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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dieringer v. Martin (07/03/2008) sp-6280

Dieringer v. Martin (07/03/2008) sp-6280, 187 P3d 468

     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
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) Supreme Court No. S- 12400
) Superior Court No. 4FA-85- 113 PR
v. )
) O P I N I O N
) No. 6280 July 3, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:   Cory R. Borgeson,  Borgeson  &
          Burns,  PC, Fairbanks, for Appellant.  Thomas
          R.  Wickwire, Law Office of Thomas  Wickwire,
          Fairbanks, for Appellee.
          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.

          MATTHEWS, Justice.

          This  case presents an appeal from the superior  courts
modified  award  of  attorneys fees and  personal  representative
fees.   In a prior appeal, we concluded that the estates personal
representative, James Dieringer, breached his fiduciary  duty  to
the  estate  by  engaging in self-dealing  and  other  bad  faith
conduct.   We  vacated  awards  of attorneys  fees  and  personal
representative fees and remanded the case for the reconsideration
of  fees in light of our opinion.  On remand, the probate  master
allowed  a full evidentiary hearing spanning the history  of  the
estate, issued new factual findings, and recommended that the fee
awards  either  be  reinstated  to  their  original  amounts   or
increased.   The superior court rejected the probate masters  new
findings.   The court decided that its earlier award of attorneys
fees  should not be reinstated in any amount and that  a  reduced
personal  representative fee was appropriate.  The court  ordered
counsel  to  restore  the prior award of attorneys  fees  to  the
estate.  Dieringer appeals the superior courts award of fees  and
the  courts  order that his counsel restore the  prior  award  of
fees.  We affirm.
          We  have  previously  set forth  the  relevant  factual
               This   case  involves  an  estate   that
          remained open for more than seventeen  years.
          William Martin died in 1985.  He was survived
          by  two  children, Donna, then age  fourteen,
          and Darrel, then age eighteen.  His will left
          everything  (after  payment  of   debts   and
          certain  expenses)  in equal  shares  to  the
          children,    in   trust.    James   Dieringer
          (Dieringer   or   PR)   was   the    personal
          representative,  and  with  his  wife   Nancy
          Dieringer, co-trustee of the trust.
               The  assets  of  the estate  included  a
          house  in Fairbanks, a lot on Summit Lake,  a
          motor home, some snowmachines, an escrow, and
          some  life insurance.  The net value  of  the
          estate was less than $250,000.
               . . . .
               By 1997 the only remaining assets of the
          estate  were the Summit Lake lot,  which  was
          subject  to a mortgage, and a loan  Dieringer
          had  made to a company that he owned  a  half
          interest in.  The children agreed that Darrel
          would  receive the Summit Lake  property  and
          Donna  would  receive  more  cash  from   the
          estate.  Darrel contacted Dieringer a  number
          of  times concerning the Summit Lake property
          and  closing  the estate. Dieringer  informed
          Darrel that he wanted to buy the Summit  Lake
          property for $15,000.  Darrel had received  a
          substantially larger offer for  the  property
          and  was  reluctant  to  agree  to  sell   to
          Dieringer  at  Dieringers price.   When  this
          occurred  Dieringer took  the  position  that
          unless [the] Summit Lake [property was]  sold
          to  him  he would charge the estate fees  for
          his  services.  Further, he stated  that  the
          proceeds  of a $50,000 life insurance  policy
          he  and Nancy had received when William  died
          were  actually owned by him and  Nancy,  that
          they  had merely loaned the proceeds  to  the
          estate,  and that the proceeds would have  to
          be repaid.[1]
          Based on these facts, Darrel Martin filed a petition to
remove  James  Dieringer as the estates personal representative.2
Martin also instituted a separate civil action against Dieringer.3
In  the  removal  case, the probate master recommended  that  the
superior  court  reject  Martins petition and  uphold  Dieringers
conduct.  The superior court adopted the probate masters findings
and, applying collateral estoppel, dismissed Darrels civil suit.4
          Darrel appealed and we reversed both decisions.  In the
removal appeal we concluded that Dieringer breached his fiduciary
duty  to  the estate by taking out a loan from the estate  for  a
company he owned an interest in (at a preferential interest rate)5
and  demanding  that he be allowed to purchase  the  Summit  Lake
property for less than fair market value, threatening retaliation
