relationship
with his mother to the detriment of her and his three siblings.
This assertion does not prove a confidential relationship. The
superior court did not err in finding that no issue of material
fact existed with regard to a confidential relationship between
Brandie and Margaret.
c. Susan failed to provide evidence that
Margaret lacked the mental capacity to make
the gift.
Testamentary capacity is determined by analyzing
whether the testator had sufficient mental capacity to understand
(1) the nature and extent of her property; (2) the natural or
proper objects of her bounty; and (3) the nature of her
testamentary act.28 In the case of an inter vivos gift, we can
similarly ask whether the donor had sufficient capacity to
understand the nature and extent of her property, the object of
her bounty, and the nature of her donative act.
We agree with the superior court that Susan did not
adequately demonstrate that her mother was mentally incompetent.
Margarets deposition testimony shows no indication of an
inability to understand the nature and extent of her property or
the donative nature of her act. Moreover, she testified that she
was not influenced by Brandie, and that she acted of her own
accord. Because Susan failed to provide evidence rebutting
Margarets competence, she did not meet her burden in challenging
the gift.
While it is unclear whether the superior court
considered Margarets age in assessing her competence, we reject
Susans assertion that age alone is an indicator of incompetence.
Susan argues that the superior court abused its discretion when
it failed to consider Margarets age in determining whether
Brandie unduly influenced Margaret. She contends that Margarets
age made her more susceptible to Brandies alleged influence.
Susan attempts to prove undue influence by implying that her
mother is particularly vulnerable to manipulation, emphasizing
that Margaret is elderly, widowed, and afraid of being placed in
a nursing home. Susan argues that, pursuant to the subjective
standard for undue influence we enunciated in Crittell v. Bingo,
we must consider Margarets age as one of her personal strengths
and weaknesses in assessing whether she was unduly influenced.29
The superior court was silent regarding Margarets age.
We reject the assumption that an older person is
presumptively incompetent. Susan has provided no evidence
showing that her mothers age had any impact on her ability to
understand the nature and extent of her property or her desire to
allocate it to Brandie. In fact, Susan does not actually contest
Margarets competence. In Brandies request for admission, he
asked Susan:
Please admit that your mother, Margaret Ware,
was mentally competent and had testamentary
capacity at the time that she deeded the
homestead real property which is the subject
of this action to Brandie Ware.
Susan answered, Of course my mother was mentally competent, but
she was unduly influenced by my brother. Susan also did not
challenge the introduction of a note from Margarets doctor
declaring, In terms of mental faculties/cognitive function, Ms.
Margaret Ware . . . is completely competent.
While Margaret is elderly, Susan has not provided any
evidence that Margarets age is linked to incapacity or special
vulnerability. Accordingly, we hold that the superior court did
not err in granting Brandies motion for summary judgment without
making a specific finding regarding Margarets age and competence.
B. The Superior Court Did Not Err in Granting Summary
Judgment to Brandie on Susans Other Claims.
1. There is no evidence that Margaret received legal
advice from Brandies lawyer, and in the absence of
a confidential relationship Brandie is not
required to provide his mother with independent
counsel.
Susan next argues that Brandie failed to show that
Margaret had independent legal representation. She implies that
Brandies lawyer counseled Margaret to give the property to
Brandie, noting that the quit claim deed Margaret signed was
authored by Brandies attorney. However, she provides no proof
that Brandies attorney acted improperly. Counsel for Brandie
vigorously denies that he gave legal advice to Margaret.
Susan also appears to argue that Margaret was required
to have independent counsel prior to granting title to Brandie.
Specifically, she states, If Brandies intentions were altruistic
he would have provided his mother with independent counsel to
advise her. Susans contentions are unsupported by Alaska law.
Susan cites Trujillo v. Padilla,30 a New Mexico case
setting aside a fraudulent conveyance of community property from
wife to husband. In that case the New Mexico Supreme Court
considered the absence of independent counsel as one factor in
determining whether a husband defrauded his non-English speaking
wife when he convinced her to transfer title to him the day
before he filed for divorce.31 The court considered the wifes
inability to read or write English, the husbands conscious effort
to conceal the status and value of the property, and the husbands
threat to kill the wife if she ever entered the premises.32 In
examining the transfer of property between a married couple under
the circumstances described, the court asserted that a
presumption is raised against the validity of the transaction in
which the wife did not have competent and independent legal
advice . . . .33 The New Mexico court justified this assertion by
assuming a fiduciary relationship between married persons.34
However, the court did not suggest that, absent a fiduciary
relationship, independent counsel was required to transfer title.
The present case addresses the duties of parents and
children rather than husbands and wives. Susan contends that
Brandie has a confidential relationship with their mother, and
that he consequently was required to provide Margaret with
counsel. However, as shown above, the relationship between
parent and child does not automatically result in fiduciary
obligations. Because Brandie and Margaret did not have a
confidential relationship, Brandie had no obligation to provide
Margaret with independent legal counsel. Consequently, the
superior court did not err in declining to require that Brandie
provide representation to Margaret.
