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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rockstad v. Erikson (06/10/2005) sp-5908

Rockstad v. Erikson (06/10/2005) sp-5908

     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,
     e-mail corrections@appellate.courts.state.ak.us.
     
                                             
            THE SUPREME COURT OF THE STATE OF ALASKA

RONALD D. ROCKSTAD,          )
                             		)    Supreme Court No. S-10464
               Appellant,          	)
                              		)    Superior Court No.
     v.                       		)    4FA-00-00497 CI
                              		)
GERALD ERIKSON,                    )    O P I N I O N
                              		)
               Appellee.      		)    [No. 5908 - June 10, 2005]
                              		)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:   Richard D. Wright,  Fairbanks,
          for  Appellant.   Richard L. Crabtree,  Routh
          Crabtree, APC, Anchorage, for Appellee.

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

          CARPENETI, Justice

I.   INTRODUCTION

          A  jury  found  Ronald Rockstad liable for  failing  to

repay  a loan from Gerald Erikson that was secured by a note  and

deed  of  trust  on Rockstads home.  The superior  court  awarded

Erikson  the unpaid sum, including the substantial interest  that

had  accumulated  on  it, as well as costs  and  fees.   Rockstad

claims  that the trial court erroneously granted summary judgment

to  Erikson on Rockstads statute of limitations defense.  Because

Rockstads trial admissions render any error associated  with  the

grant of summary judgment harmless, we do not reach his claim  of

error.   Rockstad  also argues that the trial  court  erroneously

granted  summary judgment to Erikson on Rockstads usury  defense.

Because  we  hold that as a matter of law the parties transaction

was not usurious, we affirm.   Rockstad next claims that the note

and  deed  of  trust were void, and thus that  the  judgment  and

subsequent  judicial foreclosure were inappropriate.   We  affirm

the  trial  courts application of quasi-estoppel to  enforce  the

parties agreement.  Finally, we affirm the superior courts  award

of costs and attorneys fees to Erikson, with the exception of the

costs  and  fees  that  accrued during  litigation  of  Rockstads

bankruptcy proceeding.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Rockstad  and  his  wife were the  equal  co-owners  of

Rockstad  &  Co., Realtors, Inc.  In August 1990  Erikson  loaned

Rockstad  $26,000 to consummate a real estate purchase.   Erikson

claims  that there was a single loan for $26,000, while  Rockstad

asserts  there were actually two separate loans, of  $12,200  and

$13,800.   Erikson claims that Rockstad failed to  make  payments

since July 1997, while Rockstad responds that he paid the loan(s)

back in full no later than the end of 1993.

          Rockstad signed a Deed of Trust Note (the Note)  and  a

deed  of  trust at the time the loan was made.  The  Note  states

that  Rockstad  promises  to  pay Erikson  the  sum  of  $26,000,

together with interest thereon at the rate of an amount equal  to

the  interest  rates tabulated on the credit cards providing  the

source  for  this loan.  Erikson called as an expert  witness  an

accountant who estimated that this interest rate averaged  17.99%

per  month during the term of the loan.  The deed of trust is  on

Rockstads  home,1 to secure repayment of the $26,000.   The  Note

states that [if] any suit or action is instituted to collect this

note,  or  any  part  thereof,  the  undersigned  promise(s)  and

agree(s) to pay . . . a reasonable sum as attorneys fees in  such

action.  The deed of trust states that Rockstad agrees to pay all

costs  and  expenses,  including  .  .  .  attorneys  fees  in  a

reasonable sum, in any . . . action or proceeding . .  .  brought

          by [Erikson] to foreclose this Deed.

          Rockstad  claimed  that  [t]he  agreement  between  the

parties was that these documents would not be recorded, and  that

various critical terms were left blank on the deed of trust  such

that  they were not recordable.  Rockstad also asserted  that  he

was  to  be  charged no interest on the loan, because he  was  to

provide  interest  via assisting Erikson in various  real  estate

ventures.   Rockstad thus alleged that Erikson altered  the  Note

and  deed  of trust subsequent to signing, and added the interest

and repayment provisions.

