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Johnson v. Doris (3/14/97), 933 P 2d 1139
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Notice: This opinion is subject to correction before publication in the Pacific Reporter. Reader
are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MAYNARD JOHNSON, )
) Supreme Court No. S-6474
Appellant, )
) Superior Court No.
v. ) 3AN-83-1048 P
)
D. CHARLENE DORIS, personal )
representative of the estate ) O P I N I O N
of CLIFFORD M. JOHNSON, )
) [No. 4793 - March 14, 1997]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Hugh G. Wade and Terry J. King, Wade &
DeYoung, Anchorage, for Petitioner. Robert L. Manley, Hughes,
Thorsness, Gantz, Powell & Brundin, Anchorage, for Respondent.
Before: Compton, Chief Justice, Rabinowitz, Eastaugh, Justices,
and Shortell, Justice, pro tem. (EN*) [Matthews, Justice, not
participating.]
EASTAUGH, Justice.
I. INTRODUCTION
We must decide here whether it was error to deny Maynard
Johnson's Civil Rule 60(b) motion to set aside a probate order
approving a final accounting and distribution. Johnson alleged,
after the probate order was entered, that excessive professional
fees and costs were incurred during administration of the estate.
We reverse and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Clifford M. Johnson died in 1983. His will provided that
the residue of his estate would be distributed to his natural son,
Maynard Johnson. The will named decedent's sister, Evva Betts,
executrix. The superior court admitted the will to informal
probate and appointed Betts personal representative. Maynard
Johnson became co-personal representative in June 1984.
The estate was valued at $682,798 in 1984. Claims
against the estate totaled $228,419, including a $96,322 claim by
Humana Hospital Alaska, Inc. At Humana's request, the personal
representative was required to post a $200,000 bond. Safeco
Insurance Company of America issued the bond.
In May 1986 Humana filed a motion to remove Betts and
Johnson as co-personal representatives. On May 30 the court
removed Betts and Johnson and appointed the Public Administrator,
D. Charlene Doris, the successor personal representative. (EN1) At
the request of the successor personal representative, the law firm
of Hughes, Thorsness, Gantz, Powell & Brundin (Hughes, Thorsness)
was engaged to assist in administering the estate.
On October 29, 1992, the personal representative filed a
Petition for Settlement and Distribution and Approval of Final
Account (the petition). Attached as Exhibit "A"to the petition
was a "Final Accounting"which listed professional fees and
expenses. The net value of the estate was then approximately
$90,821. The personal representative also gave notice that the
probate master would hear the petition on November 18. (EN2)
Johnson was served with the petition, Exhibit "A,"and the notice.
Johnson had met with Hughes, Thorsness attorney Robert
Manley on several occasions. They met in October 1992 to discuss
the estate. Johnson asserted that he had then asked Manley whether
he should attend the November 18 hearing, and was told that
"[Johnson] could attend the final accounting hearing if [he] wanted
to but did not have to." They met again on November 13. Manley
then informed Johnson that Safeco had a default judgment against
Johnson, as a result of an award of litigation costs and fees while
Johnson was co-personal representative. The default judgment was
in the amount of $14,185. Although Johnson had received a copy of
the complaint from Safeco in December 1989, he had understood
Safeco was taking no further action against him because "they knew
[he] did not have any property." He "thought that the lawsuit had
been dropped." Johnson affied that he had no knowledge of the
judgment until Manley informed him on November 13, 1992, that
Safeco was attempting to execute upon the judgment against
Johnson's inheritance. According to Johnson, Manley suggested that
Johnson get a lawyer to "look at"the default judgment. Manley
repeated this suggestion in a letter of November 16.
On November 17, Johnson telephoned attorney James Hill,
a Wade & DeYoung associate, and made an appointment with him for
November 18. Hill affied that at the November 18 meeting,
Maynard told me that his father had died and
left property to him. He said a hearing had
been held earlier that day to close his
father's estate. . . . He said that Robert
Manley, the attorney for his father's
estate[,] had "helped"him with the Safeco
claim and had told him to go get an attorney
to help him defend against the default
judgment. . . . He retained me to set aside
the Default Judgment or negotiate a settlement
. . . .
Johnson did not attend the November 18 hearing. No one
objected to the petition or the final accounting at the hearing.
Safeco, however, moved to exonerate its bond and asked that the
estate closing be delayed until the exoneration issue was resolved.