2. Susans unjust enrichment claim lacks merit.
Susan argues that Brandie was unjustly enriched when he
paid Margaret only ten dollars for property valued at $300,000.
(Susans argument ignores the life estate in the property that
Margaret received.) Unjust enrichment exists where the defendant
received a benefit from the plaintiff and it would be inequitable
for defendant to retain the benefit without compensating
plaintiff for its value.35 A party seeking to recover for unjust
enrichment must show (1) a benefit conferred upon the defendant
by the plaintiff; (2) appreciation by the defendant of such
benefit; and (3) acceptance and retention by the defendant of
such benefit under such circumstances that it would be
inequitable for him to retain it without paying the value
thereof.36
Susan has not conferred a benefit upon Brandie. She
was not involved in the transfer of property from Margaret to
Brandie. Moreover, Susans equitable claim is meritless because
she presented no evidence of inequitable conduct (fraud or undue
influence) to support it. In addition, a claim of unjust
enrichment is not appropriate where a benefit is given
gratuitously, without expectation of payment.37 As discussed
above, Margaret intended that the transfer of title be a gift to
Brandie. Consequently, her claim of unjust enrichment lacks
merit.
3. Because the prior trusts and will are amendable
and revocable, the superior court did not err in
disregarding them.
Provided Margaret acted of her own volition, as her
deposition testimony reveals, there was no legal reason she could
not revoke her living trust or amend her will. The trust in this
case was revocable. Part IV, section A of the Margaret Ware
Revocable Living Trust specifically states, The grantor may amend
or revoke this trust at any time, without notifying any
beneficiary. An amendment must be made in writing and signed by
the grantor. Revocation may be in writing or any manner allowed
by law. Section B states, The power to revoke or amend this
trust is personal to the grantor. A conservator, guardian or
other person shall not exercise it on behalf of the grantor,
unless the grantor specifically grants a power to revoke or amend
this trust in a Durable Power of Attorney. Under the language of
the trust, then, Margaret had the right to amend or revoke the
trust without notifying any of her children.
Margaret also had the legal right to amend her will. A
prospective heir generally has no recognized right to a living
relatives property.38 We have held that a decedents property
interests devolve to heirs and devisees only upon death.39 Until
Margaret dies, she is free to amend her will.
The superior court did not err in finding an absence of
genuine issues of material fact regarding Margarets prior trusts
and will.
4. Susan failed to raise below the validity of the
statutory warranty deed.
On appeal, Susan seeks to challenge the validity of the
deed, arguing that Brandie incorrectly used a statutory warranty
deed to transfer property that was encumbered by the homes of his
brothers. But she failed to raise this contention in the
superior court. Accordingly, her challenge to the deeds validity
is waived.40
C. The Superior Court Did Not Abuse Its Discretion in
Awarding Attorneys Fees Pursuant to Civil Rule
82(b)(3).
Civil Rule 82 provides for the award of attorneys fees
to prevailing parties.41 Subsection (b)(2) of that rule
establishes a fee schedule for cases in which the prevailing
party recovers no money judgment,42 but in this case Brandie
sought, and the court awarded him, an enhanced fee pursuant to
Civil Rule 82(b)(3).43
On appeal, Susan argues that the superior court erred
in awarding attorneys fees in excess of the standards provided in
Civil Rule 82. However, the only substantive reason she advances
on appeal is that the superior court failed in its obligation to
satisfactorily explain why it deviated from the Rule 82 fee
schedule. But in fact the superior court listed five reasons why
it awarded fees in excess of the schedule set out in Rule
82(b)(2).44 Susans claim that the superior court did not explain
its decision is clearly wrong. Moreover, Susan has not argued on
appeal that the reasons given by Judge Brown were erroneous.
Indeed, she has not said one word about any of the reasons in the
single paragraph in her brief devoted to this entire issue. On
this basis alone, we could affirm the superior court.
Because Susan is pro se, we choose to review the
reasons given by the superior court to determine if they show
that the superior court abused its discretion. For the reasons
that follow, we conclude that the court did not abuse its
discretion in awarding enhanced fees.
In defending Susans complaint, Brandies counsel billed
him $9,931.50.45 Under the schedule of Rule 82(b)(2), which
provides for a twenty percent award in contested cases that are
resolved without trial, the fee award would have been $1,986.30.
However, pursuant to subsections (A), (C), (E), (F), (G), (H),
and (I) of Rule 82(b)(3), Judge Brown awarded $8,000, or eighty
percent46 of actual fees, to Brandie. Susan contends that the
superior court abused its discretion in enhancing the fees
awarded to Brandie.
