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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. ENDERS vs. GLEN PARKER (10/14/2005) sp-5947

ENDERS vs. GLEN PARKER (10/14/2005) sp-5947

     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


IRIS ENDERS, )
) Supreme Court No. S- 11437
Appellant, )
) Superior Court No. 3AN-97-1124 P
v. )
) O P I N I O N
GLEN PARKER, Personal )
Representative of the Estate of ) [No. 5947 - October 14, 2005]
JOEL W. KOTTKE, )
)
Appellee. )
)

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

          Before:    Matthews,  Eastaugh,   Fabe,   and
          Carpeneti, Justices.  [Bryner, Chief Justice,
          not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          Alaska     Statute    13.16.435    entitles    personal
representatives  who litigate in good faith to recover  attorneys
fees  and  costs  from the estate.  Iris Enders  was  a  personal
representative  who unsuccessfully challenged Joel  Kottkes  1997
will.  She argues here that it was error to deny her request  for
attorneys  fees  and costs under the statute.  Because  the  good
faith  required by AS 13.16.435 is implied, but not  conclusively
established, by the existence of reasonably arguable grounds  for
a will challenge, and because good faith requires that a personal
representative act with intent to benefit the successors  of  the
will  the  representative  seeks to uphold,  the  superior  court
applied  the  correct analysis.  Furthermore, it did not  clearly
err in finding that Enders did not act with intent to benefit the
successors.  Because Enders was therefore not entitled to recover
fees and costs from the estate under AS 13.16.435, we affirm.
II.  FACTS AND PROCEEDINGS
          Joel  Kottke  died in October 1997.1  Per the  will  he
executed in June 1997, most of his estate went to Connie  Parker.
She  was  a  long-time acquaintance of Joel  Kottke;  she  became
closer  to him in his later years, developed a relationship  with
him  very  similar to a marriage, and also served  as  his  care-
giver.
          The 1997 will replaced a 1983 will that Joel Kottke had
executed  while he was married to Martha Kottke.   Per  the  1983
will, Joel left his entire estate to Martha. Upon her death,  the
residual estate was to pass one-half to Marthas children and one-
half  to  Joels siblings.  Martha Kottke died in 1991.  Following
Joels  death,  Iris Enders (Marthas daughter)  and  Ralph  Kottke
(Joels  brother) challenged the 1997 will, alleging  that  Connie
Parker had an undue influence on Joel and that Joel was suffering
from insane delusions when he drafted the 1997 will.
          Following a seven-day bench trial, Superior Court Judge
Sen K. Tan ruled that there was inadequate evidence to invalidate
the  1997 will.  Enders appealed that ruling. We affirmed.2   The
superior  court then denied Enderss request that  the  estate  be
required  to pay her attorneys fees and costs under AS 13.16.435.
Enders appealed the denial, and we vacated the order denying  her
request because we held that AS 13.16.435 does not require that a
personal  representative  or nominated  personal  representatives
actions benefit the estate before the personal representative can
recover  expenses.3  We therefore remanded for specific  findings
as  to whether Enders prosecuted the will contest in good faith.4
The  superior court explicitly found on remand that Enders lacked
good  faith  and again denied Enderss request for attorneys  fees
under the statute.  Enders now appeals that denial.
III. DISCUSSION
     A.   Standard of Review
          We  review questions of law de novo and adopt the  rule
of law most persuasive in light of precedent, reason, and policy.5
The  parties  disagree about how we should  review  the  superior
courts  conclusion that Enders lacked good faith.  Enders  argues
that  we  should review it de novo, while Parker asserts that  we
should apply the clearly erroneous standard.  For the reasons set
out  below,  we  conclude that a determination  that  a  personal
representative did or did not act in good faith is a fact finding
that  should be reviewed for clear error.  A finding of  fact  is
clearly  erroneous  when  the reviewing  court  is  left  with  a
definite  and  firm conviction that the trial court  has  made  a
mistake.6
     B.   A  Good  Faith  Determination Under AS 13.16.435  Is  a
          Factual  Finding  that  We  Review  Under  the  Clearly
     Erroneous Standard.
          
          In  enacting AS 13.16.435, Alaska adopted  3-720 of the
Uniform  Probate  Code (UPC).  Alaska Statute 13.16.435  provides
that  personal representatives or persons nominated  as  personal
representatives can receive litigation expenses from  the  estate
if  they can show that they prosecuted or defended proceedings in
good  faith.7  We interpreted AS 13.16.435 for the first time  in
Enders  v.  Parker  and made a number of observations  about  the
meaning  of  the term good faith as it is used in AS  13.16.435.8
We  stated  that  [a]lthough good faith is  not  defined  in  the
probate  statutes,  the  statutory obligations  of  the  personal
representative shed light on the meaning of that  term.9   Alaska
Statute  13.16.350(a) provides in part: A personal representative
is a fiduciary who shall observe the standards of care applicable
to trustees . . . .  We observed that
          in  the  context of two competing wills  with
          different personal representatives, it is  to
          be  expected that the successors will not  be
          identical.  Each personal representative thus
          must  act  for  the  best  interests  of  the
          successors  named  in  the  will  which  each
          personal   representative   is   respectively
          seeking  to uphold.  We hold that good  faith
          under AS 13.16.435 incorporates the statutory
          requirement  that  a personal  representative
          act  with  the  intent to benefit  successors
          named   in   the   instrument  the   personal
          representative seeks to uphold . . . .[10]
          
