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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Enders v Parker (08/10/2001) sp-5446

Enders v Parker (08/10/2001) sp-5446

     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.


IRIS ENDERS,                  )
                              )    Supreme Court No. S-9341/9391
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-1124 P
CONNIE PARKER, Personal       )    O P I N I O N
Representative of the Estate  )
of JOEL W. KOTTKE,            )    [No. 5446 - August 10, 2001]
             Appellee.        )    
CONNIE PARKER, Personal       )
Representative of the Estate  )
of JOEL W. KOTTKE,            )
          Cross-Appellant,    )
     v.                       )
          Cross-Appellees.    )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.

          Appearances: Timothy R. Byrnes, Hughes
          Thorsness Powell Huddleston & Bauman LLC,
Anchorage, for Appellant/Cross-Appellee Enders.  C. James Mathis,
Davis & Davis, P.C., Anchorage, for Appellee/Cross-Appellant.

          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.


          Iris Enders unsuccessfully challenged the admission into
probate of Joel Kottke's 1997 will, which named his companion
Connie Parker as personal representative, on the grounds of undue
influence and insane delusions.  We previously upheld the superior
court's rejection of that challenge. [Fn. 1]  
          Iris Enders now appeals the superior court's denial of
her AS 13.16.435 claim for costs and attorney's fees arising out of
her unsuccessful prosecution of the will contest.  Because the
superior court made sufficient findings, which are supported by the
evidence, as to Enders's failure to prosecute the will contest in
good faith, we affirm the superior court's denial of Enders's AS
13.16.435 claim.  
          Connie Parker cross-appeals the superior court's refusal
to award her attorney's fees and costs under Alaska Civil Rules
82(b) and 79(b).  Because the attorney's fees and costs provisions
of Civil Rules 82(b) and 79(b) are inapplicable to probate
proceedings, we affirm the superior court's denial of Parker's
motion seeking attorney's fees and costs under these rules.
     A.   Facts
          Joel Kottke executed a will in 1983, nominating his
stepdaughter Iris Enders as successor to his wife Martha as
personal representative and leaving fifty percent of his estate to
his siblings and fifty percent to Martha's children.  After
Martha's death in 1991, Kottke entered into a relationship with
Connie Parker.  Parker lived with Kottke and cared for him when he
was diagnosed with cancer.   
          In June 1997, four months before his death, Kottke
executed a new will disinheriting his siblings and stepchildren in
favor of Parker. [Fn. 2]  The 1997 will nominated Connie Parker as
Kottke's personal representative.  After Kottke's death in October
1997, Parker obtained appointment as special administrator and
sought to probate the 1997 will.  Enders and Joel's brother Ralph
Kottke then filed a petition to set aside the 1997 will based on
the theories of undue influence and insane delusions. 
          After a seven-day evidentiary hearing in July 1998,
Superior Court Judge Sen K. Tan upheld the 1997 will and appointed
Parker as Kottke's personal representative.  Enders and Ralph
Kottke appealed to this court.  We affirmed the superior court's
thoughtful and thorough decision. [Fn. 3]
     B.   Proceedings
          Several weeks after the evidentiary hearing, Enders
served Parker with a claim for administrative expenses incurred in
the litigation of the will contest pursuant to AS 13.16.435. 
Enders's claim itemized expenses of $32,987.07; a later supplement
itemized further expenses of $14,337.71.  Parker did not formally
respond to this claim.
          On September 21, 1998 Enders filed a petition for
allowance of her AS 13.16.435 claim with the superior court. 
Parker opposed the petition and also moved for costs and attorney's
fees under Civil Rules 79 and 82.  The superior court denied both
Enders's petition and Parker's motion.  Enders appeals and Parker
          Enders challenges the superior court's interpretation of
AS 13.16.435; Parker challenges the superior court's interpretation
of Civil Rules 79 and 82.  We review a trial court's interpretation
of statutes and court rules under the independent judgment
standard. [Fn. 4]  When construing the meaning of a statute under
this standard, we "look to the meaning of the language, the
legislative history, and the purpose of the statute" [Fn. 5] and
"adopt the rule of law that is most persuasive in light of
precedent, reason, and policy." [Fn. 6]
          We will not set aside factual findings unless clearly
erroneous. [Fn. 7]
     A.   The Requirements of AS 13.16.435

