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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kollander v. Kollander (7/21/2017) sp-7185

Kollander v. Kollander (7/21/2017) sp-7185

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



JEAN  R.  KOLLANDER,                                                  )  

                                                                      )     Supreme  Court  No.  S-16064  

                                 Appellant,                           )  

                                                                                                                                       

                                                                      )     Superior Court No. 3AN-90-06548 CI  

           v.                                                         )  

                                                                                                 

                                                                      )     O P I N I O N  

                     

DARYL E. KOLLANDER,                                                   )  

                                                                                                              

                                                                      )     No. 7185 - July 21, 2017  

                                 Appellee.                            )  

                                                                      )  



                                                                                                               

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

                                                                                                

                      Judicial District, Anchorage, Mark Rindner, Judge.  



                                                                                                                         

                      Appearances:   Stephen Merrill, Anchorage, for Appellant.  

                                                                                                       

                      David  W.  Baranow,  Law  Offices  of  David  Baranow,  

                                                 

                      Anchorage,  for Appellee.  



                                                                                                            

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                      and Carney, Justices.  



                                         

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                 

                      Jean Kollander filed suit in 2012 to reopen a qualified domestic relations  



                                                                                                                                         

order (QDRO) entered pursuant to her 1991 divorce.  The superior court dismissed the  



                                                                                                                   

suit based on laches and awarded full attorney's fees to her former husband, Daryl  



                                                                                                                                        

Kollander.  Jean appealed.  We affirmed the superior court's substantive decision but  



                                                                                                                                     

remanded for recalculation of attorney's fees in accordance with Alaska Rule of Civil  


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

Procedure 82.                                                           On remand the superior court awarded attorney's fees to Daryl based on                                                                                                                                                                                                                                                                                          



 60% of his reasonable actual attorney's fees.  The court also issued an Alaska Rule of   



Civil Procedure11                                                                             sanction against Jean's attorney, Stephen Merrill, for filing additional                                                                                                                                                                                                                             



motions after remand that were not well-grounded in fact or based on a reasonable                                                                                                                                                                                                                                                                                                            



inquiry into the facts.                                                                                             Jean now appeals the attorney's fee award and the Rule 11                                                                                                                                                                                                                                                         



 sanction against Merrill. We conclude that the superior court did not abuse its discretion                                                                                                                                                                                                                                                                                                        



either in determining the attorney's fee award or in sanctioning Merrill under Rule 11.                                                                                                                                                                                                                                                                                                                                             



II.                               FACTS AND PROCEEDINGS                                                     



                                                                    Daryl and Jean Kollander married in 1969 and divorced in 1991.                                                                                                                                                                                                                                                                                          The  



QDRO   entered   pursuant   to   their   divorce   granted   each   party   a   share   of   the   other's  



retirement benefits.                                                                                Daryl has been receiving monthly payments from Jean's pension                                                                                                                                                                                                                                           



 since 2001.                                                When Daryl retired in 2007 the federal Office of Personnel Management                                                                                                                                                                                                                                                 



informed Jean that she would receive her share of Daryl's pension as a lump sum of                                                                                                                                                                                                                                                                                                                                                       



 $22,459.81, paid in monthly installments of $1,796.50. Jean received the final payment                                                                                                                                                                                                                                                                                                                  



in 2008.                                    



                                                                    In 2012 Jean moved to reopen the QDRO and to hold Daryl in contempt for                                                                                                                                                                                                                                                                                           



failing to pay her the marital share of his retirement benefits because she received a lump                                                                                                                                                                                                                                                                                                                           



 sum instead of lifetime payments from Daryl's pension.                                                                                                                                                                                                                                       The superior court ruled that                                                                                                      



Jean's suit was barred by laches, and it awarded full attorney's fees to Daryl.                                                                                                                                                                                                                                                                                                                                          Jean  



appealed the decision to this court. In                                                                                                                                                     Kollander v. Kollander                                                                                                (Kollander I  ) we affirmed                                                            



the superior court's application of laches but, finding the full attorney's fee award                                                                                                                                                                                                                                                                                                                              



unsupported by the record, remanded for recalculation of the attorney's fee award in                                                                                                                                                                                                                                                                                                                                                      



                                                                                                                                 1  

accordance with Rule 82.                                                                                                               



                                  1                                 322  P.3d  897,  899  (Alaska  2014).  



