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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cragle v. Gray (05/08/2009) sp-6370

Cragle v. Gray (05/08/2009) sp-6370

     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


BLANCHE L. CRAGLE, )
) Supreme Court No. S- 12765
Appellant, )
) Superior Court No. 2NO-05-93 CI
v. )
) O P I N I O N
MARIE GRAY, )
) No. 6370 May 8, 2009
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska,  Second Judicial District,  Nome,
          Ben Esch, Judge.

          Appearances:   Robert  D.  Lewis,   Lewis   &
          Thomas, P.C., Nome, for Appellant.  Andrew J.
          Fierro, Law Office of Andrew J. Fierro, Inc.,
          Anchorage, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          The  parties  in  this case contest  the  ownership  of
Elizabeth  Sarrens Unalakleet house.  Sarren died in  2000.   Her
will left the house to her daughter, Blanche Cragle.  But Sarrens
granddaughter, Marie Gray, claimed that Sarren orally  agreed  to
give  Gray  the house if Gray would be Sarrens live-in  caregiver
until  Sarren  died.  Gray cared for Sarren until Sarrens  death,
but  after  Sarren  died  the house was conveyed  to  Cragle  per
Sarrens will.  Cragle sued to evict Gray; Gray counterclaimed  to
quiet  title.   After a four-day jury trial, the  superior  court
awarded the house to Gray.  Cragle appeals the denial of her pre-
trial  motion for partial summary judgment.  We conclude that  AS
13.12.514,  which  provides that oral  succession  contracts  are
unenforceable, controls.  We therefore reverse.
II.  FACTS AND PROCEEDINGS
          Elizabeth  Sarren was Blanche Cragles mother and  Marie
Grays  grandmother.   Sarren  owned  and  lived  in  a  house  in
Unalakleet.  According to Gray, in September 1999 Sarren made  an
oral  promise to Gray to give Gray the house if Gray would reside
with and take care of Sarren until Sarrens death.  It appears  to
be  undisputed that Gray moved into the Unalakleet  residence  in
October  1999 and cared for Sarren until Sarren died  in  January
2000.
          Sarrens will, executed in October 1983, did not mention
any  agreement to give the house to Gray but instead bequeath[ed]
the  house to Cragle, who was also the wills executrix.  The will
bequeathed  other  property to Gray, including  half  of  Sarrens
shares  in regional and village corporations.  In September  2001
Cragle  executed an administrators deed conveying the  Unalakleet
house to herself in accordance with the will.  Gray continued  to
reside in the house with her children.
          In  late 2005 Cragle served Gray with a written  notice
to  quit  and filed a forcible entry and detainer action  against
Gray.   Gray answered and counterclaimed, alleging that  she  had
equitable title to the property.
          Cragle moved for partial summary judgment, arguing that
the  statute of frauds barred Gray from claiming ownership of the
house.  The superior court denied Cragles motion, concluding that
a  genuine issue of material fact remained as to the existence of
an  oral  agreement between Gray and Sarren.  The court  reasoned
that  if  such an agreement existed and Gray had fully performed,
an exception to the statute of frauds would excuse the lack of  a
writing.   It therefore concluded that if a jury found  that  (1)
Sarren  made  the  promise  Gray described  and  (2)  Gray  fully
performed her part of the bargain, then at the time of her death,
Ms. Sarrens property was conveyed to Gray.
          Cragle moved for reconsideration, arguing in part  that
Grays  claim to Sarrens house was time barred by the statutes  of
limitations for probate and contract claims.  Gray responded that
her  counterclaim  was  timely because the  ten-year  statute  of
limitations for actions relating to real property applied, giving
her  at  least  ten  years  in  which  to  defend  her  right  to
possession.   The  superior  court  denied  reconsideration.   It
concluded  that,  if  two statutes might reasonably  apply  to  a
claim, the statute providing for the longer period is preferred.
          The superior court then held a four-day jury trial,  in
part  to  determine ownership of the house.  At the  end  of  the
trial,  the  jury  was  asked to answer the following  questions:
(1)Did Elizabeth Sarren offer to give the house to Marie Gray  in
exchange for Marie taking care of Elizabeth for the rest  of  her
life?; (2) Did Elizabeth Sarren intend to give the house to Marie
Gray  when  she made the offer?; and (3) Did Marie  Gray  provide
care  to  Elizabeth  Sarren until her death in  reliance  on  the
offer?   The  jury answered yes to each question.   The  superior
court then awarded possession and ownership of the house to Gray.
The court also awarded attorneys fees to Gray.
          Cragle  appeals,  arguing  that  the  decision  denying
partial  summary  judgment should be reversed.   Cragle  did  not
initially  argue  that  AS 13.12.514, the  statute  that  renders
unenforceable  oral contracts to make a devise,  applied  in  the
present case.  Because it appeared to us that AS 13.12.514  might
be  controlling,  we  asked the parties  to  submit  supplemental
briefs  discussing whether the statute applied, and, if so,  what
the appropriate remedy would be.
III. DISCUSSION
     A.   Standard of Review
          We  apply  the independent judgment standard of  review
when interpreting and applying statutes.1  We likewise apply  our
independent  judgment when interpreting and applying statutes  of
limitations.2   We  review grants of summary  judgment  de  novo,
drawing  all  permissible factual inferences  in  favor  of,  and
viewing  the  facts  in  the light most favorable  to,  the  non-
prevailing party.3  We will affirm a grant of summary judgment if
there  are  no genuine issues of material fact and the prevailing
party was entitled to judgment as a matter of law.4
          A  trial  courts determination about which  statute  of
limitations applies is a question of law that we review de novo.5
     B.   Whether  the  Agreement Between  Sarren  and  Gray  Was
          Unenforceable Under AS 13.12.514 as an Oral Contract To
          Make a Devise
          
