Enders v. Parker

Decision Date17 January 2006
Docket NumberNo. S-11437.,S-11437.
Citation125 P.3d 1027
PartiesIris ENDERS, Appellant, v. Glen PARKER, Personal Representative of the Estate of Joel W. Kottke, Appellee.
CourtAlaska Supreme Court

Timothy R. Byrnes, Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for Appellant.

C. James Mathis, Davis & Davis, P.C., Anchorage, for Appellee.

Before: MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Alaska Statute 13.16.435 entitles personal representatives who litigate in "good faith" to recover attorney's fees and costs from the estate. Iris Enders was a personal representative who unsuccessfully challenged Joel Kottke's 1997 will. She argues here that it was error to deny her request for attorney's fees and costs under the statute. Because the good faith required by AS 13.16.435 is implied, but not conclusively established, by the existence of "reasonably arguable grounds" for a will challenge, and because good faith requires that a personal representative act with intent to benefit the successors of the will the representative seeks to uphold, the superior court applied the correct analysis. Furthermore, it did not clearly err in finding that Enders did not act with intent to benefit the successors. Because Enders was therefore not entitled to recover fees and costs from the estate under AS 13.16.435, we affirm.

II. FACTS AND PROCEEDINGS

Joel Kottke died in October 1997.1 Per the will he executed in June 1997, most of his estate went to Connie Parker. She was a long-time acquaintance of Joel Kottke; she became closer to him in his later years, developed a relationship with him very similar to a marriage, and also served as his care-giver.

The 1997 will replaced a 1983 will that Joel Kottke had executed while he was married to Martha Kottke. Per the 1983 will, Joel left his entire estate to Martha. Upon her death the residual estate was to pass one-half to Martha's children and one-half to Joel's siblings. Martha Kottke died in 1991. Following Joel's death, Iris Enders (Martha's daughter) and Ralph Kottke (Joel's brother) challenged the 1997 will, alleging that Connie Parker had an undue influence on Joel and that Joel was suffering from insane delusions when he drafted the 1997 will.

Following a seven-day bench trial, Superior Court Judge Sen K. Tan ruled that there was inadequate evidence to invalidate the 1997 will. Enders appealed that ruling. We affirmed.2 The superior court then denied Enders's request that the estate be required to pay her attorney's fees and costs under AS 13.16.435. Enders appealed the denial, and we vacated the order denying her request because we held that "AS 13.16.435 does not require that a personal representative or nominated personal representative's actions benefit the estate before the personal representative can recover expenses."3 We therefore remanded for "specific findings as to whether Enders prosecuted the will contest in good faith."4 The superior court explicitly found on remand that Enders lacked good faith and again denied Enders's request for attorney's fees under the statute. Enders now appeals that denial.

III. DISCUSSION
A. Standard of Review

We review questions of law de novo and adopt the rule of law most persuasive in light of precedent, reason, and policy.5 The parties disagree about how we should review the superior court's conclusion that Enders lacked good faith. Enders argues that we should review it de novo, while Parker asserts that we should apply the clearly erroneous standard. For the reasons set out below, we conclude that a determination that a personal representative did or did not act in good faith is a fact finding that should be reviewed for clear error. "A finding of fact is clearly erroneous when the reviewing court is left with a definite and firm conviction that the trial court has made a mistake."6

B. A Good Faith Determination Under AS 13.16.435 Is a Factual Finding that We Review Under the Clearly Erroneous Standard.