                                                                                                                                                                                                                    -2-                                                                                                                                                                                                      7185  


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

                                                In June 2014 the superior court held a hearing on remand to reassess the                                                                                                                                                                                   



attorney's fee award.                                                        At the hearing Daryl asked for enhanced attorney's fees, arguing                                                                                                                                              



that the case involved complex issues including laches and "an obscure conspiracy," and                                                                                                                                                                                                                   



that a significant amount of money was at stake.                                                                                                                               He argued that "all of [Jean's] claims                                                                          



were   patently   unreasonable"   and   that   Jean   had   engaged   in   "vexatious   or   bad   faith  



conduct" such that the court could award full attorney's fees.                                                                                                                                                                



                                                Jean responded by first arguing that the case was disposed of without a trial                                                                                                                                                                        



and so should be subject to a 20 percent default fee under Rule 82, rather than a 30                                                                                                                                                                                                                    

                                                                    2   She next argued that her claim was reasonable and that our decision  

percent default fee.                                                                                                                                                                                                                                                                     



on the merits in Kollander I was "plain wrong."  She finally argued that the attorney's  

                                                                                                                                                                                                                                                                                  



fee award should be reduced because an enhanced fee award "would certainly deter a  

                                                                                                                                                                                                                                                                                                                  



claimant . . . who brings a case, no doubt about it," although she was unable to articulate  

                                                                                                                                                                                                                                                                                     



why she believed that was the case.  

                                                                                                                                  



                                                The superior court found that Daryl remained the prevailing party and  

                                                                                                                                                                                                                                                                                                        



determined that it would apply the Rule 82 schedule for a claim contested with trial. The  

                                                                                                                                                                                                                                                                                                        



court departed from the default attorney's fee based primarily on its assessment of the  

                                                                                                                                                                                                                                                                                                           



reasonableness of the parties' claims and defenses, pursuant to subsection 82(b)(3)(F).  

                                                                                                                                                                                                                                                                                                                          



The court found Jean's claims unreasonable due to the lack of evidence to support her  

                                                                                                                                                                                



arguments  and  the  amount  of  time  that  had  passed  before  she  brought  her  claims.  

                                                                                                                                                                                                                                                                                            



Because Jean also denied the legitimacy of this court's decision on appeal and attempted  

                                                                                                                                                                                                                                                                                   



to re-argue the merits of the case, the superior court determined that her argument on  

                                                                                                                                                                                                                                                                                                             



                        2                       Alaska R. Civ. P. 82(b)(2) ("In cases in which the prevailing party recovers                                                                                                                                                            



no money judgment, the court shall award the prevailing party in a case which goes to                                                                                                                                                                                                       

trial 30 percent of the prevailing party's reasonable actual attorney's fees which were                                                                                                                                                                                                             

necessarily incurred, and shall award the prevailing party in a case resolved without trial                                                                                                                                                                                                             

20 percent of its actual attorney's fees which were necessarily incurred.").                                                                                                                                                     



                                                                                                                                                       -3-                                                                                                                                           7185
  


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

                                                                                                          

remand was also unreasonable.  The court found Daryl's defense of laches reasonable  



                                                                                                                               

given the 21-year period between the initial divorce decree and the present claim.  The  



                                                                                                                               

court awarded 60% of Daryl's full and reasonable attorney's fees, including those fees  



                                                                                                                            

incurred in the first round of litigation and those incurred on remand, but not those  



                                                              

incurred in the first appeal to this court.  



                                                                                                                               

                    In May 2015 Daryl's attorney, David Baranow, submitted his fee and cost  



                                                                                                                               

accounting to the superior court.  He listed $8,190.01 for the initial 2012 litigation and  



                                                                                                                            

$2,062.40 for services provided on remand, and accordingly requested a 60% fee award  



                                                                                                                          

of $6,061.50.   Two days later Merrill sent Baranow an email criticizing the court's  



                                                                                                                         

treatment of the case and implying that Jean had moved or would move to Central  



                                                                                                                            

America to avoid paying Daryl.  Merrill followed this email with another in June 2015,  



                                                                                                                       

personally disparaging Baranow. After conferring with Bar Counsel, Baranow provided  



                                                                                                                         

the court a copy of this correspondence "as a matter of . . . ethical disclosure."  



                                                                                                                         

                    In June 2015 Jean filed a motion for extension of time to reply to Daryl's  



                                                                                                              

attorney's fee accounting; Daryl opposed the motion.  Jean then filed a motion to void  



                                                                                                                                 

the  attorney's  fee  award,  complaining  that  Baranow's  submission  to  the  court  of  



                                                                                                                              

Merrill's  emails  "foul[ed]  this  record  by  trying  to  jar  this  Court's  objectivity  and  



                                                                                                                                   

independence of judgment with a controversial pleading unknown to the law."  At a  



                                                                                                                                

status hearing  scheduled after  Jean's motion was submitted,  she  requested  that the  



                                                                                                                            

assigned judge either void the attorney's fee award or recuse himself.  The judge found  



                                                                                                                                

no basis for recusal and denied Jean's motion, noting that the motion "border[ed] on the  



                                                                                                   

frivolous."  Another superior court judge affirmed his decision.  