          We also stated that the superior court, when making its
findings concerning good faith on remand, should consider whether
Enders  had  reasonably arguable grounds to  challenge  the  1997
will.   Presence of such grounds would imply good  faith  on  her
part; absence of such grounds would imply a lack of good faith.11
          Enders  contends that the standard of review cannot  be
clear  error because she asserts that we remanded the case for  a
determination of whether she had reasonably arguable  grounds  to
challenge  the  will.   Enders equates  this  inquiry  to  asking
whether  the  challenge was frivolous; she therefore argues  that
the  superior court should have taken every factual inference  in
her  favor  and  assumed the credibility  of  her  witnesses.  In
essence, Enders asserts that reasonably arguable grounds exist if
a  claim  would have survived summary judgment.  Because  summary
judgment rulings are reviewed de novo,12 Enders reasons that  the
same standard applies to review of the superior courts resolution
of the good faith issue.
          Enderss  theories  rest  on a misunderstanding  of  our
remand  instructions  in  Enders.   We  did  not  remand  for   a
determination  of whether Enders had reasonably arguable  grounds
to  challenge the 1997 will, but rather for specific findings  on
the  issue of good faith and for consideration of whether  Enders
had  reasonably arguable grounds for her claims.13   If  she  had
reasonably  arguable grounds, it would imply good faith;  if  she
          did not, it would imply a lack of good faith.14  Enders did not
adopt reasonably arguable grounds as the sole determinant of good
faith  under  AS 13.16.435.  Rather, the presence or  absence  of
reasonably  arguable grounds creates a presumption of good  faith
or  lack  of good faith, respectively.  This presumption  can  be
rebutted by evidence sufficient to establish good faith  or  lack
thereof, as the case may be.
          Nebraska  Revised Statute  30-2481 is identical  to  AS
13.16.435.15  The Nebraska Supreme Court has held that [t]he good
faith  required  in  30-2481 is an ultimate fact for  the  courts
decision  upon all of the evidence.  There are no rules  defining
it;  rather, it depends upon the peculiar facts and circumstances
existing in each case, including the duties imposed . . . by law.16
Enders   held   that   one  such  duty  requires   the   personal
representative to act with the intent to benefit successors named
in  the  instrument the personal representative seeks  to  uphold
where  there  are  two  competing wills with  different  personal
representatives  . . . .17  It would therefore  be  incorrect  to
reduce  the  entire good faith inquiry to the single question  of
whether  the  personal  representative  had  reasonably  arguable
grounds  to  act.   The  good faith inquiry  requires  a  factual
determination of intent that we review for clear error.18
          Enderss  apparent suggestion that Alaska Civil Rule  11
which also contains a good faith standard  should dictate de novo
review  by  analogy,  is flawed because we  review  an  award  of
sanctions under Civil Rule 11 for abuse of discretion.19
     C.   Surviving  Summary Judgment Does Not  Necessarily  Mean
          Reasonably Arguable Grounds Exist.
          
          As  noted  above,  the presence of reasonably  arguable
grounds for a will contest implies that a personal representative
acted in good faith under AS 13.16.435.  Enders advances a number
of  arguments about how trial courts should decide whether  there
are reasonably arguable grounds.
          She  argues  that the superior court, when  considering
whether  Enders  had  reasonably arguable  grounds,  should  have
looked at whether Enders raised a genuine issue of material fact.
In  other words, she reasons that if the claim survived or  would
have  survived  a motion for summary judgment the superior  court
was  required  to find that reasonably arguable grounds  existed.
Enders  refers  us to Federal Rule of Civil Procedure  11,  which
requires  that  allegations and other  factual  contentions  have
evidentiary  support.20   The Advisory  Committee  notes  to  the
federal  rule state that if a party has evidence with respect  to
a  contention that would suffice to defeat a motion  for  summary
judgment  based  thereon,  it would have  sufficient  evidentiary
support.  21 Enders therefore argues that in considering  whether
she had reasonably arguable grounds, the superior court, just  as
it  would  in  reviewing an opposing partys  motion  for  summary
judgment, was required to giv[e] every factual inference to [her]
and assume the credibility of her witnesses.
          But  just because Enderss claim survived, or would have
survived,  summary judgment does not establish  that  there  were
reasonably arguable grounds to challenge the will.  Upon a motion
          for summary judgment, [t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn  in  his
[or  her]  favor.22   Any  reasonable  litigant,  especially  one
represented  by counsel, should know that his or her  claim  will
not   receive   these   advantages   during   trial.    Moreover,
commentators  have observed that [t]he burden  on  the  nonmoving
party  is not a heavy one; the nonmoving party simply is required
to  show specific facts, as opposed to general allegations,  that
present  a  genuine  issue worthy of trial.23   In  other  words,
summary  judgment  should be relied upon to  weed  out  frivolous
lawsuits and avoid wasteful trials.24  By the same token, a claim
that  is dismissed on summary judgment does not necessarily  lack
reasonably  arguable grounds, because the claim  may  turn  on  a
question of law.25
          In  our  view, it would not be sound policy to adopt  a
per se rule that reasonably arguable grounds must exist under  AS
13.16.435  if  a  claim survives or would have  survived  summary
judgment.  The Advisory Committee notes to Federal Civil Rule  11
provide  that an assertion or claim is deemed to have evidentiary
support  if  it  was  capable of surviving a motion  for  summary
judgment.  Important considerations underlie this view, as courts
have  expressed concern that the federal rule not stifle creative
advocacy or chill an attorneys enthusiasm in pursuing factual  or
legal theories.26  Similar concerns do not arise in the context of
AS  13.16.435.  Although we do not wish to discourage pursuit  of
meritorious  claims,  we must also recognize  the  importance  of
upholding  the testators intent.27  Personal representatives  who
pursue will contests that might survive summary judgment but have
no  reasonable chance of succeeding at trial waste the estate and
impede  the  fulfillment  of  the  testators  wishes,  all  while
conferring  no  benefit on the successors to  whom  the  personal
representative  is a fiduciary.  We are therefore unpersuaded  by
Enderss  argument  that reasonably arguable  grounds  necessarily
exist  if  a  claim  was capable of defeating a summary  judgment
motion.
          The   standard   for  determining  whether   reasonably
arguable grounds existed will vary according to what the personal
representative sought to accomplish.  In this case, Enders sought
to  defeat  the  1997 will, leaving the 1983 will.   Because  her
claims  turned  on  disputed  factual  issues,  this  would  have
required  her  to  prevail  at trial; the  relevant  question  is
therefore  whether there was a reasonable chance the court  would
ultimately  rule  for  Enders after trial on  either  ground  she
raised  in  challenging the 1997 will.  A pure question  of  law,
however,  could be resolved on summary judgment.  The reasonably-
arguable-grounds inquiry would in that case turn on whether there
was a reasonable chance of prevailing at summary judgment.
          We  also note that one of Enderss contentions may  have
some  relevance to the reasonably-arguable-grounds inquiry.   She
contends that whether a litigant had reasonably arguable  grounds
has  to  be  judged  at the outset, based on  the  witnesses  and
evidence  of  the  party whose good faith  is  challenged.   This
implies that reasonably arguable grounds may exist when an action
is  first  filed  but  may dissipate as litigation  proceeds.   A
          personal representative could therefore have reasonably arguable
grounds to challenge a will but then learn through discovery that
the  claim  lacks  merit.   In  considering  whether  there  were
reasonably  arguable  grounds for the  action,  the  trial  court
should  examine what the personal representative knew  or  should
have known about the merits of the claim as it proceeded.
     D.    The  Superior Courts Finding that Enders  Lacked  Good
Faith Was           Not Clearly Erroneous.

