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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kollander v. Kollander (7/21/2017) sp-7185
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEAN R. KOLLANDER, )
) Supreme Court No. S-16064
Appellant, )
) Superior Court No. 3AN-90-06548 CI
v. )
) O P I N I O N
DARYL E. KOLLANDER, )
) No. 7185 - July 21, 2017
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Stephen Merrill, Anchorage, for Appellant.
David W. Baranow, Law Offices of David Baranow,
Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
Jean Kollander filed suit in 2012 to reopen a qualified domestic relations
order (QDRO) entered pursuant to her 1991 divorce. The superior court dismissed the
suit based on laches and awarded full attorney's fees to her former husband, Daryl
Kollander. Jean appealed. We affirmed the superior court's substantive decision but
remanded for recalculation of attorney's fees in accordance with Alaska Rule of Civil
----------------------- Page 2-----------------------
Procedure 82. On remand the superior court awarded attorney's fees to Daryl based on
60% of his reasonable actual attorney's fees. The court also issued an Alaska Rule of
Civil Procedure11 sanction against Jean's attorney, Stephen Merrill, for filing additional
motions after remand that were not well-grounded in fact or based on a reasonable
inquiry into the facts. Jean now appeals the attorney's fee award and the Rule 11
sanction against Merrill. We conclude that the superior court did not abuse its discretion
either in determining the attorney's fee award or in sanctioning Merrill under Rule 11.
II. FACTS AND PROCEEDINGS
Daryl and Jean Kollander married in 1969 and divorced in 1991. The
QDRO entered pursuant to their divorce granted each party a share of the other's
retirement benefits. Daryl has been receiving monthly payments from Jean's pension
since 2001. When Daryl retired in 2007 the federal Office of Personnel Management
informed Jean that she would receive her share of Daryl's pension as a lump sum of
$22,459.81, paid in monthly installments of $1,796.50. Jean received the final payment
in 2008.
In 2012 Jean moved to reopen the QDRO and to hold Daryl in contempt for
failing to pay her the marital share of his retirement benefits because she received a lump
sum instead of lifetime payments from Daryl's pension. The superior court ruled that
Jean's suit was barred by laches, and it awarded full attorney's fees to Daryl. Jean
appealed the decision to this court. In Kollander v. Kollander (Kollander I ) we affirmed
the superior court's application of laches but, finding the full attorney's fee award
unsupported by the record, remanded for recalculation of the attorney's fee award in
1
accordance with Rule 82.
1 322 P.3d 897, 899 (Alaska 2014).
-2- 7185
----------------------- Page 3-----------------------
In June 2014 the superior court held a hearing on remand to reassess the
attorney's fee award. At the hearing Daryl asked for enhanced attorney's fees, arguing
that the case involved complex issues including laches and "an obscure conspiracy," and
that a significant amount of money was at stake. He argued that "all of [Jean's] claims
were patently unreasonable" and that Jean had engaged in "vexatious or bad faith
conduct" such that the court could award full attorney's fees.
Jean responded by first arguing that the case was disposed of without a trial
and so should be subject to a 20 percent default fee under Rule 82, rather than a 30
2 She next argued that her claim was reasonable and that our decision
percent default fee.
on the merits in Kollander I was "plain wrong." She finally argued that the attorney's
fee award should be reduced because an enhanced fee award "would certainly deter a
claimant . . . who brings a case, no doubt about it," although she was unable to articulate
why she believed that was the case.
The superior court found that Daryl remained the prevailing party and
determined that it would apply the Rule 82 schedule for a claim contested with trial. The
court departed from the default attorney's fee based primarily on its assessment of the
reasonableness of the parties' claims and defenses, pursuant to subsection 82(b)(3)(F).
The court found Jean's claims unreasonable due to the lack of evidence to support her
arguments and the amount of time that had passed before she brought her claims.
Because Jean also denied the legitimacy of this court's decision on appeal and attempted
to re-argue the merits of the case, the superior court determined that her argument on
2 Alaska R. Civ. P. 82(b)(2) ("In cases in which the prevailing party recovers
no money judgment, the court shall award the prevailing party in a case which goes to
trial 30 percent of the prevailing party's reasonable actual attorney's fees which were
necessarily incurred, and shall award the prevailing party in a case resolved without trial
20 percent of its actual attorney's fees which were necessarily incurred.").
