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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crittell v. Bingo (01/02/2004) sp-5767

Crittell v. Bingo (01/02/2004) sp-5767

     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,


CRITTELL,                     )    Supreme Court No. S-10642
               Appellants,         )    Superior Court No.
                              )    3AN-98-59 PR
          v.                  )
Interested  Parties, and the ESTATE OF ) [No. 5767 -  January  2,
VIOLET M.B. HOUSSIEN, Deceased,    )
               Appellees.          )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Michael  Cohn  and  George  E.
          Goerig,  Goerig & Associates, LLC, Anchorage,
          for  Appellants.   Richard  G.  Haggart,  Law
          Offices   of   Richard  G.   Haggart,   P.C.,
          Anchorage, for Appellees.

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

          BRYNER, Justice.


          Edmond and Elma Crittell, the proponents of a will held

to  be  invalid and fraudulent, appeal the superior court's award

of  full  attorney's fees under Alaska Civil Rule 82,  contending

that   the   rule   does   not  apply  to  probate   proceedings.

Alternatively,  the Crittells argue that the trial  court  abused

its  discretion by awarding enhanced fees under Rule 82.  Because

Rule  82  fees may be awarded under the probate code in cases  of

fraudulently brought claims, we affirm the trial court's award.


          This is the second time this case has come before us on

appeal.   The underlying case involved a probate contest  between

the  beneficiaries  of competing wills of  Violet  Houssien.   We

summarized the relevant facts in the first appeal (Crittell I) as


                Shortly  after  Houssien  died,  Edmond
          Crittell  petitioned the  superior  court  to
          appoint him as the personal representative of
          Houssien's estate and to accept for  informal
          probate a will that Houssien had executed  on
          March  22, 1995.  The 1995 will left a modest
          sum   of  cash  to  each  of  Houssien's  six
          siblings  and  gave  the rest  of  Houssien's
          [approximately $1.59 million] estate to  Elma
          Crittell.  The will named Edmond Crittell  as
          executor  and designated him as a  contingent
          beneficiary  in  the event of  a  default  by
                Edmond Crittell's petition for informal
          probate  was challenged by two of  Houssien's
          sisters.   The interested parties, Houssien's
          sisters,  . . . alleged that Houssien  lacked
          testamentary capacity and acted  under  undue
          influence in executing the will.  In lieu  of
          the 1995 will, the interested parties offered
          for  probate  a  prior  will  and  codicil  -
          executed by Houssien in 1989 and 1990 -  that
          left  the  bulk of Houssien's estate  to  her
               . . . .
                In opposing the 1995 will at the trial,
          the  interested  parties  .  .  .  sought  to
          establish  that the will was a fraud.   Their
          theory  was that Houssien lacked testamentary
          capacity  when she signed the will, and  that
          she  acted out of undue influence as a result
          of  the  Crittells' fraudulent  conduct.   To
          support  this theory, the interested  parties
          presented evidence tending to show  that  the
          Crittells     befriended     Houssien     and
          deliberately curried her favor at a point  in
          her  life when she was particularly isolated,
          frail,  and  mentally vulnerable;  that  they
          reduced  her  to  a state of  dependency  and
          tricked  her  into signing papers  in  blank;
          that  on  March 22, 1995, they appeared  with
          Houssien at . . . Mail Boxes, Etc., with  two
          witnesses  -  one  Elma Crittell,  the  other
          unknown - who signed the will in front  of  a
          notary but fraudulently misrepresented  their
          true    identities;   that   the    Crittells
          thereafter  arranged to have the Mail  Boxes,
          Etc. store burglarized in order to remove the
          records  of  notarization, which  might  have
          allowed  the  fraudulent  witnesses   to   be
          identified;  and that they subsequently  kept
          Houssien  from  contacting  an  attorney   to
          change the 1995 will.[1]
          After a two-week bench trial in July 1999, the superior

court  ruled  in favor of the interested parties, finding  fraud,

lack  of testamentary capacity, and undue influence.2  The  court

found  that the Crittells had engaged in a fraudulent  scheme  to

induce  Violet to execute the 1995 will, had fabricated documents

associated  with  the  will,  and had  provided  false  testimony

regarding  their  participation in the fraudulent  scheme.3   The

superior  court then awarded attorney's fees under  Alaska  Civil

Rule 68's offer of judgment provision and costs under Rule 79.

