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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaskan Adventure Tours, Inc. v. The City and Borough of Yakutat (8/23/2013) sp-6814

Alaskan Adventure Tours, Inc. v. The City and Borough of Yakutat (8/23/2013) sp-6814

         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, email  

                                                                                       

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



ALASKAN ADVENTURE TOURS,                                )
  

INC., KIMBERLY RIEDEL-BYLER,  )                                  Supreme Court No. S-14483
  

                                                       

aka KIMBERLY C. RIEDEL,                                )
  

K. CHRISTINA RIEDEL, and/or                            )         Superior Court No. 1JU-08-00434 CI  

KIMBERLY BYLER, and ABC                                )  

LEASING, LLC,                                          )         O P I N I O N  

                                                       )  

                            Appellants,                )         No. 6814 - August 23, 2013  

                                                       )  

         v.                                            )           

                                                       )  

THE CITY AND BOROUGH OF                                )
  

YAKUTAT,                                               )
  

                                                       )
  

                            Appellee.                  )
  

                                                       )
  



                  Appeal from the Superior Court of the State of Alaska, First  

                                                                     

                   Judicial  District,  Juneau,  Patricia  A.  Collins,  Judge  and  

                                                         

                  Niesje J.  Steinkruger, Judge pro tem.  



                  Appearances:  John E. Casperson, Holmes Weddle & Barcott,  

                   Seattle,  Washington,  for  Appellants.    James  T.  Brennan,  

                                                        

                  Hedland, Brennan and Heideman, Anchorage, for Appellee.  

                                                                    



                  Before:      Fabe,   Chief   Justice,   Carpeneti,   Winfree,   and  

                   Stowers, Justices. [Maassen, Justice, not participating.]  



                   CARPENETI, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                   This appeal concerns a company's efforts to vacate a fraudulent conveyance  



                                                                                                        

judgment.  The company sought relief under Alaska Civil Rule 60(b)(3), claiming fraud  



and  misconduct on the part of a borough in the course of a fraudulent conveyance trial  



                  

concerning liability for property taxes.  Specifically, the company argued that a police  



officer  falsely  testified  at  trial  concerning  a  conversation  he  allegedly  had  with  the  



company  president  regarding  the  company's  obligation  to  pay  borough  taxes.    The  



                                                                                             

superior court denied relief under Rule 60(b)(3), finding that the company had failed to  



                                                          

establish clear and convincing evidence of fraud.  The company appeals, arguing that the  



                      

superior court applied the incorrect legal standard and that the company presented clear  



                                                                                         

and convincing evidence of fraud.  The company also appeals various orders relating to  



discovery  and  the  award  of  attorney's  fees.    Because  the  superior  court  applied  the  



                                                                                                                

correct legal standard and did not abuse its discretion in finding that there was not clear  



and  convincing  evidence  of  fraud,  we  affirm  its  denial  of  the  Rule  60(b)  motion.  



Because the superior court did not abuse its discretion in refusing to reopen discovery  



or awarding attorney's fees, we affirm those rulings as well.  



II.       FACTS AND PROCEEDINGS  



          A.       General Background  



                                                                     

                   The City and Borough of Yakutat (Yakutat) instituted an action to collect  



taxes  from  Alaskan  Adventure  Tours,  Inc.  (Adventure  Tours).    Adventure  Tours  



                                                                                                              1 

                                                                                                                was the  

operated a commercial hunting and guide business in 2007; Kimberly Byler 



owner and president of the company, and her husband Darren Byler was the general  



manager.  In 2008 Yakutat filed an action in state district court against Adventure Tours  



          1  

                                                                                                   

                   In  the  record,  Kimberly  is  variously  referred  to  as  Kimberly  Byler,  

                                                                                                            

Kimberly C. Riedel, Kimberly Riedel-Byler, and K. Christina Riedel.  We refer to her  

as "Kimberly Byler" in this opinion.  



                                                            -2-                                                        6814  


----------------------- Page 3-----------------------

related to unpaid sales and transient accommodation taxes and obtained a final judgment  

                                                                                          



in the amount of $95,808.46 for unpaid taxes, penalties, interest, and other costs.                                               In  



April 2009 Yakutat filed a supplemental complaint alleging that Adventure Tours and  

                                                                                 



Kimberly had (in late 2007 and early 2008) engaged in fraudulent conveyance to avoid  



                                                                                           

payment  of  the  taxes  by  transferring  all  of  Adventure  Tours'  assets  to  Kimberly  



personally and then to ABC Leasing, LLC, another company solely owned by Kimberly.  



                                                                                 

                     The fraudulent conveyance claim was transferred from the district court to  



                                                                                      

the superior court, and Superior Court Judge Patricia A. Collins presided over a jury trial  



in February 2010.  At trial, Adventure Tours and co-defendant Kimberly defended on  



                                                                                         

grounds that they had no notice of Yakutat's tax claim at the time of the asset transfers.  



