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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cragle v. Gray (05/08/2009) sp-6370
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
| BLANCHE L. CRAGLE, | ) |
| ) Supreme Court No. S- 12765 | |
| Appellant, | ) |
| ) Superior Court No. 2NO-05-93 CI | |
| v. | ) |
| ) O P I N I O N | |
| MARIE GRAY, | ) |
| ) No. 6370 May 8, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Nome,
Ben Esch, Judge.
Appearances: Robert D. Lewis, Lewis &
Thomas, P.C., Nome, for Appellant. Andrew J.
Fierro, Law Office of Andrew J. Fierro, Inc.,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Winfree, Justices. [Carpeneti,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
The parties in this case contest the ownership of
Elizabeth Sarrens Unalakleet house. Sarren died in 2000. Her
will left the house to her daughter, Blanche Cragle. But Sarrens
granddaughter, Marie Gray, claimed that Sarren orally agreed to
give Gray the house if Gray would be Sarrens live-in caregiver
until Sarren died. Gray cared for Sarren until Sarrens death,
but after Sarren died the house was conveyed to Cragle per
Sarrens will. Cragle sued to evict Gray; Gray counterclaimed to
quiet title. After a four-day jury trial, the superior court
awarded the house to Gray. Cragle appeals the denial of her pre-
trial motion for partial summary judgment. We conclude that AS
13.12.514, which provides that oral succession contracts are
unenforceable, controls. We therefore reverse.
II. FACTS AND PROCEEDINGS
Elizabeth Sarren was Blanche Cragles mother and Marie
Grays grandmother. Sarren owned and lived in a house in
Unalakleet. According to Gray, in September 1999 Sarren made an
oral promise to Gray to give Gray the house if Gray would reside
with and take care of Sarren until Sarrens death. It appears to
be undisputed that Gray moved into the Unalakleet residence in
October 1999 and cared for Sarren until Sarren died in January
2000.
Sarrens will, executed in October 1983, did not mention
any agreement to give the house to Gray but instead bequeath[ed]
the house to Cragle, who was also the wills executrix. The will
bequeathed other property to Gray, including half of Sarrens
shares in regional and village corporations. In September 2001
Cragle executed an administrators deed conveying the Unalakleet
house to herself in accordance with the will. Gray continued to
reside in the house with her children.
In late 2005 Cragle served Gray with a written notice
to quit and filed a forcible entry and detainer action against
Gray. Gray answered and counterclaimed, alleging that she had
equitable title to the property.
Cragle moved for partial summary judgment, arguing that
the statute of frauds barred Gray from claiming ownership of the
house. The superior court denied Cragles motion, concluding that
a genuine issue of material fact remained as to the existence of
an oral agreement between Gray and Sarren. The court reasoned
that if such an agreement existed and Gray had fully performed,
an exception to the statute of frauds would excuse the lack of a
writing. It therefore concluded that if a jury found that (1)
Sarren made the promise Gray described and (2) Gray fully
performed her part of the bargain, then at the time of her death,
Ms. Sarrens property was conveyed to Gray.
Cragle moved for reconsideration, arguing in part that
Grays claim to Sarrens house was time barred by the statutes of
limitations for probate and contract claims. Gray responded that
her counterclaim was timely because the ten-year statute of
limitations for actions relating to real property applied, giving
her at least ten years in which to defend her right to
possession. The superior court denied reconsideration. It
concluded that, if two statutes might reasonably apply to a
claim, the statute providing for the longer period is preferred.
The superior court then held a four-day jury trial, in
part to determine ownership of the house. At the end of the
trial, the jury was asked to answer the following questions:
(1)Did Elizabeth Sarren offer to give the house to Marie Gray in
exchange for Marie taking care of Elizabeth for the rest of her
life?; (2) Did Elizabeth Sarren intend to give the house to Marie
Gray when she made the offer?; and (3) Did Marie Gray provide
care to Elizabeth Sarren until her death in reliance on the
offer? The jury answered yes to each question. The superior
court then awarded possession and ownership of the house to Gray.
The court also awarded attorneys fees to Gray.
Cragle appeals, arguing that the decision denying
partial summary judgment should be reversed. Cragle did not
initially argue that AS 13.12.514, the statute that renders
unenforceable oral contracts to make a devise, applied in the
present case. Because it appeared to us that AS 13.12.514 might
be controlling, we asked the parties to submit supplemental
briefs discussing whether the statute applied, and, if so, what
the appropriate remedy would be.