if  this  demand was not satisfied.6  We also concluded that  the
$50,000  life  insurance policy was meant  for  the  estate,  not
Dieringer personally, and that Dieringer improperly asserted that
he had merely loaned the proceeds to the estate.7  Based on these
conclusions, we determined that Dieringer acted in bad faith with
regard to these issues.  We vacated the superior courts award  of
$16,320  in  attorneys fees and $5,850 in personal representative
fees  to  Dieringer and remanded for reconsideration of  fees  in
light of our opinion.8  On the same day, we reversed the superior
courts application of collateral estoppel in Martins civil suit.9
          On  remand  in  this case  the removal action   Probate
Master Alicemary Closuit, deeming the case completely open again,
held a full evidentiary hearing.  The master heard testimony over
the  course of three days.  After this hearing, the master issued
new  factual findings and a recommendation regarding the personal
representative  and  attorneys fees.  The  masters  new  findings
covered the whole history of the case, including conduct that  we
considered in our initial opinion such as the self-dealing  loan,
the  dispute over the Summit Lake property, and the ownership  of
the  insurance proceeds.  The masters findings contradicted  some
of  the earlier findings and characterizations made by the master
that we relied on in our earlier opinion.
          The  master recommended that the superior court  uphold
its  prior  award of attorneys fees and either uphold  the  prior
award  of  personal  representative fees or increase  them.   The
master  concluded  that  [n]othing in  [Dieringers  attorney  and
estate  representative] charges relates to any action the Supreme
Court found to be made in bad faith.
          Superior Court Judge Niesje J. Steinkruger rejected the
masters  findings as clearly erroneous.  The court  rejected  the
masters recommendation concerning attorneys fees to Dieringer and
decided no fees should be awarded.  The court approved Dieringers
personal representative fees in a reduced amount.
          The  superior  court reasoned that the  attorneys  fees
previously awarded  $16,320  were generated in defense of Martins
petition  to  remove  Dieringer as personal representative.   The
court  found  that Dieringers bad faith actions  comprised  major
issues in the removal litigation and that Dieringers defense  was
not   undertaken   with  the  intent  to  benefit   the   estates
          beneficiaries.  The court concluded that Dieringer was entitled
to  no  money from the estate for his unsuccessful defense.   The
court  required  that  Dieringers law  firm,  Borgeson  &  Burns,
restore these fees to the estate.
          The  superior  court  also reduced Dieringers  personal
representative  fees by $1,390, to $4,460.  The $1,390  comprised
fees related to preparing for and defending against Martins suit.
The  court  reasoned that the disallowed fees were  not  part  of
Dieringers reasonable compensation because they were not incurred
to  benefit  the estate or the beneficiaries.  The court  ordered
Dieringer to restore $1,390 to the estate.
          While  the  superior court initially ordered  that  the
excess paid by the estate be restored to the estate, its judgment
provided  that the money be paid directly to Darrel Martin.   The
estate was closed in May 2003, prior to the first appeal to  this
          Dieringer moved for reconsideration; the superior court
denied his motion.  He now appeals.
          When  a superior court adopts a masters findings, those
findings become the findings of the superior court.10  We will not
set  aside  a  superior  courts findings  of  fact  unless  those
findings are clearly erroneous.11  When a superior court rejects a
masters factual findings, this court will review the rejection de
novo.12  Whether a personal representative litigated in good faith
is  a  question of fact.13  We use our independent judgment  when
reviewing questions of law.14
     A.   The   Superior  Court  Properly  Rejected  the  Probate
          Masters New Findings and Recommendation.
          Dieringer  challenges the superior courts rejection  of
the probate masters new factual findings.  He also challenges the
superior  courts  refusal to increase his fee  award  on  remand.
Because  the  probate  master disregarded the  law  of  the  case
doctrine,  adopted an untenable interpretation of  the  scope  of
this  courts  remand order, and issued new factual findings  that
were  clearly  erroneous,  we conclude that  the  superior  court
properly rejected the probate masters factual findings.
          1.   The  probate masters new findings violated the law
               of  the  case doctrine and exceeded the  scope  of
               this courts remand order.
          The  probate  master erred when she  deemed  this  case
completely open again.  The case did not return to her as a blank
slate.  Rather, only fee issues remained.
          In Wolff v. Arctic Bowl, Inc. we explained that
          [t]he  doctrine  of  the  law  of  the   case