          Alaska Statute 13.16.435, which governs the recovery from
the estate of expenses incurred in estate litigation, imposes three
requirements for the recovery of such expenses:
          If any personal representative or person
nominated as personal representative defends or prosecutes any
proceeding in good faith, whether successful or not, that person is
entitled to receive from the estate necessary expenses and
disbursements including reasonable attorney fees incurred.

          Thus, in order for the claimant to recover, (1) he or she
must be a personal representative or nominated as a personal
representative; (2) he or she must have brought or defended the
proceeding in good faith; and (3) expenses must be "necessary" and
attorney's fees "reasonable." [Fn. 8]  It is immaterial whether the
party seeking the expenses prevailed in the action; if the
requirements are met, the party is entitled to receive
reimbursement from the estate for expenses incurred in the
litigation, including attorney's fees. [Fn. 9] 
          1.   Enders is a nominated personal representative for
the purposes of AS 13.16.435.
            Alaska Statute 13.16.435 explicitly provides that a
nominated personal representative can recover expenses.  Enders was
nominated as a personal representative under Kottke's 1983 will; 
therefore, she is eligible to receive administrative expenses from
Kottke's estate under the statute. [Fn. 10]
          2.   The superior court made sufficient findings as to
whether Enders brought the will contest in good faith. 
          Because Enders meets the nominated personal
representative requirement of AS 13.16.435, she can recover her
necessary and reasonable expenses if she brought the will contest
in good faith.  Parker contends that Enders should not be permitted
to recover under AS 13.16.435 because Enders did not bring her
challenge in good faith.  Enders argues that she must recover
unless the superior court makes an explicit bad faith finding, and
that it did not do so. 
          Although "good faith" is not defined in the probate
statutes, the statutory obligations of the personal representative
shed light on the meaning of that term.  A personal representative
is a fiduciary who is statutorily obligated to "observe the
standards of care applicable to trustees . . . . [And who] is under
a duty to settle and distribute the estate . . . as expeditiously
and efficiently as is consistent with the best interests of the
estate." [Fn. 11]  "[A] fiduciary 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."
[Fn. 12]  The fiduciary duty is "the highest standard of duty
implied by law." [Fn. 13]  And it is statutorily recognized as an
obligation of the personal representative of the estate of a
decedent. [Fn. 14]  Furthermore, we have noted that "[l]oyalty and
the disavowal of self interest are hallmarks of the fiduciary's
role" [Fn. 15] and conclude that these factors are applicable to
the fiduciary obligations imposed on a personal representative of
a decedent's estate.  We hold that "good faith" under AS 13.16.435
incorporates the statutory requirement that a personal
representative act to benefit the estate, [Fn. 16] but does not
incorporate a requirement that those acts actually benefit the
estate. [Fn. 17]
          As Parker herself admits, the superior court made no
explicit "lack of good faith" finding either in the seven-day
evidentiary hearing or in its ruling on Enders's AS 13.16.435
petition.  But it did make the following findings regarding Iris
Enders's conduct and motives in its written decision:
          At no stage pre-trial or at trial did Ms.
Enders claim that she was acting as personal representative.  She
makes this claim only after trial. . . .  The entire tenor of Ms.
Enders' case was a contest for her own personal benefit and the
benefit of her family, not for the estate. . . .  The real impetus
behind the litigation is the Enders' family personal animosity and
disdain for Connie Parker, the primary beneficiary of Joel W.
Kottke's 1997 will.  This immense distaste for Ms. Parker has
propelled Ms. Enders to drain Mr. Kottke's modest estate through
litigation rather than have Ms. Parker benefit from the estate. 
Her intervention in the probate of the 1997 [will] has only
hindered the disposition of Mr. Kottke's estate in a manner that
comported with his testamentary intent.[ [Fn. 18]] 
          In this case, although the superior court did not
explicitly state that Enders acted in bad faith, the strong
language of the superior court's decision supports that conclusion;
and the court expressly concluded that she "failed to act in the
estate's interest."  The factual finding by the superior court that
Enders acted in her own self-interest is supported by the evidence
and is not clearly erroneous.  Such conduct is directly contrary to
the fiduciary's obligation to act in the interest of the estate
under AS 13.16.350(a).  We hold that the superior court made
sufficient factual findings regarding Enders's failure to satisfy
the good faith requirement of AS 13.16.435.  She is therefore not