                                                     

John  Nichols,  the  Yakutat  chief  of  police,  testified  that  he  had  a  conversation  with  



Kimberly in 2007 during which she demonstrated awareness of Yakutat's tax claim  



                                                                                                 

against  Adventure  Tours.    He  stated  that  this  conversation  took  place  as  he  drove  



                                                                                                      

Kimberly to the airport after interviewing her in May 2007 about an unrelated matter at  



                                           

the Yakutat police station.  Kimberly testified that this conversation never occurred and  



that Chief Nichols did not drive her to the airport.  Apart from Chief Nichols's testimony,  



                                                                                                    

Yakutat offered substantial additional evidence of notice at trial. This evidence included  



                                                                                                                 

the following: (1) several letters from Yakutat to Adventure Tours, sent in 2004, 2005,  



and 2007, advising Adventure Tours of the obligation to pay Yakutat taxes when doing  



                                                                         

business in the area; (2) Yakutat attorney Sara Heideman's testimony that Darren Byler  



had  called  her  in  May  2007  to  dispute  Adventure  Tours'  liability  for  the  taxes  and  



evidence in support of this testimony, including Heideman's contemporaneous notes, her  



                                                                              

time sheet, and Adventure Tours' phone records; and (3) Yakutat tax and license clerk  



                                                                                        

Ladonna James's testimony that Kimberly called James in response to a February 2007  



letter from James to discuss Adventure Tours' obligations to pay Yakutat taxes.  



                                                                 -3-                                                          6814
  


----------------------- Page 4-----------------------

                                    

                     The  jury  found  that  Adventure  Tours  and  Kimberly  had  fraudulently  



                                                                                

conveyed assets to ABC Leasing.  It also found that Kimberly had intentionally testified  



untruthfully at her judgment debtor examination regarding the existence or value of  



                                                                            

Adventure Tours' assets and as to the availability of Adventure Tours' business records.  



                                                                                                       

On the basis of these verdicts, Judge Collins entered judgment in favor of Yakutat on  

March 18, 2010.2  



                                                                                                      

                     One  year  later,  Adventure  Tours  moved  for  relief  from  the  fraudulent  



                                                                                                 

conveyance  judgment  under  Alaska  Civil  Rule  60(b)(3)  on  the  basis  of  fraud  and  



                         

misconduct on the part of Yakutat.  Alternatively, Adventure Tours requested that the  



                                          

court  hold  the  motion  in  abeyance  and  permit  Adventure  Tours  additional  time  to  



                                       

conduct new discovery. Judge Collins denied the motion and awarded Yakutat enhanced  



                                                                                      

attorney's fees of 50% for opposing Adventure Tours' Rule 60(b) motion.  Adventure  



                                                                             

Tours then brought a motion for reconsideration, which was denied by Superior Court  



                                             3  

                                                  Adventure  Tours  now  appeals  the  denial  of  its  Rule  

Judge  Niesje  J.  Steinkruger. 



60(b)(3) motion and its motion for reconsideration. It also appeals the superior court's  

                                                                                    



denial  of  its  request  to  reopen  discovery  and  the  court's  order  awarding  Yakutat  

                                                                                                         



enhanced attorney's fees.  



          B.         Facts And Proceedings Directly Related To The Issues On Appeal  



                    A  key  issue at the fraudulent conveyance trial was whether Adventure  

                                



Tours had notice of Yakutat's tax claims at the time of the asset transfer from Adventure  

                                                                   



Tours to Kimberly Byler to ABC Leasing.  The central claim in Adventure Tours' Rule  

                                                                          



          2          For various reasons the judgment was amended several times; ultimately   



the court entered a Third Amended Judgment on Fraudulent Conveyance on January 29,  

2011, dated nunc pro tunc March 18, 2010.  



          3  

                                                                                           

                     The case was reassigned to Judge Steinkruger on June 7, 2011, due to Judge  

Collins's retirement from the bench.  



                                                                -4-                                                          6814
  


----------------------- Page 5-----------------------

60(b)  motion  was  that  Chief  Nichols  falsely  testified  at  trial  that  he  had  discussed  



Yakutat's tax claim with Kimberly when he drove her to the airport on May 15, 2007.  



                    1.        Summary of factual disputes  

                        



                    The parties dispute whether Chief Nichols drove Kimberly Byler to the  



                                              

airport on May 15, 2007 and, consequently, whether they discussed Adventure Tours'  



tax obligations to Yakutat at that time.  Adventure Tours asserts that Chief Nichols  



                                                                        

falsely testified that he gave Kimberly a ride to the airport.  Adventure Tours supports  



                                                                                                          

this assertion with two allegations.  First, Adventure Tours alleges that Chief Nichols's  



testimony regarding the order of the interviews of Kimberly and an Adventure Tours  



employee  is  false.    Chief  Nichols  testified  that  he  interviewed  Kimberly  before  the  



                                                                                                                   

employee,  but  Adventure  Tours  asserts  that  Kimberly  was  interviewed  after  the  



                                                                                                   

employee.         Second,  Adventure  Tours  argues  that  the  computer  and  audio  evidence  



                                                         

confirming Chief Nichols's testimony regarding the time and order of the interviews was  



altered in order to support his false version of the events of May 15, 2007.  Yakutat  



                                                                 

disputes these accusations, contending that Chief Nichols testified truthfully regarding  



                                                                                    

the order and time of the interviews, and that there is no evidence to support Adventure  



Tours' allegations of evidence tampering.  