III. DISCUSSION
A. Standard of Review
We apply the independent judgment standard of review
when interpreting and applying statutes.1 We likewise apply our
independent judgment when interpreting and applying statutes of
limitations.2 We review grants of summary judgment de novo,
drawing all permissible factual inferences in favor of, and
viewing the facts in the light most favorable to, the non-
prevailing party.3 We will affirm a grant of summary judgment if
there are no genuine issues of material fact and the prevailing
party was entitled to judgment as a matter of law.4
A trial courts determination about which statute of
limitations applies is a question of law that we review de novo.5
B. Whether the Agreement Between Sarren and Gray Was
Unenforceable Under AS 13.12.514 as an Oral Contract To
Make a Devise
Grays claim to Sarrens house originates from the
alleged oral agreement under which Gray undertook to take care of
Sarren in exchange for Sarrens promise that the house in
Unalakleet would belong to [Gray] upon [Sarrens] death. Although
the court awarded the house to Gray in part because the jury
found that Sarren had in fact made such a promise, the award
cannot stand if AS 13.12.514 made the agreement unenforceable as
a matter of law.6
Alaska Statute 13.12.514 governs how succession
contracts, including a contract to make a devise, may be
established. It provides:
Contracts concerning succession. (a) A
contract to make a will or devise, or not to
revoke a will or devise, or to die intestate,
if executed after January 1, 1997, may be
established only by
(1) provisions of a will stating
material provisions of the contract;
(2) an express reference in a will to a
contract and extrinsic evidence proving the
terms of the contract; or
(3) a writing signed by the decedent
evidencing the contract.
(b) The execution of a joint will or mutual
wills does not create a presumption of a
contract not to revoke the will or wills.
Adopted from section 2-514 of the Uniform Probate Code (UPC), AS
13.12.514 operates to limit the ways in which a contract to make
a devise may be established or proved.7 The commentary in the
UPC Practice Manual states that the provision was intended
primarily to curb litigation by tighten[ing] the methods by which
contracts concerning succession may be proved.8
We must therefore determine whether the agreement
alleged by Gray was a succession contract that was subject to AS
13.12.514.
Neither Cragle nor Gray argues that AS 13.12.514
applies in the present case. Although it appears to be
undisputed that the alleged oral agreement between Gray and
Sarren was entered into after January 1, 1997 (the statutes
watershed date), both parties seem to explicitly contend or to
implicitly assume that Gray and Sarrens arrangement was not a
succession contract.
We generally decline to review issues not raised in the
superior court except to the extent there may be plain error.9
And here Cragle has not argued, even on appeal, that the statute
applies. But we also have held that if an unraised issue
involves a question of law that is critical to a proper and just
decision, we will not hesitate to consider it, particularly after
calling the matter to the attention of the parties and affording
them the opportunity to brief the issue.10
We gave Cragle and Gray an opportunity to file
supplemental briefs discussing AS 13.12.514. Neither party
squarely argues that the statute applies; not even Cragle, who
had the greatest interest in establishing that any agreement
between Gray and Sarren was unenforceable. But the fact no party
argues that the statute applies is not controlling. Because we
conclude that the statutes applicability involves both a question
of law that is critical to a just and proper resolution of this
case and a legislative policy choice about how a claim of this
sort must be established, we must independently analyze whether
AS 13.12.514 applies. That analysis is particularly appropriate
here, given that the factual essence of Cragles superior court
statute of frauds argument that there was no writing bears on
section .514s application. Gray had full opportunity in
responding to that argument to demonstrate that there was a
writing, an important topic of common relevance to the statute of
frauds and section .514.
Whether AS 13.12.514(a) controls here depends on
whether the arrangement between Gray and Sarren was an oral
contract to make. . . a devise of property. Alaska Statute
13.06.050(10) defines devise when the word is used as a noun to
mean a testamentary disposition of real or personal property.11
Thus, unlike a conveyance of land, a devise does not pass any
interest in property or create rights in others until the death
of its maker.12 Before AS 13.12.514 was enacted in 1996, we
observed that
a contract to make a bequest or devise
requires the promisor to execute, during his
lifetime, a will in satisfaction of the
contractual obligation. Although any will so
made remains entirely revocable by the
testator, if at the moment of death the
promisor has not made the agreed testamentary
gift, a breach of contract occurs.[13]
To determine whether Sarrens agreement with Gray was an
oral contract to make a devise, we begin by considering what the
parties have argued. Gray argued that Sarren had entered into an
agreement for transfer of the house. She contended that the
transfer took place when Sarren made the promise in September
1999, not upon Sarrens death in January 2000. Gray argued that
the resulting inter vivos transfer took the house out of the
estate and therefore out of the will. But Grays superior court
affidavit more accurately described both the terms and the nature
of the alleged agreement: On September 13, 1999 my grandmother,
Elizabeth Sarren, asked me and my children to move into her house
and take care of her and she would give me the house following
her death. (Emphasis added.) The superior court described the
claim similarly: Ms. Gray avers that her grandmother agreed to
give the house to her if she would take care of Ms. Sarren until
her death. In rejecting Cragles statute of frauds motion, the
superior court reasoned that, if a jury found that the promise
Gray described was made and that Gray fully performed her part of
the bargain, then at the time of her death, Ms. Sarrens property
was conveyed to Gray. (Emphasis added.)