          Having  resolved  Enderss  contentions  regarding   the
standard  of review and the reasonably-arguable-grounds  inquiry,
we turn to her argument that the superior courts findings of fact
were  clearly erroneous.28  The superior court found that  Enders
did  not  have reasonably arguable grounds to challenge the  1997
will.   It  also  found that she did not act with the  intent  to
benefit  the  successors of the 1983 will because Enders  brought
and  pursued  the will contest for her own personal  benefit  and
self-interest,   motivated  by  her  and  her  familys   personal
animosity  and  disdain  for  Connie  Parker.   Ultimately,   the
superior court found that Enders lacked good faith.
          1.   The  superior  courts finding that  Enders  lacked
               reasonably arguable grounds to challenge the  1997
               will was not clearly erroneous.
               
           Enders disputes the superior court finding that Enders
did  not  have reasonably arguable grounds to challenge the  1997
will.
               a.   Undue influence claim
          The  superior court found that Enderss undue  influence
claim was at best weak and not particularly well founded.  Enders
argues that this finding falls short of finding the claim was not
supported  by reasonably arguable grounds and that the  witnesses
she  called  established by their testimony alone a  prima  facie
case  of  undue  influence.   We have  previously  discussed  the
circumstances that would permit a finding of undue influence:
          In  situations in which the defendant is  the
          principal   or   sole  beneficiary,   had   a
          confidential relationship with the  testator,
          and participated in the drafting of the will,
          the  defendant is presumed to have  exercised
          undue  influence,  and must prove  otherwise.
          If  those circumstances do not apply, to show
          undue influence the plaintiff must show  that
          by  reason  of  influence exercised  by  [the
          defendant],   the  testator   was   virtually
          compelled  to make a will which he would  not
          have  made  had  he  been left  to  the  free
          exercise of his own judgment and wishes.[29]
          
