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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ware v. Ware (06/01/2007) sp-6130

Ware v. Ware (06/01/2007) sp-6130, 161 P3d 1168

     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

SUSAN J. WARE, )
) Supreme Court No. S- 11687
Appellant, )
) Superior Court No.
v. ) 3KN-03-710 CI
)
BRANDIE W. WARE, ) O P I N I O N
)
Appellee. ) No. 6130 - June 1, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:   Susan   J.   Ware,   pro   se,
          Anchorage.  Tucker S. Thompson, Soldotna, for
          Appellee.

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

          CARPENETI, Justice.
          FABE, Justice, with whom BRYNER, Chief Justice, joins,
          dissenting in part.

I.   INTRODUCTION
          I.   In this intra-family dispute, two siblings vie for
control of the family homestead.   Susan Ware, a pro se litigant,
sued  her  brother Brandie Ware on the theory that he  unlawfully
exerted  his influence and will over their eighty-seven year  old
mother,  Margaret, and convinced Margaret to give him the  family
homestead.   Brandie moved for summary judgment, contending  that
Susan   had  not  produced  any  evidence  beyond  her   personal
conviction that Margaret would not have given the land to Brandie
unless  she  had  been  unduly influenced.   The  superior  court
granted  Brandies motion for summary judgment and awarded Brandie
attorneys fees in excess of the statutory minimum.  Because Susan
has  not provided any evidentiary support for her claim of  undue
influence,  we  affirm  the  superior  courts  grant  of  summary
judgment.   We also affirm the superior courts award of  enhanced
attorneys   fees  because  the  award  was  within   the   courts
discretion.
II.  FACTS AND PROCEEDINGS
     A.   Facts
            In 1998 John Wesley Ware and his wife Margaret placed
their  homestead in a revocable living trust known  as  the  Ware
Family  Trust.  The homestead encompasses several acres of  land,
five houses, and multiple unimproved lots on the Kenai Peninsula.
John  passed  away  in  April 1999.  Upon Johns  death,  Margaret
became  owner  of  the  family homestead.  In  March  2000,  when
Margaret   was  eighty-three  years  old,  she  transferred   the
homestead  and  other  real and personal  property  into  another
revocable  living  trust  entitled the  Margaret  Ware  Revocable
Living  Trust  (Trust).1  Margaret was  named  both  grantor  and
trustee.   Her  four children  Roger, Brandie, Susan,  and  Lance
were the named beneficiaries.  She had previously executed a will
in  which she provided that if her husband were to die before she
did, the home would go to her four children.
          The  terms  of  the trust divided the  property  fairly
evenly.  Brandie, Roger, and Lance all own homes on the property,
and  under the terms of the trust they would individually acquire
the  land  on  which  their homes sit.  Susan would  acquire  the
grantors  interest in the family home, as well  as  a  Civil  War
powder  horn.  Roger would receive the family jewelry and Brandie
would get another powder horn.
          In February 2003, however, Margaret, in her capacity as
trustee  of the Trust, conveyed the entire homestead property  to
Brandie  for ten dollars.  Margaret signed the statutory warranty
deed  and  recorded it.  Upon receiving title  to  the  property,
Brandie quit-claimed his mother a life estate in the property.
          Margaret  sent a notarized letter to her son  Lance  in
which she explained her decision to sell the property to Brandie:
          Lance,
          You  must  contact Brandie to converse  about
          any  property.  My entire homestead  property
          was  sold  to  Brandie Ware.  I am  tired  of
          being  bothered by you scaring me into saying
          things like the land is mine.  I told you  on
          the telephone you should contact Brandie.   I
          want  you  to  know I sold all  the  land  to
          Brandie.  No more stress from you.
          Margaret Ware
     B.   Proceedings
          After  Margaret  deeded the property to Brandie,  Susan
sued  Brandie on the grounds that he had exerted undue  influence
over  their mother, and that he had been unjustly enriched  as  a
result.   Brandie  denied the allegations and counter-claimed  in
order to quiet title.
          Susan moved for an injunction in April 2004, requesting
that  the  court  prevent Brandie from taking any  more  actions,
          including property transfers, of the Ware Homestead, during the
pendency  of this matter, without notifying the Court, Ms.  Ware,
and  any interested parties.  The court denied Susans motion  for
injunction  because it is not clear to the court what  activities
Plaintiff wishes to prohibit or require of Defendant, and because
Plaintiff does not clearly indicate what sort of irreparable harm
she  believes  she  will suffer without entry  of  a  preliminary
injunction.   However, the court invited  Susan  to  file  a  new
motion specifically addressing these issues.
          In  July  2004  Brandie  moved  for  summary  judgment,
arguing  that Susan had alleged no facts to support her claim  of
undue influence.  Rather, he argued, [s]he has simply opined that
she  doesnt  believe that her mother would deed the  property  to
Brandie unless he unduly influenced her.  Brandie cited Margarets
deposition,  in which Margaret testified that she  had  not  been
pressured into transferring the deed and that it was her idea  to
transfer  title  to Brandie.  Susan replied, The  fact  that  the
parties mother turned over everything to one child in the absence
of  a  satisfactory explanation sufficiently  stands  out  as  to
present a prima facie case of undue influence.  The court granted
Brandies motion for summary judgment, finding no genuine issue of
material  fact regarding Margarets competence or undue influence,
and dismissed Susans complaint with prejudice.
          In  addition,  the court ordered Susan to pay  Brandies
attorneys  fees  pursuant  to Alaska  Civil  Rule  82,  including
enhanced fees under Rule 82(b)(3).
          Susan  appeals both the summary judgment  decision  and
the award of augmented attorneys fees.
III. STANDARD OF REVIEW
          We review a grant of summary judgment de novo, applying
our  independent  judgment2 and adopting the rule  that  is  most
persuasive  in light of precedent, reason, and policy.3   Summary
judgment  is  affirmed if the evidence in  the  record  fails  to
disclose a genuine issue of material fact and the moving party is
entitled  to  judgment  as  a matter  of  law.4   All  reasonable
inferences of fact are drawn in favor of the nonmoving party  and
against  the moving party.5  The moving party has the  burden  of
proving the absence of issues of material fact.6  Once the moving
party  has made a prima facie showing of the absence of a genuine
issue of material fact, the burden shifts to the non-moving party
to  show  that  it  can  produce admissible  evidence  reasonably
tending to dispute the movants evidence.7
          We  review an award of attorneys fees under an abuse of
discretion  standard.8  The trial court has broad  discretion  in
awarding  attorneys fees; this court will not find  an  abuse  of
discretion  absent  a  showing  that  the  award  was  arbitrary,
capricious,  manifestly unreasonable, or  stemmed  from  improper
motive.9
IV.  DISCUSSION
     A.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment to Brandie on Susans Undue Influence Claim.
          
          1.   Inter vivos transfers of property from parents  to
               children are presumptively gifts.
               
            While  we  have not previously addressed inter  vivos
transfers  of  property from parents to children, a  considerable
body  of  precedent . . . holds that an unexplained  transfer  of
property   from  a  parent  to  a  child  raises   a   rebuttable
presumption, or inference, that a gift was intended.10  We  adopt
this  majority  view that transfers of property,  including  real
property,  money,  and cash advances, from parent  to  child  are
presumptively gifts.
          2.   An inter vivos gift may be void if the grantor was
               unduly  influenced or lacked capacity to make  the
               gift.
               