                        

                    2.        Chronology of events on May 15, 2007  



                                                                                  

                    Although the fraudulent conveyance trial took place in 2010, the disputed  



                                                                                                 

events relate to a May 2007 investigation of an unrelated matter, the drowning death of  



a crew member on an Adventure Tours boat.  On May 15, Kimberly and Adventure  



           

Tours employee Brian Barton arrived in Yakutat by an air taxi flight from Icy Bay.  



                              

Chief  Nichols  and  a  deputy  transported  Kimberly  and  Barton  to  the  Yakutat  police  



                                                                                      

station, where Kimberly and Barton were interviewed by Chief Nichols.  Both of these  



interviews were recorded.  



                                                              -5-                                                        6814
  


----------------------- Page 6-----------------------

                       The order of the interviews is disputed.  Chief Nichols testified that his   



interview with Kimberly ended at 11:10 a.m. and was about 19 minutes long.  He stated   



that he next interviewed Barton from 11:15 a.m. to 11:26 a.m.  This timeline accords     



with Chief Nichols's contemporaneous statements made on the audio recordings of the         



interviews, the computer date-time stamp on Chief Nichols's computer indicating the  



original download time of the audio recordings, and the record start and stop times as  



                                                                                                                          

written into the file by the Olympus recorder used to make the audio recordings.  It is  



                                                                                                              

sometime after the conclusion of these interviews that Yakutat asserts the disputed ride  



to the airport took place.  



                             

                       3.          The superior court's rulings  



                                                                                                                                   

                       Judge Collins denied Adventure Tours' Rule 60(b) motion, finding that  



Adventure  Tours'  claims  were  "not  supported  by  significant  evidence  beyond  [the  



                                                                                                    

Bylers'] own testimony - which was clearly rejected by the jury in reaching its verdict  



and found to be untruthful by the jury and this court."  The court concluded that there  



                                                                                     

was not clear and convincing evidence of fraud.  Moreover, the court found that "[t]here  



                                                                                                                                      

is absolutely no reason to believe that the verdict would have been different had Chief  



                                                                                                                            

Nichol[s]'s testimony not been presented" and stated that "[a]t best, the instant attack on  



the   jury   verdict   involves   claims   of   an   imperfect   recollection   about   a   largely  



                                                                          

inconsequential event."  The court did not address Adventure Tours' claims of evidence  



tampering in its order.  



                                                                                                     

                       Judge Steinkruger denied Adventure Tours' motion for reconsideration of  



                                                                                                                                       

the denial of its Rule 60(b) motion.  Judge Steinkruger denied the motion on two bases  



                                                              

- on procedural grounds because the motion sought to augment arguments related to  



the 60(b) motion, and on the merits because the court found that even if Adventure  



                                                                                 

Tours' "new evidence" was considered, it still failed to establish by clear and convincing  



evidence that the verdict was obtained by fraud.  



                                                                         -6-                                                                  6814
  


----------------------- Page 7-----------------------

III.       STANDARD OF REVIEW  



                      Motions  for  relief  from  judgment  brought  under  Civil  Rule  60(b)  are  



                                                                                     4  

reviewed on appeal only for an abuse of discretion.   However, whether the trial court  



                                                                                                                                     5  

                                                                                                                                         We  

applied the correct legal standard is a question of law that is reviewed de novo. 



                                                                                                                        6  

                                                                                                                           An abuse of  

review the denial of a motion for reconsideration for abuse of discretion. 



                                                     

discretion exists if we are "left with a definite and firm conviction on the whole record  

that the trial judge has made a mistake."7  



                      We review discovery orders, including motions to reopen discovery, for  



                                8 

                                                                                                             

abuse of discretion.   We also review awards of attorney's fees for an abuse of discretion  



                                                                                                  

and will reverse only if the award is "arbitrary, capricious, manifestly unreasonable, or  



           4           Williams v. Williams, 252 P.3d 998, 1004 (Alaska 2011) ("A trial court's   



ruling on an Alaska Civil Rule 60(b) motion is reviewed for abuse of discretion; it will                       

not be disturbed unless we are left with 'the definite and firm conviction on the whole  

record that the judge ha[s] made a mistake.' " (alteration in original) (quoting Thomas  

v. Thomas, 581 P.2d 678, 679 (Alaska 1978))).  



           5          Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011).  



           6  

                                                                                

                      Smith v. Groleske, 196 P.3d 1102, 1105 (Alaska 2008) (citing Manelick v.  