          prohibits the reconsideration of issues which
          have been adjudicated in a previous appeal in
          the  same  case.  Even issues not  explicitly
          discussed in the first appellate opinion, but
          directly   involved   with   or   necessarily
          inhering  in the decision will be  considered
          the law of the case.[15]
The  law  of  the  case  is both a doctrine  of  economy  and  of
obedience  to the judicial hierarchy.16  The doctrine applies  to
all  previously  litigated issues unless  there  are  exceptional
circumstances  presenting  a  clear error  constituting  manifest
          Before  the  first appeal in this case, in early  2002,
the  master  held  a two-day hearing considering Martins  removal
petition.   All of the factual topics now raised on  appeal  were
litigated  at that hearing.  The master found that Dieringer  had
loaned  money  from  the estate to a business  that  he  held  an
interest  in, that Dieringer had demanded that he be  allowed  to
buy  the  Summit Lake property at a price $8,000  below  a  third
partys  offer, and that Dieringer and his wife claimed  that  the
insurance proceeds belonged to them personally and asserted  that
they had simply loaned the proceeds to the estate.  These factual
findings  involved  issues that were central to  Martins  removal
          Dieringer  now  argues  that  there  is  new   evidence
suggesting  that  this  courts conclusions  regarding  the  self-
dealing  loan,  the  Summit  Lake  property,  and  the  insurance
proceeds are wrong.  He argues that the newly developed testimony
demonstrates  that  he had reasonable grounds to  defend  against
Martins  challenges, suggesting that he defended in  good  faith.
He does not explain his apparent failure to present this evidence
at   the  initial  hearing.   The  probate  master,  in  her  new
recommendation,  likewise did not explain why this  evidence  was
not  adduced at the original hearing.  In the absence of any such
explanation,  there are no exceptional circumstances  to  justify
departing  from  the  law  of the case doctrine.18   The  probate
masters  acceptance  of testimony contradicting  the  conclusions
reached in our prior opinion was mistaken.
          Moreover, the probate master ignored the scope of  this
courts  remand  order when she allowed a hearing covering  issues
that  spanned the history of the estate.  Our prior decision  was
clear.   We concluded the opinion by stating, [f]or the foregoing
reasons,  we  .  .  .  REMAND this case  for  reconsideration  of
attorneys fees and fees of the personal representative  in  light
of  the conclusions expressed herein.19  The conclusions referred
to were that Dieringer had committed breaches of fiduciary duties
and acts of bad faith.20  We did not remand for reconsideration of
these  conclusions.  Rather, given these conclusions,  the  court
was directed to reconsider the fee awards.21  The superior court,
in  its  decision  rejecting the probate masters  recommendation,
properly recognized the scope of the remand.
          2.   The  probate  masters  new factual  findings  were
               clearly erroneous.
          Apart from procedural bars to the masters new findings,
we  agree  with the superior court that the probate  masters  new
findings were clearly erroneous.  Significantly, in reaching  her
new   factual  findings  the  master  provided  no  reasons   for
overturning her prior findings.
          In  her new findings, the master briefly mentioned  the
self-dealing  loan,  but  failed  to  recognize  that   Dieringer
breached his fiduciary duty by making it.22  The master found that
Dieringer acted properly with regard to the Summit Lake property,
but  not  did  explain why her previous findings  including  that
Dieringer  demanded that he be allowed to purchase  the  property
were  mistaken.  Likewise the master did not explain her  reasons
for suggesting that Dieringer merely comment[ed] on the insurance
proceeds  when her prior findings stated that Dieringer  asserted
his  belie[f]  that the proceeds were his.  Finally,  the  master
changed  her  prior  calculation of  estate  representative  fees
increasing  the  amount of money she thought Dieringer  was  owed
without  explaining  why she was now adopting  hourly  rates  for
Dieringers  work that were greater than the rates she  previously
used.  The masters new findings leave us with a definite and firm
conviction that they are mistaken.
     B.   The  Superior  Court  Did Not Err  when  It  Disallowed
          Dieringers Attorneys Fees.
          Dieringer  challenges the superior courts  decision  to
award him no money from the estate for attorneys fees he incurred
in  the  defense of Martins removal petition.  Because we  reject
Dieringers  new factual arguments, we only consider his  argument
that the superior court made an insufficient finding of bad faith
to justify its decision.
          Alaska    Statute   13.16.435   governs   a    personal
representatives  litigation expenses.  The statute  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.  In Enders v. Parker