          At some point in late 1997, Rockstad signed a Statement

of  Commission and Agreement to Offset (the Offset).   It  stated

that  Rockstad  Realty earned a commission of  $5,700.00  at  the

closing  of  the  sale by Gerald Erikson of a  certain  piece  of

property on July 11, 1997, that Rockstad Realty shall retain  the

$100.00  of earnest money previously deposited by the buyer,  and

that  [t]he  balance of $5,600.00 is credited to the  outstanding

indebtedness  of  Rockstad  Realty to Gerald  Erikson.   Rockstad

asserts  that he was rushing to clear snow from his  driveway  in

order  to travel to the airport when Erikson approached  him  and

requested that he sign the Offset.  Rockstad claims that  Erikson

misrepresented  the  document  he  presented  to  Rockstad  as  a

document  necessary for his taxes, and that because he was  in  a

rush,   Rockstad  signed  the  document  without  reviewing   it.

Rockstad  further  claims that there was  no  written  commission

agreement between Rockstad & Co. and Erikson, and that there  was

no commission due and thus no commission to assign.

     B.   Proceedings

          Erikson  filed suit against Rockstad in February  2000,

demanding  damages equivalent to the original loan  principal  of

$26,000,  plus interest, late charges, and costs and fees,  minus

payments made by Rockstad.2  Erikson asked that the deed of trust

be  foreclosed, Rockstads home sold, and the proceeds of the sale

be  applied  toward  payment of the judgment.  Rockstad  answered

          that the note and deed of trust had been paid in full and that

the deed of trust had been modified from the original.  Rockstads

answer  also  pleaded  seven  affirmative  defenses:  accord  and

satisfaction,  payment  in  full,  fraud,  laches,   statute   of

limitations, failure to account, and usury.  In a pretrial order,

the  superior court ordered Rockstad to file for summary judgment

on,   or  withdraw,  his  affirmative  defenses  of  accord   and

satisfaction, payment in full, statute of limitations, and usury.

After  Rockstad  moved for summary judgment, the  superior  court

denied  Rockstads  motions  for summary  judgment,  allowed  both

parties   to  submit  additional  briefing  on  the  statute   of

limitations  issue,  and  granted  partial  summary  judgment  to

Erikson  denying  Rockstads  usury  and  statute  of  limitations

defenses.

          The case was tried before a jury in November 2001.  The

jury  found that (1) Rockstad breached his agreement with Erikson

by failing to fully repay the amount he borrowed and the interest

on it; and (2) Rockstad owed Erikson a total of $121,310.00.  The

superior  court entered judgment against Rockstad for  this  sum,

plus  prejudgment interest, and fixed the post-judgment  interest

rate  at  17.99%.   The court later awarded Erikson  a  total  of

$11,082.12 in costs and $34,522.75 in attorneys fees.  The  court

also  denied  Rockstads  post-trial Motion  to  Dismiss  Judicial

Foreclosure,   and ordered the foreclosure of the deed  of  trust

and  the  sale of Rockstads share of his home in satisfaction  of

the  judgment.  In July 2002 the court amended its final judgment

to  include all costs, attorneys fees, and accrued interest,  and

concluded that Rockstad owed Erikson a total of $182,071.96.

          Rockstad appeals.3

III. STANDARD OF REVIEW

          We  review a trial courts rulings on questions of  fact

for  clear error.4  We review a trial courts rulings on questions

of law, and the application of law to fact, de novo and adopt the

rule  of  law  that  is  most persuasive in light  of  precedent,

          reason, and policy.5  Although the interpretation of contractual

language is a question of law and reviewed de novo, [t]he  intent

of the parties when entering a contract is a question of fact and

is thus reviewed under the clearly erroneous standard.6

          We  review grants of summary judgment de novo,  drawing

all  factual inferences in favor of, and viewing the facts in the

light  most favorable to the non-prevailing party (generally  the

non-movant).7   We affirm grants of summary judgment  when  there

are  no genuine issues of material fact, and the prevailing party

(generally  the movant) was entitled to judgment as a  matter  of

law.8   Summary  judgment  is therefore improper  in  contractual

disputes  when the evidence before the superior court establishes

a factual dispute as to the intent of the contracting parties.9

          We  exercise our independent judgment when interpreting

Alaskas  civil  rules,10 but review a superior courts  procedural

decisions  for abuse of discretion.11  We will treat  a  superior

courts decision to apply a novel procedural rule as a decision of

law, and review it de novo.12

          We  overturn an award of attorneys fees only  where  we

find  an  abuse  of  discretion,13 or reverse  a  trial  decision

favoring the prevailing party.14  We reverse a ruling for abuse of

discretion  only  when left with a definite and firm  conviction,

after reviewing the entire record, that the trial court erred.15

IV.  DISCUSSION

     A.   The Superior Courts Grant of Summary Judgment in Eriksons

          Favor on the Statute of Limitations Issue, if Error, Was

          Harmless.