The superior court has broad discretion to enhance
attorneys fees above the amount prescribed by the Civil Rule
82(b)(2) schedule.47 The superior courts award will not be
reversed unless we find that there has been a clear abuse of
discretion, and the courts determination is manifestly
unreasonable.48 We have frequently upheld awards well above the
Rule 82(b)(2) schedule including full (one hundred percent) fees
as not manifestly unreasonable.49 Moreover, we have explicitly
held that a finding of bad faith alone can justify increased
attorneys fees.50
In the present case the superior court recited several
reasons for awarding Brandie enhanced attorneys fees.
Specifically, the court stated:
a) although the issues involved were not
inherently complex, plaintiffs conduct
of the litigation added additional and
unnecessary levels of complexity to the
action;
b) defendants counsels hourly rates and
number of hours expended were reasonable
and defendants counsel made substantive
efforts to minimize fees actually
charged to defendant;
c) the defenses of defendant were
reasonable, and in fact, prevailed,
while the claims of plaintiff were
unreasonable and bordering on bad faith;
d) the issues at stake were significant
compared to the amount of work done,
both in economic and personal terms;
e) a substantial fee award will not be
unduly onerous to plaintiff nor will it
improperly discourage similar claims of
good-faith litigants.
The first reason implicates factors (A) and (F) of
Civil Rule 82(b)(3). While we have occasionally expressed
concern about the use of factor (A) complexity of the litigation
to enhance fees where the fees are calculated on an hourly basis,51
we have repeatedly upheld its use.52 Factor (F) the
(un)reasonableness of the plaintiffs claims affected the
complexity of the case, in Judge Browns opinion. The courts
finding that the plaintiffs conduct increased the difficulty of
the litigation is supported by the record. For example, Susan
failed to file witness lists, an exhibit list, or a trial brief,
all of which required additional time and complexity in the trial
preparations due to the need to prepare for unknown
contingencies.53
The second reason cited by Judge Brown implicates
factors (C) and (E) of Civil Rule 82(b)(3). Judge Browns
citation of factor (C) (the reasonableness of the fees and hours
expended) and factor (E) (the attorneys efforts to minimize fees)
as supporting an enhanced award is not an abuse of discretion.54
The third reason cited by Judge Brown that Brandies
defenses were reasonable while Susans claims bordered on bad
faith implicate factors (F) and (G). This reason alone can
justify an award of enhanced fees.55 It was not an abuse of
discretion to determine that Susans claims were unreasonable and
bordered on bad faith. As noted above, she provided absolutely
no evidence to support any of her theories: undue influence,56
fiduciary duty,57 mental incompetence,58 confidential relationship,59
unjust enrichment,60 or any other theory.61 She persisted in her
claims despite her mothers deposition testimony in which Margaret
clearly refuted Susans claims of mental incompetence and undue
influence. Yet Brandie was required to defend each claim.
The fourth reason cited by Judge Brown that the issues
at stake were significant compared to the amount of work done is
amply supported by the record of this case. The property was
valued at $426,200.62 This amount is obviously significant
compared to the $8,000 in fees awarded by the court.
In sum, the superior courts decision to enhance the
attorneys fees awarded was not an abuse of discretion.
V. CONCLUSION
Because Susan introduced no evidence of undue
influence, we AFFIRM the superior courts grant of summary
judgment on the undue influence claim. Because Susan failed to
show error with regard to her other claims for summary judgment,
we AFFIRM the superior courts rulings on those claims. Because
the superior court did not abuse its discretion in the award of
attorneys fees, we AFFIRM the superior courts award of attorneys
fees.
FABE, Justice, with whom BRYNER, Chief Justice, joins, dissenting
in part.
I write separately today because I disagree with the
courts resolution of the attorneys fees issue presented by this
appeal. In my view, the award of eighty percent of actual
attorneys fees was unjustified and the matter should therefore be
remanded to the superior court.
A. Susan Has Sufficiently Raised the Claim that the Enhanced
Award Was Erroneous.
The court adopts a decidedly narrow reading of Susans
briefing, asserting that she has not argued on appeal that the
reasons given by Judge Brown [for awarding enhanced attorneys
fees] were erroneous.1 However, under the less demanding
standard by which we judge a pro se litigants performance,2 I
believe that Susan has in fact raised this argument.
In her briefing before this court, Susan points out
that an award of attorneys fees after trial should be based upon
the appropriate criteria set forth in Civil Rule 82.3 She also
insists that the enhanced award in this case was excessive[,] . .
. punitive and retaliatory. Taken together, these two statements
amount to a challenge to the appropriateness of the enhanced
award and the criteria on which that award was based. In other
words, Susan does argue that the reasons given by Judge Brown for
awarding enhanced attorneys fees were erroneous. I therefore
believe that the court is mistaken when it suggests that we could
affirm the superior court without reviewing its reasons for
awarding enhanced attorneys fees.4
B. None of Brandies Arguments Justified an Enhanced Award.
A review of Brandies memorandum in support of his
request for attorneys fees in superior court reveals that none of
his arguments arguments that the superior court apparently
relied upon justified an enhanced award of attorneys fees in
this case.