entitled to recover necessary costs or reasonable attorney's fees;
accordingly, we affirm the denial of Enders's claim under AS
          3.   Alaska Statute 13.16.435 does not contain a
               benefit-to-the-estate requirement.
          The superior court considered "whether the actions of the
personal representative benefitted the estate" when it stated that
her "conduct fails to meet the requirement that a personal
representative must act to benefit the estate." [Fn. 19]  We take
this opportunity to make clear that AS 13.16.435 contains no
benefit-to-the-estate requirement and that this is not a proper
basis on which to determine whether a personal representative
should recover reasonable costs and necessary attorney's fees.
          This is the first time we have interpreted AS 13.16.435. 
When interpreting a statute, we look to its language "construed in
light of the purpose of its enactment." [Fn. 20]  If the language
of the statute is unambiguous and expresses the legislature's
intent, and if no ambiguity is revealed by its legislative history,
we will not modify or extend the statute by judicial construction.
[Fn. 21] 
          The language of AS 13.16.435 is unambiguous.  It clearly
states that a personal representative or nominated personal
representative who has prosecuted or defended a probate action in
good faith is entitled to recover all necessary expenses and
disbursements, regardless of whether he or she prevailed in the
action. [Fn. 22]  Nothing in the text of the statute suggests that
a court has the discretion to determine whether a personal
representative's actions benefitted the estate before awarding a
personal representative his or her administrative expenses. 
          Our examination of the legislative intent and policies
behind the statute and the Uniform Probate Code [Fn. 23] (UPC)
yields nothing that demonstrates contrary legislative intent. 
Alaska Statute 13.16.435 is taken directly from the UPC, which
Alaska adopted in 1972. [Fn. 24]  Alaska Statute 13.06.010(a)
states that the provisions comprising the Alaska UPC "shall be
liberally construed and applied to promote their underlying
purposes and policies."  Alaska Statute 13.06.010(b) sets out five
such purposes and policies. [Fn. 25]  Two purposes support the
conclusion that no benefit-to-the-estate requirement should be
found; [Fn. 26] only one even arguably supports the opposite
conclusion. [Fn. 27]  We therefore conclude that there is no
legislative intent that is contrary to the clear and unambiguous
words of the statute.
          In sum, the text of AS 13.16.435 contains no benefit-to-
the-estate requirement.  The legislature's expressed policies and
purposes in enacting the statute do not suggest such a requirement. 
Accordingly, we hold that AS 13.16.435 does not require a personal
representative or a nominated personal representative to show that
a will contest has benefitted the estate before he or she may
recover expenses under the statute.  However, because we conclude
that the superior court expressly found that Enders failed to act
in the estate's interest and that this, together with the court's
other findings, supports the conclusion that Enders did not act in
good faith, the superior court's discussion of the benefit-to-the-
estate is harmless in this case.
     B.   Rule 82(b) Attorney's Fees and Rule 79 Costs
          On cross-appeal, Parker contends that she is entitled to
an award of Civil Rule 82(b)(2) attorney's fees and Rule 79(b)
costs against Enders because she was the prevailing party in the
will contest.  We disagree.
          Civil Rule 82 provides for an award of attorney's fees to
the prevailing party "[e]xcept as otherwise provided by law." [Fn.
28]  Here, the legislature has expressly provided otherwise by law. 
It has provided that a designated personal representative can
recover "necessary expenses and disbursements including reasonable
attorney fees incurred." [Fn. 29]  If a specific statutory scheme
for attorney's fees exists, Civil Rule 82 does not apply. [Fn. 30] 
Therefore, Civil Rule 82 does not apply in this case.  And since
the statute also clearly covers costs incurred in the litigation,
Civil Rule 79 likewise does not apply.  
          Because AS 13.16.435 sets out a specific statutory scheme
for awarding attorney's fees, Parker is not entitled to an award of
attorney's fees and costs under Civil Rules 82(b) and 79(b). 
          Alaska Statute 13.16.435 does not contain a requirement
that a nominated personal representative's actions benefit the
estate before the nominated personal representative can recover
expenses from the estate.  However, since the superior court made
sufficient findings as to the lack of good faith in Enders's
prosecution of the will contest action, we AFFIRM the superior
court's denial of Enders's AS 13.16.435 claim.
          Parker's cross-appeal is meritless; therefore, we AFFIRM
the superior court's denial of Parker's motion for attorney's fees
and costs under Civil Rules 82(b) and 79(b).