                                                                                                          

Manelick , 59 P.3d 259, 262 (Alaska 2002)).  Such review does not focus on the merits  

                                                                                                

of the underlying decision, but only on the propriety of the denial of reconsideration.  Id.  

at 1106.  



           7  

                                                        

                      Babinec  v.  Yabuki ,  799  P.2d  1325,  1332  (Alaska  1990)  (citing Alaska  

Placer Co. v. Lee , 502 P.2d 128, 132 (Alaska 1972)).  



           8  

                                                                                                 

                      See Prentzel v. State, Dep't of Pub. Safety, 169 P.3d 573, 594 (Alaska  

             

2007); Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 283 (Alaska 2004) (citing Taylor  

v. Johnston , 985 P.2d 460, 463 (Alaska 1999)).  



                                                                     -7-                                                               6814
  


----------------------- Page 8-----------------------

                                                 9  

stemmed from improper motive."   We review the superior court's interpretation of the  

                                                                                                   

civil rules de novo.10  



IV.       DISCUSSION  



          A.        The Alaska Civil Rule 60(b)(3) Motion  

               



                    Civil Rule 60(b)(3) provides that a party may be relieved from a judgment  

                                                                                           



for the fraud, misrepresentation, or other misconduct of an adverse party.  The party who  

                                                



asserts  fraud,  misrepresentation,  or  misconduct  has  the  burden  of  proving  those  



                                                                   11  

assertions by clear and convincing evidence.                           "The conduct complained of must be  



material in the sense that it prevented the losing party from fully and fairly presenting his  

                                                                                                   

case or defense."12  Therefore, in order to prevail on its Rule 60(b)(3) motion, the moving  



                                                           

party must prove not only that there was misconduct but also that such conduct prevented  



                                                                        13  

it from fully and fairly presenting its case at trial.                      



                    Adventure Tours argues that the superior court applied the wrong legal  

                                                                                                              



standard in its Rule 60(b) ruling. In addition, Adventure Tours contends that the superior  

                                                                                                               



court abused its discretion in denying the Rule 60(b) motion because, taken together, the  



         

facts  presented  by  Adventure  Tours  constitute  clear  and  convincing  evidence  of  



          9         Wagner v. Wagner           , 183 P.3d 1265, 1266-67 (Alaska 2008) (quoting Ware  



v.  Ware, 161 P.3d 1188, 1192 (Alaska 2007)).  



          10        Wolff v. Cunningham, 187 P.3d 479, 482 (Alaska 2008) (citing Miller v.  

                             

Clough, 165 P.3d 594, 599 n.8 (Alaska 2007)).  



          11       Babinec , 799 P.2d at 1333 (citing McCall v. Coats , 777 P.2d 655, 658  



(Alaska 1989)).  



          12       Id.  



          13        See  12 JAMES WM .  MOORE ET AL .,  MOORE 'S FEDERAL PRACTICE  60.43  



[1][c] (3d ed. 2012) ("Courts determining Rule 60(b)(3) motions always require proof  

                      

that the alleged fraud or other misconduct prevented the moving party from fully and  

fairly presenting his or her case at trial.").  



                                                              -8-                                                       6814
  


----------------------- Page 9-----------------------

                                                      

fraudulent conduct on the part of Yakutat sufficient to warrant relief from judgment.  



                             

Yakutat responds that the superior court applied the correct legal standard and that its  



                                                                                 

denial of Adventure Tours' Rule 60(b) motion was not an abuse of discretion because  



                                                                                     

Adventure Tours failed to present clear and convincing evidence of fraud or misconduct.  



                          

                     1.        The superior court applied the correct legal standard.  



                     Adventure Tours also contends that - rather than simply applying the clear  



                                                                                         

and convincing evidentiary standard - the superior court erroneously required it to meet  



                                               

two additional tests.  That is, the superior court mistakenly required (1) proof that the  



                         

fraud could not have been timely discovered by due diligence and (2) proof that the jury  



                                                                                             

verdict would have been different but for the alleged fraud.  We disagree.  The superior  

                                                                                       14 and, as explained below, did  

court correctly applied the clear and convincing standard                                                              



not erroneously impose any additional requirements on Adventure Tours.  



                                                                                              

                     Adventure Tours argues that the superior court incorrectly applied the due  



diligence  standard  required  under  Alaska  Civil  Rule  60(b)(2)  to  its  Rule  60(b)(3)  



            15 

                                                                                           

motion,        effectively requiring proof that Chief Nichols's alleged fraud could not have  



                                                       

been discovered by due diligence. To support this argument, Adventure Tours seizes on  



                                                                                   

the court's statement that Adventure Tours was aware of Chief Nichols's statement many  



                                                                                                    

months before trial and that it "could have examined these issues at or long before trial."  