1. Complexity
Brandie admitted in superior court that [t]his action
was not inherently complex, but argued that an enhanced award was
nonetheless justified because Susans unfamiliarity with certain
procedures caused additional complexity.5 Although Rule
82(b)(3)(A) does in fact generally allow the superior court to
vary an award of attorneys fees based upon the complexity of the
litigation, I believe that this complexity factor is a wholly
inappropriate basis for an enhanced award in cases such as this
cases where hourly fees, rather than the amount of a money
judgment, serve as the measure of the fees to be awarded.6
The primary purpose of Rule 82s complexity factor is
not to punish the losing party for litigating a complex case, but
to ensure that the prevailing party is properly compensated.7 In
cases where an award of attorneys fees is based upon a percentage
of the amount of a final money judgment, the prevailing party may
be substantially under or overcompensated. This potential for
disproportionate compensation stems from the fact that the amount
of a final money judgment is not necessarily related to the
amount of hours worked by the prevailing partys attorney or the
amount of fees paid by the prevailing party for that work.
Simple cases requiring little work but involving large money
judgments may generate rather modest attorneys fees,8 while
complex cases requiring a great deal of work but involving small
money judgments may generate robust attorneys fees. As a result,
an award of attorneys fees based upon a final money judgment will
not always accurately reflect the actual cost of litigation to a
prevailing party. Rule 82s complexity factor works to mitigate
this problem. There is, however, no comparable risk of under or
overcompensation when an award of attorneys fees is based upon a
percentage of the total actual hourly fees paid by the prevailing
party to his or her attorney. In general, total fees calculated
on an hourly basis will already reflect the complexity of a
case.9 Using complexity as an independent enhancing factor in
these cases double-counts the effect of complexity on fees and
ultimately overcompensates the prevailing party at the expense of
the losing party.10
Although the court is correct that we have repeatedly
upheld the use of the complexity factor in cases where actual
total hourly fees form the basis of an award of attorneys fees,11
we have just as often questioned its use. This case represents
no less than the fourth time that we have confronted the rules
shortcomings and explained the double-counting problem.12 On at
least two occasions we have explicitly admitted that there is a
weakness in the rule.13 When a literal reading of one of our own
rules has been shown time and again to lead to questionable
results, it is our responsibility to depart from precedent and
articulate a limiting construction of that rule.14 In the
context of Rule 82(b)(3)(A), I am convinced that this
responsibility requires us to read the rule as inapplicable to
cases in which awards of attorneys fees are based upon actual
total hourly fees.
In the case at hand, Brandies award of attorneys fees
was based upon the total hourly fees he paid to his attorney. A
standard, non-enhanced award would therefore have automatically
taken into account any attorneys fees stemming from Susans
litigation methods. An enhanced award was unnecessary and, in my
opinion, contrary to the proper construction of Rule 82(b)(3)(A).
2. Length of trial
Brandie also argued that an enhanced award was
justified under Rule 82(b)(3)(B) because extensive trial
preparation had necessarily been nearly completed prior to the
grant of summary judgment. But Rule 82(b)(3)(B) is exceedingly
narrow in scope and only permits the court to vary an award based
upon the actual length of trial. The rule is simply inapplicable
to cases that are resolved without trial and Brandie was
therefore not entitled to an enhanced award on this basis.
Moreover, it was Brandies decision to wait to file his motion for
summary judgment until July 6, 2004 only one month before the
scheduled trial was to take place. In other words, Brandie had
the means to avoid extensive trial preparation and simply chose
not to exercise it. Susan should not be penalized for Brandies
choice.
3. Reasonableness of rate, time, and number of attorneys
Brandie also argued that an enhanced award was
justified because he employed a single attorney who worked a
reasonable number of hours and charged a reasonable rate.
Although Rules 82(b)(3)(C) and (D) do permit a superior court to
vary an award of attorneys fees based upon the reasonableness of
the prevailing partys litigation expenses,15 these factors are
best suited as a basis for decreasing an award where a prevailing
party has expended an unreasonable amount of resources on his or
her case. In general, parties are expected under Rule 82 to keep
their litigation expenses reasonable: Rule 82(b)(2) explicitly
limits compensation to a portion of reasonable actual attorneys
fees. It is unclear why Brandies efforts to meet this
expectation justified an enhanced award in this case.