          In  considering whether Enders had reasonably  arguable
grounds to pursue the undue influence theory, the superior  court
noted  that, before Joel Kottke died, Enders had raised  concerns
about undue influence with the Division of Senior Services.   One
of  the  divisions social workers, John Burke, testified that  he
had  investigated  a complaint that Connie Parker  was  coerc[ing
Joel]   into  changing  his  will.   Burke  testified   that   he
interviewed  Joel and that he concluded in his report  that   Mr.
Kottke . . . was extremely clear thinking and in control of  what
he  wanted to do. 30  Burke found no reason to pursue the  matter
further.   The  superior  court also  observed  that  Enders  had
contacted one of Joel Kottkes friends, Robert Dixon, both  before
and after Joels death and claimed that Connie provided inadequate
care  for  Joel, unduly influenced him, and delayed the provision
of  medical  attention.  Dixon responded that he was  not  seeing
that.   Noting  the testimony of Burke, Dixon,  and  others,  the
superior  court  concluded that Iris Enders knew or  should  have
known  that  the  grounds for an undue influence claim  were  not
particularly well founded.  Her immense dislike of Connie  Parker
apparently blinded her to the strength or weakness of her claim.
          Several  of  Enderss  witnesses testified  about  their
impressions  of  Connie and Joels relationship, especially  their
sense  that  Connie  dominated or controlled Joel.   Lois  Kottke
testified that she had concerns over the level of control  Connie
exercised over Joel.  Leonard Klima testified that Connie  Parker
          was very dominating and almost deceitful in her actions at times.
He  believed  that  the relationship was not  loving;  rather  he
thought  [i]t was a little on the mercenary side on the  part  of
Connie.  Ellen Onstott testified that she thought that Connie had
domination  over  Joel.  Ralph Kottke and Iris  Enders  testified
that they believed Connie Parker was influencing Joel with sex.
          We  note  that many of the witnesses called  by  Enders
admitted  to  having spent a relatively minimal  amount  of  time
observing  Joel and Connies relationship.  Eunice Kottke  visited
Joel  once in 1996 and possibly saw him twice in Minnesota during
the  1990s.   Lois Kottke only observed Joel and Connie  together
for  a  total  of  twenty days during the entire 1990s.   Leonard
Klimas  only  in-person contact with Joel was during a  seven-day
period  shortly before Joel died.  Richard and Ellen Onstott  saw
Joel  Kottke  once, maybe twice a year during the  1990s.   As  a
result,  we  cannot say that the superior court erred in  finding
that  Enders  had no reasonably arguable grounds  to  pursue  the
undue influence claim.  The testimony of a few witnesses who  had
limited exposure to Joel and Connies relationship does not  leave
us  with  a definite and firm conviction that the superior  court
made  a  mistake, especially given evidence that a  disinterested
professional, John Burke, investigated Enderss claim and found no
reason for concern.
               b.   Insane delusions claim
          The  superior court found that Enderss claim of  insane
delusions  was even weaker than the claim of undue influence  and
concluded that [n]o evidence indicates that Mr. Kottke was insane
or  suffered  from any delusion.  Enders states that she  decided
not  to  brief this issue on appeal due to space limitations  and
because it is not necessary[] to prove good faith.  In any  case,
the superior courts finding was not clearly erroneous.
          The  superior court observed that [t]he basis for  this
claim was Mr. Kottkes belief that Ms. Enders had rifled his  safe
and  taken his will.  The superior court pointed out that Enderss
own  actions  had provided a basis for Kottkes  belief   she  had
removed items from his house on at least two occasions.  The fact
that  Kottkes friends and other independent witnesses unanimously
testified  that they never observed any delusional behavior  from
Joel  Kottke  confirms that Enderss insane  delusions  claim  was
extremely tenuous.  Roxanne Olson testified that Joel Kottke  was
truly  coherent  a few days before he died.  Linda  Plettner  and
Peggy  Bell  testified  that they never observed  any  delusional
behavior  from  Joel  Kottke.   Dr. John  Wrigley,  Joel  Kottkes
urologist,  testified that he never saw any  evidence  of  insane
delusions.   Max Gruenberg, Jr., an attorney initially approached
by  Kottke  about  drafting  a new will,  testified  that  Kottke
appeared alert and that he wanted to have a will done.
          Although  we had not yet addressed the issue of  insane
delusions  when Enders challenged the 1997 will,31 she would  not
have   had  reasonably  arguable  grounds  to  pursue  an  insane
delusions claim under any standard we might have adopted.32
          2.   The  superior courts finding that Enders acted out
               of   animosity   and  disdain  was   not   clearly
               erroneous.
               
          The  superior courts finding that Enders did  not  have
reasonably  arguable grounds to challenge the 1997  will  implied
that she did not act with an intent to benefit the successors and
therefore lacked good faith.  For Enders to have prevailed, there
must  have  been  sufficient evidence to overcome  the  resulting
presumption.
          The  superior  court, however, found that Enderss  real
motivation  was the personal animosity and disdain  she  and  her
family had for Connie Parker.  Enders argues that she had no such
ulterior  motive and sincerely expected and hoped to  prevail  on
the  merits.   The superior court also found that Enders  brought
and  pursued  the will contest for her own personal  benefit  and
self-interest.   We  need  not address this  finding  because  we
conclude  that the superior court did not clearly err in  finding
that  Enders  acted out of animosity and disdain for Parker;  she
therefore  failed to rebut the implication that she did  not  act
with the intent to benefit the successors of the 1983 will.
          The  superior  court observed that Ms. Enders  and  her
family  were outspoken in their animosity towards Connie  Parker.
This  animosity was clear from Ms. Enders and her witnesses  from
their  demeanor  on the witness stand.  Evidence supported  these
findings.  For example, Greg Enders, Iriss son, testified that he
thought Connie Parker was an intrusive person and a decrepit  old
woman.  He felt that Connie Parker was just unreal.  He testified
that he was almost in shock just to even be in the same room with
the  woman  [Connie] and that he was offended by her even  before
her  relationship with Joel Kottke.  Iris Enders  testified  that
she felt Parker was abrasive with her and that she didnt have  to
like  [Parker]  even though she could accept  Joels  decision  to
remain with her.  Enders also testified that, because of the type
of  person  Parker was, she did not think Joel would have  stayed
with Parker if Parker was not providing sex to him.
          The  superior court also noted that Enders called  many
witnesses at trial to testify that [] Connie Parker was not  good
enough for Joel Kottke, that he had no affection for Parker,  and
that  their  relationship was a travesty.   For  example,  Eunice
Kottke   testified  that  she  thought  that  Connie  and   Joels
relationship was not up to my [Eunices] standards.  Leonard Klima
testified  that Parker couldnt carry a conversation  with  [Joel]
because  she  wasnt up to his intellect.  Greg  Enders  testified
that he thought Joel and Connies relationship was a joke and that
she  was  forcing herself on [Joel] all the time.   The  superior
court  rejected  this  testimony as  highly  inaccurate,  instead
finding  that  Joel  Kottke  and Connie  Parker  lived  and  aged
together   and   enjoyed   a   loving  and   committed   intimate
relationship.
          The  superior  court  noted that several  of  Joel  and
Connies  close  friends testified that the couple  had  a  loving
respectful  relationship.  The superior court  found  that  these
friends,  as  disinterested witnesses, [were] highly  credible.33
Robert  Dixon testified that Joel and Connie treated  each  other
with  respect  and that they had a loving relationship.   Maureen
Morgan testified that Joel and Connie seemed compatible and happy
and  that  they treated each other with respect, compassion,  and
          affection.  Peggy Burgin testified that Joel and Connie seemed
like  a very happy couple.  The superior court found that Enderss
strategy  of  mischaracteriz[ing] Joel and  Connies  relationship
illustrated  her  and  her familys complete inability  to  accept
Connie  Parker and the intimate and important role she played  in
Joels life.
          There  was  some  testimony that tended  to  show  that
Enders  challenged  the 1997 will because  she  believed  it  was
invalid.  For example, Enders testified that [t]his case is about
[Joels]  will being upheld, his original will, which is  what  he
really,  truly  wanted.  When asked about her  ultimate  goal  in
litigating the case, Enders responded:
          The  ultimate  goal  is  that  Connie  Parker
          withheld  from the family his  illness.   She
          let  Joel believe that we were not there  for
          him,  that  we  did  not care  for  him,  she
          wouldnt  tell us when he was sick, she  didnt
          tell us who his doctors were, she wouldnt let
          us  speak to him on the phone, she wanted  to
          get a restraining order against me to keep me
          from  coming  up to the hospital,  she  didnt
          call me when he went to the hospital.
          