           The Crittells appealed.  We affirmed the trial court's

decision  on the merits, finding "ample evidence" to support  the

superior   court's   finding  of  testamentary   incapacity   and

"compelling evidence" of undue influence.4  We stated that "[o]ur

review of the record convinces us that the trial court's findings

are  supported by overwhelming circumstantial evidence  that  the

Crittells  overbore  Houssien's free  will  by  their  fraudulent

conduct."5  Applying the commonly recognized earmarks  of  fraud,

we found ample evidence of fraudulent influence:

          Judged by these common earmarks of fraudulent
          influence,  the  record easily  supports  the
          superior  court's finding of undue influence.
          First,   although   Houssien   had   employed
          attorneys to draft her prior wills, the  1995
          will was produced without the aid of counsel;
          further,   the  record  contains  substantial
          evidence   suggesting  that   the   Crittells
          impeded  Houssien's access to  counsel  after
          the  will  was signed.  Second, the drafting,
          execution, and publication of the  1995  will
          were   shrouded   in  secrecy,   haste,   and
          suspicious  circumstances.  Third,  the  will
          exhibited  an  unexplained  -  or  at   least
          irrationally explained - change in Houssien's
          attitude  toward  others.  Fourth,  the  1995
          will  reflects a sudden change in  Houssien's
          prior plan of disposition.  Fifth, the will's
          gift  to  Elma  Crittell - almost  completely
          excluding all other beneficiaries - certainly
          seems unnatural and unjust.  And sixth, as we
          have    previously   discussed,    Houssien's
          physical  and  mental  impairments  made  her
          particularly susceptible to - and  a  natural
          target of - undue influence.[6]
          Although we affirmed the merits of the superior court's

ruling,  we  vacated the judgment and remanded on  the  issue  of

attorney's  fees,  finding that the court's award  violated  Rule

68(b)(2).7  We declined to decide other potential attorney's fees

issues because neither party had adequately briefed them, but  we

noted  that  an  award  of fees might be appropriate  under  Rule

82(b),  and  we  indicated  that the trial  court  would  not  be

precluded  on remand from reconsidering its initial  decision  to

deny enhanced fees under Rule 82(b)(3).8

           On remand, the Houssiens moved for enhanced attorney's

fees  under Rule 82(b)(3).  The superior court granted the motion

and  awarded the Houssiens their full reasonable fees; using  the

Houssiens'  counsel's total hours and standard rate to  calculate

their fees, the court entered a fee award of $338,668.35.


          A.    Civil  Rule 82 Attorney's Fees May Be Awarded  in

          Probate Proceedings for Fraud Upon the Court.

           The  Crittells  argue that the trial  court  erred  by

awarding Civil Rule 82 attorney's fees because the civil rules do

not  apply  to  probate proceedings.  They further  contend  that

awards  under Rule 82 are barred by AS 13.16.435, a provision  of

the probate code.9  Neither argument is persuasive.10

           In  contending that Rule 82 does not apply to  probate

contests  the Crittells insist that probate proceedings  are  not

civil  actions, and so should not be governed by the civil rules.

They note that Rule 82, by its own terms, provides for awards  of

fees to a prevailing party only in a "civil case."11

           But  our  Civil Rules use the term "civil action"  the

same  way  that  the  Federal Rules of Civil  Procedure  use  it.

Alaska  Civil Rule 2 provides: "There shall be one form of action

to  be  known  as  a  `civil action.' "  Federal  Rule  of  Civil

Procedure  2  omits the "a" before "civil action," but  otherwise

contains  identical  language.12   The  federal  rule  has   been

interpreted broadly:

          A  number  of  important consequences  follow
          from [Federal Rule of Civil Procedure 2]: the
          forms  of  action are abolished, the separate
          equity  practice  of the  federal  courts  is
          eliminated,   the   old  equity   rules   are
          superseded, . . . and the significance of the
          term "cause of action," which formerly was  a
          matter   of   serious   dispute,   has   been
          eliminated.    Today,  there  is   a   single
          procedural  framework for all  federal  civil
          proceedings,  regardless of  the  substantive
          claim at issue . . . .[13]
The  broad meaning ascribed to "civil action" in Federal  Rule  2

would  seem  to  encompass probate actions.  Here, the  Crittells

advance  no  good reason to interpret Alaska Civil  Rule  2  more

narrowly than its federal counterpart.