But this argument is unavailing.  The court's observation regarding Adventure Tours'  



failure  to  examine  these  issues  at  trial  is  not  an  application  of  the  due  diligence  



          14         Babinec , 799 P.2d at 1333 ("One who asserts fraud, misrepresentation or     



misconduct as a ground for relief under Civil Rule 60(b)(3) has the burden of proving  

those assertions by clear and convincing evidence." (citing McCall , 777 P.2d at 658)).  



          15  

                                     

                     Compare Alaska R. Civ. P. 60(b)(2) (basing relief upon "newly discovered  

evidence which by due diligence could not have been discovered in time to move for a  

new trial"), with Alaska R. Civ. P. 60(b)(3) (basing relief upon fraud, misrepresentation,  

                                      

or misconduct, with no mention of due diligence).  



                                                                 -9-                                                          6814
  


----------------------- Page 10-----------------------

              16  

                                                                                               

standard.         Rather, in finding Adventure Tours was aware of Chief Nichols's statement  



before trial, the superior court implicitly found that Adventure Tours was not prevented  

from fully and fairly litigating its case at trial.17  



                                                                           

                     Adventure Tours had notice more than ten months before trial that Chief  



                                                                          

Nichols claimed he had driven Kimberly to the airport on the day in question.  It could  



                                                                                  

have conducted discovery on the matter at that time, and offered any relevant evidence  



                                                                                               

at trial.  But, as Adventure Tours conceded at oral argument, it conducted no discovery  



on this matter prior to trial.  Rule 60(b)(3) was not intended to reward litigants who have  



failed  to  adequately  investigate  their  case  or  vigorously  cross-examine  a  witness;  



                                                                                                               

therefore, relief should be denied when "the moving party had ample opportunity to  



                                                                                                                18  

                                                                                                                     Adventure  

uncover the alleged fraud or perjury at trial through cross-examination." 



                                                                                          

Tours' earlier failure to pursue discovery regarding Chief Nichols's statement does not  



entitle it to relief from judgment now.  



                     Adventure Tours also takes issue with the superior court's statement that  



                                                                                        

"[t]here is absolutely no reason to believe that the verdict would have been different had  



                                                                                                 

Chief Nichol[s]'s testimony not been presented," claiming this statement shows that the  



                                                                                                       

court improperly held Adventure Tours to a "but for" standard.   Adventure Tours is  



correct that a Rule 60(b)(3) movant need not prove that it would have prevailed but for  



          16         Moreover, to the extent that Adventure Tours' 60(b) motion relied on new     



evidence, we note that it would have been more properly brought under Rule 60(b)(2)  

and application of the due diligence standard would have been appropriate.  See Alaska  

                                                                                                 

R. Civ. P. 60(b)(2). At oral argument before us, Adventure Tours admitted that this case  

                                                          

was about new evidence.  



          17  

                                                                         

                     See Babinec, 799 P.2d at 1334 & n.10 (interpreting trial court's statement  

                                                                                                                    

that a party had failed to pursue discovery despite sufficient knowledge of the issue as  

an implicit determination that the defense was not deprived of a full and fair litigation  

opportunity, and upholding the trial court's denial of relief under Rule 60(b)(3)).  



          18         MOORE , ET AL ., supra note 13,  60.43[1][c].  



                                                               -10-                                                          6814
  


----------------------- Page 11-----------------------

                                                 19  

                                                                                                              

the alleged fraud or misconduct.                     But we held in McCall v. Coats that a litigant is not  



                                                                                        

prevented from fully and fairly presenting his or her case where misconduct "had little  



                                                                             

bearing on the merits of the case" and "would not have probably changed the result on  



                  20  

                       We interpret the superior court's comments concerning the likelihood of  

a new trial."                                    



a different outcome as part of its determination that Adventure Tours was not prevented  

                                                                                                         



from fully and fairly litigating its case.  Indeed, as Adventure Tours conceded at oral  

                                                               



argument before us, there is little difference between the superior court's comments here  

                                                                   



and our analysis in McCall .  



                                                                                                       

                    Finally, Adventure Tours argues that in order to prevail on its Rule 60(b)(3)  



                                                       

motion, it only needed to show that Chief Nichols's allegedly fraudulent testimony and  



                                                                                                      

conduct was intentional.  Adventure Tours argues that it has made such a showing and  



                                                                                                             

is therefore entitled to a presumption that the fraud prevented it from fully and fairly  



                

litigating its case.  This argument ignores the requirement under Rule 60(b)(3) to first  



establish  by  clear  and  convincing  evidence  that  any  fraud  or  misconduct  actually  



               21  

occurred.          And, as discussed in the following section, Adventure Tours has failed to  



meet the preliminary burden of demonstrating fraud or misconduct.  



          19        See id.  60.43[1][d] ("[T]he moving party does not have to prove that he  



or she would prevail in a retrial in order to secure relief from judgment on the basis of  

                                                                                                              

fraud of an adverse party."); see also McCall, 777 P.2d at 658 (applying Rule 60(b)(3)  

in the context of misconduct in withholding information called for by discovery, and  

noting that the Rule "does not require that the information withheld be of such a nature  

as to alter the result in the case" (quoting Rozier v. Ford Motor Co. , 573 F.2d 1332, 1339  

                                                                                                     

(5th Cir. 1978))).  