-3- 7185
----------------------- Page 4-----------------------
remand was also unreasonable. The court found Daryl's defense of laches reasonable
given the 21-year period between the initial divorce decree and the present claim. The
court awarded 60% of Daryl's full and reasonable attorney's fees, including those fees
incurred in the first round of litigation and those incurred on remand, but not those
incurred in the first appeal to this court.
In May 2015 Daryl's attorney, David Baranow, submitted his fee and cost
accounting to the superior court. He listed $8,190.01 for the initial 2012 litigation and
$2,062.40 for services provided on remand, and accordingly requested a 60% fee award
of $6,061.50. Two days later Merrill sent Baranow an email criticizing the court's
treatment of the case and implying that Jean had moved or would move to Central
America to avoid paying Daryl. Merrill followed this email with another in June 2015,
personally disparaging Baranow. After conferring with Bar Counsel, Baranow provided
the court a copy of this correspondence "as a matter of . . . ethical disclosure."
In June 2015 Jean filed a motion for extension of time to reply to Daryl's
attorney's fee accounting; Daryl opposed the motion. Jean then filed a motion to void
the attorney's fee award, complaining that Baranow's submission to the court of
Merrill's emails "foul[ed] this record by trying to jar this Court's objectivity and
independence of judgment with a controversial pleading unknown to the law." At a
status hearing scheduled after Jean's motion was submitted, she requested that the
assigned judge either void the attorney's fee award or recuse himself. The judge found
no basis for recusal and denied Jean's motion, noting that the motion "border[ed] on the
frivolous." Another superior court judge affirmed his decision.
Jean then moved for the entry of contempt citations and show cause orders
against Daryl and Baranow. She asserted that Daryl had perjured himself at trial by
stating that he did not receive a disputed home-closing document from Wells Fargo
Bank. The court investigated these allegations and found that the document, which Jean
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----------------------- Page 5-----------------------
claimed Daryl had obtained from Wells Fargo prior to a 2012 evidentiary hearing, was
actually provided to Daryl and Baranow by Merrill himself: Merrill had attached the
document to one of his reply briefs. The court therefore denied Jean's motions and
ordered Merrill to show cause why he should not be sanctioned under Rule 11 for
submitting motions based on untrue information.
At an August 2015 show cause hearing, for which Merrill failed to appear,
the court found that Merrill should have known that his statements regarding the home
document were "factually . . . incorrect, untrue, [and] false." Having concluded that
Merrill violated Rule 11(b)(3), which requires factual claims in court filings to have
evidentiary support, the court also found that the motions were submitted for an
"improper purpose" - to increase litigation costs - in violation of Rule 11(b)(1). As
a sanction for the Rule 11 violation, the court ordered Merrill personally to pay the full
attorney's fees incurred in responding to the motions.
On August 31 Merrill moved to reopen the Rule 11 sanction proceedings,
stating that he was outside of Alaska for depositions and had not received the show cause
order until after the August hearing. The court granted his request and set another
hearing for October 2015.
Merrill failed to appear again for the October hearing. The court's findings
at the October hearing mirror the findings from the August hearing. Because Merrill had
failed to review his own case file before submitting the motions, the superior court found
that he did not make a reasonable inquiry into the factual basis of the motions. The court
said that had Merrill reviewed his case file at any time before filing the motions to hold
Daryl and Baranow in contempt, Merrill would have discovered the lack of evidentiary
support for the motions. The court therefore reiterated its order requiring Merrill to pay
Baranow the full amount of attorney's fees incurred in responding to the motions.
-5- 7185
----------------------- Page 6-----------------------
Jean now appeals the award of enhanced attorney's fees under Rule 82 and
3
the Rule 11 sanction imposed against Merrill.
III. STANDARDS OF REVIEW
"We review awards of attorney's fees for abuse of discretion and will
reverse 'if the award is arbitrary, capricious, manifestly unreasonable, or improperly
4
motivated.' " In granting an attorney's fee award, "[t]he determination of which party
is the prevailing party is . . . subject to the trial court's discretion and is reviewable only
5
for abuse of discretion."