The factual essence of Grays claim as she describes it
on appeal is that in September 1999 she and Sarren orally agreed
that the house owned by [Sarren] in Unalakleet would belong to
[Gray] upon [Sarrens] death.14 (Emphasis added.)
Cragles supplemental appellate brief asserts that there
was an alleged oral agreement calling for the conveyance to Gray
of Sarrens interest in the house apparently at the moment of
[Sarrens] death. (Internal quotations omitted.) Cragle
describes the alleged arrangement as follows: That agreement was
alleged to be for conveyance of [Sarrens] ownership interest in
the house where [Sarren] was living to [Gray] (apparently at the
moment of [Sarrens] death) in exchange for [Grays] promise to
care for [Sarren].
The statute has effect here even though the jury found
that Sarren offered to give the house to Gray in exchange for
Gray taking care of Sarren for the rest of Sarrens life. Given
the jurys apparent finding that Sarren actually entered into the
disputed oral agreement, one might wonder why that finding does
not control. But the jurys finding is of no legal consequence if
AS 13.12.514 rendered Grays claim unenforceable as a matter of
law. Whether her claim was unenforceable ultimately depends on
whether the transfer of the house from Sarren to Gray was
intended to occur only upon Sarrens death.
As we have seen, there is no genuine dispute about the
basis for Grays claim; it was that there was an agreement that
the house would be transferred to Gray after Sarren died. Only
then could it be determined whether Gray had fully performed her
part of the alleged agreement. The agreement was therefore a
contract to make a devise. We accordingly hold that AS 13.12.514
limited the methods by which Gray could prove the existence of
the contract. Although we have never before interpreted the
meaning and effect of AS 13.12.514(a), a plain reading of that
statute indicates that oral succession contracts that are not
reduced to writing are unenforceable. Alaska Statute
13.12.514(a) provides that contracts to make a devise of property
may be established only by means of provision or reference in a
will or other writing signed by the decedent.15
The Montana Supreme Court has considered the effect of
an almost identical succession contract statute in resolving
factually similar disputes.16 That court held in Orlando v.
Prewett that the text of the succession contract statute is
absolute and that a contract to make a devise may be established
only by the means specifically enumerated in the statute.17 In
that case an uncle allegedly made an oral promise to his niece
and her husband that he would leave them a one-half interest in
his ranch at the time of his death if they would rent and operate
the ranch until he died.18 An oral agreement was reached and the
niece and her husband ran the ranch until the uncle died two
years later.19 The Montana court held that the oral agreement was
without force and effect because it had not been reduced to
writing.20 The court reasoned that written evidence is
particularly necessary to establish succession contracts given
that unscrupulous claimants might otherwise rely on perjured
testimony when the promisor is no longer available to confirm or
deny the existence of the contract.21
The Montana Supreme Court reached a similar result in
In re Estate of Braaten.22 In that case a stepfather allegedly
made an oral promise to leave his house to his stepson if the
stepson cared for him until his death.23 The stepson cared for
the stepfather until the stepfather died twelve years later.24
The stepfather left his entire estate to someone else.25 The
stepson sued for possession of the house but later requested just
the value of the services he had provided his stepfather over the
years.26 The trial court awarded the stepson $44,100 for the
value of his services, but the Montana Supreme Court reversed,
holding that the stepson did not have an enforceable contract
with his stepfather.27
We are persuaded by the statutes text and by these
decisions that AS 13.12.514 is absolute and that a contract for a
devise may be established only in the ways specifically
enumerated in the statute.28
Gray and Sarrens alleged oral agreement was not
incorporated in or referred to in Sarrens will. Nor was it
otherwise reduced to writing and signed by Sarren before her
death. It therefore did not satisfy any of the statutes
alternative requirements for proving such a claim.29 We
consequently hold that Sarrens alleged promise to transfer the
house in exchange for Grays services is unenforceable. Because
Gray does not allege any other theory for obtaining title to the
house, we reverse the decision awarding the house to Gray. We
also vacate the attorneys fees award because Gray is no longer
the prevailing party.