          Moreover, Alaska's Probate Rules confirm that the Civil

Rules  apply in Alaska probate cases when the Probate Rules  fail

to include a controlling provision:

          Where no specific procedure is prescribed  by
          these  rules,  the court may proceed  in  any
          lawful  manner, including application of  the
          Civil    and   Evidence   Rules,   applicable
          statutes,   the  Alaska  and  United   States
          Constitutions   or  common   law.    Such   a
          procedure may not be inconsistent with  these
          rules  and  may not unduly delay or otherwise
          interfere  with  the  unique  character   and
          purpose of probate proceedings.[14]
In  the  present case, then, Civil Rule 82 governs the  award  of

fees  unless  a specific provision of the Probate Rules  applies.

The  Crittells argue that AS 13.16.435 controls the award of fees

and renders Rule 82 inapplicable.  Section .435 provides:

          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.[15]
Relying  on  the  provision,  the  Crittells  maintain   that   a

prevailing party in a will contest cannot claim Rule 82 fees from

the  competing party but must instead seek reimbursement of  fees

from the estate.  To support this proposition, the Crittells cite

our  recent  decision in Enders v. Parker.16  But  the  Crittells

overstate the holding in Enders.

          There, we held that a personal representative in a will

contest  cannot  claim attorney's fees from a competing  personal

representative under Civil Rule 82; we reasoned that section .435

specifically  governs  the situation,  requiring  the  estate  to

reimburse  a personal representative or a person nominated  as  a

personal representative.17  We held that section .435 establishes

three  requirements for recovering fees from  an  estate:   "[I]n

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.' "18

           But here, section .435 did not apply to the interested

parties' request for fees, since they did not bring their case as

personal  representatives  and  did  not  claim  to  be   persons

nominated  as personal representatives under either  of  Violet's

wills.19  And while Edward Crittell did claim to be the  personal

representative under Violet's 1995 will, the superior court ruled

Crittell  had  acted fraudulently in claiming  to  represent  the

estate  under this will and that the will itself was  fraudulent.

Given  these findings, which have already been determined  to  be

well  supported by the evidence, section .435 could not apply  to

the   Crittells,  since  Edward  Crittell  failed  to  meet  that

provision's  first  requirement:  he  was  neither  the  personal

representative  of  the  estate nor a  person  nominated  as  the

personal  representative.  Because section .435 did not apply  in

this  case, it follows that the superior court properly concluded

that  Civil  Rule  82 governed the interested parties'  right  to

recover fees.

          B.    Awarding  Enhanced  Fees  Was  Not  an  Abuse  of


          The Crittells alternatively argue that, even if Rule 82

applies in this case, the superior court abused its discretion by

awarding  enhanced  fees  under 82(b)(3).20  The  superior  court

awarded  the interested parties their full reasonable  attorney's

fees "based on the complexity of the case, the reasonableness  of

[counsel's]  hours  and  hourly fees, the vexatiousness  and  bad

conduct   of  the  Crittells,  and  the  likelihood   that   this

enhancement  would chill the exercise of true rights  and  claims

before  the  court."  The court explained its reasoning  for  the

enhanced fee award as follows:

                This case was brought to the court  and
          resulted  in part due to bad conduct  of  the
          Crittells.  While it is without a doubt  that
          they helped Violet Houssien and were kind  to
          her,  it is also true that they were involved
          in the preparation, execution, and submission
          to   the  court  of  a  document  which  took
          advantage of her infirmities. . . .
               . . . .
                The  claims  of the interested  parties
          were   reasonable.   The   conduct   of   the
          Crittells was very questionable, given  their
          involvement,  but denial of  involvement,  in
          the preparation of the will in question.
               The court finds that the behavior of the
          Crittells was vexatious and in bad  faith  to
          the    extent    they   falsely   represented
          throughout - and continue to this  day  -  to
          deny   their   involvement  in   the   will's
          preparation and execution.  Such  conduct  is
          vexatious  and in bad faith and affected  the
          length, complexity and need for a trial.
          The Crittells contend initially that the superior court

misapplied  the phrase "vexatious or bad faith conduct"  because,

as  used  in Rule 82(b)(3), the phrase applies only to a  party's

conduct in litigating a case; it does not refer to the underlying

conduct  upon  which  the claim is based.   Here,  the  Crittells

assert,  even  if  their underlying claims  were  meritless,  the

claims were not litigated vexatiously or in bad faith.