4. Efforts to minimize fees
Brandie also argued that an enhanced award was
justified under Rule 82(b)(3)(E) due to his and his attorneys
efforts to minimize attorneys fees.16 According to Brandie,
[t]he primary minimizer of fees in this action was in causing its
resolution by motion work and thereby avoiding the expense of a
trial. However, as noted above, Brandie filed his motion for
summary judgment only one month prior to trial and therefore did
not substantially reduce the amount of time his attorney had to
invest in the case. Indeed, Brandie admits that extensive trial
preparation had necessarily been nearly completed prior to the
grant of summary judgment. Furthermore, as the court
acknowledges, [c]ases resolved without trial are subject [under
Rule 82] to a presumptive twenty percent fee award; cases
resolved after trial to a thirty percent award.17 Allowing a
successful summary judgment motion to be considered an effort to
minimize fees would run counter to th[is] general framework of
the rule.18
The court recognizes that we must reject Brandies
argument to the extent that [it] relied on his filing of a
summary judgment motion as evidence of his and his attorneys
efforts to minimize fees.19 Given that Brandie cited his summary
judgment motion as [t]he primary minimizer of fees in this
action, I believe we must reject the bulk of Brandies argument
that he is entitled to an enhanced award under Rule 82(b)(3)(E).
5. Reasonableness of claims and vexatious or bad faith
conduct
Brandie also argued that an enhanced award was
justified because Susans claims were inherently unreasonable and
borderline bad faith.20 Although the court is correct that a
finding of bad faith under Rule 82(b)(3)(G) is sufficient to
justify a substantially enhanced award,21 I do not believe that
the record supports such a finding in this case. Susan brought
this suit after learning that her mother had transferred title to
the family homestead to her brother for the sum of ten dollars.
I agree that Susan was unable to offer sufficient evidence to
support her claims that this transfer was somehow inappropriate,
but I cannot agree that her claims were, given the circumstances,
particularly outrageous. Moreover, as the court notes, Susans
claims implicated an issue of first impression.22 In my opinion,
it is unjust to characterize claims as unreasonable when they
were filed without the benefit of an authoritative body of law to
guide and shape them. And although Brandie alleged that Susans
claims were part of some sort of bad faith effort to drain his
resources, he admitted that he has no way of demonstrating that
this was an intentional strategy. In short then, while Susans
claims may have been weak, they were not unreasonable or
borderline bad faith.
6. Relationship between the amount of work performed and
the significance of the matters at stake
Brandie also argued that the relationship between the
amount of work performed and the significance of the matters at
stake justified an enhanced award.23 In support of this
argument, Brandie noted that if Susan had won by summary
judgment, she would have been entitled to an award of $22,500 in
attorneys fees. According to Brandie, this amount represented
the attorney fee value of this case. As a practical matter,
however, Susan was not represented in this case and would not
have been entitled to any attorneys fees had she prevailed. Even
assuming that the matters in this case were significant in their
own right, it is doubtful that this fact alone justified such a
substantially enhanced award.
7. The enhanced award will deter pro se litigants from
accessing the court.
In addition to the arguments detailed above, Brandie
also consistently called attention to Susans pro se status in his
motion for enhanced attorneys fees. For example, Brandie stated
that although Susan was skilled, she is not an attorney and her
unfamiliarity with certain procedures caused additional
complexity; that as a pro se litigant, Susan often used
procedures and raised arguments and issues which were inapposite
or inappropriate; that her pro se status added an entire level of
complexity to this action; and that [i]f Susan had been
represented by counsel, . . . the situation would have been
resolved more quickly. Taken together, these statements
represented a not-so-subtle argument that Susans pro se status,
in and of itself, justified an enhanced award. While the
superior court did not expressly adopt this argument, it based
its decision to enhance the award, at least in part, upon Rule
82s complexity factor a factor that Brandie repeatedly asserted
was met by Susans pro se status.
We are left, then, with a legal proceeding in which a
litigant was, at least in appearance, penalized for pursuing her
case pro se. Because pro se litigants are often economically
distressed, this apparent threat of a pecuniary penalty for
pursuing a case pro se is particularly onerous and likely to
dissuade potential pro se litigants from exercising their
constitutional right to access the courts. This is unacceptable.
The right to access the courts is an important right24 that
should be enjoyed by all Alaskans equally, whether they be
parolees or free,25 children or adults,26 pro se litigants or
lawyers. If for no other reason, we should remand the issue of
attorneys fees so as to reassure future pro se litigants that
there is no penalty for passing through the courthouse doors
without an attorney at their side.
C. The Issue of Attorneys Fees Should Be Remanded.
For the reasons stated above, I believe that the issue
of attorneys fees should be remanded to the superior court for
recalculation using the appropriate factors under Rule
82(b)(3)(A)(K). I therefore respectfully dissent.
_______________________________
1 Brandie Ware has asserted that the transfer of property
from the Ware Family Trust to the Margaret Ware Revocable Living
Trust was invalid because it included an incorrect legal
description of the property.
2 Charles v. Interior Regl Hous. Auth., 55 P.3d 57, 59
(Alaska 2002).
3 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
4 Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367,
1369 (Alaska 1993).
5 Id.
6 Charles, 55 P.3d at 59.
7 Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 971
(Alaska 2005) (quoting Charles, 55 P.3d at 59).
8 United Servs. Auto. Assn v. Pruitt ex rel. Pruitt, 38
P.3d 528, 531 (Alaska 2001).
9 Id. (quoting Power Constructors, Inc. v. Taylor &
Hintze, 960 P.2d 20, 44 (Alaska 1998)).