Gray argued in the superior court that a transfer
occurred before Sarrens death, taking the house out of Sarrens
estate. Our conclusion that the alleged agreement contemplated a
transfer at the time of Sarrens death necessarily disposes of
this argument.
IV. CONCLUSION
Because AS 13.12.514 renders the oral agreement between
Gray and Sarren unenforceable, we REVERSE the award of the
Unalakleet house to Gray. Because Gray is no longer the
prevailing party, we also VACATE the attorneys fees award.
_______________________________
1 Deal v. Kearney, 851 P.2d 1353, 1356 n.4 (Alaska 1993)
(citing Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990)).
2 Fernandes v. Portwine, 56 P.3d 1, 4 (Alaska 2002)
(citing Pedersen v. Flannery, 863 P.2d 856, 857 n.1 (Alaska
1993)).
3 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
4 Id. at 1219.
5 Sengupta v. Wickwire, 124 P.3d 748, 752 (Alaska 2005)
(citing Alderman v. Iditarod Prop., Inc., 104 P.3d 136, 140
(Alaska 2004)).
6 On appeal Cragle seems to implicitly dispute whether
the alleged agreement ever existed. The application of section
.514 does not turn on whether there actually was such an
agreement, but on whether Grays award is based on a claim that
there was such an agreement.
7 Unif. Probate Code 2-514 (2006).
8 1 Uniform Probate Code Practice Manual 2-701, at 129-
30 (1977).
9 Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).
10 Vest v. First Natl Bank of Fairbanks, 659 P.2d 1233,
1234 n.2 (Alaska 1983) (citing State v. First Natl Bank of
Anchorage, 660 P.2d 406, 422-23 (Alaska 1982); Stone v. Stone,
647 P.2d 582, 585-86 (Alaska 1982); Dresser Indus., Inc. v.
Alaska Dept of Labor, 633 P.2d 998, 1004-06 (Alaska 1981); Libby
v. Dillingham, 612 P.2d 33, 41-42 (Alaska 1980)), rehg granted on
other grounds, 670 P.2d 707 (Alaska 1983).
11 AS 13.06.050(10) (emphasis added).
12 1 William Herbert Page & Jeffrey A. Schoenblum, Page on
the Law of Wills 1.1, at 1 n.2 (2003).
13 Estate of Lampert Through Thurston v. Estate of Lampert
Through Stauffer, 896 P.2d 214, 218-19 (Alaska 1995) (citing
McBain v. Pratt, 514 P.2d 823, 826 (Alaska 1973)).
14 On appeal, Gray describes the alleged agreement as
follows: In September 1999 [Sarren] and [Gray] orally agreed that
the house owned by [Sarren] in Unalakleet would belong to [Gray]
upon [Sarrens] death. The agreement was that [Gray] would take
care of [Sarren] as a live-in caretaker until her death.
15 AS 13.12.514(a) (emphasis added).
16 Mont. Code Ann. 72-2-534(1) (2007) provides:
(1) A contract to make a will or devise or
not to revoke a will or devise or to die
intestate, if executed after July 1, 1975,
may be established only by:
(a) provisions of a will stating material
provisions of the contract;
(b) an express reference in a will to a
contract and extrinsic evidence proving
the terms of the contract; or
(c) a writing signed by the decedent
evidencing the contract.
17 Orlando v. Prewett, 705 P.2d 593, 596 (Mont. 1985).
18 Id. at 594.
19 Id.
20 Id. at 598.
21 Id.
22 In re Estate of Braaten, 96 P.3d 1125, 1126-27 (Mont.
2004).
23 Id. at 1125, 1127.
24 Id. at 1125.
25 Id.
26 Id. at 1126.
27 Id. at 1126-27.
28 We note that Gray has not asserted an equitable or
quasi-contractual claim to recover the fair value of services she
rendered to Sarren in reliance on the oral agreement that we hold
was unenforceable. We express no view whether AS 13.12.514 would
have permitted such a claim against Sarrens estate (see AS
13.16.020, .465), the distributees of the estate (see AS
13.16.020, .635), or the former personal representative of the
estate (see AS 13.16.020, .640). Nor do we express any opinion
about whether such a claim would have been barred by laches or
the statutes of limitations set forth in AS 13.16.460
(limitations for claims against estate), AS 13.16.645
(limitations for claims against distributees), or AS 13.16.640
(limitations for claims against former personal representative).
29 AS 13.12.514(a).
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