On  the one hand, this testimony indicates that Enders challenged
the will because she believed that Parker unduly influenced Joels
decision  to  disinherit  his family by obstructing  the  familys
access  to  Joel.   On  the other hand, much  of  this  testimony
relates  to  Enderss dissatisfaction with the way Parker  treated
Enders  and  her family during the late stages of Joels  illness,
after he had executed the 1997 will.34
          In  the  end, the superior court found that Enders  was
motivated  by  animosity  toward Parker and  by  Enderss  familys
refusal to respect and accept Mr. Kottkes decision about what  he
wanted  to  do  in the will.  It made this finding after  hearing
testimony for several days and observing the demeanor of numerous
witnesses.  Because there was sufficient evidence that Enders and
her  family intensely disliked Connie Parker, we cannot say  that
we are left with a definite and firm conviction that the superior
court erred in finding that Enderss real motivation was animosity
and disdain for Connie Parker.
          3.    The  superior  courts denial of  prevailing-party
fees  to  Parker                and the fact that sanctions  were
not  imposed against Enderss             attorney have no bearing
on  the  superior courts finding that               Enders lacked
good faith.

          Enders  claims that because the superior court did  not
order  her to pay Parkers attorneys fees under Alaska Civil  Rule
82,  the  superior  court must have viewed  bad  faith  under  AS
13.16.435 as something less than bad faith under Rule 82.  Enders
views  this  distinction as having no basis in  law  because  bad
faith  is  bad  faith.  But the superior courts decision  not  to
grant Parkers Rule 82 motion had nothing to do with good faith or
bad  faith; in denying the motion, the court explained that  Rule
          82 applies [e]xcept as otherwise provided by law35 and that AS
13.16.435  provides  a specific statutory scheme  for  costs  and
fees.36  In other words, AS 13.16.435 governs here.
          We   also   reject  Enderss  argument   that   it   was
inconsistent  for the superior court to find that  Enders  lacked
good  faith but not to sanction her attorney for violating Alaska
Civil Rule 11.37  Even if Enderss attorney had violated Rule  11,
sanctions  are  not mandatory38 and a trial courts imposition  or
non-imposition of sanctions [is] subject to review only for abuse
of  discretion.39  We express no opinion about whether  sanctions
would  have been appropriate here and note only that the  absence
of  sanctions  against Enderss attorney does not  mean  that  the
superior  court somehow erred in finding that Enders lacked  good
faith.
     E.    Declining  To Hold an Evidentiary Hearing  or  Address
Post-Trial           Affidavits on Remand Was  Not  an  Abuse  of
Discretion.