3 Jean makes two additional arguments in her brief, both cursory and
unsupported by authority. She argues that the court engaged in "the illegitimate practice
of trying to evade its obligation to make factual findings" and that she was "asked by the
Superior Court for her help in fixing the record for him and to thereby give up a second
appeal [sic]." These assertions appear to refer to the court's initial statement, after
presenting detailed oral findings, that it would not require written findings and that if
Daryl chose to put the findings in writing he could not include that expense in his
accounting of attorney's fees. When Jean objected and specifically requested written
findings, the court stated that the expense of writing up the findings could be included
in Daryl's attorney's fees if the findings were written up at Jean's request. Because Jean
addresses these issues only cursorily and does not cite to authority for either argument,
we consider them waived. State v. O'Neill Investigations, Inc. , 609 P.2d 520, 528
(Alaska 1980) ("When, in the argument portion of a brief, a major point has been given
no more than cursory statement, we will not consider it further. Failure to argue a point
constitutes an abandonment of it.").
Jean also questions, in her Issues Raised on Appeal, whether the superior
court complied with our initial remand order. Although we need not address this
question, we note that the superior court did comply with our remand order in
reassessing its award of attorney's fees pursuant to Rule 82.
4 Roderer v. Dash, 233 P.3d 1101, 1106 (Alaska 2010) (quoting Rhodes v.
Erion, 189 P.3d 1051, 1053 (Alaska 2008)).
5 Finkv. Municipalityof Anchorage, 379 P.3d 183, 188 (Alaska2016)(citing
(continued...)
-6- 7185
----------------------- Page 7-----------------------
"We review the award of sanctions under Rule 11 for abuse of discretion" 6
and will "review[] all factors relevant to the issue of whether the attorney's inquiry into
7
facts and law was reasonable under an abuse of discretion standard."
IV. DISCUSSION
A. Legal Background
1. Alaska Rule of Civil Procedure 82
Rule 82 entitles the prevailing party in a civil suit to recover a percentage
8 The rule establishes a schedule of default fee awards
of reasonable attorney's fees.
depending on whether the prevailing party recovered a money judgment and whether a
trial was held.9 A court may depart from these default amounts upon consideration of
certain factors outlined in subsection 82(b)(3), including the length of the trial, the
complexity of the case, the reasonableness of the parties' claims and defenses, and "other
equitable factors deemed relevant."10 We have stated that "[i]n general, a trial court has
broad discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed
5 (...continued)
Cont'l Ins. Co. v. U.S. Fid. & Guar. Co., 552 P.2d 1122, 1125 (Alaska 1976)).
6 Alaska State Emps. Ass'n v. Alaska Pub. Emps. Ass'n , 813 P.2d 669, 671
(Alaska 1991) (citing Keen v. Ruddy , 784 P.2d 653 (Alaska 1989)).
7 Id. (quoting Keen, 784 P.2d at 658).
8 Alaska Civil Rule 82(a) provides: "Except as otherwise provided by law
or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's
fees calculated under this rule."
9 Alaska R. Civ. P. 82(b).
10 Alaska R. Civ. P. 82(b)(3).
-7- 7185
----------------------- Page 8-----------------------
by the schedule of the rule, so long as the court specifies in the record its reasons for
departing from the schedule." 11
2. Alaska Rule of Civil Procedure 11
Alaska Civil Rule 11 provides, in pertinent part:
By presenting to the court a pleading, written motion, or
other paper - whether by signing, filing, submitting, or later
advocating it - an attorney or unrepresented party certifies
that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law; [and]
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
[12]
discovery . . . .
The rule is intended to minimize waste of party and judicial resources by deterring claims
that "a modicum of investigation" would have revealed to be untenable.13
11 Kollander I, 322 P.3d 897, 907 (Alaska 2014) (alteration in original)
(quoting Johnson v. Johnson , 239 P.3d 393, 400 (Alaska 2010)).
12 Alaska R. Civ. P. 11(b).
13 See Foster v. Michelin Tire Corp., 108 F.R.D. 412, 415 (C.D. Ill. 1985).
We have relied on federal decisions to interpret Alaska Civil Rule 11. See, e.g., Alaska
Fed. Sav. &Loan Ass'n of Juneau v. Bernhardt, 794 P.2d 579, 583 (Alaska 1990) (citing
Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986); Golden Eagle Distrib.