(Enders I) we explained that a personal representative . . .  who
has  prosecuted  or defended a probate action in  good  faith  is
entitled  to  recover all necessary expenses  and  disbursements,
regardless of whether he or she prevailed in the action.23  There
is no requirement that the litigation benefit the estate.24
          We  recognize  that  a wide array of  evidence  can  be
considered when ascertaining whether litigation was conducted  in
good  faith  by  a personal representative.25  However,  a  major
factor  is the presence or absence of reasonably arguable grounds
for  the representatives litigation position.  [T]he 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.26  Reasonably arguable grounds
do  not  exist merely because the estate representative  survived
summary  judgment or would have survived it.27  The standard  for
determining whether reasonably arguable grounds existed will vary
according   to  what  the  personal  representative   sought   to
          The superior courts decision to disallow attorneys fees
incurred  in  defending against Martins removal action  is  amply
supported.   Martins  action  was  for  removal  of  the   estate
          representative based on his claimed misconduct.  Dieringer
attempted  to  defend  his actions.  But we ultimately  concluded
that Dieringer committed intentional bad faith acts.
          Dieringer breached his fiduciary duties as  a
          trustee.  He engaged in self-dealing when  he
          made  a  loan  with the estate  assets  to  a
          company  in  which he had  an  interest.   He
          improperly, albeit equivocally, claimed  that
          the  $50,000 life insurance proceeds were his
          individually rather than as trustee,  and  he
          engaged in self-dealing when he attempted  to
          purchase  the Summit Lake property  for  less
          than  fair  market value.  The breaches  were
          intentional   and  are  equivalent   to   bad
Given  this  misconduct,  Dieringer  lacked  reasonably  arguable
substantive grounds to defend against the removal petition.   His
conduct was not reasonably defensible.
     C.   The  Superior  Courts  Decision  To  Reduce  Dieringers
          Estate   Representative  Fees  Is  Supported   by   the
          Dieringer argues that the superior court erred  in  two
ways: by failing to increase his award of personal representative
fees  and  by reducing its prior award of fees. In light  of  our
decision that the superior courts action in reducing the fees was
justified, we have no reason to address Dieringers claim  that  a
larger fee should have been awarded.
          Alaska  Statute  13.16.430  governs  compensation   for
personal representatives.  The statute provides in relevant part:
A  personal representative is entitled to reasonable compensation
for  services.   While  the statute does not expressly  condition
compensation  on  the  representatives good faith  actions,  this
requirement   is  encompassed  by  the  statutes  allowance   for
reasonable compensation.30
          The superior court vacated personal representative fees
related  to  preparing  for  and defending  the  removal  action,
determining  that  these  fees were  not  within  the  bounds  of
reasonable  compensation.   While  Dieringer  argues   that   the
superior  court  did not explicitly find that  he  acted  in  bad
faith,  the  superior  court stated  that  these  fees  shall  be
disallowed  as they were not fees incurred to benefit the  estate
or  the  beneficiaries.  More specific bad faith language can  be
found  in  the  superior courts consideration of attorneys  fees,
which  also  denied fees related to the defense  of  the  removal
petition,   where   the  court  explained:    His   defense   was
unsuccessful and on the major issues, he was found to have  acted
in  bad faith.  His actions in litigating against the beneficiary
were   not   actions  taken  with  the  intent  to  benefit   the
          The  superior  courts  decision  to  reduce  Dieringers
personal  representative fees is sound.  The superior court  only
disallowed  fees  incurred after December 2000 because  that  was
          when the bad faith defense began.  Dieringers intentional bad
faith  actions  as  representative  doomed  the  defense  on  the
substantive conduct issues in the removal litigation.  Reasonable
compensation  does  not  extend  to  a  personal  representatives
unreasonable defense in removal litigation.
     D.   The   Superior  Court  Did  Not  Err  when  It  Ordered
          Dieringers Law Firm To Return Attorneys Fees.
          Dieringer challenges the order requiring his counsel to
restore  to  the  estate the attorneys fees  (in  the  amount  of
$16,320.89)  that the court had previously approved.  These  fees
were incurred in the defense of the removal proceedings.
          In our prior opinion we ordered that the award of these
fees be vacated and remanded the case with instructions that they
be  reconsidered in light of the other conclusions  expressed  in