          20        777 P.2d at 658.  



          21  

                                                    

                    The case Adventure Tours primarily relies upon is inapposite - there the  

                                                          

court had already determined that the misconduct had occurred.  Anderson v. Cryovac,  

Inc. , 862 F.2d 910, 922 (1st Cir. 1988).  



                                                               -11-                                                        6814
  


----------------------- Page 12-----------------------

                   We conclude that the superior court applied the correct legal standard in its  



evaluation of Adventure Tours' Rule 60(b)(3) motion.  



                                                                                  

                   2.	       The superior court did not abuse its discretion in denying the  

                             Rule 60(b)(3) motion.  



                   Adventure Tours contends that taken together, the evidence offered in its  



                                                    

Rule 60(b) motion constitutes clear and convincing evidence of fraud.  Yakutat responds  



                                                      

that the proffered evidence does not remotely approach clear and convincing evidence  



of fraud; thus, it was not an abuse of discretion for the superior court to deny Adventure  



Tours' motion for relief from judgment.  We agree with Yakutat.  



                   Adventure Tours cobbles together a succession of imprecise testimonies  



and  slight  contradictions  between  the  recollections  of  several  different  individuals  



regarding relatively inconsequential matters occurring almost three years earlier in an  



                                                                        

attempt to prove that Chief Nichols lied when he testified that he gave Kimberly a ride  



                                                     

to the airport on May 15, 2007;  but Adventure Tours falls far short of meeting the clear  



and  convincing  evidentiary  standard.  For  example,  Chief  Nichols  testified  that  he  



                                                                                         

transported Kimberly to the airport after he concluded the interview  with Barton  at  



                  

11:26 a.m. - "somewhere around that time, after 11:30."  Adventure Tours seizes on  



                       

this testimony and argues that phone records showing that Kimberly did not leave the  



police station until sometime after 12:00 p.m. establish that Chief Nichols's testimony  



                                                                                                        

regarding  the  ride  to  the  airport  is  false.                  But  as  Yakutat  points  out,  far  from  



demonstrating  an  irreconcilable  conflict  between  Chief  Nichols's  testimony  and  the  



phone records, Adventure Tours merely establishes that any trip to the airport could not  



have taken place until after the last phone call concluded, sometime after 12:00 p.m.    



                                                                                       

                   The remainder of Adventure Tours' evidence similarly fails to rise to the  



                                                                        

level of clear and convincing evidence of fraud.  An example is instructive.  To support  



                                                                                                        

its  contention  that  Chief  Nichols  did  not  give  Kimberly  a  ride  to  the  airport  on  



                                                            -12-	                                                     6814
  


----------------------- Page 13-----------------------

                                                                                                 

May 15, 2007, Adventure Tours alleges that the Yakutat police tampered with evidence  



- specifically, the recordings of the interviews of Barton and Kimberly - in order to  



                     

cover up the fact that Barton was actually interviewed before Kimberly.  According to  



                                                        

Adventure Tours, the "true" order of the interviews is relevant to show that evidence was  



                                       

altered "to support Chief Nichols's version of events of May 15."  In its argument before  



                                                                                                    

the superior court, Adventure Tours reasoned as follows: "[If] the  Barton interview  



                                                                                                                

preceded the Byler interview, then the recordings have been altered. . . . If the recordings  



                  

have been altered, then [Yakutat]'s evidence is false. There was no ride to the airport  



. . . ."   



                                                                                                                

                    In order for Adventure Tours' claims regarding the timing of the interviews  



                                                                                                                  

and evidence tampering to be plausible, Yakutat would have needed to alter the evidence  



                                                                                                    

in three places:  (1) the contemporaneous statements made in the audio recording of the  



                                                                               

interviews; (2) the recording start and end times, as written into the file by the Olympus  



                                                                    

recorder used to make the recordings; and (3) the data stored on the Yakutat servers  



                                                                                                               

showing the download times of the interviews from the recorder to the computer.  All  



                                                                                                       22  

three categories of evidence corroborate Chief Nichols's testimony.                                          



          22        Although there is a difference of two to three minutes between the times  



indicated in Chief Nichols's testimony and the electronic time stamps, this is negligible.  

According to Chief Nichols's testimony and the contemporaneous statement on the audio  

recording, the Kimberly Byler interview concluded at 11:10 a.m. The date-time stamp  

on Chief Nichols's computer, transferred to the police department's server, indicated that  

the audio recording of the Kimberly Byler interview was downloaded at 11:07 a.m. on  

                                                                                         

May 15, 2007.  The record start time, end time, and duration for the Kimberly Byler  

                                                                    

interview - as written into the file by the Olympus recorder used to make the audio  

                      

recordings - are as follows: Start: 10:48:39 a.m.; End: 11:07:33 a.m.; Duration:  18:54  

                                                                                                                            

(minutes:seconds).  