          Enders argues that the superior court erred by ignoring
post-trial  affidavits in which Enders and her  counsel  asserted
that  Enders  had  acted in good faith. The superior  court  also
declined  to  hold  an  evidentiary hearing.   Enders  relies  on
Luedtke  v. Nabors Alaska Drilling, Inc., in which we  held  that
Luedtke  should  have been given the opportunity to  contest  the
[Civil  Rule  11] sanction award at a hearing, and  the  superior
court  should  have  indicated  its  reasons  for  imposing   the
sanction.40  Even if we assume that Luedtke is analogous,  it  is
inapposite because the superior court conducted a hearing  during
which Enders had the opportunity to contest the good faith issue.
The   superior  court  also  provided  a  detailed  and  thorough
explanation for its findings.
          Moreover,  we  have held that  a remand for  additional
findings does not [ordinarily] obligate the trial court  to  hear
new evidence 41 and that  [w]e will reverse a trial courts refusal
to   receive  new  evidence  on  remand  only  when  the  refusal
constitutes  an  abuse of discretion, unless  we  have  expressly
called for a new trial or evidentiary hearing. 42  In this  case,
we remanded for specific findings as to whether Enders prosecuted
the  will contest in good faith and a redetermination of  the  AS
13.16.435  claim.43   We did not mandate an evidentiary  hearing.
The superior court therefore had discretion to decide whether  to
conduct  an evidentiary hearing or accept additional evidence  on
the question of good faith.44
          The  superior  court stated that it did  not  initially
make  an  explicit finding of bad faith because it hoped that  by
making implicit findings, Ms. Enders would retain her dignity and
that  the court would not have to explicitly find bad faith.   We
observed in Enders that the issue of good faith had already  been
extensively  litigated.45  Following remand, the  superior  court
reviewed  the trial transcript, held oral argument, and  accepted
briefs  and  additional materials from the parties.  Given  these
circumstances, it was not an abuse of discretion for the superior
court  to  not hold an evidentiary hearing and to not  explicitly
address in its findings the affidavits submitted by Enders.46
     F.     The   Superior   Court  Complied  with   Our   Remand
Instructions.
          Enders argues that in Enders v. Parker we ordered Judge
Tan  to  analyze evidence he had previously ignored and  that  he
simply cited evidence that we had already ruled did not amount to
bad  faith.  She compares the superior courts decision  with  the
actions of the judge in Davis v. Hallett.47  We there reversed an
award of full attorneys fees and remanded for consideration of  a
partially  compensatory award.48  The superior  court  on  remand
reduced  the  previous award of $11,519.15 by only $19.15.49   We
held  that this violated both the letter and spirit of our  prior
decision and that it was an apparent flouting of our mandate.50
          We  clearly stated in Enders that we were remanding for
explicit  findings on the question of good faith.51  We  did  not
          hold or suggest that the evidence cited by the superior court in
its  first set of findings could not establish bad faith or  that
the superior court had to examine other evidence.52  We requested
specific  findings because we were unable to say that  the  court
would  have explicitly found a lack of good faith had it  applied
the  appropriate legal standard.53  The superior court  therefore
complied  with our instructions when it specifically  found  that
Enders  lacked  good  faith.   Nor does  the  record  permit  any
reasonable  inference that the superior court was biased  against
Enders,  as  she  seems to imply.  Accordingly, Enderss  argument
that  the  superior court flouted our mandate is  wholly  without
merit.
IV.  CONCLUSION
          We   therefore  AFFIRM  the  superior  courts  decision
denying appellant an award under AS 13.16.435.
_______________________________
     1     We set out the facts of this case in greater detail in
Enders  v. Parker, 66 P.3d 11 (Alaska 2003), and In re Estate  of
Kottke, 6 P.3d 243 (Alaska 2000).

     2    Estate of Kottke, 6 P.3d at 247.

     3    Enders, 66 P.3d at 13.

     4    Id.

     5     Catalina  Yachts v. Pierce, 105 P.3d 125, 128  (Alaska
2005).

     6    McComas v. Kirn, 105 P.3d 1130, 1132 (Alaska 2005).

     7      AS   13.16.435  discusses  recovery  of  a   personal
representatives expenses in estate litigation and 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.
          
     8    Enders v. Parker, 66 P.3d 11, 16-17 (Alaska 2003).

     9    Id. at 16.

     10     Id.  at 17 (emphasis added).  We note that the  legal
fees incurred in this case unfortunately threaten to exhaust  the
proceeds  of  Joel Kottkes estate.  We have no occasion  here  to
consider  whether  a  representative owes duties  to  inform  the
successors  of  a disputed will of the expected litigation  costs
relative  to  the  size  of  the estate,  or  to  what  extent  a
representative may exhaust the estate in an attempt to uphold the
will.

     11    Id. (emphasis added).

     12     See, e.g., Alaska Ctr. for Envt v. Rue, 95 P.3d  924,
926  (Alaska  2004)  (We review the superior courts  decision  on
summary judgment de novo.).

     13    Enders, 66 P.3d at 17.

     14    Id.

     15     The  statutes  are the same, except that  Alaska  has
incorporated gender-neutral language in its version  of  UPC   3-
720.

     16     In  re  Estate of Odineal, 368 N.W.2d 800, 803  (Neb.
1985) (citation omitted).

     17    Enders, 66 P.3d at 17.

     18    Courts in other jurisdictions that have adopted UPC  3-
720 similarly apply the clearly erroneous standard when reviewing
a  finding of good faith.  See In re Estate of McMurchie, 89 P.3d
18, 22 (Mont. 2004); In re Estate of Watkins, 501 N.W.2d 292, 297
(Neb.  1993);  In re Estate of Hass, 643 N.W.2d  713,  720  (N.D.
2002).  Other courts review for abuse of discretion.  See  In  re
Estate  of  Herbert, 979 P.2d 1133, 1135 (Haw. 1999);  Matter  of
Eliasens Estate, 668 P.2d 110, 117 (Idaho 1983).

     19    See Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).  We
will  find  an abuse of discretion only if, based on a review  of
the whole record, we are left with a definite and firm conviction
that  a  mistake  has been made.  Alden H. v.  State,  Office  of
Childrens Servs., 108 P.3d 224, 228 (Alaska 2005).

     20     Fed.  R.  Civ. P. 11(b)(3).  Federal  Rule  of  Civil
Procedure  11  differs from Alaskas corresponding rule.   Federal
Rule 11 provides in relevant part:

          By   presenting  to  the  court  (whether  by
          signing,   filing,   submitting,   or   later
          advocating)  a pleading, written  motion,  or
          other  paper,  an  attorney or  unrepresented
          party  is certifying that to the best of  the
          persons  knowledge, information, and  belief,
          formed after an inquiry reasonable under  the
          circumstances,  .  . . the claims,  defenses,
          and   other  legal  contentions  therein  are
          warranted   by   existing   law   or   by   a
          nonfrivolous  argument  for  the   extension,
          modification, or reversal of existing law  or
          the establishment of new law . . . [and that]
          the allegations and other factual contentions
          have  evidentiary support or, if specifically
          so identified, are likely to have evidentiary
          support  after  a reasonable opportunity  for
          further investigation or discovery . . . .
          
(Emphasis added.)