          But  our case law establishes that an award of enhanced

fees  under  Rule  82  may be based on vexatious  and  bad  faith

litigation "both as to the filing of the case and the prosecution

of  it."21   In awarding enhanced fees in the present  case,  the

superior  court  relied  on  both the fraudulent  nature  of  the

Crittells' underlying claims and the fraudulent manner  in  which

they  prosecuted their claims.  And as we have already indicated,

ample  evidence  supports  the court's  findings  that  the  will

advocated  by  the  Crittells was both  conceived  in  fraud  and

advanced  at  trial through the Crittells' fraudulent  actions.22

Thus,  the  superior  court  properly  applied  the  concept   of

vexatious  and bad faith conduct in enhancing the attorney's  fee


           The  Crittells  separately  claim  that  the  superior

court's  award of enhanced fees was an unlawful award of punitive

damages  and  violated their right of access to  the  courts,  as

guaranteed  by  article IV, section 3 of the Alaska  Constitution

and  the  due  process clauses of the Alaska  and  United  States

Constitutions.   But these claims lack merit.  While  "[w]e  have

expressed  concern that `financially ruinous' fee awards  against

good  faith  civil litigants could deter access to the courts,"23

the  superior court determined that the Crittells are  not  good-

faith  litigants. As the superior court noted, an award  of  full

fees  against bad-faith claimants is unlikely to deter good-faith

claims, because "[p]arties who have not created false claims  and

who  do not testify falsely will not hesitate to defend or  bring

cases to the court."

           Last,  the  Crittells assert that the  attorney's  fee

award  will unjustly enrich the estate because the superior court

failed  to  reduce the amount of full reasonable fees to  account

for  an estimated tax deduction that the estate could purportedly

claim  for the amount of the contingent-fee obligation.   But  an

allegation  of  unjust  enrichment will succeed  only  when  "the

defendant has received a benefit from the plaintiff and it  would

be  inequitable  for  defendant to  retain  the  benefit  without

compensating  plaintiff for its value."24   Here, the  interested

parties  plausibly argue that, because the superior  court  based

its  award  of full reasonable fees on their attorney's  billable

time  rather  than  on  the amount due under  the  contingent-fee

contract, the award of nominally full fees falls several  hundred

thousand dollars short of the amount that they will actually  owe

for  fees. According to the estate, then, the fee award would not

result  in  a  net  benefit, even assuming  that  the  estate  is

eligible to receive a tax deduction for fees.

           The Crittells do not refute this argument; nor do they

explain  why  it  would be unjust for the estate  to  retain  any

benefit   received  under  these  circumstances.    Because   the

Crittells have failed to establish either that the full_fee award

will  result in a net benefit to the estate or that it  would  be

unjust for the estate to retain any benefit it might receive,  we

find no merit to the Crittells' unjust enrichment claim.25


          For these reasons, we AFFIRM the superior court's award

of attorney's fees.

1Crittell v. Bingo, 36 P.3d 634, 636-37 (Alaska 2001).
2Id. at 637-38.
3Id. at 647-52 (appendix containing superior court's findings).
4Id. at 641-42.
5Id. at 642.
7Id. at 636, 643.
8Id. at 643.
9The  Crittells  make  parallel  arguments  regarding  the  trial
court's  award  of Rule 79 costs.  Because the Crittells  neither
appealed  the cost award in Crittell I nor adequately raised  the
issue on remand, the Crittells have waived any claim as to costs.
See  State Commercial Fisheries Entry Comm'n v. Carlson, 65  P.3d
851, 873-74 (Alaska 2003) (holding that state had waived argument
because  it could have been raised in an earlier appeal  but  was
not and because it fell outside the scope of remand); Brandon  v.
Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (stating  that
an argument not raised below is waived).
10We  review a trial court's interpretation of statutes and court
rules  under  the  independent  judgment  standard.    Enders  v.
Parker,  66  P.3d  11, 13-14 (Alaska 2003); see also  Fleegel  v.
Estate  of Boyles, 61 P.3d 1267, 1270-71 (Alaska 2002) (statutory
interpretation  and application is a question of law);  Reich  v.
Cominco   Alaska,   Inc.,   56  P.3d   18,   21   (Alaska   2002)
(interpretation of civil procedure rule is a question of law).