          1.   The  superior  court  is  not  required  to  grant

               summary  judgment merely because  the  motion  for

               summary judgment is unopposed.

          Rockstad  argues  that  the  superior  court  erred  in

denying  his unopposed motion for summary judgment on the statute

of  limitations  issue.  Rockstad moved for summary  judgment  on

several  grounds,  including  the  statute  of  limitations,  but

          Eriksons opposition did not address the statute of limitations

issue.  The superior courts order appeared to grant the motion in

favor  of Erikson, noting that Rockstads acknowledgment  of  debt

revived/extended  the  limitations period.   Rockstad  moved  for

reconsideration, and the superior court clarified the  effect  of

the  order,  stating  that the undisputed  facts  may  support  a

finding  that  the statute of limitations defense is inapplicable

as  a matter of law.  The court then allowed Rockstad and Erikson

to  submit further briefing on the matter, and ultimately granted

partial summary judgment on this issue to Erikson.

          Even  though Rockstads motion for summary judgment  was

initially  unopposed, the  superior court  was  not  required  to

grant it.  We have stated that a movant does not have a right  to

summary  judgment merely because the non-moving  party  fails  to

respond.16   Civil Rule 56(e) provides that where the  non-moving

party  fails  to offer an affidavit setting forth specific  facts

showing  that there is a genuine issue for trial, a  court  shall

enter  summary  judgment against that party if  appropriate.   We

have noted that [t]his language indicates that the superior court

retains  some degree of discretion in deciding whether  to  grant

summary  judgment  in cases where there is  no  response  to  the

filing  of  the summary judgment motion.17  In sum, the  superior

court  is  not required to grant summary judgment even where  the

motion is unopposed.  Where, as here, the record appeared to show

that  summary  judgment for the moving party was not appropriate,

the superior court properly declined to grant summary judgment to

that  party.  We cannot agree with Rockstads claim that the court

was required to grant the motion in his favor.

          2.   Any error in the court's grant of summary judgment

               in Eriksons favor was harmless.

          Rockstad  renews  several  arguments  he  made  to  the

superior court as to why summary judgment was improperly  granted

in favor of Erikson.  First, he argues that Alaskas six-year time

limit  for bringing actions on contractual obligations runs  from

          the date of the last payment toward the obligation, and had

lapsed between Rockstads last payment to Erikson, which he states

was no later than the end of 1993, and the date Erikson filed his

lawsuit,  February 28, 2000.  Second, he argues that  the  offset

was  invalid because (1) he was duped into signing the offset  by

Eriksons fraudulent behavior; (2) he had no authority to  forgive

a  debt  owed  only to Rockstad Realty Co., which is  a  separate

entity;  and (3) neither he nor Rockstad Realty Co. was  entitled

to  any  commission from Erikson in the first place.   Therefore,

according  to Rockstad, the offset should not count as a  payment

to  Erikson  that renewed the statutory time limit  for  bringing

suit.  Rockstad argues that by swearing to these three points  in

an  affidavit,  he raised a genuine issue of material  fact  that

precluded summary judgment in Eriksons favor.

          However,  we  need  not reach any  of  these  arguments

because Rockstad introduced evidence at trial showing that he had

made a payment to Erikson in 1994, thereby reviving the debt  for

statute of limitations purposes.  Rockstads trial exhibits L  and

L-1  consisted of pages from his dayplanner listing  payments  to

Erikson and a summary of these payments, and Rockstad offered the

exhibits  as  proof  that he made a March  31,  1994  payment  to

Erikson  as  part  of his obligation on the Note.   This  payment

moots  Rockstads  statute of limitations  argument  because  even

assuming  that  the  six-year  statute  of  limitations  applies,

Erikson  filed suit before the limitations period  ran  out.   As

Rockstads  own  evidence shows that Eriksons  action  was  timely

filed, we hold that even if Rockstad raised a triable fact  issue

as  to the offset, any error in granting summary judgment on that

issue was harmless.18  Accordingly, the judgment and accompanying

jury verdict in Eriksons favor must stand.

     B.   The  Superior  Court Properly Granted  Erikson  Summary

          Judgment on Rockstads Usury Defense.

          Rockstad  also  moved  for  summary  judgment  on   his

affirmative  defense that Eriksons loan arrangement was  usurious

          according to AS 45.45.010(b).  That statute provides:

          Interest  may not be charged by express  agreement

          of  the  parties in a contract or loan  commitment

          that is more than five percentage points above the

          annual  rate charged member banks for advances  by

          the  12th Federal Reserve District on the  day  on

          which  the contract or loan commitment is made.  A

          contract or loan commitment in which the principal

          amount   exceeds  $25,000  is  exempt   from   the

          limitation of this subsection.