          Alaska Civil Rule 11 provides in relevant part:

          The   signature  of  an  attorney  or   party
          constitutes a certificate by the signer  that
          the signer has read the pleading, motion,  or
          other  paper; that to the best of the signers
          knowledge,  information,  and  belief  formed
          after  reasonable inquiry it is well grounded
          in fact and is warranted by existing law or a
          good   faith   argument  for  the  extension,
          modification,   or   reversal   of   existing
          law . . . .
          
(Emphasis added.)

          Enders relies on the evidentiary support language found
in  the federal rule, but not in the Alaska rule, in arguing that
reasonably  arguable  grounds  existed  if  a  claim  would  have
survived summary judgment.  Enders also claims that because  both
AS  13.16.435  and Alaska Civil Rule 11 contain the  phrase  good
faith,  the  superior court erred by denying  her  statutory  fee
application  even though it did not sanction her  attorney  under
Alaska  Civil  Rule  11.   We discuss  this  contention  in  Part
III.D.3.

     21     Fed. R. Civ. P. 11(b) advisory committees note  (1993
amend.).

     22     Anderson  v. Liberty Lobby, Inc., 477 U.S.  242,  255
(1986).

     23     10A  Wright,  Miller  & Kane,  Federal  Practice  and
Procedure: Civil  2727 (3d ed. 1998).  It is at least as easy  to
defeat  a  summary judgment motion in Alaska as it is  under  the
federal  rules.  See, e.g., Alakayak v. British Columbia Packers,
Ltd.,  48  P.3d  432, 449 (Alaska 2002) (stating non-movant  must
present  enough  evidence  to reasonably  tend[]  to  dispute  or
contradict  the  evidence  presented by  the  [movant])  (quoting
Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990)).

     24     10A  Wright,  Miller  & Kane,  Federal  Practice  and
Procedure: Civil  2712 (3d ed. 1998).

     25    Id. at  2725.

     26     Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187,
1194  (5th  Cir. 1996).  See also Hartmarx Corp. v.  Abboud,  326
F.3d  862,  867 (7th Cir. 2003) ([Rule 11] sanctions  are  to  be
imposed sparingly, as they can have significant impact beyond the
merits  of the individual case and can affect the reputation  and
creativity of counsel.) (internal quotation marks omitted).

     27    This observation relates to Enderss suggestion that one
of  the  intended purposes of AS 13.16.435 is to encourage [w]ill
contests  and that disallowing an AS 13.16.435 claim by a  losing
[w]ill  contestant  would have a chilling effect.   AS  13.16.435
encourages good faith will contests in part, to discover and make
effective the intent of a decedent.  Enders, 66 P.3d at  15  n.14
(emphasis added) (quoting AS 13.06.010(b)(2)).  Denying a request
for  fees  from a personal representative who acts in bad  faith,
implied by a lack of reasonably arguable grounds, does not  chill
this purpose.

     28    Enderss briefs and citations to supplemental authority
point to cases that supposedly do not support the superior courts
decision.   She places particular emphasis on Crittell v.  Bingo,
83 P.3d 532 (Alaska 2004), and Alaska Wildlife Alliance v. State,
74 P.3d 201 (Alaska 2003).  We held in Crittell that AS 13.16.435
did  not  apply to the interested parties [Bingo et al.]  request
for  fees,  since  they  did not bring  their  case  as  personal
representatives  and  did not claim to be  persons  nominated  as
personal  representatives.  83 P.3d at 536.  Crittell claimed  to
be a personal representative, but we affirmed the superior courts
finding  that he had acted fraudulently in claiming to  represent
the  estate  under  this  will  and  that  the  will  itself  was
fraudulent.  Id.  Thus, Crittell never addressed good faith under
AS  13.16.435.  In Alaska Wildlife Alliance, we reversed an award
of  fees  against a public interest litigant under  Alaska  Civil
Rule  82  for  bringing claims in bad faith because we  concluded
that the claims were reasonably debatable.  74 P.3d at 208.  Good
faith under AS 13.16.435 was therefore not at issue.

          Most  of  the  other  cases cited by  Enders  similarly
involved non-fiduciaries and disputes about whether they acted in
good  faith.   See  Hammond v. State,  Dept  of  Transp.  &  Pub.
Facilities,  107  P.3d  871 (Alaska 2005); Alderman  v.  Iditarod
Props.,  Inc.,  104  P.3d  136 (Alaska 2004);  In  re  Estate  of
Bickling,  2004 WL 1813291, *15 (Del. Ch. 2004); In re Estate  of
Delaney, 819 A.2d 968, 977-78 & 998-99 (D.C. 2003); In re  Estate
of  Marquis,  822  A.2d 1153, 1159 (Me. 2003); In  re  Estate  of
Fields, 46 P.3d 176, 177 (Okla. Civ. App. 2001); Estate of  Davis
v.  Cook,  9 S.W.3d 288, 291-92 & 297-98 (Tex. App. 1999).   They
therefore  do  not apply to this case, because Enderss  fiduciary
duty  required  her  to  act  with  the  intent  to  benefit  the
successors.   The  superior court did in fact find  that  Enderss
actions  were intentional, so Martin v. Dieringer, 108 P.3d  234,
240 (Alaska 2005), is inapposite.

          Enders also cites In re Estate of Falck, 665 N.W.2d 440
(Iowa  App. 2003) (table), and In re Estate of Kessler, 977  P.2d
591 (Wash. App. 1999).  Iowas good faith standard is an objective
one,  not  a reference to the personal representatives reasonable
belief.   Matter  of Estate of Olson, 479 N.W.2d 610,  614  (Iowa
App.  1991).   Because  we  look to the personal  representatives
subjective intent, Falck does not apply.  Washington law provides
that an unsuccessful will contestant may be assessed costs unless
it  appears that the contestant acted with probable cause and  in
good  faith.  Revised Code of Washington 11.24.050.  At issue  in
Kessler  was whether the contestants had raised debatable issues,
not  whether  they  acted  in  good  faith.   977  P.2d  at  605.
Accordingly, Kessler has no bearing on the present case.