Footnote 1:

     In re Estate of Kottke, 6 P.3d 243 (Alaska 2000).

Footnote 2:

     The 1997 will left Parker an interest in Kottke's Anchorage
property, left Enders an interest in Kottke's property in Kenai,
and left Parker the residuary estate under a trust system that was
effectively a life estate. 

Footnote 3:

     Kottke, 6 P.3d at 247.

Footnote 4:

     See Compton v. Chatanika Gold Camp Properties, 988 P.2d 598,
601 (Alaska 1999) (citation omitted); Fancyboy v. Alaska Village
Elec. Coop., Inc., 984 P.2d 1128, 1132 (Alaska 1999) (stating that
we apply our independent judgment to interpretation of statutes
(citation omitted)).

Footnote 5:

     Fancyboy, 984 P.2d at 1132 (citation and internal quotation
marks omitted).

Footnote 6:

     Id. (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska

Footnote 7:

     Alaska R. Civ. P. 52(a).

Footnote 8:

     See AS 13.16.435.

Footnote 9:

     See id.

Footnote 10:

     See Uniform Probate Code Practice Manual 321 (2d ed. 1977) (a
personal representative, duly appointed, may contest another will
that, if valid, would supersede the one naming him, while enjoying
the protection of section 3-720).

Footnote 11:

     AS 13.16.350(a).

Footnote 12:

     Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969).

Footnote 13:

     See Black's Law Dictionary 625 (6th ed. 1990).

Footnote 14:

     See AS 13.16.350(a).

Footnote 15:

     Wagner v. Key Bank of Alaska, 846 P.2d 112, 116 (Alaska 1993).

Footnote 16:

     See AS 13.16.350(a).

Footnote 17:

     See infra part IV.A.3.

Footnote 18:

     No. 3AN-97-1124 P (Alaska Super., September 21, 1999).

Footnote 19:

     These formulations appear to address different issues.  The
first, "whether the actions of the personal representative
benefitted the estate," involves the outcome of the personal
representative's actions.  The second, whether the personal
representative "act[s] to benefit the estate," involves the 
motivation of the personal representative.  We conclude, in this
case, that Judge Tan's focus was on the latter test.  We therefore
conclude that he found as a matter of fact that Iris Enders did not
act to benefit the estate and therefore acted in bad faith.  We
clarify that trial courts should not in future cases include any
"benefit-to-the-estate" discussion, as the relevant inquiry is only
whether the good faith requirement has been satisfied.

Footnote 20:

     Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993) (internal quotation marks omitted) (quoting J & L
Diversified Enters., Inc. v. Municipality of Anchorage, 736 P.2d
349, 351 (Alaska 1987)).  

Footnote 21:

     See id.    

Footnote 22:

     See AS 13.16.435.