          Grays  claim  to  Sarrens  house  originates  from  the
alleged oral agreement under which Gray undertook to take care of
Sarren  in  exchange  for  Sarrens  promise  that  the  house  in
Unalakleet would belong to [Gray] upon [Sarrens] death.  Although
the  court  awarded the house to Gray in part  because  the  jury
found  that  Sarren  had in fact made such a promise,  the  award
cannot stand if AS 13.12.514 made the agreement unenforceable  as
a matter of law.6
          Alaska   Statute   13.12.514  governs  how   succession
contracts,  including  a  contract  to  make  a  devise,  may  be
established.  It provides:
          Contracts  concerning  succession.   (a)    A
          contract to make a will or devise, or not  to
          revoke a will or devise, or to die intestate,
          if  executed  after January 1, 1997,  may  be
          established only by
               (1)    provisions  of  a  will   stating
          material provisions of the contract;
               (2)  an express reference in a will to a
          contract  and extrinsic evidence proving  the
          terms of the contract; or
               (3)   a  writing signed by the  decedent
          evidencing the contract.
          (b)   The execution of a joint will or mutual
          wills  does  not  create a presumption  of  a
          contract not to revoke the will or wills.
          
Adopted from section 2-514 of the Uniform Probate Code (UPC),  AS
13.12.514 operates to limit the ways in which a contract to  make
a  devise may be established or proved.7  The commentary  in  the
UPC  Practice  Manual  states  that the  provision  was  intended
primarily to curb litigation by tighten[ing] the methods by which
contracts concerning succession may be proved.8
          We  must  therefore  determine  whether  the  agreement
alleged by Gray was a succession contract that was subject to  AS
13.12.514.
          Neither  Cragle  nor  Gray  argues  that  AS  13.12.514
applies  in  the  present  case.   Although  it  appears  to   be
undisputed  that  the  alleged oral agreement  between  Gray  and
Sarren  was  entered  into after January 1,  1997  (the  statutes
watershed  date), both parties seem to explicitly contend  or  to
implicitly  assume that Gray and Sarrens arrangement  was  not  a
succession contract.
          We generally decline to review issues not raised in the
superior  court except to the extent there may be  plain  error.9
And  here Cragle has not argued, even on appeal, that the statute
applies.   But  we  also  have held that  if  an  unraised  issue
involves a question of law that is critical to a proper and  just
decision, we will not hesitate to consider it, particularly after
calling  the matter to the attention of the parties and affording
them the opportunity to brief the issue.10
          We   gave  Cragle  and  Gray  an  opportunity  to  file
supplemental  briefs  discussing  AS  13.12.514.   Neither  party
squarely  argues that the statute applies; not even  Cragle,  who
had  the  greatest  interest in establishing that  any  agreement
between Gray and Sarren was unenforceable.  But the fact no party
argues  that the statute applies is not controlling.  Because  we
conclude that the statutes applicability involves both a question
of  law that is critical to a just and proper resolution of  this
case  and a legislative policy choice about how a claim  of  this
sort  must be established, we must independently analyze  whether
AS  13.12.514 applies.  That analysis is particularly appropriate
here,  given  that the factual essence of Cragles superior  court
statute  of frauds argument  that there was no writing  bears  on
section   .514s  application.   Gray  had  full  opportunity   in
responding  to  that argument to demonstrate  that  there  was  a
writing, an important topic of common relevance to the statute of
frauds and section .514.
          Whether  AS  13.12.514(a)  controls  here  depends   on
whether  the  arrangement between Gray and  Sarren  was  an  oral
contract  to  make.  .  . a devise of property.   Alaska  Statute
13.06.050(10) defines devise when the word is used as a  noun  to
mean  a  testamentary disposition of real or personal property.11
Thus,  unlike  a conveyance of land, a devise does not  pass  any
interest  in property or create rights in others until the  death
of  its  maker.12  Before AS 13.12.514 was enacted  in  1996,  we
observed that
          a  contract  to  make  a  bequest  or  devise
          requires the promisor to execute, during  his
          lifetime,  a  will  in  satisfaction  of  the
          contractual obligation.  Although any will so
          made   remains  entirely  revocable  by   the
          testator,  if  at  the moment  of  death  the
          promisor has not made the agreed testamentary
          gift, a breach of contract occurs.[13]
          