10 Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo. App. 1989)
(citing 94 A.L.R. 608, 612 (1978)). See also U.S. v. Jepsen, 268
F.3d 582, 585 (8th Cir. 2001) (explaining that Arkansas law
presumes gift when donor registers legal title in family members
name);Morgan v. Wright, 399 P.2d 788, 791 (Colo. 1965); Zack v.
Guzaukas, 368 A.2d 193, 195 (Conn. 1976); Sullivan v. American
Tel. & Tel. Co., 230 So. 2d 18, 20 (Fla. Dist. App. 1969);
Almeida v. Almeida, 669 P.2d 174, 178-79 (Haw. App. 1983); In re
Marriage of Kendra, 815 N.E.2d 22, 25 (Ill. App. 2004); Matter
of Estate of Kieras, 521 N.E.2d 263, 266 (Ill. App. 1988); Barth
v. Severson, 183 N.W. 617, 624 (Iowa 1921); Rakhman v. Zusstone,
957 S.W.2d 241, 244 (Ky. 1997); Brandenburg v. Harshman, 65 A.2d
906, 908-09 (Md. 1948); Smith v. Smith, 184 N.W. 501, 503 (Mich.
1921); Stahn v. Stahn, 256 N.W. 137, 137 (Minn. 1934); Sunflower
Farms, Inc. v. McLean, 117 So. 2d 808, 813 (Miss. 1960); Jones v.
Jones, 201 S.W. 557, 558 (Mo. App. 1918); Detra v. Bartoletti,
433 P.2d 485, 487-88 (Mont. 1967); Fischer v. Wilhelm, 300 N.W.
350, 351 (Neb. 1941); Peppler v. Roffe, 194 A. 548, 550 (N.J.
1937); Durward v. Nelson, 481 N.W.2d 586, 588 (N.D. 1992); John
Deere Indus. Equip. v. Gentile, 459 N.E.2d 611, 616 (Ohio App.
1983); Ingersoll v. Ingersoll, 502 P.2d 598, 600 (Or. 1972);
Fenderson v. Fenderson, 658 A.2d 600, 606 (Pa. Super. 1996);
Romano v. Romano, 205 A.2d 583, 586 (R.I. 1964); Jocoy v. Jocoy,
562 S.E.2d 674, 675 (S.C. App. 2002); Masterson v. Hogue, 842
S.W.2d 696, 697 (Tex. App. 1992); Lappin v. Lucurell, 534 P.2d
1038, 1041 (Wash. App. 1975); Bailey v. Banther, 314 S.E.2d 176,
179 (W. Va. 1984); Estate of Rohde, 98 N.W.2d 440, 441 (Wis.
1959); Kelsey v. Anderson, 421 P.2d 163, 164 (Wyo. 1966).
11 Kieras, 521 N.E.2d at 266; Kelly v. Allen, 558 S.W.2d
845, 848 (Tenn. 1977) (holding that, while the normal
relationship between a mentally competent parent and an adult
child is not per se a confidential relationship and raises no
presumption of the invalidity of a gift from one to the other,
such a presumption of invalidity arises with a showing that there
were present the elements of dominion and control by the stronger
over the weaker, or . . . a showing of senility or physical and
mental deterioration of the donor or that fraud or duress were
involved . . . ).
12 Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001).
13 Id. (quoting Paskvan v. Mesich, 455 P.2d 229, 234
(Alaska 1969)).
14 Id.
15 Sparks v. Gustafson, 750 P.2d 338, 342-43 (Alaska
1988).
16 Crittell, 36 P.3d at 639.
17 Paskvan, 455 P.2d at 229.
18 Munn v. Thornton, 956 P.2d 1213, 1220 (Alaska 1998)
(referring to Paskvan, 455 P.2d at 232 (partners or co-owners);
Cummings v. Sea Lion Corp., 924 P.2d 1011, 1021 (Alaska 1996)
(lawyers and clients); Alaska State Employees Assoc. v. Alaska
Pub. Employees Assoc., 825 P.2d 451, 459 (Alaska 1991) (trusts
and guardianships)).
19 See, e.g., Paskvan, 455 P.2d at 233 ([W]hen the
principal or sole beneficiary under a will, who had a
confidential relationship with the testator, participated in the
drafting of the will, then a presumption of undue influence
arises.).
20 Salvner v. Salvner, 84 N.W.2d 871, 875-76 (Mich. 1957);
In re Estate of Kieras, 521 N.E.2d 263, 266 (Ill. App. 1988).
21 84 N.W.2d 871 (Mich. 1957).
22 Id. at 875.
23 Id.
24 Id.
25 599 F.2d 1286 (3d Cir. 1979).
26 Id. at 1292.
27 Id. (quoting Yohe v. Yohe, 353 A.2d 417, 421 (Pa.
1976)).
28 Crittell v. Bingo, 36 P.3d 634, 638 (Alaska 2001)
(citing In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962)).