Footnote 23:

     Unif. Probate Code sec. 3-720 (amended 1993), 8 U.L.A. 184

Footnote 24:

     See ch. 78, sec. 1, SLA 1972.  The statutes comprising the
Uniform Probate Code in Alaska are AS 13.06 through 13.36.  See AS

Footnote 25:

     AS 13.06.010(b) provides:

          The underlying purposes and policies of AS
          13.06 - AS 13.36 are to

               (1) simplify and clarify the law
concerning the affairs of decedents, missing persons, protected
persons, minors, and incapacitated persons;
               (2) discover and make effective the
intent of a decedent in distribution of the decedent's property;
               (3) promote a speedy and efficient system
for liquidating the estate of the decedent and making distribution
to the decedent's successors;
               (4) facilitate use and enforcement of
certain trusts; and
               (5) make uniform the law among the
various jurisdictions.

Because purposes (1) and (4) are not relevant to our analysis, we
do not discuss them here.

Footnote 26:

     Subsection (2) ["discover and make effective the intent of a
decedent"] supports this conclusion because a good faith will
contest can be effective in the discovery of a decedent's intent. 
See Watts v. Newport, 9 So. 2d 417, 421 (Fla. 1942) ("[C]an it be
said that it was not of some benefit to the estate to have both the
proponent and the heirs . . . represented by able and industrious
attorneys acting in good faith and earnestly representing their
respective sides of the controversy in their capacity of attorneys
for their respective clients and also as honorable officers of the
court, to the end that the question of the validity of the
purported will be thoroughly tried out and determined?"). 
          Subsection (5) ["make uniform the law among the various
jurisdictions"] likewise supports the conclusion because AS
13.16.435 is a verbatim adoption of section 3-720 of the UPC and
because case law from other UPC jurisdictions with identical or
nearly identical statutes overwhelmingly supports the notion that
AS 13.16.435 does not contain a benefit requirement.  See, e.g., In
re Estate of Killen, 937 P.2d 1375,  1380-81 (Ariz. App. 1996); In
re Estate of Holmes, 821 P.2d 300, 304 (Colo. App. 1991); Estate of
Rosen, 520 A.2d 700, 701 (Me. 1987); In re Estate of Evenson, 505
N.W.2d 90, 92 (Minn. App. 1993); In re Estate of Watkins, 501
N.W.2d 292, 296 (Neb. 1993); In re Estate of Frietze, 966 P.2d 183,
187 (N.M. App. 1998).  Nearly all of these states adhere to a
literal reading of section 3-720, imposing only the requirements
found in it -- that the claimant be either a personal
representative or a nominated personal representative, that he or
she have prosecuted the action in good faith, and that charges be
reasonable and necessary.  See, e.g., Holmes, 821 P.2d at 304
(citation omitted); Evenson, 505 N.W.2d at 92; Watkins, 501 N.W.2d
at 296;  Frietze, 966 P.2d at 187.  But see Brideau, 458 A.2d at
747 (Me. 1983) (stating that under Maine statute, party who
unsuccessfully contests will on basis of undue influence cannot
recover attorney's fees from estate).

Footnote 27:

     Subsection (3) ["promote a speedy and efficient system for
liquidating the estate . . . and making distribution"] arguably may
be impeded by a system that allows a challenger to recover costs
and fees, thereby encouraging challenges and delaying liquidation
and distribution.

Footnote 28:

     Alaska R. Civ. P. 82(a).

Footnote 29:

     AS 13.16.435.

Footnote 30:

     See Bobich v. Hughes, 965 P.2d 1196, 1200 (Alaska 1998)
(stating that statutory attorney's fees provision awarding full
fees ordinarily takes precedence over Rule 82 provision awarding
partial attorney's fees (citations omitted)); Whaley v. Alaska
Workers' Compensation Bd., 648 P.2d 955, 959 (Alaska 1982) (holding
that prevailing employer could not obtain attorney's fees because
granting such fees would undermine purposes of Alaska Workers'
Compensation Act and limit claimant's ability to seek appellate