          To determine whether Sarrens agreement with Gray was an
oral contract to make a devise, we begin by considering what  the
parties have argued.  Gray argued that Sarren had entered into an
agreement  for  transfer of the house.  She  contended  that  the
transfer  took  place when Sarren made the promise  in  September
1999,  not upon Sarrens death in January 2000.  Gray argued  that
the  resulting  inter vivos transfer took the house  out  of  the
estate  and therefore out of the will.  But Grays superior  court
affidavit more accurately described both the terms and the nature
of  the alleged agreement:  On September 13, 1999 my grandmother,
Elizabeth Sarren, asked me and my children to move into her house
and  take  care of her and she would give me the house  following
her  death.  (Emphasis added.)  The superior court described  the
claim  similarly: Ms. Gray avers that her grandmother  agreed  to
give  the house to her if she would take care of Ms. Sarren until
her  death.   In rejecting Cragles statute of frauds motion,  the
superior  court reasoned that, if a jury found that  the  promise
Gray described was made and that Gray fully performed her part of
the  bargain, then at the time of her death, Ms. Sarrens property
was conveyed to Gray.  (Emphasis added.)
          The factual essence of Grays claim as she describes  it
on  appeal is that in September 1999 she and Sarren orally agreed
that  the  house owned by [Sarren] in Unalakleet would belong  to
[Gray] upon [Sarrens] death.14  (Emphasis added.)
          Cragles supplemental appellate brief asserts that there
was  an alleged oral agreement calling for the conveyance to Gray
of  Sarrens  interest in the house apparently at  the  moment  of
[Sarrens]   death.    (Internal  quotations   omitted.)    Cragle
describes the alleged arrangement as follows: That agreement  was
alleged  to be for conveyance of [Sarrens] ownership interest  in
the  house where [Sarren] was living to [Gray] (apparently at the
moment  of  [Sarrens] death) in exchange for [Grays]  promise  to
care for [Sarren].
          The  statute has effect here even though the jury found
that  Sarren  offered to give the house to Gray in  exchange  for
Gray  taking care of Sarren for the rest of Sarrens life.   Given
the  jurys apparent finding that Sarren actually entered into the
disputed  oral agreement, one might wonder why that finding  does
not control.  But the jurys finding is of no legal consequence if
AS  13.12.514 rendered Grays claim unenforceable as a  matter  of
law.   Whether her claim was unenforceable ultimately depends  on
whether  the  transfer  of  the house from  Sarren  to  Gray  was
intended to occur only upon Sarrens death.
          As  we have seen, there is no genuine dispute about the
basis  for  Grays claim; it was that there was an agreement  that
the  house would be transferred to Gray after Sarren died.   Only
then could it be determined whether Gray had fully performed  her
part  of  the  alleged agreement.  The agreement was therefore  a
contract to make a devise.  We accordingly hold that AS 13.12.514
limited  the  methods by which Gray could prove the existence  of
          the contract.  Although we have never before interpreted the
meaning  and effect of AS 13.12.514(a), a plain reading  of  that
statute  indicates that oral succession contracts  that  are  not
reduced   to   writing   are   unenforceable.    Alaska   Statute
13.12.514(a) provides that contracts to make a devise of property
may  be established only by means of provision or reference in  a