29 Id. at 639.
30 442 P.2d 203 (N.M. 1968).
31 Id. at 206.
32 Id.
33 Id.
34 Id. at 207.
35 Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988).
36 Beluga Mining Co. v. State, Dept of Natural Res., 973
P.2d 570, 579 (Alaska 1999).
37 Sparks, 750 P.2d at 342.
38 Riddell v. Edwards, 76 P.3d 847, 853 (Alaska 2003).
39 Id.
40 Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004).
41 Civil Rule 82(a) provides:
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 attorneys fees calculated
under this rule.
42 This subsection generally provides that the court shall
award the prevailing party thirty percent of the prevailing
partys reasonable actual attorneys fees in a case which goes to
trial and twenty percent where the case is resolved without
trial.
43 Civil Rule 82 (b)(3) provides:
The court may vary an attorneys fees award
calculated under subparagraph (b)(1) or
(b)(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;
(D) the reasonableness of the number of attorneys used;
(E) the attorneys efforts to minimize fees;
(F) the reasonableness of the claims and
defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of
work performed and the significance of the
matters at stake;
(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;
(J) the extent to which the fees incurred by
the prevailing party suggest that they had
been influenced by considerations apart from
the case at bar, such as a desire to
discourage claims by others against the
prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
If the court varies an award, the court shall
explain the reasons for the variation.
44 The superior courts Order for Attorney Fees is set out
below at pages 23-24.
45 In the same affidavit in which he indicated that he
charged Brandie this amount, counsel also indicated that it would
be fair to attribute a portion of other fees to this case,
bringing the total to $10,452.25.
46 This percentage is calculated on the basis of a total
billing of $9,931.50. See supra n.45 and accompanying text.
Were the total fees to be calculated at $10,452.25, the correct
percentage would be seventy-seven percent.
47 Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 (Alaska
1999).
48 Dahle v. Atl. Richfield Co., 725 P.2d 1069, 1075
(Alaska 1986).
49 See, e.g., Crittell v. Bingo, 83 P.3d 532, 536-38
(Alaska 2004) (upholding award of one hundred percent of actual
attorneys fees, over $338,000, in case of bad-faith will claims);
Garrison v. Dixon, 19 P.3d 1229, 1234-35 (Alaska 2001) (upholding
award of one hundred percent of actual attorneys fees); Cole v.
Bartels, 4 P.3d 956, 957 (Alaska 2000) (affirming award of
seventy-five percent of actual attorneys fees); LeDoux v. Kodiak
Island Borough, 827 P.2d 1121, 1125 (Alaska 1992) (holding that
award of seventy-four percent was consistent with other cases and
did not represent abuse of discretion); Keen v. Ruddy, 784 P.2d
653, 657 (Alaska 1989) (upholding award of one hundred percent of
actual attorneys fees); Steenmeyer Corp. v. Mortensen-Neal, 731
P.2d 1221, 1227 (Alaska 1987) (holding that award of seventy-five
percent was not manifestly unreasonable); Hausam v. Wodrich, 574
P.2d 805, 811 (Alaska 1978) (affirming award of eighty-six
percent of actual attorneys fees).
50 Garrison, 19 P.3d at 1234 (We will affirm an award of
full, actual attorneys fees under Rule 82 where the superior
court finds that the losing party has engaged in vexatious or bad
faith litigation.); Keen, 784 P.2d at 657 (holding that full
attorneys fees were properly awarded when losing party acted in
bad faith).
51 See Cole, 4 P.3d at 960 n.20; Tenala, 993 P.2d at 451
n.19 ([C]omplexity works poorly as an independent enhancing
factor . . . where hourly fees, rather than the amount of a money
judgment, serve as the measure of fees to be awarded. Hourly
fees are usually already greater because of the complexity of a
case. Thus using complexity as an enhancing factor over-counts
the effect that complexity has on fees.) Nonetheless, in both
Cole and Tenala we upheld the use of the complexity factor,
noting that our analysis points to a weakness in the rule, not
trial court error. Cole, 4 P.3d at 960 n.20.
52 See, e.g., Cizek v. Concerned Citizens of Eagle River
Valley, Inc., 71 P.3d 845, 851 (Alaska 2003) (The Cizeks argue
that the length and complexity of the case will be reflected in
the fees themselves and therefore should not be used to increase
the percentage of fees awarded. However, these factors are
explicitly listed as permissible considerations under [the rule],
and therefore are an appropriate basis for the trial courts
decision.); Cole, 4 P.3d at 960; Tenala, Ltd., 993 P.2d at 451.
53 The dissent, citing Brandies repeated reference to
Susans pro se status, concludes that Susan was, at least in
appearance, penalized for pursuing her case pro se. (Dissent 10)
But, as the dissent states, the superior court did not expressly
adopt this argument, and we now explicitly reject it. Brandie
was assessed enhanced fees because of her actions, not her
status. Moreover, the superior courts finding that the award
would not be unduly onerous to Susan and would not improperly
discourage similar claims dispells the concern that the award may
deny court access to future pro se litigants.