(continued...)
-8- 7185
----------------------- Page 9-----------------------
An attorney need not have engaged in subjective bad faith or willful
14
misconduct to incur Rule 11 sanctions.
To comport with Rule 11 "an attorney is
obliged to make objectively reasonable efforts to ascertain the facts of the case before
15 Rather than inquiring into an attorney's
making assertions of fact in court documents."
good faith, courts must determine "whether there was a reasonable basis for the
attorney's signature at the time the paper was submitted."16 As a U.S. District Court has
noted, "[w]here . . . a plaintiff has made no inquiry or has made an inquiry that has
revealed no information supporting a claim, the inquiry is ipso facto[] not reasonable."17
B. The Superior Court Did Not Abuse Its Discretion Under Rule 82 In
Awarding 60% Attorney's Fees To Daryl On Remand.
Jean presents several iterations of her argument that the superior court
abused its discretion in awarding Daryl 60% of his reasonable attorney's fees. She
asserts that the court "change[d] on its whim Rule 82" and engaged in "open, arbitrary
lawmaking" in violation of the principle of separation of powers. She questions whether
the record contains sufficient evidence to award 60% attorney's fees and whether the
increased attorney's fee award is "warranted in the absence of extraordinary
13 (...continued)
HARLES ALAN
Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir.1986); 5A C
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1334 (2d ed.
Supp. 1987)).
14 Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1228 (Alaska
1992) (citing Alaska Fed. , 794 P.2d at 583).
15 Copeland v. State, 70 P.3d 1118, 1122 (Alaska App. 2003) (citing Tyler v.
State, 47 P.3d 1095, 1100 (Alaska App. 2001)).
16 Luedtke, 834 P.2d at 1228 (citing Alaska Fed. , 794 P.2d at 583).
17 Foster, 108 F.R.D. at 415.
-9- 7185
----------------------- Page 10-----------------------
circumstances not present in this record." She further argues that her claims were not
18
unreasonable and do not warrant an award of increased attorney's fees under Rule 82.
The superior court based its attorney's fee award largely on one factor: the
reasonableness of the parties' claims and defenses. During the hearing on remand Jean
attempted to re-litigate the merits of the case - in particular, her claim that her signature
on certain home-sale documents was forged - by asserting that our decision in
Kollander I was erroneous and based on a "false analysis." Once again, in an effort to
demonstrate that the record does not support an award of enhanced attorney's fees under
Rule 82, Jean continues to argue on appeal that the forgery allegation made at trial in
2012 was not unreasonable. She points to allegedly suspicious omissions in the relevant
paperwork and claims that Daryl had the ability and opportunity to forge her signature.
But we have already affirmed the superior court's finding that Jean's claim
was barred by laches.19 Our prior determination is the law of the case,20 and Jean's
argument to the contrary is manifestly unreasonable. Furthermore, regardless of our
prior determination, those claims are unreasonable for lack of evidentiary support.
18 Jean also argues that Rule 82(b)(3)(F) "should be interpreted as requiring
a frivolous or very near frivolous claim to be made" before a court may increase
attorney's fees above the statutory schedule. Jean neither expands on this last argument
nor cites to any authority for her proposition, so we consider that argument waived.
State v. O'Neill Investigations, Inc. , 609 P.2d 520, 528 (Alaska 1980).
19 Kollander I, 322 P.3d 897, 899 (Alaska 2014).
20 E.g., Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009) ("The law of the
case doctrine . . . generally 'prohibits the reconsideration of issues which have been
adjudicated in a previous appeal in the same case.' . . . The law of the case doctrine
applies not only to issues explicitly addressed and decided in a prior appeal but also to
issues 'directly involved . . .' in a prior appellate decision . . . ." (footnotes omitted)
(quoting State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 n.52
(Alaska 2003))).
-10- 7185
----------------------- Page 11-----------------------
Testimony from the bank agent who dealt with the contested home closing in no way
suggests fraud or perjury on Daryl's part. Indeed, the agent testified that there was
nothing remarkable or unusual about the home closing or the clerical discrepancies Jean
cites as evidence of fraud. Nothing else in the record supports Jean's contentions. The
superior court's determination that Jean's claims were not reasonable was not erroneous.