                    Chief  Nichols's  testimony  regarding  the  Barton  interview  timeline  is  

likewise supported by the evidence.  The Barton interview began at 11:15 a.m. and ended  

                                                                                                                      

at 11:26 a.m., according to a statement contemporaneously made on the audio recording  

                                                                                                                (continued...)  



                                                               -13-                                                         6814
  


----------------------- Page 14-----------------------

                                                                                                   

                    Adventure Tours fails to address the third point at all, and offers only a  



                                                           

modicum of evidence on the other two points.  Adventure Tours engaged two experts to  



look at the data from Yakutat's servers; and Yakutat retained an expert to respond to the  



allegations in the first expert's report.  Adventure Tours' first expert, Douglas Lacey,  



                                                                                                              

posited that Kimberly's interview was not downloaded to Chief Nichols's computer until  



                                                                                

May 2009, two years after the interview took place.  Lacey concluded that "something  



occurred" to the file on that date and that the possibility that the recording was altered  



or edited "[could not] be ruled out" without further information.  



                                                                            

                    Matthew Joy, Yakutat's information technology contractor, performed an  



                                             

analysis on the data stored on the Yakutat servers and refuted Lacey's conclusions.  Joy's  



                                                                        

analysis showed that Kimberly's interview was first downloaded on May 15, 2007, and  



Joy concluded that there had been "no modification whatsoever" to the Kimberly Byler  



                                                                      

interview file since it was first downloaded to Chief Nichols's computer.  This analysis  



                                                                            

included a comparison of both the quantity and  the content of the data.  Adventure  



                                                                                

Tours' second expert, Alfred L. Johnson, challenged Joy's conclusions by critiquing his  



                  

methods:          Johnson  stated  that  Joy's  analysis  should  have  included  "a  review  of  



unallocated or deleted space on the hard drives" and that software used by Joy "is not  



                                                                                                                

customarily relied on by forensic examiners for this type of work."  But Lacey's and  



Johnson's  reports  did  not  demonstrate  clear  and  convincing  evidence  of  evidence  



spoliation or fraud.  



          22        (...continued)  



by Chief Nichols. The date-time stamp on Chief Nichols's computer, transferred to the  

                                                                          

police department's server, indicated that the Barton interview ended at 11:24 a.m.  The  

                                                                     

record start time, end time, and duration for the Barton interview - as written into the  

                                                                         

file by the Olympus recorder used to make the audio recordings - are as follows: Start:  

                                                                                                          

11:12:29 a.m.; End: 11:24:25 a.m.; Duration: 11:55 (minutes:seconds).  



                                                              -14-                                                         6814
  


----------------------- Page 15-----------------------

                                                                                                                                

                       Having reviewed the record, we are satisfied that the superior court did not  



abuse its discretion in concluding that Adventure Tours failed to meet its burden of  



                                                                                                   23  

demonstrating  clear  and  convincing  evidence  of  fraud.                                               We  therefore  affirm  the  



superior court's ruling.  



                                                                                                                                                 

            B.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Refusing To  

                       Reopen Discovery.  



                       Adventure Tours argues that the superior court abused its discretion by  



denying its request to reopen discovery, which was made as part of Adventure Tours'  



Rule 60(b) motion.  We disagree.  



                       The fraudulent conveyance trial took place in February 2010, and judgment  



was initially entered in March 2010.  In March 2011, over a year after trial and exactly  



one year after the initial entry of judgment, Adventure Tours filed its motion for relief  



                                                                                                                                 

from judgment.  As a form of alternative relief (in the event the court did not grant its  



motion to vacate judgment) Adventure Tours requested that the court hold the motion  



in abeyance and permit Adventure Tours additional time to conduct new discovery.  



Adventure  Tours  asserted  that  it  expected  additional  discovery  to  uncover  further  



                                                                  

information about the timing of Chief Nichols's interviews of Kimberly and Barton and  



other details that would support or disprove Chief Nichols's testimony about driving  



Kimberly to the airport.  



            23         For the same reasons, we conclude that the superior court did not abuse its   



discretion in denying Adventure Tours' motion for reconsideration. Under Alaska Civil                                

Rule 77(k)(1)(ii), a party may ask the court to reconsider a ruling previously decided if,         

in reaching its decision, the court has overlooked or misconceived some material fact or           

proposition of law.  Adventure Tours claimed that the superior court had "overlooked  

or misconceived some material facts in the case," but failed to point with any specificity  

                                                                                                           

to  what  facts  the  court  overlooked.    Instead,  Adventure  Tours  merely  repeated  the  

arguments  made  in  its  original  Rule  60(b)  motion,  and  attempted  to  bolster  those  

arguments with new evidence not included in the original Rule 60(b) motion.  Thus, the  

                                                                                     

superior court did not err when it denied Adventure Tours' motion.  