In enacting AS 13.16.435, Alaska adopted § 3-720 of the Uniform Probate Code (UPC). Alaska Statute 13.16.435 provides that personal representatives or persons nominated as personal representatives can receive litigation expenses from the estate if they can show that they prosecuted or defended proceedings in "good faith."7 We interpreted AS 13.16.435 for the first time in Enders v. Parker and made a number of observations about the meaning of the term "good faith" as it is used in AS 13.16.435.8 We stated that "[a]lthough `good faith' is not defined in the probate statutes, the statutory obligations of the personal representative shed light on the meaning of that term."9 Alaska Statute 13.16.350(a) provides in part: "A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. . . ." We observed that

in the context of two competing wills with different personal representatives, it is to be expected that the "successors" will not be identical. Each personal representative thus must act for the best interests of the successors named in the will which each personal representative is respectively seeking to uphold. We hold that "good faith" under AS 13.16.435 incorporates the statutory requirement that a personal representative act with the intent to benefit successors named in the instrument the personal representative seeks to uphold. . . . [10]

We also stated that the superior court, when making its findings concerning good faith on remand, "should consider whether Enders had reasonably arguable grounds to challenge the 1997 will. Presence of such grounds would imply good faith on her part; absence of such grounds would imply a lack of good faith."11

Enders contends that the standard of review cannot be clear error because she asserts that we remanded the case for a determination of whether she had "reasonably arguable grounds" to challenge the will. Enders equates this inquiry to asking whether the challenge was frivolous; she therefore argues that the superior court should have taken every factual inference in her favor and assumed the credibility of her witnesses. In essence, Enders asserts that reasonably arguable grounds exist if a claim would have survived summary judgment. Because summary judgment rulings are reviewed de novo,12 Enders reasons that the same standard applies to review of the superior court's resolution of the good faith issue.

Enders's theories rest on a misunderstanding of our remand instructions in Enders. We did not remand for a determination of whether Enders had reasonably arguable grounds to challenge the 1997 will, but rather for specific findings on the issue of good faith and for consideration of whether Enders had reasonably arguable grounds for her claims.13 If she had reasonably arguable grounds, it would imply good faith; if she did not, it would imply a lack of good faith.14 Enders did not adopt "reasonably arguable grounds" as the sole determinant of good faith under AS 13.16.435. Rather, the presence or absence of reasonably arguable grounds creates a presumption of good faith or lack of good faith, respectively. This presumption can be rebutted by evidence sufficient to establish good faith or lack thereof, as the case may be.

Nebraska Revised Statute § 30-2481 is identical to AS 13.16.435.15 The Nebraska Supreme Court has held that "[t]he good faith required in § 30-2481 is an ultimate fact for the court's decision upon all of the evidence. There are no rules defining it; rather, it depends upon the peculiar facts and circumstances existing in each case, including the duties imposed . . . by law."16 Enders held that one such duty requires the personal representative to "act with the intent to benefit successors named in the instrument the personal representative seeks to uphold" where there are "two competing wills with different personal representatives. . . ."17 It would therefore be incorrect to reduce the entire good faith inquiry to the single question of whether the personal representative had reasonably arguable grounds to act. The good faith inquiry requires a factual determination of intent that we review for clear error.18

Enders's apparent suggestion that Alaska Civil Rule 11 — which also contains a good faith standard — should dictate de novo review by analogy, is flawed because we review an award of sanctions under Civil Rule 11 for abuse of discretion.19

C. Surviving Summary Judgment Does Not Necessarily Mean "Reasonably Arguable Grounds" Exist.

As noted above, the presence of reasonably arguable grounds for a will contest implies that a personal representative acted in good faith under AS 13.16.435. Enders advances a number of arguments about how trial courts should decide whether there are reasonably arguable grounds.

She argues that the superior court, when considering whether Enders had reasonably arguable grounds, should have looked at whether Enders raised a genuine issue of material fact. In other words, she reasons that if the claim survived or would have survived a motion for summary judgment the superior court was required to find that reasonably arguable grounds existed. Enders refers us to Federal Rule of Civil Procedure 11, which requires that "allegations and other factual contentions have evidentiary support."20 The Advisory Committee notes to the federal rule state that "if a party has evidence with respect to a contention that would suffice to defeat a motion for summary judgment based thereon, it would have sufficient `evidentiary support.'"21 Enders therefore argues that in considering whether she had reasonably arguable grounds, the superior court, just as it would in reviewing an opposing party's motion for summary judgment, was required to "giv[e] every factual inference to [her]" and "assume the credibility of her witnesses."

But just because Enders's claim survived, or would have survived,...

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