our opinion.31  As already noted, the superior court decided that
no  fees  should  be  awarded  for the  defense  of  the  removal
petition.   We  have concluded in Part B of the  present  opinion
that  this decision was proper.  Dieringers argument that we  now
consider is that the court should not have ordered his counsel to
restore  the  fees to the estate.  He claims that  the  order  of
restoration deprived counsel of due process because they were not
parties to the litigation and were not given an opportunity to be
          For  purposes of this argument, we take as  established
that  the  superior  court  properly declined  to  reinstate  any
portion  of  the prior award of fees that we ordered vacated  and
that  the funds ordered restored were previously paid to counsel.
Based on these assumptions, we consider first the claim that  the
restoration  order  should not have run against  counsel  because
they were not named parties.
          We think that this claim lacks merit.  Counsel prepared
the  original request for attorneys fees.  They have participated
as  counsel in subsequent proceedings leading up to and including
the  order of restoration.  Courts have considered counsel to  be
de facto parties in probate proceedings concerning attorneys fees
that are awarded to them.
          By   the  very  nature  of  an  attorney  fee
          application  prepared by  the  attorney,  the
          attorney is the real party in interest and is
          subject  to the jurisdiction of the court  to
          the extent the fee is later attacked.[32]
               On   a  hearing  of  objections  to  the
          confirmation  of  the  final  report  of   an
          administrator   or  executor,   the   latters
          attorney is, in the very nature of things,  a
          party to the proceeding and is subject to the
          jurisdiction  of the court whenever,  and  to
          the extent that, his fee is attacked.[33]
Based on these authorities, we conclude that counsel may properly
be considered as de facto parties in this proceeding.
          The  remaining question is whether counsel  had  notice
and  an  opportunity to be heard regarding the restoration issue.
          As previously stated, this court vacated the attorneys fees award
and  directed  that  further  proceedings  be  conducted  in  the
superior   court   to  reconsider  the  award.    Counsel   fully
participated in the proceedings before this court and before  the
superior court.  They are charged with knowledge that any portion
of  the award that was vacated and not reinstated by the superior
court  would necessarily have to be repaid.  As the Iowa  Supreme
Court observed in Estate of Borrego:
          [T]he courts authority to vacate fees carries
          with  it authority to enter judgment for  the
          return  of the fee to the extent that  it  is
          excessive.    Subject  to  notice   and   the
          opportunity  to defend, the court  may  order
          the attorney to return any portion of the fee
          later found excessive.[34]
Counsel  were given the opportunity to and did fully present  the
case  for  a renewed award of fees.  Counsel do not suggest  that
different  contentions would have been presented if counsel  were
named  parties.   Under  these  circumstances  we  conclude  that
counsel were accorded both notice and an opportunity to be heard.
We  therefore  conclude that the order of  restoration  does  not
violate due process.
     E.   The  Superior Court Erred in Part when It Ordered  that
          the  Excess  Fees  Paid by the Estate  Be  Returned  to
          Darrel Martin.
          Dieringer finally argues that the superior court  erred
by  not having the excess fees restored to the closed estate.  He
contends  that  the superior courts final judgment  in  favor  of
Darrel Martin was inconsistent with its prior order that the fees
be   returned   to  the  estate.   Darrel  responds   that   this
inconsistency is not important because he is a beneficiary of the
estate  and  that reopening the estate would be  a  wasted  added
          In  light of the fact that the estate was open  for  an
excessive period of time and has been closed for years, we reject
Dieringers  invitation to reopen it.  However, we recognize  that
the estate had two beneficiaries  Darrel and Donna Martin.  While
the  two  may have an agreement covering the disposition  of  the
funds,35 it seems prudent to provide for the possibility that this
is  not so.  Therefore Donna should be added to the judgment  and
she  should be given notice of the award.  If there turns out  to
be  a  dispute between the Martins concerning the funds, the fact
that  both are named in the judgment should not be understood  as
resolving  their dispute.  Rather, further proceedings will  have
to be conducted.
          For  the  reasons  stated above  the  judgment  of  the
superior  court should be modified on REMAND to run in  favor  of
Darrel Martin and Donna Martin.  As so modified, the judgment  is
     1     Martin  v.  Dieringer, 108 P.3d  234,  235-36  (Alaska