                                                                       -15-	                                                                     6814  


----------------------- Page 16-----------------------

                    The  superior  court  denied  Adventure  Tours'  request  for  additional  



                                                                                                                          

discovery, stating that "[d]iscovery could have and should have occurred before trial in  



                                                                        

this case."  The superior court noted that the  Bylers were aware of Chief Nichols's  



                                                                                    

statements several months before trial and could have examined these issues before or  



at trial.  The superior court is correct. Chief Nichols's March 27, 2009 affidavit was  



                                                                                 

received by Adventure Tours on April 6, 2009   - 10 months before trial.  This put  



                                                                       

Adventure Tours on notice that Chief Nichols claimed to have had a conversation with  



                                                                                                                      

Kimberly Byler about Yakutat's tax claims while he drove her from the police station to  



                 24  

the airport.         Thus, Adventure Tours could have conducted discovery on this point  



before trial.  



                                                                                                                                 25  

                                                       

                    As a general matter, a trial court has broad discretion to limit discovery. 



                                                                                                       

We  have  held  that  a  trial  court  does  not  abuse  this  discretion  in  refusing  to  reopen  



discovery where the parties had sufficient opportunity to engage in discovery prior to  

trial.26 As such, the superior court did not abuse its discretion here.  



          24        In relevant part, Chief Nichols's affidavit states:  



                    While  I  was  transporting  Ms.  Riedel-Byler  back  from  the  

                    police  station  to  the  airport,  she  stated  that  she  felt  that  

                    everybody in Yakutat was against her and her business, or  

                                                        

                    words to that effect.  In this context, I brought up the pending  

                                          

                    issue  as  to  the  non-payment  by  her  business,  Adventure  

                                                                         

                    Tours, of  the  Borough sales and "bed" taxes. Ms. Riedel- 

                                           

                    Byler stated that they were not obligated or responsible for  

                                                                     

                    payment of these taxes.  Her response demonstrated to me  

                    that she was already aware of the Borough's effort to seek  

                    payment of the tax by her business.  



          25        Glover v. W. Air Lines, Inc., 745 P.2d 1365, 1370 (Alaska 1987).  



          26  

                                     

                     Walden v. Dep't of Transp., 27 P.3d 297, 305 (Alaska 2001) (finding no  

                                                                      

abuse of discretion where "parties had ample opportunity to engage in discovery prior  

to trial").  

                                                              -16-                                                             6814  


----------------------- Page 17-----------------------

          C.        The Attorney's Fees Award Was Not An Abuse Of Discretion.  



                    Finally, Adventure Tours argues that the superior court abused its discretion  



when  it  awarded  Yakutat  an  enhanced  attorney's  fee  award  of  50%  of  the  amount  



                                                                                                                

incurred.  Alaska Civil Rule 82(b)(3) permits a court to vary an attorney's fee award if  



                                                                                                   

the court determines that a variation is warranted. Relevant factors under the rule include  



                                                  27                                                    28 

"the complexity of the litigation,"                  "the reasonableness of the claims,"                   and "vexatious  

                              



                                29  

or bad faith conduct."              Here, the court based its decision to award enhanced fees on its  

                                                                                                    



finding  that  Adventure  Tours'  Rule  60  claims  were  both  "complex"  and  "not  



reasonable."  



                                                                                                              

                    Adventure Tours challenges the superior court's finding that its Rule 60(b)  



                                                                                                                   

claims were unreasonable.  It contends that it should not be "punished" for its good faith  



                                                                                                        

attempt to bring additional evidence to the trial court's attention.  But the superior court  



did not act to punish Adventure Tours; it merely awarded attorney's fees under the  



                                                                                                    

relevant rule. Adventure Tours also suggests that the superior court abused its discretion  



                                                   

because it found no evidence of vexatious  or bad faith conduct.  But a court is not  



                                                                            

required to find vexatious or bad faith conduct in order to award enhanced attorney's  



       30  

           Furthermore, we are not persuaded that the superior court abused its discretion  

fees.                                                                                              



when it concluded that Adventure Tours' claims were complex and unreasonable. The  

                                                                                  



court found that Adventure Tours' Rule 60(b) motion "was complex in that it contained  

                                                                                         



numerous assertions . . . regarding the evidence" and that it was "not reasonable" given  

                                                                                                       



          27        Alaska R. Civ. P. 82(b)(3)(A).  



          28        Alaska R. Civ. P. 82(b)(3)(F).  



          29        Alaska R. Civ. P. 82(b)(3)(G).  



          30        See id . (listing "the complexity of the litigation" and "the reasonableness  



of the claims and defenses pursued by each side" as factors for the court to consider  

when varying an attorney's fee award).  

                                                              -17-                                                           6814  


----------------------- Page 18-----------------------

the high standard litigants must meet to successfully prove fraud. These findings are not                     



clearly erroneous.  We therefore affirm the award of attorney's fees.  



V.        CONCLUSION  



                    We AFFIRM the decision of the superior court.  



                                                                 -18-                                                       6814
  

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