The probate master accordingly scheduled a hearing for December 11,
1992.
On November 19 Johnson called Hill and told him that "an
estate hearing was being held on December 11, 1992." On December
11 Hill filed an entry of appearance for Johnson and moved to stay
distribution of the estate proceeds pending resolution of a Civil
Rule 60(b) motion to set aside Safeco's default judgment. Hill
affied that the December 11 hearing was concerned solely with
determining how long to extend the bond past estate closure. He
affied that "[t]he final accounting was not discussed to the best
of my recollection and according to the log notes and tape of the
hearing." On December 22, 1992, Hill left Alaska for Christmas
vacation and did not return until about January 4, 1993.
On December 28 Safeco and Johnson stipulated that a
portion of Johnson's share of the estate proceeds sufficient to
satisfy Safeco's judgment would be deposited in the court registry.
On December 30 the probate master recommended that the court enter
the proposed order approving the final account and decree of
distribution. (EN3)
Late the afternoon of December 30, while Hill was absent
from Alaska, Manley faxed to a Wade & DeYoung paralegal, Glen
Earls, a proposed joint statement of nonobjection and a letter
asking Earls to have Hill approve signature of the joint statement.
The letter also stated:
If we can get the Superior Court to sign the
Order Approving Final Account and Decree of
Distribution this will enhance our position
[sic] the estate is fully closed out in
calendar 1992. This in turn will provide
Maynard Johnson with a significant individual
income tax deduction which will be lost if we
are not able to establish that the estate was
closed except for ministerial acts prior to
the end of the year.
The proposed joint statement announced the parties' nonobjection to
the master's report (concerning exoneration of Safeco's bond) and
the master's recommendation that the court enter the order
approving the final account and decree of distribution; the
statement also asked the court "to immediately adopt"the proposed
order. Although the letter discussed the proposed order, the fax
transmittal did not contain a copy of the order. Manley faxed
Earls a copy of the order the next day. Except for reference to
Ashburn & Mason's relatively modest fees ($12,259.92), the order
said nothing about the very large professional expenses incurred.
The order stated that it "allowed and settled the Final Account,"
but did not attach the final accounting filed with the court on
October 29. Earls affied that "[i]n telephone conference and in
the letter Mr. Manley indicated that the stipulated order had to be
signed immediately in order to get it before the Judge on that New
Year's Eve day."
On December 31, Hill's office telephoned him to advise
him of the December 30 request for a stipulation to close the
estate on December 31. Hill affied:
As I recall, I told Ms. Hartke [a Wade &
DeYoung attorney] that we were representing
the client in a collection matter, that the
closing hearing had been held, that Mr.
Johnson had no objections to closing the
estate and was just waiting for his check to
come and that only the formalities of the
actual closing remained. I believe we
discussed the Master's Report of December 30,
1992, and I said there was no reason to object
to the report.
As Manley requested, on December 31 Hill's firm signed
the stipulation for Johnson in Hill's absence. The joint statement
of nonobjection was also signed by counsel for the personal
representative and Safeco, and was filed with the court on December
31. On December 31 the superior court signed the Order Approving
Final Account and Decree of Distribution.
In February 1993 the personal representative completed
the estate disbursements, paying $2,412 to Johnson and $18,723 to
Safeco to satisfy its judgment against Johnson. On March 8 the
personal representative filed an accounting for the period of
August 1992 through February 1993.
On March 10 Hill reviewed documents received from Safeco
concerning the default judgment, and informed Johnson that the
amount of professional expenses charged in administering the estate
may have been excessive. Johnson asked Hill to investigate the
amount of the professional expenses.
The professional expenses included $53,396 in
accountant's fees and $199,611 in attorney's fees and costs. (EN4)
Hill requested copies of Manley's billing invoices, but when he was
informed that the copies would cost about $300, he arranged to
review the invoices at the offices of Hughes, Thorsness. That
review took place May 21. Hill later affied that the billings
described the work done but did not state the hours spent. (EN5)
On November 3, 1993, Johnson filed a Civil Rule 60(b)(1)
motion to set aside the December 31 order approving the final
account and decree of distribution and to set a hearing to review
the estate's professional fees. The motion cited grounds of
"excusable neglect, inadvertence or mistake because justice demands
it." Johnson claimed that the estate could have been closed
between July 1986 and August 1989, when the accrued payments on the
sale of estate property would have allowed the estate to pay off
its liabilities. Johnson asserted that between June 1986 and March
1993 the estate instead had incurred about $255,475 in legal fees
and costs and accounting fees. He claimed professional fees and
costs had consumed eighty-five percent of the "net estate."