In observing that Daryl's defense of laches was reasonable, the superior
court noted the amount of time that had passed between the alleged injury and Jean's
bringing suit and the prejudice occasioned by "the delay and the lack of exhibits" in
Jean's claim of forgery. Again, we have already affirmed the reasonableness of Daryl's
laches defense in our affirmation of the superior court's decision on the merits in
21 Because Jean's claim was unreasonable and Daryl's defense was
Kollander I .
reasonable, the court's decision to award Daryl 60% attorney's fees was not an abuse of
discretion.
C. Jean Waived The Argument That The Superior Court Abused Its
DiscretionInIncludingPost-RemandAttorney'sFees InItsAttorney's
Fee Award.
Jean argues that the court erred in including post-remand attorney's fees in
its attorney's fee award. She reasons that because the attorney's fee award was
ultimately reduced, she was the prevailing party on remand and Daryl should not be
awarded that portion of attorney's fees. Jean has not cited to any precedent to support
her argument, nor did she raise the issue of post-remand attorney's fees in her statement
of points on appeal. We therefore consider her argument waived.22
21 Kollander I , 322 P.3d at 903-06.
22 Hootch v. Alaska State-Operated Sch. Sys. , 536 P.2d 793, 808 n.58 (Alaska
1975) ("A point omitted from appellants' statement of points on appeal ordinarily will
not be considered by this court. Appellate Rule 9(e) provides: The appellant shall serve
(continued...)
-11- 7185
----------------------- Page 12-----------------------
We note, however, that even if she had not waived the argument, her
assertion that she was the prevailing party on remand is without merit. We have
previously noted that "prevailing party" status does not necessarily depend on recovery,
23 Because Daryl
but rather depends on "which party prevails on the main issues."
prevailed on the merits both at trial and on appeal, and the merits of the case were no
longer at issue on remand, the superior court's determination that Daryl was the
prevailing party was not unreasonable.
D. The Superior Court Did Not Abuse Its Discretion In Sanctioning
Merrill Under Rule 11.
1. Rule 11 requires a reasonable inquiry into the factual basis of a
motion and cannot be satisfied by a showing of good faith.
Citing to the Ninth Circuit case Barber v. Miller, Jean asserts that a Rule 11
sanction may be issued sua sponte only for conduct "akin to an act of contempt of court"
and not for "simple mistakes of law or fact."24 But Alaska has not adopted this approach,
and Alaska's Rule 11 cannot be satisfied by a mere showing of good faith.25 The court
22 (...continued)
and file with his designation a concise statement of the points on which he intends to rely
on the appeal. The court will consider nothing but the points so stated.").
23 Alaska Constr. &Eng'g, Inc. v. Balzer Pac. Equip. Co. , 130 P.3d 932, 935-
36 (Alaska 2006) (quoting Cont'l Ins. Co. v. U.S. Fid. &Guar. Co., 552 P.2d 1122, 1125
(Alaska 1976)).
24 See 146 F.3d 707, 711 (9th Cir. 1998) (first citing Hadges v. Yonkers
Racing Corp., 48 F.3d 1320, 1329 (2d Cir. 1995); then citing FED. R.C IV. P.11 advisory
committee's note to 1993 amendment).
25 Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989) (holding that Alaska Civil
Rule 11 "creates an objective standard of 'reasonableness under the circumstances,' and
is intended to be more stringent than a mere 'good faith' formula" (quoting Golden Eagle
Distrib. Cor. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986))); Tyler v. State,
(continued...)
-12- 7185
----------------------- Page 13-----------------------
of appeals has held that Rule 11 imposes on attorneys "an obligation to make objectively
reasonable efforts to ascertain the facts of the case before making assertions of fact in
court documents." 26
The superior court found that Merrill made no inquiry at all into the factual
basis of his motions accusing the opposing party and counsel of dishonesty. Merrill
himself admits, albeit obliquely, that he did not conduct an inquiry into the existence of
the contested document. Merrill's failure to conduct any inquiry, reasonable or
otherwise, into the factual basis of his contempt and show cause motions supports the
superior court's decision to sanction him under Rule 11.