The interest rate charged by the Twelfth Federal Reserve District

on the date Rockstad and Erikson made their arrangement was seven

percent.   Erikson claimed that the parties agreed to  a  credit-

card-based  interest rate of twenty percent,  clearly  more  than

five  percentage  points above the federal rate.   As  mentioned,

Erikson  claimed he had loaned $26,000 to Rockstad, thus  putting

the  loan outside the reach of AS 45.45.010.  Rockstad argued  at

summary  judgment,  however, that his  transaction  with  Erikson

involved two separate loans, each loan below the statutes $25,000

limit.  Thus, Rockstad claims, the transaction should be void  as

unlawful.

          Rockstad   supported  his  motion  with  an   affidavit

explaining that there had been two separate loans, and a copy  of

the  two  checks  from Erikson that Rockstad claimed  represented

separate  loans.  Erikson admitted that he did in fact write  two

separate checks to Rockstad, but pointed out that the checks  are

both  dated August 30, 1990 and insisted that they pertain  to  a

single  loan.   On appeal, Erikson notes that the  only  evidence

Rockstad  offered  to  support his  motion  (besides  the  checks

themselves)  was  his  affidavit.   Rockstad  argues  that   this

affidavit was sufficient to establish a genuine issue of material

fact,  and  the  superior  courts grant of  summary  judgment  to

Erikson on the usury issue was thus inappropriate.

          A  single  affidavit may suffice to  create  a  genuine

issue  of  material fact precluding summary judgment, as Rockstad

notes.19   However, Rockstads affidavit on this issue is  largely

irrelevant,  because  the  facts that  are  not  in  dispute  are

sufficient  to support summary judgment as a matter of  law.   As

Rockstad himself admits, it is undisputed that there was only one

promissory  note  between the parties, for the  sum  of  $26,000.

Since  the  Note constituted a contract between the parties,  its

proper meaning is a legal question.

          In  interpreting a contract, we depart from  its  plain

language  only  where the contracts language is  ambiguous.20   A

court  may  find ambiguity in a contractual provision only  where

the  contract as a whole and all extrinsic evidence  support  two

different interpretations, both of which are reasonable.21  There

is  no  such  ambiguity  in the Note.  The  Note  speaks  in  the

singular only, of the sum of Twenty Six Thousand

Dollars,  and this loan, this debt, and this note.  Nowhere  does

it even suggest that there were multiple loans involved.

          There   is   also,  as  Erikson  suggests,  a   general

presumption in American law that transactions are lawful and non-

usurious.22  And we are mindful of the venerable rule that where a

contract is fairly open to two constructions, by one of which  it

would  be  lawful  and the other unlawful,  the  former  must  be

adopted.23  Even assuming that the Note could possibly be read as

providing   for   two  separate  loans,  such  a  reading   would

necessarily  imply  that  the  Note  constitutes  an   unlawfully

usurious contract.

          Because the plain language of the Note shows that there

was only one loan, for $26,000, and because even if the Note were

ambiguous we would construe it to favor its legality, we  decline

to  adopt  Rockstads interpretation of the Note, and  affirm  the

grant of summary judgment to Erikson on this issue.24

     C.   The Deed of Trust Is Enforceable Under the Doctrine  of

          Quasi-Estoppel.

          Following   trial,   the  superior   court   considered

          Rockstads Motion to Dismiss Judicial Foreclosure.  According to

the motion, (1) Rockstads family residence was the property named

in  the  deed  of trust to secure Eriksons loan; (2) this  family

residence  was held by Rockstad and his wife Lauren  Rockstad  as

tenants by the entirety, and Lauren Rockstads name appears on the

title to that property; (3) where husband and wife both appear on

the  deed  both must sign in order for a conveyance to  be  valid

under  AS 34.15.010(b) and (d); (4) the deed of trust was  signed

only by Rockstad himself; and (5) therefore the deed of trust  is

void.25  The superior court denied Rockstads motion, and Rockstad

appeals.

          The   superior  court  based  its  decision  to   allow

foreclosure  in part on the equitable doctrine of quasi-estoppel.