          A  gift from parent to child may be void if obtained by
improper   means  or  undue  influence.11   When  examining   the
relationship  between  parent  and  child  for  proof  of   undue
influence,  we  will consider the effect of the  influence  which
was,  in  fact, exerted upon the mind of the [donor], considering
his  physical  and mental condition, the person by  whom  it  was
exerted, the time and place and all the surrounding circumstances
. . . .12  We have previously held, in the context of testamentary
gifts,  that a party challenging the validity of a gift  under  a
theory  of  undue  influence must produce proof  of  coercion  or
duress  which would act as a dominating power over the  mind  and
act   of  a  [donor].13   Additionally,  we  have  held  that   a
testamentary  gift may be void if the grantor lacked  the  mental
capacity  to understand the nature and extent of the gift  he  or
she is making.14  We see no reason not to apply this reasoning to
an inter vivos gift such as the one in this case.
          In  the present case, Margaret gave Brandie the land in
exchange for ten dollars.  The first issue we must resolve, then,
is  whether Margaret intended to gift the land to Brandie, or  to
sell  it.   To  determine  whether an individual  has  gratuitous
intent  we  ask  whether  the parties had a  close  relationship;
whether the plaintiff failed to request compensation; and whether
the  services performed were the sort one would expect to receive
as a mere gratuity.15  Margaret and Brandie share a close mother-
son  relationship.   She  testified at her  deposition  that  she
decided,  on  her own, to transfer the homestead to Brandie,  and
that  she wanted him to keep it.  She stated that even if Brandie
were  willing  to sign back the deed to her, she  would  decline.
These facts indicate that Margarets behavior meets the tests  for
gratuitous intent.
          The  only  contrary  indication is  that  Brandie  paid
Margaret  ten dollars for the property and Margaret  referred  to
having  sold the property to Brandie.  While the purpose of  this
payment is not clear, the amount is so nominal that it should not
invalidate the gratuitous nature of Margarets act.
          Based  on this analysis, the transfer from Margaret  to
Brandie is presumptively a gift.  In order to challenge the gift,
Susan  bears the burden of proving that Brandie unduly influenced
Margaret  to  deed him the property.  She has attempted  to  meet
this  burden  by  arguing  (1)  that  Brandie  unduly  influenced
Margaret  by coercing her into giving him the property; (2)  that
Brandie  breached  a  fiduciary duty to Margaret;  and  (3)  that
          Margaret lacked the mental capacity to make the gift.  We analyze
each argument in turn.
               a.   Susan  failed to meet her burden of producing
                    evidence  that Brandie coerced Margaret  into
                    giving him the property.
                    
          The  party challenging a gift has the burden of showing
that  the  grantor was virtually compelled to make a [gift]  that
[she]  would not have made if left to the free exercise of  [her]
own judgment and wishes.16
          Margaret robustly denied that she was unduly influenced
by  Brandie.  Indeed, she testified that the transfer to  Brandie
had  been  her idea.  Susan concedes that her mother  decided  to
give  the property to Brandie rather than Susan because she  felt
Susan  couldnt take care of the place.  While Susan may  disagree
with  her  mothers assessments that Susan is not hardy enough  to
put up with the hardships of living [as Margaret did] with a wood
stove for heat and hot water or that she cannot afford to pay the
taxes  on  the  house,  these facts do  not  show  compulsion  by
Brandie.
          Susan  asserts that Brandie coerced their  mother  into
giving  him the property by convincing her that it was  necessary
in  order  to avoid being placed in a nursing home.  Susans  only
proffered evidence, however, is that Margaret was told  by  Roger
that  Lance wanted to put her in a nursing home.  This convoluted
statement is hardly sufficient to implicate Brandie in  a  scheme
to unduly influence Margaret.
          Thus, even if the facts alleged by Susan are true, they
do not show compulsion by Brandie.
               b.   Susan provided no evidence that Brandie  owed
                    fiduciary duties to their mother.
                    
           Susan  asserts  that  Brandie and  Margaret  shared  a
confidential relationship, and that Brandie used his  power  over
their  elderly  mother to unduly influence her.   A  confidential
relationship  exists  when one imposes a  special  confidence  in
another,  so  that the latter, in equity and good conscience,  is
bound  to  act in good faith and with due regard to the interests
of  the  one  imposing  the  confidence.17   We  have  recognized
confidential or fiduciary relationships between business partners
or  co-owners,  between professionals such as lawyers  and  their
clients, and in relationships involving trusts and guardianships.18
Although the existence of a confidential relationship alone  does
not create a presumption of undue influence, when a principal  in
a  confidential  relationship benefits from that relationship,  a
presumption of undue influence arises.19  Accordingly, if Brandie
and Margaret shared a confidential relationship, the transfer  of
property   would  create  a  rebuttable  presumption   of   undue
influence.
          However,  there  is  no evidence of a  confidential  or
fiduciary  relationship between Brandie and Margaret.   The  mere
fact  of a parent-child relationship does not necessarily  create
fiduciary duties.20  In the case of Salvner v. Salvner,21 a father
who  wanted to recover property he gave to his children  asserted
          that he had a fiduciary relationship with them.22  The Michigan
Supreme  Court rejected this claim, explaining that although  the
children assisted their father in many ways, the record falls far
short  of  establishing that [the father] was governed  by  their
advice  or  that he depended on them in the making  of  decisions
concerning  his  business  affairs, or  otherwise.23   The  court
concluded   that   the  father,  notwithstanding   his   physical
condition, was able to determine for himself what he wished to do
and  to  refuse  to  act  against  his  own  inclinations.   What
defendants  did to assist him amounted to no more than  would  be
prompted normally by the existing relationship.24
          Similarly,  Brandies filial relationship with  Margaret
does  not create any inherent fiduciary duties.  Susan failed  to
provide  evidence  that  Margaret was controlled  by  Brandie  or
depended  on  Brandie  in  making  business  decisions.   Indeed,
Margaret  asserted  in  her deposition  that  she  made  her  own
decisions regarding the property, without advice from any of  the
children.   While  the record shows evidence of  Brandie  helping
Margaret by checking her oil, cutting wood, and purchasing a  new
washing  machine  for her, these activities, like  those  of  the
children in Salvner, do not change the relationship from  parent-
child  to  that  of  a  fiduciary.  There is  no  evidence  of  a
confidential relationship in this case.
          Susan  relies on a Third Circuit decision, Francois  v.
Francois,25  to support her assertion that Brandie owes  Margaret
confidential  duties, but that case is of no assistance  to  her.
In  Francois v. Francois a husband claimed to have been defrauded
by  his wife.  Although the court evaluated the husbands claim of
unjust  enrichment, it noted that marriage does not automatically
give   rise   to  a  confidential  relationship.26    Rather,   a
confidential relationship arises when one party places confidence
in  the  other with a resulting superiority and influence on  the
other side.27
          Susan  has  offered  no evidence that  Brandie  held  a
superior,  influential position with their  mother.   She  simply
states  that  Brandie benefitted handsomely from his relationship
with  his  mother to the detriment of her and his three siblings.
This  assertion does not prove a confidential relationship.   The
superior  court did not err in finding that no issue of  material
fact  existed with regard to a confidential relationship  between
Brandie and Margaret.
               c.   Susan   failed   to  provide  evidence   that
                    Margaret lacked the mental capacity  to  make
                    the gift.
                    