After conducting a hearing, the probate master issued a
report recommending that Johnson's Rule 60(b) motion be denied.
The grounds cited by the master are discussed below. Johnson
objected to the report. The superior court adopted the master's
report and denied Johnson's motion to set aside the December 31
order and Johnson's request for a hearing on attorney's fees. The
court denied Johnson's motion for reconsideration. Johnson
appeals.
III. DISCUSSION
A. Standard of Review
We review a denial of a Civil Rule 60(b) motion for abuse
of discretion. Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277
(Alaska 1967). We will not find an abuse of discretion unless we
are left with a definite and firm conviction on the whole record
that a mistake has been made. Id.
B. Civil Rule 60(b)
Johnson argues that the final order should be set aside
under Civil Rule 60(b)(1) and (b)(6). (EN6) He claims that he
should be granted relief because he did not realize the
significance of the professional fees and costs. He does not
allege that he was personally ignorant of the amount of the
expenses.
Rule 60(b) provides in part:
(b) Mistakes -- Inadvertence -- Excusable
Neglect -- Newly Discovered Evidence -- Fraud
-- Etc. On motion and upon such terms as are
just, the court may relieve a party or a
party's legal representative from a final
judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise or
excusable neglect;
. . . .
(6) any other reason justifying relief from
the operation of the judgment.
Alaska R. Civ. P. 60(b)(1), (6).
Johnson sought relief under Rule 60(b), arguing that his
"failure to object is excusable neglect arising from his lack of
familiarity with the rules and ways of the legal world." He
claimed that
[he] has lived all but two years of his forty-
three years in the Alaskan bush and worked as
a fisherman, laborer, or mechanic. He has no
prior experience with the probate system. He
had no idea what an estate's attorney fees
should have been. He just "thought that was
the way things worked."
. . . Given [his] lack of sophistication
in these matters, he did not object [to the
fees] because he did not understand that there
was a reason to object. He simply thought
that the fee amounts were "all normal"in the
Court system.
Johnson asserted that his "failure to raise an objection
to the fee amount was clearly a mistake or inadvertence on his
part, as any reasonably prudent person who was adequately informed
would have surely objected to the amount of the fees."
It appears from the record before us that the master and
the superior court approved the professional fees and costs without
first conducting any inquiry at all into the justification for
those expenses. The personal representative's final accounting did
not adequately support these expenses. No showing was made that
particular services were needed; no showing was made as to the
number of hours spent. We note that the probate master should have
been alerted by the amount of the professional expenses relative to
the size of the estate, and should have given substantive
consideration to the proposed fees and costs. Under AS 13.16.440,
the court may review the reasonableness of the compensation of the
personal representative or of an employee of the estate. Cf. In re
Estate of Ridl, 455 N.W.2d 188, 192 (N.D. 1990) ("[A] court sitting
in its probate capacity has jurisdiction to take necessary action
to preserve the assets of the estate for the ultimate
beneficiaries."); In the Matter of Estate of Quinn, 830 P.2d 282
(Utah App. 1992) (reviewing the reasonableness of attorney's fees).
Although the fees charged seem very large at first
glance, the appellate record does not establish as a matter of law
that they are excessive. The issue of whether the fees were
excessive is hotly disputed by the parties. The personal
representative argues on appeal:
Maynard Johnson left his father's estate in
absolute shambles. The estate was complex in
that it involved multifaceted problems
involving creditors, unproven townsite trustee
land applications, sale of a liquor license
and related facilities, numerous small claims
actions and substantial accounting, income tax
and estate tax difficulties.
D. Charlene Doris, public administrator
acting as personal representative appointed by
the court, has straightened out all of the
difficulties and saved Maynard Johnson from
being sued to collect on behalf of creditors
cheated by his deficient administration, [yet]
Maynard Johnson now complains about the
significant costs of cleaning the nest which
he fouled. The absolutely [sic] value of an
estate and the size of distributions to
beneficiaries do not reflect, nor does it
serve as a proper measure for the attorney's
fees reasonably incurred in the process of
administration.