Quasi-estoppel appeals to the conscience of the court to  prevent

injustice  by  precluding  a  party from  taking  a  position  so

inconsistent  with one he has previously taken that circumstances

render assertion of the second position unconscionable.26  Unlike

other   forms  of  estoppel,  quasi-estoppel  does  not   require

ignorance   or   reliance   as  essential   elements,   but   any

representation  made  to the party claiming  quasi-estoppel  must

have  been  based  [on] full knowledge of the facts.27   Since  a

finding of quasi-estoppel is closely tied to the particular facts

and  circumstances of the individual case, the  determination  is

essentially a factual one and, as such, is one which will not  be

disturbed on appeal unless the findings on which it is based  are

clearly erroneous.28

          Among  the many factors we consider in applying  quasi-

estoppel  are:  (1) whether the party asserting the  inconsistent

position  has  gained an advantage or produced some  disadvantage

through   the   first  position;  (2)  the   magnitude   of   the

inconsistency; (3) whether changed circumstances tend to  justify

the inconsistency; (4) whether the party claiming estoppel relied

on  the inconsistency to his detriment; and (5) whether the first

assertion was made with full knowledge of the facts.29

          Most of the elements of quasi-estoppel are self-evident

in this case.  Since Rockstad himself signed the deed of trust in

order  to secure his loan from Erikson, he obviously changed  his

position  by later asserting that the document was invalid.   The

gain to Rockstad and detriment to Erikson that resulted from  the

change  in  position,  and from Eriksons  reliance  on  Rockstads

original position, were clearly significant.  Rockstad must  have

known  that his wife was listed on the title to their home.   And

Rockstad  has offered nothing that could justify his inconsistent

positions.   In  sum, the court was justified in applying  quasi-

estoppel  to  validate  the deed of trust  and  enforce  Eriksons

foreclosure on Rockstads half-interest in the property.30

     D.   The  Superior  Court Properly Awarded  Full  Reasonable

          Attorneys Fees to Erikson Covering the Trial and  Post-

          Trial  Periods,  But Erred in Awarding  Attorneys  Fees

          Incurred in Litigating Rockstads Bankruptcy Petition.

          1.   Erikson is entitled to an award of full reasonable

               attorneys fees, including fees incurred on appeal.

          Rockstad  argues that various aspects of  the  superior

courts fee award to Erikson were legally erroneous, and should be

reversed  even  if  we  uphold all other aspects  of  the  courts

rulings and the jurys verdict.  Rockstad claims that it has  long

been the Alaska practice to allow the prevailing party to recover

partial  fees,  but the courts award of total  fees  rather  than

partial fees is manifestly unreasonable.  (Emphasis in original.)

Generally  speaking, Rockstad is correct.  We  have  stated  that

Civil Rule 82 embodies a policy that the prevailing party is only

entitled to recover partial attorneys fees,31 and have held  that

full fee awards are manifestly unreasonable unless the prevailing

party  has  shown bad faith or vexatious conduct  by  the  losing

party.32   However, as Rockstad admits, where a contract  between

the parties allows for one party to recover attorneys fees in the

event of litigation, the contract provision must prevail over any

limitations  otherwise  imposed by Rule 82.33   Such  a  contract

          provision was in fact the basis for Eriksons motion for costs and

fees,  and  the superior courts subsequent award.  Rockstad  does

not  appear to dispute that both the Note and the deed  of  trust

contain  valid  clauses requiring him to pay Eriksons  reasonable

attorneys  fees  in  the  event  of  default.   Since  the   jury

determined  that Rockstad did in fact default, it was permissible

for  the  superior court to award Erikson full fees, pursuant  to

the parties contract.

          The  parties also dispute the propriety of the superior

courts  order  that Rockstad pay Erikson attorneys fees  for  all

post-judgment appellate proceedings, insofar as the  judgment  is

upheld  or  the appeal dismissed by this court.  Rockstad  argues

that  Rule 82 does not cover post-judgment fees and costs.34   As

discussed  above, the fees in this case were awarded pursuant  to

the  terms of the parties agreement, and not pursuant to Rule 82.

We  have previously held that where a contract provision has  the

evident  purpose  of shifting reasonable fees to  the  winner  in

litigation  concerning the contract, that contract  requires  fee

shifting at all court levels, and not just in proceedings  before

the trial court.35  The superior court thus properly construed the

terms of the Note and the deed of trust to cover fees incurred in

post-judgment appellate proceedings.

          2.   Erikson  is  not entitled to any fees incurred  in

               litigating Rockstads bankruptcy petition.