          Testamentary   capacity  is  determined  by   analyzing
whether the testator had sufficient mental capacity to understand
(1)  the  nature and extent of her property; (2) the  natural  or
proper  objects  of  her  bounty;  and  (3)  the  nature  of  her
testamentary act.28  In the case of an inter vivos gift,  we  can
similarly  ask  whether  the  donor had  sufficient  capacity  to
understand the nature and extent of her property, the  object  of
her bounty, and the nature of her donative act.
          We  agree  with the superior court that Susan  did  not
          adequately demonstrate that her mother was mentally incompetent.
Margarets  deposition  testimony  shows  no  indication   of   an
inability to understand the nature and extent of her property  or
the donative nature of her act.  Moreover, she testified that she
was  not  influenced by Brandie, and that she acted  of  her  own
accord.   Because  Susan  failed to  provide  evidence  rebutting
Margarets  competence, she did not meet her burden in challenging
the gift.
          While   it  is  unclear  whether  the  superior   court
considered Margarets age in assessing her competence,  we  reject
Susans  assertion that age alone is an indicator of incompetence.
Susan  argues that the superior court abused its discretion  when
it  failed  to  consider  Margarets age  in  determining  whether
Brandie  unduly influenced Margaret. She contends that  Margarets
age  made  her  more  susceptible to Brandies alleged  influence.
Susan  attempts  to  prove undue influence by implying  that  her
mother  is  particularly vulnerable to manipulation,  emphasizing
that Margaret is elderly, widowed, and afraid of being placed  in
a  nursing  home.  Susan argues that, pursuant to the  subjective
standard for undue influence we enunciated in Crittell v.  Bingo,
we  must  consider Margarets age as one of her personal strengths
and  weaknesses in assessing whether she was unduly influenced.29
The superior court was silent regarding Margarets age.
          We  reject  the  assumption that  an  older  person  is
presumptively  incompetent.   Susan  has  provided  no   evidence
showing  that  her mothers age had any impact on her  ability  to
understand the nature and extent of her property or her desire to
allocate it to Brandie.  In fact, Susan does not actually contest
Margarets  competence.   In Brandies request  for  admission,  he
asked Susan:
          Please admit that your mother, Margaret Ware,
          was  mentally  competent and had testamentary
          capacity  at  the time that  she  deeded  the
          homestead real property which is the  subject
          of this action to Brandie Ware.
Susan  answered, Of course my mother was mentally competent,  but
she  was  unduly influenced by my brother.  Susan  also  did  not
challenge  the  introduction  of a  note  from  Margarets  doctor
declaring,  In terms of mental faculties/cognitive function,  Ms.
Margaret Ware . . . is completely competent.
            While Margaret is elderly, Susan has not provided any
evidence  that Margarets age is linked to incapacity  or  special
vulnerability.  Accordingly, we hold that the superior court  did
not  err in granting Brandies motion for summary judgment without
making a specific finding regarding Margarets age and competence.
     B.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment to Brandie on Susans Other Claims.
          
          1.   There  is no evidence that Margaret received legal
               advice from Brandies lawyer, and in the absence of
               a   confidential  relationship  Brandie   is   not
               required  to  provide his mother with  independent
               counsel.
               
          Susan  next  argues that Brandie failed  to  show  that
          Margaret had independent legal representation.  She implies that
Brandies  lawyer  counseled Margaret  to  give  the  property  to
Brandie,  noting  that the quit claim deed  Margaret  signed  was
authored  by Brandies attorney.  However, she provides  no  proof
that  Brandies  attorney acted improperly.  Counsel  for  Brandie
vigorously denies that he gave legal advice to Margaret.
          Susan  also appears to argue that Margaret was required
to  have  independent counsel prior to granting title to Brandie.
Specifically, she states, If Brandies intentions were  altruistic
he  would  have provided his mother with independent  counsel  to
advise her.  Susans contentions are unsupported by Alaska  law.
          Susan  cites  Trujillo v. Padilla,30 a New Mexico  case
setting aside a fraudulent conveyance of community property  from
wife  to  husband.   In  that case the New Mexico  Supreme  Court
considered  the absence of independent counsel as one  factor  in
determining whether a husband defrauded his non-English  speaking
wife  when  he  convinced her to transfer title to  him  the  day
before  he  filed for divorce.31  The court considered the  wifes
inability to read or write English, the husbands conscious effort
to conceal the status and value of the property, and the husbands
threat  to kill the wife if she ever entered the premises.32   In
examining the transfer of property between a married couple under
the   circumstances  described,  the  court   asserted   that   a
presumption is raised against the validity of the transaction  in
which  the  wife  did  not have competent and  independent  legal
advice . . . .33  The New Mexico court justified this assertion by
assuming  a  fiduciary  relationship between  married  persons.34
However,  the  court  did not suggest that,  absent  a  fiduciary
relationship, independent counsel was required to transfer title.
          The  present  case addresses the duties of parents  and
children  rather  than husbands and wives.  Susan  contends  that
Brandie  has  a confidential relationship with their mother,  and
that  he  consequently  was  required to  provide  Margaret  with
counsel.   However,  as  shown above,  the  relationship  between
parent  and  child  does not automatically  result  in  fiduciary
obligations.   Because  Brandie  and  Margaret  did  not  have  a
confidential relationship, Brandie had no obligation  to  provide
Margaret  with  independent  legal  counsel.   Consequently,  the
superior  court did not err in declining to require that  Brandie
provide representation to Margaret.
          2.   Susans unjust enrichment claim lacks merit.
               