will or other writing signed by the decedent.15
          The Montana Supreme Court has considered the effect  of
an  almost  identical  succession contract statute  in  resolving
factually  similar  disputes.16  That court held  in  Orlando  v.
Prewett  that  the  text of the succession  contract  statute  is
absolute  and that a contract to make a devise may be established
only  by the means specifically enumerated in the statute.17   In
that  case  an uncle allegedly made an oral promise to his  niece
and  her husband that he would leave them a one-half interest  in
his ranch at the time of his death if they would rent and operate
the ranch until he died.18  An oral agreement was reached and the
niece  and  her  husband ran the ranch until the uncle  died  two
years later.19  The Montana court held that the oral agreement was
without  force  and  effect because it had not  been  reduced  to
writing.20    The  court  reasoned  that  written   evidence   is
particularly  necessary to establish succession  contracts  given
that  unscrupulous  claimants might otherwise  rely  on  perjured
testimony when the promisor is no longer available to confirm  or
deny the existence of the contract.21
          The  Montana Supreme Court reached a similar result  in
In  re  Estate of Braaten.22  In that case a stepfather allegedly
made  an  oral promise to leave his house to his stepson  if  the
stepson  cared for him until his death.23  The stepson cared  for
the  stepfather  until the stepfather died twelve years  later.24
The  stepfather  left his entire estate to someone  else.25   The
stepson sued for possession of the house but later requested just
the value of the services he had provided his stepfather over the
years.26   The  trial court awarded the stepson $44,100  for  the
value  of  his services, but the Montana Supreme Court  reversed,
holding  that  the  stepson did not have an enforceable  contract
with his stepfather.27
          We  are  persuaded by the statutes text  and  by  these
decisions that AS 13.12.514 is absolute and that a contract for a
devise   may   be  established  only  in  the  ways  specifically
enumerated in the statute.28
          Gray  and  Sarrens  alleged  oral  agreement  was   not
incorporated  in  or referred to in Sarrens  will.   Nor  was  it
otherwise  reduced  to writing and signed by  Sarren  before  her
death.   It  therefore  did  not  satisfy  any  of  the  statutes
alternative   requirements  for  proving  such  a  claim.29    We
consequently  hold that Sarrens alleged promise to  transfer  the
house  in exchange for Grays services is unenforceable.   Because
Gray does not allege any other theory for obtaining title to  the
house,  we reverse the decision awarding the house to  Gray.   We
also  vacate the attorneys fees award because Gray is  no  longer
the prevailing party.
          Gray  argued  in  the superior court  that  a  transfer
occurred  before Sarrens death, taking the house out  of  Sarrens
          estate.  Our conclusion that the alleged agreement contemplated a
transfer  at  the time of Sarrens death necessarily  disposes  of
this argument.
IV.  CONCLUSION
          Because AS 13.12.514 renders the oral agreement between
Gray  and  Sarren  unenforceable, we REVERSE  the  award  of  the
Unalakleet  house  to  Gray.   Because  Gray  is  no  longer  the
prevailing party, we also VACATE the attorneys fees award.
_______________________________
     1     Deal v. Kearney, 851 P.2d 1353, 1356 n.4 (Alaska 1993)
(citing Hertz v. Carothers, 784 P.2d 659, 660 (Alaska 1990)).