          As  a final matter, Rockstad argues that attorneys fees

and costs for bankruptcy actions can only be awarded by a federal

bankruptcy court, and that the superior court erroneously awarded

fees  in  an  action  other than the one  before  it,  i.e.,  the

bankruptcy   case.36   Eriksons  rebuttal  is  that  filing   and

dismissing  a bankruptcy petition, along with other post-judgment

conduct by Rockstad, amounted to maneuvers and vexatious conduct,

for  which  attorneys fees were properly awarded.   Erikson  also

argues  that  the fee-shifting language in the Note and  deed  of

trust  entitle  him to all actual attorneys fees, including  fees

          incurred while the debtor was in bankruptcy proceedings.  We

agree with Rockstad on this issue.

          We  have indicated that trial courts may have authority

to  award attorneys fees incurred by a litigant responding to  an

opponents frivolous or vexatious post-judgment conduct.37  But we

have   never   specifically  applied  this  rule  to   bankruptcy

proceedings.   When  attorneys  fees  are  awarded   based   upon

misconduct  by an attorney or party, and not the outcome  of  the

litigation,  the  matter is procedural.38   Federal  courts  have

original   and   exclusive  jurisdiction  over   all   bankruptcy

proceedings.39  Federal and state courts addressing  the  issue40

have  followed  the  Ninth Circuits conclusion  that  it  is  for

Congress and the federal courts, not the state courts, to  decide

what  incentives  and  penalties  are  appropriate  for  use   in

connection  with the bankruptcy process and when those incentives

or penalties shall be utilized.41  The Ninth Circuit has explained

that  the need for uniform and expeditious handling of bankruptcy

cases  compels  the application of federal sanctions  by  federal

courts as to procedural abuses in those cases.42

          We  have  also never explicitly addressed the issue  of

whether  contractual  fee-shifting  provisions  can  cover  post-

judgment   bankruptcy  proceedings.43   The  interpretation   and

application  of  contracts is a question  of  Alaska  state  law.

Where  the  substantive issues raised in a bankruptcy  proceeding

include  issues  of  state law, federal  courts  have  held  that

attorneys  fees may be awarded where permitted or provided  under

the relevant state law.44  However, awarding fees is still part of

the  bankruptcy procedure, and as such it is a decision  for  the

bankruptcy court to make.45

          In  sum,  it  was  the sole province of the  bankruptcy

court,  and  not  the  superior court or  this  court,  to  award

attorneys  fees  to  Erikson for his  efforts  in  responding  to

Rockstads bankruptcy petition.46  Thus we reverse and vacate  the

portion  of  the trial courts attorneys fees award that  included

          fees incurred by Erikson in connection with the bankruptcy

petition.

V.   CONCLUSION

          Because  any  error  regarding  Rockstads  statute   of
limitations   defense  was  rendered  harmless   by   his   trial
admissions, we AFFIRM the trial courts grant of summary  judgment
to  Erikson  on  Rockstads  statute of limitations  defense.   We
AFFIRM  summary  judgment to Erikson on Rockstads usury  defense.
We  AFFIRM  the  trial  courts application of  quasi-estoppel  to
enforce the parties agreement and foreclose on Rockstads interest
in  his home.  We also AFFIRM the superior courts award of  costs
and  attorneys fees to Erikson, except its award of the costs and
attorneys   fees  incurred  in  litigating  Rockstads  bankruptcy
proceeding, which we VACATE.

_______________________________
     1     At  the  time  the  agreement was made,  Rockstad  was
married.  Rockstad and his wife owned the home as tenants by  the
entirety,  and their names both appear on the title of the  home.
The   Rockstads   subsequently  dissolved  their  marriage,   and
Rockstads  wife  now resides in California.  All indications  are
that  the  house is still owned by both Rockstads, as tenants  in
common.   The  significance of these facts will be  discussed  in
Part IV.C, infra.

     2     Erikson  estimated the total amount  Rockstad  repaid,
including the Offset, at $16,755.76.

     3     Rockstad  filed  for bankruptcy under  Chapter  13  in
September 2002, but moved for and was granted an order dismissing
his  bankruptcy petition in December of that same year.  In March
2003  the superior court stayed execution of its judgment pending
Rockstads appeal to this court.  The superior court provided that
if  the  judgment or any part of it was affirmed, or  the  appeal
dismissed,  Rockstad  would be liable  for  the  portion  of  the
judgment  affirmed, plus interest, costs, and fees.  The superior
court  included Eriksons post-judgment costs and attorneys  fees,
including  those  associated with the bankruptcy proceedings,  in
the  total judgment.  Erikson calculated his post-trial costs and
fees  at  $5,078.29,  an  amount that  included  costs  and  fees
associated  with the bankruptcy proceeding.  Erikson successfully
moved  to  have  $5,078.29 in funds held in the  courts  registry
released to him.