          Susan argues that Brandie was unjustly enriched when he
paid  Margaret only ten dollars for property valued at  $300,000.
(Susans  argument  ignores the life estate in the  property  that
Margaret received.)  Unjust enrichment exists where the defendant
received a benefit from the plaintiff and it would be inequitable
for   defendant  to  retain  the  benefit  without   compensating
plaintiff for its value.35  A party seeking to recover for unjust
enrichment  must show (1) a benefit conferred upon the  defendant
by  the  plaintiff;  (2) appreciation by the  defendant  of  such
benefit;  and  (3) acceptance and retention by the  defendant  of
such   benefit  under  such  circumstances  that  it   would   be
inequitable  for  him  to  retain it  without  paying  the  value
          thereof.36
          Susan  has  not conferred a benefit upon Brandie.   She
was  not  involved in the transfer of property from  Margaret  to
Brandie.   Moreover, Susans equitable claim is meritless  because
she  presented no evidence of inequitable conduct (fraud or undue
influence)  to  support  it.   In addition,  a  claim  of  unjust
enrichment   is  not  appropriate  where  a  benefit   is   given
gratuitously,  without  expectation of payment.37   As  discussed
above, Margaret intended that the transfer of title be a gift  to
Brandie.   Consequently,  her claim of  unjust  enrichment  lacks
merit.
          3.   Because  the  prior trusts and will are  amendable
               and  revocable, the superior court did not err  in
               disregarding them.
          Provided  Margaret acted of her own  volition,  as  her
deposition testimony reveals, there was no legal reason she could
not revoke her living trust or amend her will.  The trust in this
case  was  revocable.  Part IV, section A of  the  Margaret  Ware
Revocable Living Trust specifically states, The grantor may amend
or   revoke  this  trust  at  any  time,  without  notifying  any
beneficiary.  An amendment must be made in writing and signed  by
the  grantor.  Revocation may be in writing or any manner allowed
by  law.   Section B states, The power to revoke  or  amend  this
trust  is  personal to the grantor.  A conservator,  guardian  or
other  person  shall not exercise it on behalf  of  the  grantor,
unless the grantor specifically grants a power to revoke or amend
this trust in a Durable Power of Attorney.  Under the language of
the  trust,  then, Margaret had the right to amend or revoke  the
trust without notifying any of her children.
          Margaret also had the legal right to amend her will.  A
prospective  heir generally has no recognized right to  a  living
relatives  property.38   We have held that a  decedents  property
interests devolve to heirs and devisees only upon death.39  Until
Margaret dies, she is free to amend her will.
          The superior court did not err in finding an absence of
genuine issues of material fact regarding Margarets prior  trusts
and will.
          4.   Susan  failed to raise below the validity  of  the
               statutory warranty deed.
          On appeal, Susan seeks to challenge the validity of the
deed,  arguing that Brandie incorrectly used a statutory warranty
deed to transfer property that was encumbered by the homes of his
brothers.   But  she  failed  to raise  this  contention  in  the
superior court.  Accordingly, her challenge to the deeds validity
is waived.40
          C.   The Superior Court Did Not Abuse Its Discretion in
               Awarding  Attorneys Fees Pursuant  to  Civil  Rule
               82(b)(3).
          Civil Rule 82 provides for the award of attorneys  fees
to   prevailing  parties.41   Subsection  (b)(2)  of  that   rule
establishes  a  fee  schedule for cases in which  the  prevailing
party  recovers  no  money judgment,42 but in this  case  Brandie
sought,  and  the court awarded him, an enhanced fee pursuant  to
Civil Rule 82(b)(3).43
          On  appeal, Susan argues that the superior court  erred
in awarding attorneys fees in excess of the standards provided in
Civil Rule 82.  However, the only substantive reason she advances
on  appeal is that the superior court failed in its obligation to
satisfactorily  explain why it deviated  from  the  Rule  82  fee
schedule.  But in fact the superior court listed five reasons why
it  awarded  fees  in  excess of the schedule  set  out  in  Rule
82(b)(2).44  Susans claim that the superior court did not explain
its decision is clearly wrong.  Moreover, Susan has not argued on
appeal  that  the  reasons given by Judge Brown  were  erroneous.
Indeed, she has not said one word about any of the reasons in the
single  paragraph in her brief devoted to this entire issue.   On
this basis alone, we could affirm the superior court.
          Because  Susan  is  pro  se, we choose  to  review  the
reasons  given by the superior court to determine  if  they  show
that  the superior court abused its discretion.  For the  reasons
that  follow,  we  conclude that the  court  did  not  abuse  its
discretion in awarding enhanced fees.
          In  defending Susans complaint, Brandies counsel billed
him  $9,931.50.45   Under the schedule of  Rule  82(b)(2),  which
provides  for a twenty percent award in contested cases that  are
resolved  without trial, the fee award would have been $1,986.30.
However,  pursuant to subsections (A), (C), (E), (F),  (G),  (H),
and  (I) of Rule 82(b)(3), Judge Brown awarded $8,000, or  eighty
percent46  of actual fees, to Brandie.  Susan contends  that  the
superior  court  abused  its discretion  in  enhancing  the  fees
awarded to Brandie.
          The  superior  court  has broad discretion  to  enhance
attorneys  fees  above the amount prescribed by  the  Civil  Rule
82(b)(2)  schedule.47   The superior courts  award  will  not  be
reversed  unless  we find that there has been a  clear  abuse  of
discretion,   and   the   courts  determination   is   manifestly
unreasonable.48  We have frequently upheld awards well above  the
Rule 82(b)(2) schedule  including full (one hundred percent) fees
as  not  manifestly unreasonable.49  Moreover, we have explicitly
held  that  a  finding of bad faith alone can  justify  increased
attorneys fees.50
          In  the present case the superior court recited several
reasons   for   awarding   Brandie   enhanced   attorneys   fees.
Specifically, the court stated:
          a)   although  the issues involved  were  not
               inherently  complex, plaintiffs  conduct
               of  the litigation added additional  and
               unnecessary levels of complexity to  the
               action;
          b)   defendants  counsels  hourly  rates  and
               number of hours expended were reasonable
               and  defendants counsel made substantive
               efforts   to   minimize  fees   actually
               charged to defendant;
          c)   the    defenses   of   defendant    were
               reasonable,  and  in  fact,   prevailed,
               while  the  claims  of  plaintiff   were
               unreasonable and bordering on bad faith;
          d)   the  issues  at  stake were  significant
               compared  to  the amount of  work  done,
               both in economic and personal terms;
          e)   a  substantial  fee award  will  not  be
               unduly onerous to plaintiff nor will  it
               improperly discourage similar claims  of
               good-faith litigants.
          The  first  reason implicates factors (A)  and  (F)  of
Civil  Rule  82(b)(3).   While  we  have  occasionally  expressed
concern about the use of factor (A)  complexity of the litigation
to enhance fees where the fees are calculated on an hourly basis,51
we   have   repeatedly  upheld  its  use.52   Factor   (F)    the
(un)reasonableness  of  the  plaintiffs  claims    affected   the
complexity  of  the  case, in Judge Browns opinion.   The  courts
finding  that the plaintiffs conduct increased the difficulty  of
the  litigation  is supported by the record.  For example,  Susan
failed  to file witness lists, an exhibit list, or a trial brief,
all of which required additional time and complexity in the trial
preparations   due   to   the  need  to   prepare   for   unknown
contingencies.53
          The  second  reason  cited by  Judge  Brown  implicates
factors  (C)  and  (E)  of  Civil Rule  82(b)(3).   Judge  Browns
citation of factor (C) (the reasonableness of the fees and  hours
expended) and factor (E) (the attorneys efforts to minimize fees)
as supporting an enhanced award is not an abuse of discretion.54
          The  third  reason cited by Judge Brown  that  Brandies
defenses  were  reasonable while Susans claims  bordered  on  bad
faith   implicate  factors (F) and (G).  This  reason  alone  can
justify  an  award of enhanced fees.55  It was not  an  abuse  of
discretion to determine that Susans claims were unreasonable  and
bordered  on bad faith.  As noted above, she provided  absolutely
no  evidence  to support any of her theories: undue  influence,56
fiduciary duty,57 mental incompetence,58 confidential relationship,59
unjust enrichment,60 or any other theory.61  She persisted in her
claims despite her mothers deposition testimony in which Margaret
clearly  refuted Susans claims of mental incompetence  and  undue
influence.  Yet Brandie was required to defend each claim.
          The fourth reason cited by Judge Brown  that the issues
at stake were significant compared to the amount of work done  is
amply  supported  by the record of this case.  The  property  was
valued  at  $426,200.62   This amount  is  obviously  significant
compared to the $8,000 in fees awarded by the court.
          In  sum,  the  superior courts decision to enhance  the
attorneys fees awarded was not an abuse of discretion.
V.   CONCLUSION
          Because   Susan   introduced  no  evidence   of   undue
influence,  we  AFFIRM  the  superior  courts  grant  of  summary
judgment on the undue influence claim.  Because  Susan failed  to
show  error with regard to her other claims for summary judgment,
we  AFFIRM the superior courts rulings on those claims.   Because
the  superior court did not abuse its discretion in the award  of
attorneys  fees, we AFFIRM the superior courts award of attorneys
fees.
FABE, Justice, with whom BRYNER, Chief Justice, joins, dissenting
in part.
          I  write  separately today because I disagree with  the
courts  resolution of the attorneys fees issue presented by  this
appeal.   In  my  view,  the award of eighty  percent  of  actual
attorneys fees was unjustified and the matter should therefore be
remanded to the superior court.
A.   Susan  Has  Sufficiently Raised the Claim that the  Enhanced
     Award Was Erroneous.
     