          Finally,  Enders refers to In re Estate of Johnson,  __
P.3d  __ , Op. No. 5928, 2005 WL 1793123 (Alaska, July 29, 2005),
in  support  of  her  arguments that (1)  we  should  review  the
superior  courts finding de novo; (2) the superior court  ignored
evidence  and failed to conduct an evidentiary hearing or  permit
discovery;  (3) Parker argues for a finding of bad faith  against
Enders  to  protect Parkers attorneys fees; (4) Parker mismanaged
the Kottke estate by refus[ing] to countenance the possibility of
any  settlement;  and  (5) we should not  remand  this  case  for
further  review  of  the good faith question but  should  instead
reverse  and award full fees to Enders.  Having considered  these
contentions, we conclude that Johnson does not affect the outcome
of this case.

     29     Helgason v. Merriman, 36 P.3d 703, 708 (Alaska  2001)
(quoting  Paskvan v. Mesich, 455 P.2d 229, 232-33 (Alaska  1969),
and In re Estate of Kraft, 374 P.2d 413, 417 (Alaska 1962)).

     30    Burkes investigation was not an extensive one, however.
He  testified that his interview with Joel probably  was  in  the
area of 15 minutes.

     31    We first discussed a claim of insane delusions in In re
Estate of Kottke, 6 P.3d 243 (Alaska 2000).  We held that

          an  insane  delusion is a  belief  which  has
          absolutely  no foundation in fact,  and  even
          slight  evidence which provides a  basis  for
          the   belief  negates  the  existence  of   a
          delusion.  Beliefs based on fact but  derived
          from  faulty  logic or distorted  by  emotion
          will not support a claim of insane delusions.
          Thus,  the  belief must be totally devoid  of
          reason  and  must lack even a  glimmer  of  a
          factual basis.
          
Id.  at 246 (quoting Dillon v. Phillips, 756 P.2d 1278, 1279 (Or.
App. 1988)) (citation omitted).

     32    See 1 William J. Bowe & Douglas H. Parker, Page on the
Law  of  Wills   12.30, at 718-20 (rev. ed. 1960), 718-20  (2003)
(listing  various  definitions  courts  have  applied  to  insane
delusions); 12.35, at 730 (observing that if a belief is based on
some  evidence, though possibly insufficient, it does not  amount
to an insane delusion).

     33     Witness credibility decisions are left to  the  trial
court.   Barios v. Brooks Range Supply, Inc., 26 P.3d 1082,  1087
(Alaska 2001).

     34     Joel  executed  his  last  will  on  June  10,  1997.
According  to his medical records, Joel was feeling  well  as  of
June  16,  1997.  He was hospitalized for four days in late  July
after  suffering  a small stroke.  Joel was also hospitalized  in
early   September,  during  which  his  progressive  cancer   was
described  as  approaching end-stage.  Joel was admitted  to  the
hospital in late September for the final time; he died on October
1.

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

     36    We affirmed this analysis in Enders v. Parker, holding
that  Civil  Rule 82 does not apply when expenses are recoverable
under AS 13.16.435.  66 P.3d at 17.

     37     See supra note 20 for the relevant text of Alaska  R.
Civ. P. 11.  Unlike its federal counterpart, Alaska Civil Rule 11
does  not provide for sanctions.  Instead, Alaska Civil  Rule  95
states  that  a court may withhold or assess costs  or  attorneys
fees for any infraction of these rules, including Civil Rule 11.

     38     [T]he court may withhold or assess costs or attorneys
fees  as the circumstances of the case and discouragement of like
conduct  in the future may require; and such costs and  attorneys
fees  may be imposed upon offending attorneys or parties.  Alaska
R. Civ. P. 95(a) (emphasis added).

     39     Alaska  Fed. Sav. & Loan Assn of Juneau v. Bernhardt,
794 P.2d 579, 583 (Alaska 1990); see also In re Schmidt, 114 P.3d
816,  819  (Alaska 2005) (We review awards of attorneys fees  and
sanctions for abuse of discretion.).

     40    Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220,
1227 (Alaska 1992).

     41    R.J.M. v. State, Dept of Health & Soc. Servs., 973 P.2d
79, 86 (Alaska 1999) (quoting Murray v. Murray, 856 P.2d 463, 466
(Alaska 1993)).

     42    Id.

     43    Enders, 66 P.3d at 17.

     44     [A]  trial court has no authority to deviate  from  a
specific  mandate of the supreme court but may take  actions  not
inconsistent  with [the supreme courts] decision.    R.J.M.,  973
P.2d  at  86 (quoting A.M. v. State, 945 P.2d 296, 300-01 (Alaska
1997)).

     45    Enders, 66 P.3d at 16.

     46    Enders also cites Hammond v. State, Dept of Transp.  &
Pub.  Facilities, 107 P.3d 871 (Alaska 2005), in support  of  her
argument  that  the superior court was required to  consider  the
affidavits.   Hammond held that an arbitration decision  did  not
preclude statutory claims from being pursued in court so long  as
the  statutory claims were not clearly and unmistakably submitted
to  arbitration.   Id.  at 872.  There  is  no  question  of  res
judicata here; Hammond is not applicable.

     47    Davis v. Hallett, 630 P.2d 1 (Alaska 1981).

     48    Id. at 2.

     49    Id.

     50    Id.

     51    Enders, 66 P.3d at 16, 17.

     52    Id.

     53    Id. at 16.