Johnson argues that the estate could have been settled in
1989, and that all fees subsequently incurred were inappropriate.
Johnson also disputes the personal representative's claim that the
estate was in turmoil, and that it took extreme efforts to
straighten it out and settle all claims without reducing the estate
to insolvency. Johnson also disputes the personal representative's
claim that Johnson was responsible for much of the confusion when
she took over as successor personal representative in 1986. He
claims that he "is . . . unsophisticated [and] . . . may have been
somewhat overwhelmed by the formal requirements of estate
administration but his efforts to administer the estate were
productive, and there is no evidence in the record that he engaged
in any misconduct, or that any of his acts or omissions prejudiced
the estate or its creditors."
We need not now decide whether the fees and costs were
excessive. The question here is whether it was error to deny Rule
60(b) relief without conducting a hearing.
The probate master found Johnson's "claim of excusable
neglect and inadvertence on his part to be incredible." The master
supported this conclusion with findings that Johnson was actively
involved in the administration of the estate until 1986; that
Johnson discussed the hearing and the proposed distribution with
Manley before the hearing was held; and that counsel represented
Johnson when the final order was entered and appeared at subsequent
court hearings. The master also noted that Johnson filed no
objection to the final accounting, signed the joint statement of
nonobjection, and signed a receipt upon receiving estate assets
pursuant to the final order. The superior court adopted the
probate master's report.
Thus, denial of Civil Rule 60(b) relief was based on
three main circumstances: (1) Johnson's involvement in the
administration of the estate until 1986; (2) Johnson's discussions
with Manley; and (3) Johnson's representation by counsel.
We find these circumstances, and the other facts
mentioned by the master, insufficient to deny Johnson an
opportunity to have judicial review of the professional expenses.
1. Johnson's prior experience
We first reject the theory that Johnson's prior
experience in administering the estate should have caused him to
question these expenses. That theory conflicts with reasons
advanced when the same attorneys now representing the personal
representative sought, on behalf of Humana, to have Betts and
Johnson removed as co-personal representatives in 1986. It also
conflicts with the personal representative's present arguments
regarding the inadequate administration of the estate when Johnson
was a personal representative. (EN7)
The master's report points to no evidence tending to show
that Johnson's experience as co-personal representative improved
his knowledge of the administration of estates. Indeed, his record
as administrator tends to confirm the lack of knowledge and
comprehension of the probate system which Johnson claims led to his
failure to object to the expenses in the first place. We note that
the personal representative's appeal brief does not attempt to
defend the superior court's decision on the theory Johnson's prior
experience should have alerted him that the expenses were
objectionably large. The brief instead focuses on the fact that
Johnson was at times represented by counsel.
It appears that Johnson's failings as administrator point
towards exactly the kind of ignorance he claims to have had
regarding the professional expenses. The record does not support
the conclusion that Johnson's prior experience should have caused
him to understand whether he should attend the November hearing,
object to the expenses, or hire an attorney to review the expenses.
2. Johnson's communications with Manley
We also conclude that it was incorrect to find that
Johnson's communications with Manley should have alerted Johnson.
Johnson affied: "I did not have a lawyer represent me
during the probate of my father's estate. I trusted in the public
administrator's attorneys. I never had any question about their
work because I always thought they were doing what they were
supposed to do."
Johnson recalled meeting with Manley in October 1992. He
relates the following:
I met with Mr. Manley and we went over
the numbers in a court document and he told me
what everything was costing the estate. I
thought the numbers were all normal because I
had never been in a probate before. I asked
Mr. Manley if I should go to the hearing on
the costs of the estate and he told me that I
could attend the final accounting hearing if I
wanted to but did not have to.
Johnson spoke with Manley again after discovering that
Safeco intended to collect a default judgment against him. Manley
told Johnson to get an attorney to look at that problem.
The master characterized Manley's November 16 letter as
"advising [Johnson] again about the upcoming hearing and urging him
to hire a lawyer which he did." In relevant part, that letter
states:
As you know the hearing is set for
November 18, 1992. . . . You are certainly
welcome to attend, but there is no legal
requirement that you do so. . . . I want to
emphasize (as we discussed in our recent
telephone conversation) that we do not
represent you in this or in any other matter.
Accordingly, it is imperative that you engage
other counsel to represent you personally. An
attorney working for you may be able to set
the judgment aside or negotiate a satisfactory
settlement with Safeco.