          The  court adopts a decidedly narrow reading of  Susans
briefing,  asserting that she has not argued on appeal  that  the
reasons  given  by  Judge Brown [for awarding enhanced  attorneys
fees]   were  erroneous.1   However,  under  the  less  demanding
standard  by  which we judge a pro se litigants  performance,2  I
believe that Susan has in fact raised this argument.
          In  her  briefing before this court, Susan  points  out
that  an award of attorneys fees after trial should be based upon
the  appropriate criteria set forth in Civil Rule 82.3  She  also
insists that the enhanced award in this case was excessive[,] . .
. punitive and retaliatory.  Taken together, these two statements
amount  to  a  challenge to the appropriateness of  the  enhanced
award  and the criteria on which that award was based.  In  other
words, Susan does argue that the reasons given by Judge Brown for
awarding  enhanced  attorneys fees were erroneous.   I  therefore
believe that the court is mistaken when it suggests that we could
affirm  the  superior  court without reviewing  its  reasons  for
awarding enhanced attorneys fees.4
B.   None of Brandies Arguments Justified an Enhanced Award.
          A  review  of  Brandies memorandum in  support  of  his
request for attorneys fees in superior court reveals that none of
his  arguments   arguments  that the  superior  court  apparently
relied  upon   justified an enhanced award of attorneys  fees  in
this case.
     1.   Complexity
          Brandie  admitted in superior court that [t]his  action
was not inherently complex, but argued that an enhanced award was
nonetheless  justified because Susans unfamiliarity with  certain
procedures   caused   additional  complexity.5    Although   Rule
82(b)(3)(A)  does in fact generally allow the superior  court  to
vary an award of attorneys fees based upon the complexity of  the
litigation,  I believe that this complexity factor  is  a  wholly
inappropriate basis for an enhanced award in cases such  as  this
cases  where  hourly  fees, rather than the  amount  of  a  money
judgment, serve as the measure of the fees to be awarded.6
          The  primary purpose of Rule 82s complexity  factor  is
not to punish the losing party for litigating a complex case, but
to ensure that the prevailing party is properly compensated.7  In
cases where an award of attorneys fees is based upon a percentage
of the amount of a final money judgment, the prevailing party may
be  substantially under or overcompensated.  This  potential  for
disproportionate compensation stems from the fact that the amount
of  a  final  money judgment is not necessarily  related  to  the
amount  of hours worked by the prevailing partys attorney or  the
          amount of fees paid by the prevailing party for that work.
Simple  cases  requiring little work but  involving  large  money
judgments  may  generate  rather modest  attorneys  fees,8  while
complex cases requiring a great deal of work but involving  small
money judgments may generate robust attorneys fees.  As a result,
an award of attorneys fees based upon a final money judgment will
not always accurately reflect the actual cost of  litigation to a
prevailing  party.  Rule 82s complexity factor works to  mitigate
this problem.  There is, however, no comparable risk of under  or
overcompensation when an award of attorneys fees is based upon  a
percentage of the total actual hourly fees paid by the prevailing
party  to his or her attorney.  In general, total fees calculated
on  an  hourly  basis will already reflect the  complexity  of  a
case.9   Using complexity as an independent enhancing  factor  in
these  cases double-counts the effect of complexity on  fees  and
ultimately overcompensates the prevailing party at the expense of
the losing party.10
          Although  the court is correct that we have  repeatedly
upheld  the  use of the complexity factor in cases  where  actual
total hourly fees form the basis of an award of attorneys fees,11
we  have  just as often questioned its use.  This case represents
no  less  than the fourth time that we have confronted the  rules
shortcomings and explained the double-counting problem.12  On  at
least two occasions we have explicitly admitted that there  is  a
weakness in the rule.13  When a literal reading of one of our own
rules  has  been  shown  time and again to lead  to  questionable
results,  it  is our responsibility to depart from precedent  and
articulate  a  limiting  construction of  that  rule.14   In  the
context   of   Rule  82(b)(3)(A),  I  am  convinced   that   this
responsibility  requires us to read the rule as  inapplicable  to
cases  in  which awards of attorneys fees are based  upon  actual
total hourly fees.
          In  the case at hand, Brandies award of attorneys  fees
was based upon the total hourly fees he paid to his attorney.   A
standard,  non-enhanced award would therefore have  automatically
taken  into  account  any  attorneys fees  stemming  from  Susans
litigation methods.  An enhanced award was unnecessary and, in my
opinion, contrary to the proper construction of Rule 82(b)(3)(A).
     2.   Length of trial
          Brandie   also  argued  that  an  enhanced  award   was
justified   under   Rule  82(b)(3)(B)  because  extensive   trial
preparation  had necessarily been nearly completed prior  to  the
grant  of  summary judgment.  But Rule 82(b)(3)(B) is exceedingly
narrow in scope and only permits the court to vary an award based
upon the actual length of trial.  The rule is simply inapplicable
to  cases  that  are  resolved  without  trial  and  Brandie  was
therefore  not  entitled  to an enhanced  award  on  this  basis.
Moreover, it was Brandies decision to wait to file his motion for
summary  judgment until July 6, 2004  only one month  before  the
scheduled  trial was to take place.  In other words, Brandie  had
the  means to avoid extensive trial preparation and simply  chose
not  to  exercise it.  Susan should not be penalized for Brandies
choice.
     3.   Reasonableness of rate, time, and number of attorneys
          Brandie   also  argued  that  an  enhanced  award   was
justified  because  he employed a single attorney  who  worked  a
reasonable  number  of  hours  and  charged  a  reasonable  rate.
Although Rules 82(b)(3)(C) and (D) do permit a superior court  to
vary an award of attorneys fees based upon the reasonableness  of
the  prevailing partys litigation expenses,15 these  factors  are
best suited as a basis for decreasing an award where a prevailing
party has expended an unreasonable amount of resources on his  or
her case.  In general, parties are expected under Rule 82 to keep
their  litigation  expenses reasonable: Rule 82(b)(2)  explicitly
limits  compensation to a portion of  reasonable actual attorneys
fees.    It  is  unclear  why  Brandies  efforts  to  meet   this
expectation justified an enhanced award in this case.
     4.   Efforts to minimize fees
          Brandie   also  argued  that  an  enhanced  award   was
justified  under  Rule 82(b)(3)(E) due to his and  his  attorneys
efforts  to  minimize  attorneys fees.16  According  to  Brandie,
[t]he primary minimizer of fees in this action was in causing its
resolution by motion work and thereby avoiding the expense  of  a
trial.   However, as noted above, Brandie filed  his  motion  for
summary judgment only one month prior to trial and therefore  did
not  substantially reduce the amount of time his attorney had  to
invest in the case.  Indeed, Brandie admits that extensive  trial
preparation  had necessarily been nearly completed prior  to  the
grant   of   summary  judgment.   Furthermore,   as   the   court
acknowledges,  [c]ases resolved without trial are subject  [under
Rule  82]  to  a  presumptive twenty  percent  fee  award;  cases
resolved  after  trial to a thirty percent award.17   Allowing  a
successful summary judgment motion to be considered an effort  to
minimize  fees would run counter to th[is] general  framework  of
the rule.18
          The  court  recognizes  that we  must  reject  Brandies
argument  to  the  extent that [it] relied on  his  filing  of  a
summary  judgment  motion as evidence of his  and  his  attorneys
efforts to minimize fees.19  Given that Brandie cited his summary
judgment  motion  as  [t]he primary minimizer  of  fees  in  this
action,  I  believe we must reject the bulk of Brandies  argument
that he is entitled to an enhanced award under Rule 82(b)(3)(E).
     5.   Reasonableness  of claims and vexatious  or  bad  faith
          conduct
          Brandie   also  argued  that  an  enhanced  award   was
justified because Susans claims were inherently unreasonable  and
borderline  bad  faith.20  Although the court is correct  that  a
finding  of  bad  faith under Rule 82(b)(3)(G) is  sufficient  to
justify  a substantially enhanced award,21 I do not believe  that
the  record supports such a finding in this case.  Susan  brought
this suit after learning that her mother had transferred title to
the  family homestead to her brother for the sum of ten  dollars.
I  agree  that Susan was unable to offer sufficient  evidence  to
support  her claims that this transfer was somehow inappropriate,
but I cannot agree that her claims were, given the circumstances,
particularly  outrageous.  Moreover, as the court  notes,  Susans
claims implicated an issue of first impression.22  In my opinion,
it  is  unjust to characterize claims as unreasonable  when  they
          were filed without the benefit of an authoritative body of law to
guide  and shape them.  And although Brandie alleged that  Susans
claims  were part of some sort of bad faith effort to  drain  his
resources,  he admitted that he has no way of demonstrating  that
this  was  an intentional strategy.  In short then, while  Susans
claims  may  have  been  weak,  they  were  not  unreasonable  or
borderline bad faith.
     6.   Relationship  between the amount of work performed  and
          the significance of the matters at stake
          