54 Counsel for Brandie charged less than his standard
billing rate, wrote off substantial time devoted to meetings with
Brandie and a trust attorney (who was consulted with regard to
forming a trust) even though much of that time was expended in
defending this case, and charged no time against this case in
instances where there was any question as to whether the work was
generated by this case or a closely related case involving Lance
Ware. In addition, the trust attorney incurred fees that were
related to the defense of the instant action but that were not
charged to Brandie. Counsel clearly attempted to minimize fees.
We do note, however, that to the extent that Brandie
relied on his filing of a summary judgment motion to meet Factor
(E) (the attorneys efforts to minimize fees), we reject that
argument. Cases resolved without trial are subject to a
presumptive twenty percent fee award; cases resolved after trial
to a thirty percent award. To allow the filing of a summary
judgment motion to be considered an effort to minimize fees would
run counter to the general framework of the rule.
55 See supra note 49 (citing cases holding that bad faith
will justify a one hundred percent fee award).
56 See supra Part IV.A.2(a).
57 See supra Part IV.A.2(b).
58 See supra Part IV.A.2(c).
59 See supra Part IV.B.1.
60 See supra Part IV.B.2.
61 See supra Part IV.B.3-4.
62 The land was assessed at $177,800 and the improvements
were assessed at $248,400.
1 Slip Op. at 19.
2 Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004).
3 Farnsworth v. Steiner, 601 P.2d 266, 272 (Alaska 1979)
(emphasis added).
4 Slip Op. at 19 (asserting that Susan has not argued
that the reasons given by the superior court were erroneous and
concluding that, [o]n this basis alone, we could affirm the
superior court).
5 In his Memorandum in Support of Motion for Attorney
Fees, Brandie further explained that, as a pro se litigant, Susan
often used procedures and raised arguments and issues which were
inapposite or inappropriate and which required additional time by
defendant to resolve.
6 Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 n.19 (Alaska
1999).
7 Gilbert v. State, 526 P.2d 1131, 1136 (Alaska 1974)
(explaining that [i]t is not the purpose of Rule 82 to penalize a
party for litigating a good faith claim but rather partially to
compensate the prevailing party where such compensation is
justified).
8 For example, when a case ends in a default judgment,
the amount of the final money judgment won by the plaintiff is
most often relatively large compared to the number of hours put
into the case by the plaintiffs attorney. Consequently, an award
of attorneys fees based upon a percentage of the final money
judgment is likely to overcompensate a plaintiff who prevails by
default. In order to combat this likelihood, Rule 82(b)(4)
limits compensation to a percentage of the final money judgment
or reasonable actual fees, whichever is less.
9 Cole v. Bartels, 4 P.3d 956, 960 n.20 (Alaska 2000).
10 Id.
11 Slip Op. at 21-22.
12 Cizek v. Concerned Citizens of Eagle River Valley,
Inc., 71 P.3d 845, 851 (Alaska 2003) (acknowledging that the
length and complexity of the case will be reflected in the fees
themselves); Cole, 4 P.3d at 960 n.20 (noting that complexity
serves poorly as an independent enhancing factor where hourly
fees . . . serve as the subject of the award); Tenala, 993 P.2d
at 451 n.19 (concluding that using complexity as an enhancing
factor [in cases such as this] over-counts the effect that
complexity has on fees).
13 Cole, 4 P.3d at 960 n.20; Tenala, 993 P.2d at 451 n.19.
14 Under our case law, we will overrule precedent when we
are clearly convinced that the rule was originally erroneous . .
. and that more good than harm would result from a departure from
precedent. State v. Semancik, 99 P.3d 538, 540 (Alaska 2004)
(internal quotations omitted). These requirements are easily met
here.
15 Under Rule 82(b)(3)(C), an award may be varied based
upon the reasonableness of the attorneys hourly rates and the
numbers of hours expended; under Rule 82(b)(3)(D), an award may
be varied based upon the reasonableness of the number of
attorneys used.
16 Rule 82(b)(3)(E) maintains that an award may be varied
based upon the attorneys efforts to minimize fees.
17 Slip Op. at 23 n.54.
18 Id.
19 Id.
20 Rule 82(b)(3)(F) maintains that an award may be varied
based upon the reasonableness of the claims and defenses pursued
by each side; Rule 82(b)(3)(G) maintains that an award may be
varied based upon vexatious or bad faith conduct.
21 Slip Op. at 23.
22 Slip Op. at 6.
23 Rule 82(b)(3)(H).
24 Patrick v. Lynden Transp., 765 P.2d 1375, 1379 (Alaska
1988).
25 Bush v. Reid, 516 P.2d 1215, 1221 (Alaska 1973).
26 Sands v. Green, ___ P.3d ___, Op. No. 6121 (Alaska, May
4, 2007).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