(Emphasis added.)
Alaska Rule of Professional Conduct 4.3 provides:
In dealing on behalf of a client with a
person who is not represented by counsel, a
lawyer shall not state or imply that the
lawyer is disinterested. When the lawyer
knows or reasonably should know that the
unrepresented person misunderstands the
lawyer's role in the matter, the lawyer shall
make reasonable efforts to correct the
misunderstanding.
The comment to the rule elaborates:
An unrepresented person, particularly one
not experienced in dealing with legal matters,
might assume that a lawyer is disinterested in
loyalties or is a disinterested authority on
the law even when the lawyer represents a
client.
It is debatable whether Johnson received adequate warning
of the potential need for counsel. Manley's admonition that
Johnson seek counsel specifically referred to Safeco's claim. It
would have been reasonable for Johnson to assume that it was his
dispute with Safeco that triggered Manley's suggestion. In the
absence of an express and unqualified suggestion that Johnson
retain counsel or attend the hearing, it was not unreasonable for
Johnson to refrain from doing either of those things. Therefore,
it is not surprising that when the attorney Johnson claims he
trusted told him he did not have to attend the hearing, he did not.
Nor is it surprising that when no one else questioned the
professional expenses, Johnson did not object, either.
Johnson's October meeting with Manley to review the
figures was not sufficient. If Johnson did not understand that the
fees were objectionably high, it is not determinative that Manley
told him what the numbers were. Johnson plausibly claims he did
not realize he could or should object to those numbers.
3. Johnson's representation by counsel
The third main reason given for denying Johnson's motion
was his representation by counsel. It is irrelevant to the 1992
closing order and Johnson's 1993 motion for relief that counsel had
represented him until he was removed as co-personal representative
in 1986. Of more potential significance was Johnson's retention of
counsel before entry of the December 31, 1992, closing order. The
circumstances of Hill's retention and the execution of the December
31 stipulation and order are discussed in detail above.
Johnson moved for Rule 60(b) relief in November 1993.
Thus, the question is whether Johnson's attorneys should have
investigated the final accounting before signing the stipulation on
December 31, 1992, and taken the chance Johnson would lose the
year-end deduction that gave rise to the urgency in closing the
estate. Under the circumstances it is understandable why Hill's
firm signed the stipulation on December 31: Hill reasonably
believed that he was retained specifically to deal with the Safeco
default judgment, (EN8) and that the only real issue in closing the
estate was Safeco's intention to reduce Johnson's inheritance; Hill
believed the final accounting issue had already been resolved at
the November 18 hearing; Hill knew the December 11 hearing had
dealt only with the exoneration of Safeco's bond; Hill was pressed
at the last minute to approve the stipulation and final closing
report, which in itself did not mention any professional fees paid
to Hughes, Thorsness; and Hill was told his client stood to lose a
valuable deduction if the estate were not closed by the end of the
year.
In conjunction, these factors render reasonable the
actions of Hill that led to entry of the December 31 final order.
(EN9) We conclude that Johnson made out a case for relief pursuant
to Civil Rule 60(b)(1). We hold that the superior court abused its
discretion in failing to reopen the proceedings for the purpose of
determining, pursuant to AS 13.16.440, the reasonableness of the
professional expenses incurred during the administration of the
estate. (EN10)
IV. CONCLUSION
We REVERSE the superior court's denial of Johnson's Rule
60(b)(1) motion to set aside the final probate judgment, and REMAND
for further proceedings.
ENDNOTES:
* Sitting by assignment made pursuant to article IV, section 16
of the Alaska Constitution.
1. The Public Administrator is employed by the Alaska Court
System. See AS 22.15.310-.340.
2. Johnson objects to the adequacy of this notice. He claims it
did not conform to Alaska Probate Rule 12(b) because it did not
expressly state that objections must be raised at or before the
hearing or be waived. Although Johnson's allegations may have
merit, we do not address this issue here. "[A]n appeal from an
order denying relief from judgment under Rule 60(b) does not bring
up the underlying judgment for review." McCracken v. Davis, 560
P.2d 771, 776 (Alaska 1977); see also Wellmix, Inc. v. City of
Anchorage, 471 P.2d 408, 411 (Alaska 1970).