     4    OConnor v. Star Ins. Co., 83 P.3d 1, 3 (Alaska 2003).

     5    Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).

     6     K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
712 (Alaska 2003).

     7     Ellis  v.  City of Valdez, 686 P.2d 700,  702  (Alaska
1984).

     8     Witt v. State, Dept of Corrections, 75 P.3d 1030, 1033
(Alaska 2003) (internal citations omitted).

     9    K & K Recycling, 80 P.3d at 712.

     10    Bustamante v. Alaska Workers Compensation Bd., 59 P.3d
270, 272 (Alaska 2002).

     11     Willoya v. State, Dept of Corrections, 53 P.3d  1115,
1119 (Alaska 2002).

     12     Our  cases reviewing trial court procedural decisions
for  abuse  of  discretion generally involve the  application  of
existing  procedural rules that are intended to provide  a  trial
court with leeway.  See, e.g., Edelman v. Edelman, 61 P.3d 1, 4-5
(Alaska  2002)  (reviewing decision to retain  jurisdiction  over
certain claims and to award attorneys fees); Bustamante, 59  P.3d
at   272  (reviewing  decision  to  appoint  counsel  for   civil
litigant);  Willoya, 53 P.3d at 1119-21 (reviewing  decisions  to
allow  attorney to withdraw, to refuse to sanction  attorney,  to
refuse  to  order  withdrawing  attorney  to  send  litigant  all
litigation materials within thirty days, and to refuse to appoint
discovery  master).   The  present case,  however,  involves  the
decision  by  a trial court to create an entirely new  procedural
rule.   In Stalnaker v. Williams, 960 P.2d 590 (Alaska 1998),  we
were   required  to  determine  the  proper  standard  of  review
applicable  to an agencys choice of procedure in the  absence  of
any  instructive  agency provision.  We treated  such  an  agency
decision as an issue of law.  Id. at 595.

     13    Laverty v. Alaska R.R. Corp., 13 P.3d 725, 738 (Alaska
2000).

     14     See,  e.g., Bauman v. Day, 892 P.2d 817, 829  (Alaska
1995).

     15    Willoya, 53 P.3d at 1119.

     16    Hinsberger v. State, 53 P.3d 568, 572 (Alaska 2002).

     17     Dome Labs. v. Farrell, 599 P.2d 152, 159 n.24 (Alaska
1979).

     18     Cf.   Municipality of Anchorage v. Higgins, 754  P.2d
745,  748 (Alaska 1988) ([W]e may uphold the lower courts  ruling
if there is any other ground apparent, from the record, which, as
a  matter  of law, would support the result reached by the  trial
court.)  (citing  Carlson v. State, 598  P.2d  969,  973  (Alaska
1979)).

     19     Erikson  asserts  that the usury claim  was  properly
stricken  by  the trial court, given the paucity of  evidence  in
support of Rockstads motion, and the rule requiring the court  to
view  all  facts  in the light most favorable to  the  non-moving
party.   This  slightly misstates the relevant law.  Reviewing  a
grant  of  summary judgment, this court views all  facts  in  the
light  most favorable to the non-prevailing party, not  the  non-
moving party.  Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska
1984).   This standard is commonly phrased in terms of  the  non-
moving  party  because  it  is the non-movant  at  whose  expense
summary  judgment  is  usually granted.  This  case  is  unusual,
however, because summary judgment was granted to Erikson, the non-
movant.  Rockstad, the non-prevailing party, was entitled to have
all factual inference resolved in his favor.

     20    Williams v. Crawford, 982 P.2d 250, 253 (Alaska 1999).

     21     McMillan v. Anchorage Cmty. Hosp., 646 P.2d 857,  863
(Alaska 1982).

     22    45 Am. Jur. 2d Interest and Usury  352 (2003).

     23    Hobbs v. McLean, 117 U.S. 567, 576 (1886).

     24     Erikson argues additionally that Rockstad  knew  that
Erikson  was borrowing the money to lend to Rockstad on  Eriksons
credit  cards,  and that [t]he Note provides,  in  essence,  that
Rockstad was to indemnify Erikson for the sums he had to  pay  on
his  credit cards as a result of his borrowing the funds to  lend
to  Rockstad.  Therefore, Erikson asserts, the interest  referred
to in the Note is actually just Eriksons loan expenses, which, as
such,  are not subject to the usury law.  We need not reach  this
argument,  because we affirm the superior court  on  the  grounds
above.