          Brandie  also argued that the relationship between  the
amount  of work performed and the significance of the matters  at
stake  justified  an  enhanced  award.23   In  support  of   this
argument,  Brandie  noted  that  if  Susan  had  won  by  summary
judgment, she would have been entitled to an award of $22,500  in
attorneys  fees.   According to Brandie, this amount  represented
the  attorney  fee  value of this case.  As a  practical  matter,
however,  Susan was not represented in this case  and  would  not
have been entitled to any attorneys fees had she prevailed.  Even
assuming that the matters in this case were significant in  their
own  right, it is doubtful that this fact alone justified such  a
substantially enhanced award.
     7.   The  enhanced  award will deter pro se  litigants  from
          accessing the court.
          
          In  addition  to the arguments detailed above,  Brandie
also consistently called attention to Susans pro se status in his
motion  for enhanced attorneys fees.  For example, Brandie stated
that  although Susan was skilled, she is not an attorney and  her
unfamiliarity   with   certain   procedures   caused   additional
complexity;  that  as  a  pro  se  litigant,  Susan  often   used
procedures  and raised arguments and issues which were inapposite
or inappropriate; that her pro se status added an entire level of
complexity  to  this  action;  and  that  [i]f  Susan  had   been
represented  by  counsel,  . . . the situation  would  have  been
resolved   more   quickly.   Taken  together,  these   statements
represented a not-so-subtle argument that Susans pro  se  status,
in  and  of  itself,  justified an  enhanced  award.   While  the
superior  court did not expressly adopt this argument,  it  based
its  decision to enhance the award, at least in part,  upon  Rule
82s  complexity factor  a factor that Brandie repeatedly asserted
was met by Susans pro se status.
          We  are left, then, with a legal proceeding in which  a
litigant was, at least in appearance, penalized for pursuing  her
case  pro  se.   Because pro se litigants are often  economically
distressed,  this  apparent threat of  a  pecuniary  penalty  for
pursuing  a  case pro se is particularly onerous  and  likely  to
dissuade  potential  pro  se  litigants  from  exercising   their
constitutional right to access the courts.  This is unacceptable.
The  right  to  access  the courts is an important  right24  that
should  be  enjoyed  by  all Alaskans equally,  whether  they  be
parolees  or  free,25 children or adults,26 pro se  litigants  or
lawyers.   If for no other reason, we should remand the issue  of
attorneys  fees  so as to reassure future pro se  litigants  that
          there is no penalty for passing through the courthouse doors
without an attorney at their side.
C.   The Issue of Attorneys Fees Should Be Remanded.
          For  the reasons stated above, I believe that the issue
of  attorneys fees should be remanded to the superior  court  for
recalculation   using   the  appropriate   factors   under   Rule
82(b)(3)(A)(K).  I therefore respectfully dissent.
_______________________________
     1    Brandie Ware has asserted that the transfer of property
from  the Ware Family Trust to the Margaret Ware Revocable Living
Trust   was  invalid  because  it  included  an  incorrect  legal
description of the property.

     2     Charles v. Interior Regl Hous. Auth., 55 P.3d  57,  59
(Alaska 2002).

     3    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     4     Dayhoff  v. Temsco Helicopters, Inc., 848  P.2d  1367,
1369 (Alaska 1993).

     5    Id.

     6    Charles, 55 P.3d at 59.

     7     Guerrero v. Alaska Hous. Fin. Corp., 123 P.3d 966, 971
(Alaska 2005) (quoting Charles, 55 P.3d at 59).

     8     United Servs. Auto. Assn v. Pruitt ex rel. Pruitt,  38
P.3d 528, 531 (Alaska 2001).

     9     Id.  (quoting  Power Constructors, Inc.  v.  Taylor  &
Hintze, 960 P.2d 20, 44 (Alaska 1998)).

     10    Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo. App. 1989)
(citing 94 A.L.R. 608, 612 (1978)).  See also U.S. v. Jepsen, 268
F.3d  582,  585  (8th Cir. 2001) (explaining  that  Arkansas  law
presumes gift when donor registers legal title in family  members
name);Morgan v. Wright, 399 P.2d 788, 791 (Colo. 1965);  Zack  v.
Guzaukas,  368 A.2d 193, 195 (Conn. 1976); Sullivan  v.  American
Tel.  &  Tel.  Co.,  230 So. 2d 18, 20 (Fla.  Dist.  App.  1969);
Almeida v. Almeida, 669 P.2d 174, 178-79 (Haw. App. 1983); In  re
Marriage  of Kendra, 815 N.E.2d 22, 25 (Ill. App. 2004);   Matter
of  Estate of Kieras, 521 N.E.2d 263, 266 (Ill. App. 1988); Barth
v.  Severson, 183 N.W. 617, 624 (Iowa 1921); Rakhman v. Zusstone,
957  S.W.2d 241, 244 (Ky. 1997); Brandenburg v. Harshman, 65 A.2d
906,  908-09 (Md. 1948); Smith v. Smith, 184 N.W. 501, 503 (Mich.
1921);  Stahn v. Stahn, 256 N.W. 137, 137 (Minn. 1934); Sunflower
Farms, Inc. v. McLean, 117 So. 2d 808, 813 (Miss. 1960); Jones v.
Jones,  201  S.W. 557, 558 (Mo. App. 1918); Detra v.  Bartoletti,
433  P.2d 485, 487-88 (Mont. 1967); Fischer v. Wilhelm, 300  N.W.
350,  351  (Neb. 1941); Peppler v. Roffe, 194 A. 548,  550  (N.J.
1937);  Durward v. Nelson, 481 N.W.2d 586, 588 (N.D. 1992);  John
Deere  Indus. Equip. v. Gentile, 459 N.E.2d 611, 616  (Ohio  App.
1983);  Ingersoll  v. Ingersoll, 502 P.2d 598,  600  (Or.  1972);
Fenderson  v.  Fenderson, 658 A.2d 600, 606  (Pa.  Super.  1996);
Romano  v. Romano, 205 A.2d 583, 586 (R.I. 1964); Jocoy v. Jocoy,
562  S.E.2d  674, 675 (S.C. App. 2002); Masterson v.  Hogue,  842
S.W.2d  696, 697 (Tex. App. 1992); Lappin v. Lucurell,  534  P.2d
1038, 1041 (Wash. App. 1975); Bailey v. Banther, 314 S.E.2d  176,
179  (W.  Va.  1984); Estate of Rohde, 98 N.W.2d 440,  441  (Wis.
1959); Kelsey v. Anderson, 421 P.2d 163, 164 (Wyo. 1966).