     2    Id. at 236.

     3     Martin v. Dieringer, Mem. Op. & J. No. 1203,  2005  WL
503637, at *1 (Alaska, March 4, 2005); see also Martin, 108  P.3d
at 236.  This action is ongoing.

     4    See Martin, 108 P.3d at 236.

     5    Id. at 237-38.  The loans rate was at a savings account
rate of interest.  Id. at 238.

     6    Id. at 239-40.

     7    Id. at 238, 240.

     8    Id. at 236, 241.

     9     Martin v. Dieringer, Mem. Op. & J. No. 1203,  2005  WL
503637,  at  *1  (Alaska March 4, 2005).  While  the  estate  was
closed  prior to the appeal to our court, we determined that  the
removal  petition  case was not moot because  of  the  collateral
estoppel effect it had on the civil action.  Martin, 108 P.3d  at

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

     11    Id.

     12    Sloan v. Jefferson, 758 P.2d 81, 85 (Alaska 1988).

     13     Enders v. Parker (Enders II), 125 P.3d 1027,  1030-31
(Alaska 2005).

     14    Id. at 1029.

     15     560  P.2d 758, 763 (Alaska 1977) (internal  citations

     16    See 18B Charles Alan Wright, Arthur R. Miller & Edward
H.  Cooper, Federal Practice and Procedure  4478, 4478.3 (2d  ed.
2002) (hereinafter Federal Practice and Procedure).

     17     Petrolane Inc. v. Robles, 154 P.3d 1014, 1026 (Alaska
2007)  (quoting  State,  Commercial  Fisheries  Entry  Commn   v.
Carlson, 65 P.3d 851, 859 (Alaska 2003)).

     18     18B  Federal Practice and Procedure, supra  note  16,
  4478,  at 680-83 (discussing the impact of new evidence on  the
law  of  the case and explaining that [e]vidence that could  have
been  presented  earlier commonly is not considered,  in  keeping
with the general rules that discourage slovenly or ill-considered
approaches to the first trial).

     19    Martin v. Dieringer, 108 P.3d 234, 241 (Alaska 2005).

     20    Id. at 240.

     21     See  Petrolane  Inc., 154 P.3d at 1026-27;  see  also
Carlson,  65 P.3d at 873-74 (observing that [s]uccessive  appeals
should narrow the issues in a case, not expand them); Gaudiane v.
Lundgren,  754  P.2d  742, 744 (Alaska 1988) (When  an  appellate
court issues a specific mandate a trial court has no authority to
deviate from it.).

     22    Martin, 108 P.3d at 238.

     23    66 P.3d 11, 14 (Alaska 2003).

     24    Id.

     25     See Enders v. Parker (Enders II), 125 P.3d 1027, 1030
(Alaska 2005).

     26    Id.

     27    Id. at 1031-32.

     28    Id. at 1032.

     29    Martin, 108 P.3d at 240.

     30      See   AS   13.16.350(a)  (emphasizing   a   personal
representatives fiduciary duty).

     31    Martin, 108 P.3d at 241.

     32     In  re  Estate of Borrego, 490 N.W.2d 833, 837  (Iowa

     33     In  re Petersons Estate, 123 P.2d 733, 746-47  (Wash.
1942);  cf.  Rose  v. Alaskan Vill., Inc., 412 P.2d  503,  507-09
(Alaska 1966) (attorney permitted to appeal on inadequacy grounds
in his own name attorney fee award made to client).

     34    490 N.W.2d at 836 (internal citations omitted).

     35     Darrel and Donna agreed that Darrel would receive the
Summit Lake property and Donna would receive extra cash from  the
estate.  Martin, 108 P.3d at 236. Later, the Summit Lake property
was  sold  and the proceeds went into the estate. The payment  to
Borgeson & Burns and Dieringer came from these funds.

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