     25    AS 34.15.010 states in relevant part:

          (b)  In  a  deed or conveyance of the  family
          home  or  homestead by a  married  man  or  a
          married  woman,  the husband and  wife  shall
          join in the deed or conveyance.
          . . . .
          (d) Failure of the spouse to join in the deed
          or conveyance does not affect the validity of
          the  deed  or conveyance, unless  the  spouse
          appears on the title.
          
     26     Jamison  v. Consol. Utils., Inc., 576  P.2d  97,  102
(Alaska 1978) (quoting Donaldson v. Le Nore, 540 P.2d 671  (Ariz.
1975)).

     27    Id.

     28    Id. at 102.

     29    Id. at 102-03.

     30     Rockstad also appeals the superior courts alternative
ground for allowing the foreclosure, which was that the deed  was
proper  under the doctrine of estoppel by deed.  However, because
we  hold  that  the  superior court properly granted  foreclosure
based  on  quasi-estoppel, we need not consider the propriety  of
the other grounds for its decision.

     31    Dansereau v. Ulmer, 955 P.2d 916, 919 (Alaska 1998).

     32    Demoski v. New, 737 P.2d 780, 788 (Alaska 1987).

     33     Ursin Seafoods, Inc. v. Keener Packing Co., 741  P.2d
1175, 1181 (Alaska 1987).

     34    Rockstad does concede that his post-trial untimeliness
. . . may have caused Mr. Erikson extra expenses, and accordingly
has offered to pay $799 of Eriksons post-trial fees.

     35     Gamble v. Northstore Pship, 28 P.3d 286, 290  (Alaska
2001).

     36    Although the superior court did not actually award any
fees incurred in the bankruptcy case, its Order Granting Stay  of
Execution  Pending  Appeal suggests that  such  fees  will  apply
following this appeal.  We therefore reach this issue.

     37     Torrey  v.  Hamilton, 872 P.2d 186, 188  n.3  (Alaska
1994).

     38    In re Larrys Apartment, L.L.C., 249 F.3d 832, 838 (9th
Cir. 2001).

     39    Wagner v. Key Bank of Alaska, 846 P.2d 112, 116 (Alaska
1993)  (citing 28 U.S.C.  1334(a) (1988)); see also U.S.  Const.,
art.  I,   8,  cl.  4  ([The Congress shall have  the  power]  To
establish  .  .  .  uniform Laws on the subject  of  Bankruptcies
throughout the United States.).

     40    See, e.g., Choy v. Redland Ins. Co., 127 Cal. Rptr. 2d
94,  101-104 (Cal. App. 2002); Mason v. Smith, 672 A.2d 705, 707-
08  (N.H.  1996);  Shiner v. Moriarty, 706 A.2d 1228,  1238  (Pa.
Super. 1998).

     41    Gonzales v. Parks, 830 F.2d 1033, 1036 (9th Cir. 1987).

     42    In re Larrys Apartment, 249 F.3d at 838.

     43     In Torrey we held that the attorneys fees incurred in
the  adversary  proceeding in bankruptcy are not  recoverable  as
costs  of  collection for the original state court judgment,  but
this  holding was based on our interpretation of Rule 82,  not  a
contractual fee-shifting provision.  872 P.2d at 187-88.

     44     See, e.g., In re Baroff, 105 F.3d 439, 441 (9th  Cir.
1997).

     45    See, e.g., In re Hassen Imps. Pship, 256 B.R. 916, 920-
21 (B.A.P. 9th Cir. 2000).

     46     Eriksons other arguments on this point are meritless.
Erikson  asserts  that [g]iven the fact of the supersedeas  bond,
the  substantial  equity  in Rockstads  residence  and  in  other
assets,  .  .  .  the  judgment, having  been  recorded,  is  now
oversecured.    Erikson argues that Am. Jur. 2d Bankruptcy   2302
(2003)  supports  the  proposition  that  [t]he  holder   of   an
oversecured  claim can recover . . . any reasonable  fees.   This
authority,  however,  is clearly referring  to  recovery  in  the
federal  court  where bankruptcy proceedings  occurred.   Erikson
also  argues  he should be able to bring supplemental proceedings
under  Civil Rule 15(d), for his expenses incurred in  collection
efforts.   Rule  15(d)  authorizes  supplemental  pleadings,  not
supplemental proceedings, and the pleading stage of this case has
long  passed.  Erikson offers no authority to support the  notion
that  a  supplemental  pleading may be  offered  to  cover  post-
judgment fees, nor could we locate any.