     11     Kieras, 521 N.E.2d at 266; Kelly v. Allen, 558 S.W.2d
845,   848   (Tenn.  1977)  (holding  that,  while   the   normal
relationship  between a mentally competent parent  and  an  adult
child  is  not per se a confidential relationship and  raises  no
presumption  of the invalidity of a gift from one to  the  other,
such a presumption of invalidity arises with a showing that there
were present the elements of dominion and control by the stronger
over  the weaker, or . . . a showing of senility or physical  and
mental  deterioration of the donor or that fraud or  duress  were
involved . . . ).

     12    Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001).

     13     Id.  (quoting Paskvan v. Mesich, 455  P.2d  229,  234
(Alaska 1969)).

     14    Id.

     15     Sparks  v.  Gustafson, 750 P.2d 338,  342-43  (Alaska
1988).

     16    Crittell, 36 P.3d at 639.

     17    Paskvan, 455 P.2d at 229.

     18     Munn  v. Thornton, 956 P.2d 1213, 1220 (Alaska  1998)
(referring  to Paskvan, 455 P.2d at 232 (partners or  co-owners);
Cummings  v.  Sea Lion Corp., 924 P.2d 1011, 1021  (Alaska  1996)
(lawyers  and clients); Alaska State Employees Assoc.  v.  Alaska
Pub.  Employees Assoc., 825 P.2d 451, 459 (Alaska  1991)  (trusts
and guardianships)).

     19     See,  e.g.,  Paskvan, 455 P.2d  at  233  ([W]hen  the
principal   or  sole  beneficiary  under  a  will,  who   had   a
confidential relationship with the testator, participated in  the
drafting  of  the  will, then a presumption  of  undue  influence
arises.).

     20    Salvner v. Salvner, 84 N.W.2d 871, 875-76 (Mich. 1957);
In re Estate of Kieras, 521 N.E.2d 263, 266 (Ill. App. 1988).

     21    84 N.W.2d 871 (Mich. 1957).

     22    Id. at 875.

     23    Id.

     24    Id.

     25    599 F.2d 1286 (3d Cir. 1979).

     26    Id. at 1292.

     27     Id.  (quoting Yohe v. Yohe, 353 A.2d  417,  421  (Pa.
1976)).

     28     Crittell  v.  Bingo, 36 P.3d 634, 638  (Alaska  2001)
(citing In re Estate of Kraft, 374 P.2d 413, 416 (Alaska 1962)).

     29    Id. at 639.

     30    442 P.2d 203 (N.M. 1968).

     31    Id. at 206.

     32    Id.

     33    Id.

     34    Id. at 207.

     35    Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988).

     36     Beluga Mining Co. v. State, Dept of Natural Res., 973
P.2d 570, 579 (Alaska 1999).

     37    Sparks, 750 P.2d at 342.

     38    Riddell v. Edwards, 76 P.3d 847, 853 (Alaska 2003).

     39    Id.

     40    Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004).

     41    Civil Rule 82(a) provides:

          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 attorneys fees  calculated
          under this rule.
          
     42    This subsection generally provides that the court shall
award  the  prevailing  party thirty percent  of  the  prevailing
partys  reasonable actual attorneys fees in a case which goes  to
trial  and  twenty  percent where the case  is  resolved  without
trial.

     43    Civil Rule 82 (b)(3) provides:

          The  court  may vary an attorneys fees  award
          calculated  under  subparagraph   (b)(1)   or
          (b)(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
          expended;
          (D) the reasonableness of the number of attorneys used;
          (E) the attorneys efforts to minimize fees;
          (F)  the  reasonableness of  the  claims  and
          defenses pursued by each side;
          (G) vexatious or bad faith conduct;
          (H)  the  relationship between the amount  of
          work  performed and the significance  of  the
          matters at stake;
          (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
          courts;
          (J) the extent to which the fees incurred  by
          the  prevailing party suggest that  they  had
          been  influenced by considerations apart from
          the  case  at  bar,  such  as  a  desire   to
          discourage  claims  by  others  against   the
          prevailing party or its insurer; and
          (K) other equitable factors deemed relevant.
          If the court varies an award, the court shall
          explain the reasons for the variation.
          
     44    The superior courts Order for Attorney Fees is set out
below at pages 23-24.

     45     In  the same affidavit in which he indicated that  he
charged Brandie this amount, counsel also indicated that it would
be  fair  to  attribute a portion of other  fees  to  this  case,
bringing the total to $10,452.25.

     46     This percentage is calculated on the basis of a total
billing  of  $9,931.50.   See supra n.45 and  accompanying  text.
Were  the total fees to be calculated at $10,452.25, the  correct
percentage would be seventy-seven percent.

     47     Tenala,  Ltd.  v. Fowler, 993 P.2d 447,  451  (Alaska
1999).

     48     Dahle  v.  Atl. Richfield Co., 725  P.2d  1069,  1075
(Alaska 1986).

     49     See,  e.g.,  Crittell v. Bingo, 83 P.3d  532,  536-38
(Alaska  2004) (upholding award of one hundred percent of  actual
attorneys fees, over $338,000, in case of bad-faith will claims);
Garrison v. Dixon, 19 P.3d 1229, 1234-35 (Alaska 2001) (upholding
award  of one hundred percent of actual attorneys fees); Cole  v.
Bartels,  4  P.3d  956,  957 (Alaska 2000)  (affirming  award  of
seventy-five percent of actual attorneys fees); LeDoux v.  Kodiak
Island  Borough, 827 P.2d 1121, 1125 (Alaska 1992) (holding  that
award of seventy-four percent was consistent with other cases and
did  not represent abuse of discretion); Keen v. Ruddy, 784  P.2d
653, 657 (Alaska 1989) (upholding award of one hundred percent of
actual  attorneys fees); Steenmeyer Corp. v. Mortensen-Neal,  731
P.2d 1221, 1227 (Alaska 1987) (holding that award of seventy-five
percent was not manifestly unreasonable); Hausam v. Wodrich,  574
P.2d  805,  811  (Alaska  1978) (affirming  award  of  eighty-six
percent of actual attorneys fees).