Jean also argues that because her underlying claim of perjury has merit, the
patently false allegations in the motions should be overlooked. But we have already
27
determined that the perjury claim was barred by laches.
25 (...continued)
47 P.3d 1095, 1100-01, 1109 (Alaska App. 2001) (rejecting bad faith standard for Rule
11 sanction and sanctioning attorney despite assumption that attorney did not
subjectively intend to mislead the court).
Federal courts requiring subjective bad faith "akin to a contempt of court"
do so based on the federal rule's safe harbor provision for party-initiated sanctions,
which does not exist in Alaska Civil Rule 11. Compare Fed R. Civ. P. 11(c), with
Alaska R. Civ. P. 11. See In re Bees, 562 F.3d 284, 287 (4th Cir. 2009) ("Because a sua
sponte order to show cause does not provide an attorney with Rule 11's twenty-one day
safe harbor provision, . . . 'a court is obliged to use extra care in imposing [sua sponte]
sanctions on offending lawyers.' " (quoting Hunter v. Earthgrains Co. Bakery, 281 F.3d
144, 151 (4th Cir. 2002) (alteration in original)) (citing Fed. R. Civ. P. 11(c)(2)));
Barber, 146 F.3d at 711 (noting link between federal safe harbor provision and
heightened requirement for sua sponte sanctions).
26 Tyler, 47 P.3d at 1100.
27 Kollander I, 322 P.3d 897, 906 (Alaska 2014). We also note that Jean has
(continued...)
-13- 7185
----------------------- Page 14-----------------------
The sanctioned motions in this case explicitly relied on the home-closing
document as the basis for Daryl's alleged contempt. Merrill demonstrably failed to
conduct a reasonable inquiry into the source of that document, in violation of the
28 The superior court, therefore, did not abuse its
requirements of Alaska Rule 11.
discretion in sanctioning this conduct.
2. Merrill was not sanctioned for "improper purpose" alone.
Jean also asserts that the superior court sanctioned Merrill solely for having
an improper purpose in filing the motions, and that a sanction for improper purpose
without a concurrent finding of frivolousness amounts to "assessing the thoughts and
motivations of counsel with a view . . . toward punishing those thoughts alone." She
argues that "improper purpose" cannot be the sole basis for a Rule 11 sanction; rather,
improper purpose must be found in conjunction with a determination that the attorney's
filing was frivolous. Her argument is inapposite.
The superior court stated that the basis for its sanction was Rule 11(b)(3),
which required Jean's submission to have evidentiary support or a likelihood thereof.29
27 (...continued)
pointed to no evidence in the record to support her underlying claim of perjury. In
particular, as noted above, the bank agent's trial testimony in no way suggests fraud or
perjury on Daryl's part. The superior court found Daryl's version of events credible in
2012, and we defer to its credibility determination. Whitesides v. State, Dep't of Pub.
Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001) (observing that
"[t]his court consistently grants deference to trial courts where credibility is at issue"
(citing Kohl v. Legoullon, 936 P.2d 514, 518 n.5 (Alaska 1997))).
28 See Tyler, 47 P.3d at 1100; Keen, 784 P.2d at 658.
29 Alaska R. Civ. P. 11(b)(3) provides, "By presenting to the court a pleading,
written motion, or other paper . . . an attorney . . . certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
(continued...)
-14- 7185
----------------------- Page 15-----------------------
Jean does not address the court's Rule 11(b)(3) finding; instead, she discusses only the
standard for an "improper purpose" sanction under Rule 11(b)(1). Although the superior
30 the primary basis
court did find that Merrill filed the motions for an improper purpose,
for the sanctions was, and is, Rule 11(b)(3). Jean's argument that the superior court
erred in sanctioning Merrill for improper purpose alone is therefore without merit.
V. CONCLUSION
WeAFFIRMthesuperior court's Rule82 attorney'sfeeaward to Daryl and
its Rule 11 sanction of Merrill.
29 (...continued)
circumstances . . . the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery. . . ."
30 Based on "the nature of the particular motions," "the tone of the pleadings,"
and the fact that Merrill was the source of the document, the court found that Merrill had
submitted the motions, at least in part, in order to increase the cost of litigation.
-15- 7185
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