11Alaska Civil Rule 82 provides, in part:

          (a)   Allowance to Prevailing Party.   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.
12Fed. R. Civ. P. 2.
134  Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure   1042  (3d ed. 2002); see also Copper  Valley  Trading
Co.  v.  Kratz,  513 P.2d 1113, 1115 (Alaska 1973) (quoting  very
similar passage from another federal treatise and citing Wright &
Miller   1042); cf. Milwaukee County v. M.E. White Co., 296  U.S.
268  (1935)  ("[S]uits of a civil nature within  the  meaning  of
[section  24(1)  of  the Judicial Code] are those  which  do  not
involve  criminal prosecution or punishment, and which are  of  a
character traditionally cognizable by courts of common law or  of
14Alaska Probate Rule 1(e).
15AS 13.16.435 (emphasis added).
1666 P.3d 11, 17 (Alaska 2003).
17Id. at 17.
18Id. at 15.
19The Crittells cursorily argue that the interested parties acted
as  de  facto personal representatives and should be  treated  as
personal    representatives   because   the   nominal    personal
representative  ratified  their litigation.   But  the  Crittells
failed  to  raise  this  argument in the trial  court,  and  they
developed  it  on  appeal primarily in  their  reply  brief.   We
therefore conclude that the argument has been waived.  See, e.g.,
Sengupta  v.  Univ.  of Alaska, 21 P.3d 1240, 1255  n.61  (Alaska
2001)  ("This  court will not consider arguments on  appeal  that
were  not  raised  below unless the new issues  either  establish
plain  error or do not depend on new or controverted  facts,  are
closely related to the appellant's arguments at trial, and  could
have  been  gleaned from the pleadings."); Adamson  v.  Univ.  of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point  is
given  only  a  cursory statement in the argument  portion  of  a
brief,  the point will not be considered on appeal."); Alaska  R.
App.  P.  212(c)(3)  (providing that reply brief  "may  raise  no
contentions  not previously raised in either the  appellant's  or
the appellee's briefs").

20Civil Rule 82(b)(3) provides, in relevant part:

          (3)   The  court  may vary an attorney's  fee
          award calculated under subparagraph (b)(1) or
          (2)  of  this rule if, upon consideration  of
          the   factors   listed   below,   the   court
          determines a variation is warranted:
          (A)  the complexity of the litigation;

          (B)  the length of trial;

          (C)   the  reasonableness of  the  attorneys'
          hourly   rates  and  the  number   of   hours
          . . . .
          (F)   the  reasonableness of the  claims  and
          defenses pursued by each side;
          (G)  vexatious or bad faith conduct;

          . . . .
          (I)   the  extent to which a given fee  award
          may be so onerous to the non-prevailing party
          that   it   would  deter  similarly  situated
          litigants  from  the  voluntary  use  of  the
            An  award  of  full  attorney's  fees  is  manifestly
unreasonable  in  the  absence of  a  finding  of  bad  faith  or
vexatious  conduct.  Marathon Oil Co. v. ARCO Alaska,  Inc.,  972
P.2d  595,  605  (Alaska 1999); State, Child Support  Enforcement
Div.  v. Allsop, 902 P.2d 790, 795 (Alaska 1995); Demoski v. New,
737  P.2d  780,  788  (Alaska 1987).  An award  of  full,  actual
attorney's fees due to bad faith or vexatious conduct is reviewed
for abuse of discretion.  E.g., Allsop, 902 P.2d at 795.

21Garrison v. Dixon, 19 P.3d 1229, 1234 (Alaska 2001).
22Although the Crittells insist that they did not litigate  their
claims vexatiously or in bad faith, they focus their argument  on
their  attorney's  conduct and rely on  cases  construing  Alaska
Civil  Rule 11 to support the conclusion that their attorney  did
nothing  improper.  But the professionalism and  conduct  of  the
Crittells' attorney was never at issue here.  As the trial  court
stated, "The enhancement of attorney fees against a party is  due
to  the  parties' behavior, not the conduct of counsel."  Nothing
in  the  superior court's ruling or in this opinion suggests  any
impropriety  on the part of the Crittells' counsel.  Thus,  Civil
Rule 11, which governs the conduct of attorneys, not clients, has
no relevance here.
23Reid  v.  Williams, 964 P.2d 453, 462 (Alaska  1998)  (emphasis
24Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988); see  also
Old  Harbor Native Corp. v. Afognak Joint Venture, 30  P.3d  101,
107  (Alaska  2001)  ("[T]he doctrine  of  unjust  enrichment  is
predicated  on  the theory of restitution: When a party  unjustly
receives,  retains, or appropriates property or  a  benefit,  the
party should repay the source of the property or benefit.").
25See id.