     50     Garrison, 19 P.3d at 1234 (We will affirm an award of
full,  actual  attorneys fees under Rule 82  where  the  superior
court finds that the losing party has engaged in vexatious or bad
faith  litigation.);  Keen, 784 P.2d at 657  (holding  that  full
attorneys fees were properly awarded when losing party  acted  in
bad faith).

     51     See Cole, 4 P.3d at 960 n.20; Tenala, 993 P.2d at 451
n.19  ([C]omplexity  works  poorly as  an  independent  enhancing
factor . . . where hourly fees, rather than the amount of a money
judgment,  serve  as the measure of fees to be  awarded.   Hourly
fees  are usually already greater because of the complexity of  a
case.   Thus  using complexity as an enhancing factor over-counts
the  effect  that complexity has on fees.) Nonetheless,  in  both
Cole  and  Tenala  we  upheld the use of the  complexity  factor,
noting  that our analysis points to a weakness in the  rule,  not
trial court error. Cole, 4 P.3d at 960 n.20.

     52     See, e.g., Cizek v. Concerned Citizens of Eagle River
Valley,  Inc., 71 P.3d 845, 851 (Alaska 2003) (The  Cizeks  argue
that  the length and complexity of the case will be reflected  in
the  fees themselves and therefore should not be used to increase
the  percentage  of  fees awarded.  However,  these  factors  are
explicitly listed as permissible considerations under [the rule],
and  therefore  are  an appropriate basis for  the  trial  courts
decision.); Cole, 4 P.3d at 960; Tenala, Ltd., 993 P.2d at 451.

     53     The  dissent, citing Brandies repeated  reference  to
Susans  pro  se  status, concludes that Susan was,  at  least  in
appearance, penalized for pursuing her case pro se.  (Dissent 10)
But,  as the dissent states, the superior court did not expressly
adopt  this  argument, and we now explicitly reject it.   Brandie
was  assessed  enhanced  fees because of  her  actions,  not  her
status.   Moreover, the superior courts finding  that  the  award
would  not  be  unduly onerous to Susan and would not  improperly
discourage similar claims dispells the concern that the award may
deny court access to future pro se litigants.

     54     Counsel  for Brandie charged less than  his  standard
billing rate, wrote off substantial time devoted to meetings with
Brandie  and a trust attorney (who was consulted with  regard  to
forming  a  trust) even though much of that time was expended  in
defending  this case, and charged no time against  this  case  in
instances where there was any question as to whether the work was
generated by this case or a closely related case involving  Lance
Ware.   In  addition, the trust attorney incurred fees that  were
related  to the defense of the instant action but that  were  not
charged to Brandie.  Counsel clearly attempted to minimize fees.
          We  do  note, however, that to the extent that  Brandie
relied  on his filing of a summary judgment motion to meet Factor
(E)  (the  attorneys efforts to minimize fees),  we  reject  that
argument.   Cases  resolved  without  trial  are  subject  to   a
presumptive twenty percent fee award; cases resolved after  trial
to  a  thirty  percent award.  To allow the filing of  a  summary
judgment motion to be considered an effort to minimize fees would
run counter to the general framework of the rule.

     55    See supra note 49 (citing cases holding that bad faith
will justify a one hundred percent fee award).

     56    See supra Part IV.A.2(a).

     57    See supra Part IV.A.2(b).

     58    See supra Part IV.A.2(c).

     59    See supra Part IV.B.1.

     60    See supra Part IV.B.2.

     61    See supra Part IV.B.3-4.

     62    The land was assessed at $177,800 and the improvements
were assessed at $248,400.

1    Slip Op. at 19.

     2    Peterson v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004).

     3     Farnsworth v. Steiner, 601 P.2d 266, 272 (Alaska 1979)
(emphasis added).

     4     Slip  Op.  at 19 (asserting that Susan has not  argued
that  the reasons given by the superior court were erroneous  and
concluding  that,  [o]n this basis alone,  we  could  affirm  the
superior court).

     5     In  his  Memorandum in Support of Motion for  Attorney
Fees, Brandie further explained that, as a pro se litigant, Susan
often used procedures and raised arguments and issues which  were
inapposite or inappropriate and which required additional time by
defendant to resolve.

     6     Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 n.19 (Alaska
1999).

     7     Gilbert  v.  State, 526 P.2d 1131, 1136 (Alaska  1974)
(explaining that [i]t is not the purpose of Rule 82 to penalize a
party  for litigating a good faith claim but rather partially  to
compensate  the  prevailing  party  where  such  compensation  is
justified).

     8     For  example, when a case ends in a default  judgment,
the  amount  of the final money judgment won by the plaintiff  is
most  often relatively large compared to the number of hours  put
into the case by the plaintiffs attorney.  Consequently, an award
of  attorneys  fees based upon a percentage of  the  final  money
judgment is likely to overcompensate a plaintiff who prevails  by
default.   In  order  to  combat this likelihood,  Rule  82(b)(4)
limits  compensation to a percentage of the final money  judgment
or reasonable actual fees, whichever is less.

     9    Cole v. Bartels, 4 P.3d 956, 960 n.20 (Alaska 2000).

     10   Id.

     11   Slip Op. at 21-22.

     12    Cizek  v.  Concerned Citizens of Eagle  River  Valley,
Inc.,  71  P.3d  845, 851 (Alaska 2003) (acknowledging  that  the
length  and complexity of the case will be reflected in the  fees
themselves);  Cole,  4 P.3d at 960 n.20 (noting  that  complexity
serves  poorly  as an independent enhancing factor  where  hourly
fees  . . . serve as the subject of the award); Tenala, 993  P.2d
at  451  n.19  (concluding that using complexity as an  enhancing
factor  [in  cases  such  as this] over-counts  the  effect  that
complexity has on fees).

     13   Cole, 4 P.3d at 960 n.20; Tenala, 993 P.2d at 451 n.19.

     14    Under our case law, we will overrule precedent when we
are clearly convinced that the rule was originally erroneous .  .
. and that more good than harm would result from a departure from
precedent.   State  v. Semancik, 99 P.3d 538, 540  (Alaska  2004)
(internal quotations omitted).  These requirements are easily met
here.

15    Under  Rule  82(b)(3)(C), an  award  may  be  varied  based
upon  the  reasonableness of the attorneys hourly rates  and  the
numbers  of hours expended; under Rule 82(b)(3)(D), an award  may
be  varied  based  upon  the  reasonableness  of  the  number  of
attorneys used.

     16    Rule 82(b)(3)(E) maintains that an award may be varied
based upon the attorneys efforts to minimize fees.

     17   Slip Op. at 23 n.54.

     18   Id.

     19   Id.

     20    Rule 82(b)(3)(F) maintains that an award may be varied
based  upon the reasonableness of the claims and defenses pursued
by  each  side; Rule 82(b)(3)(G) maintains that an award  may  be
varied based upon vexatious or bad faith conduct.

     21   Slip Op. at 23.

     22   Slip Op. at 6.

23   Rule 82(b)(3)(H).

     24    Patrick v. Lynden Transp., 765 P.2d 1375, 1379 (Alaska
1988).

     25   Bush v. Reid, 516 P.2d 1215, 1221 (Alaska 1973).

     26   Sands v. Green, ___ P.3d ___, Op. No. 6121 (Alaska, May
4, 2007).

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