     2     Fernandes  v.  Portwine, 56 P.3d 1,  4  (Alaska  2002)
(citing  Pedersen  v.  Flannery, 863 P.2d 856,  857  n.1  (Alaska
1993)).

     3    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

     4    Id. at 1219.

     5     Sengupta v. Wickwire, 124 P.3d 748, 752 (Alaska  2005)
(citing  Alderman  v. Iditarod Prop., Inc.,  104  P.3d  136,  140
(Alaska 2004)).

     6     On  appeal Cragle seems to implicitly dispute  whether
the  alleged agreement ever existed.  The application of  section
.514  does  not  turn  on  whether there  actually  was  such  an
agreement,  but on whether Grays award is based on a  claim  that
there was such an agreement.

     7    Unif. Probate Code  2-514 (2006).

     8     1 Uniform Probate Code Practice Manual  2-701, at 129-
30 (1977).

     9    Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).

     10     Vest v. First Natl Bank of Fairbanks, 659 P.2d  1233,
1234  n.2  (Alaska  1983) (citing State v.  First  Natl  Bank  of
Anchorage,  660 P.2d 406, 422-23 (Alaska 1982); Stone  v.  Stone,
647  P.2d  582,  585-86 (Alaska 1982); Dresser  Indus.,  Inc.  v.
Alaska Dept of Labor, 633 P.2d 998, 1004-06 (Alaska 1981);  Libby
v. Dillingham, 612 P.2d 33, 41-42 (Alaska 1980)), rehg granted on
other grounds, 670 P.2d 707 (Alaska 1983).

     11    AS 13.06.050(10) (emphasis added).

     12    1 William Herbert Page & Jeffrey A. Schoenblum, Page on
the Law of Wills  1.1, at 1 n.2 (2003).

     13    Estate of Lampert Through Thurston v. Estate of Lampert
Through  Stauffer,  896  P.2d 214, 218-19 (Alaska  1995)  (citing
McBain v. Pratt, 514 P.2d 823, 826 (Alaska 1973)).

     14     On  appeal, Gray describes the alleged  agreement  as
follows: In September 1999 [Sarren] and [Gray] orally agreed that
the  house owned by [Sarren] in Unalakleet would belong to [Gray]
upon  [Sarrens] death.  The agreement was that [Gray] would  take
care of [Sarren] as a live-in caretaker until her death.

     15    AS 13.12.514(a) (emphasis added).

     16    Mont. Code Ann.  72-2-534(1) (2007) provides:

          (1)   A contract to make a will or devise  or
          not  to  revoke a will or devise  or  to  die
          intestate,  if executed after July  1,  1975,
          may be established only by:
          (a)  provisions  of  a will stating  material
               provisions of the contract;
          (b)  an  express  reference in a  will  to  a
               contract and extrinsic evidence  proving
               the terms of the contract; or
          (c)  a   writing   signed  by  the   decedent
               evidencing the contract.
               
     17    Orlando v. Prewett, 705 P.2d 593, 596 (Mont. 1985).

     18    Id. at 594.

     19    Id.

     20    Id. at 598.

     21    Id.

     22     In re Estate of Braaten, 96 P.3d 1125, 1126-27 (Mont.
2004).

     23    Id. at 1125, 1127.

     24    Id. at 1125.

     25    Id.

     26    Id. at 1126.

     27    Id. at 1126-27.

     28     We  note  that Gray has not asserted an equitable  or
quasi-contractual claim to recover the fair value of services she
rendered to Sarren in reliance on the oral agreement that we hold
was unenforceable.  We express no view whether AS 13.12.514 would
have  permitted  such  a  claim against Sarrens  estate  (see  AS
13.16.020,  .465),  the  distributees  of  the  estate  (see   AS
13.16.020,  .635), or the former personal representative  of  the
estate  (see AS 13.16.020, .640).  Nor do we express any  opinion
about  whether such a claim would have been barred by  laches  or
the   statutes   of  limitations  set  forth  in   AS   13.16.460
(limitations   for   claims   against   estate),   AS   13.16.645
(limitations  for claims against distributees), or  AS  13.16.640
(limitations for claims against former personal representative).

     29    AS 13.12.514(a).

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