3. On December 30 the probate master also reduced the bond to
$100,000 and recommended that it be exonerated if no creditor
claims against the estate were pending 180 days after entry of an
order approving the final account and decree of distribution. On
September 27, 1993, the court ordered the bond exonerated.
4. The gross value of the estate as stated in the final
accounting was approximately $438,571. Expenses and debts charged
to the estate totaled $347,750, including approximately $253,007 in
professional fees and costs. The professional expenses included
$53,396 for accountant's services, legal fees of $155,560 incurred
by Hughes, Thorsness and $12,260 incurred by Ashburn & Mason (which
represented Betts and Johnson as co-personal representatives), and
law firm expenses of $11,791. The professional expenses also
included estimated attorney's fees and costs of $20,000 to close
the estate. The net value of the estate was then approximately
$90,821.
5. Hill stated in an affidavit:
On May 21, 1993, I went to Hughes,
Thorsness law offices and reviewed the billing
invoices for the estate. I requested copies.
The copies cost $78.50. In June, 1993, I
reviewed the billings. The billings included
only descriptions of work done and amounts due
with no statement of hours. After reviewing
the fees I felt that the services rendered
were not necessary to the estate and that the
estate could have been closed long before it
was.
6. Johnson also argues that the final accounting should be set
aside so that the amount of attorney's fees can be reviewed.
Johnson argues that he is not "ask[ing] the court to set aside an
order arrived at through judicial deliberation and adversarial
debate, but, instead, merely asks the Court to reopen an estate
accounting for review that was not previously reviewed by the
Court."
We have held that "[a] final order of a probate court is only
effective as to matters that have been adjudicated; a final
accounting may be set aside in order to adjudicate an unsettled
portion of the administration of the estate." Vance v. Estate of
Meyers, 494 P.2d 816, 820 (Alaska 1972). However, the professional
fees at issue here were included in the final accounting which was
reviewed before the estate was closed. Although no objection to
the fees was raised at the time, they are considered adjudicated
for purposes of this appeal. Therefore, we do not review the issue
of professional fees. See supra note 2.
7. The personal representative argues on appeal:
"[a]dministration of the estate did not proceed well"when Johnson
was a co-personal representative. Johnson and his co-personal
representative apparently failed to file tax returns, failed to
obtain authority to continue the decedent's business, failed to
dispose of assets and failed to pay creditors. The memorandum
supporting the motion to remove Betts and Johnson argued:
The evidence before the court presents [a]
picture not so much of misfeasance in office
but rather nonfeasance. The personal
representatives have not undertaken the steps
necessary to expeditiously administer this
estate. The estate has [been open] for more
than two and a half years. The necessary
estate tax and income tax returns have not
been filed. The creditors have not been paid.
No significant assets of the estate appear to
have [been] sold.
8. Johnson claimed that he was not represented by counsel for
purposes of the estate when the estate was closed. Johnson
retained counsel who appeared for him on December 11, 1992, but he
contends that this representation was limited to resolving Safeco's
default judgment claim against him. On December 28 Johnson
stipulated that a portion of his share of the proceeds from the
estate sufficient to satisfy Safeco's judgment would be deposited
in the court registry. Johnson claimed it was not until March
1993, when Hill reviewed documents sent by Safeco in relation to
the default judgment and suggested to Johnson that the fees
involved in the administration of the estate might be excessive,
that Johnson retained counsel to represent him in matters of the
estate.
9. Given our conclusion that Hill's actions were reasonable, we
need not decide whether a mistake of counsel would relieve a
beneficiary. We have held that a mistake based on the asserted
failure of counsel to adequately represent his client is generally
not an excuse for purposes of Rule 60(b)(1). Hartland v. Hartland,
777 P.2d 636, 644-45 (Alaska 1989) (denying relief); Farrell v.
Dome Labs., 650 P.2d 380, 384 (Alaska 1982) ("An exception to this
general rule is recognized, however, where the failure to provide
relief would result in an injustice."(footnote omitted)).
10. Given our conclusion that Johnson was entitled to relief under
Civil Rule 60(b)(1), we need not consider whether Civil Rule
60(b)(6) also applies. See Village of Chefornak v. Hooper Bay
Constr. Co., 758 P.2d 1266, 1270 (Alaska 1988). We also note that
although Johnson cites Rule 60(b)(6) on appeal, he relied
exclusively on Rule 60(b)(1) in the superior court.
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