                                                                                                                           

                    Jean then moved for the entry of contempt citations and show cause orders  



                                                                                                                                 

against Daryl and Baranow.  She asserted that Daryl had perjured himself at trial by  



                                                                                                                           

stating that he did not receive a disputed home-closing document from Wells Fargo  



                                                                                                                              

Bank. The court investigated these allegations and found that the document, which Jean  



                                                                -4-                                                         7185
  


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

                                                                                                                               

claimed Daryl had obtained from Wells Fargo prior to a 2012 evidentiary hearing, was  



                                                                                                                  

actually provided to Daryl and Baranow by Merrill himself:  Merrill had attached the  



                                                                                                                               

document to one of his reply briefs.   The court therefore denied Jean's motions and  



                                                                                                                                

ordered Merrill to show cause why he should not be sanctioned under Rule 11 for  



                                                                             

submitting motions based on untrue information.  



                                                                                                                          

                    At an August 2015 show cause hearing, for which Merrill failed to appear,  



                                                                                                                            

the court found that Merrill should have known that his statements regarding the home  



                                                                                                                               

document were "factually . . . incorrect, untrue, [and] false."  Having concluded that  



                                                                                                                             

Merrill violated Rule 11(b)(3), which requires factual claims in court filings to have  



                                                                                                                                

evidentiary  support,  the  court  also  found  that  the  motions  were  submitted  for  an  



                                                                                                                                 

"improper purpose" - to increase litigation costs - in violation of Rule 11(b)(1).  As  



                                                                                                                                

a sanction for the Rule 11 violation, the court ordered Merrill personally to pay the full  



                                                                                    

attorney's fees incurred in responding to the motions.  



                                                                                                                 

                    On August 31 Merrill moved to reopen the Rule 11 sanction proceedings,  



                                                                                                                             

stating that he was outside of Alaska for depositions and had not received the show cause  



                                                                                                                         

order until after the August hearing.   The court granted his request and set another  



                                           

hearing for October 2015.  



                                                                                                                        

                    Merrill failed to appear again for the October hearing. The court's findings  



                                                                                                                               

at the October hearing mirror the findings from the August hearing. Because Merrill had  



                                                                                                                            

failed to review his own case file before submitting the motions, the superior court found  



                                                                                                                             

that he did not make a reasonable inquiry into the factual basis of the motions. The court  



                                                                                                                              

said that had Merrill reviewed his case file at any time before filing the motions to hold  



                                                                                                                    

Daryl and Baranow in contempt, Merrill would have discovered the lack of evidentiary  



                                                                                                                               

support for the motions.  The court therefore reiterated its order requiring Merrill to pay  



                                                                                                                                

Baranow the full amount of attorney's fees incurred in responding to the motions.  



                                                                -5-                                                         7185
  


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

                                                  Jean now appeals the award of enhanced attorney's fees under Rule 82 and                                                                                                                                                                                           



                                                                                                                                                                          3  

the Rule 11 sanction imposed against Merrill.                                                                                                                                  



                                                                                                    

III.                      STANDARDS OF REVIEW  



                                                                                                                                                                                                                                                                                                                  

                                                  "We review awards of attorney's fees for abuse of discretion and will  



                                                                                                                                                                                                                                                                                        

reverse 'if the award is arbitrary, capricious, manifestly unreasonable, or improperly  



                                                 4  

                                                                                                                                                                                                                                                                                                               

motivated.' "                                           In granting an attorney's fee award, "[t]he determination of which party  



                                                                                                                                                                                                                                                                                                                 

is the prevailing party is . . . subject to the trial court's discretion and is reviewable only  



                                                                                           5  

                                               

 for abuse of discretion." 



                         3                        Jean   makes   two   additional   arguments   in   her   brief,  both   cursory   and  



unsupported by authority. She argues that the court engaged in "the illegitimate practice                                                                                                                                                                                                            

 of trying to evade its obligation to make factual findings" and that she was "asked by the                                                                                                                                                                                                                            

 Superior Court for her help in fixing the record for him and to thereby give up a second                                                                                                                                                                                                            

 appeal [sic]."                                       These assertions appear to refer to the court's initial statement, after                                                                                                                                                                                  

presenting detailed oral findings, that it would not require written findings and that if                                                                                                                                                                                                                                   

Daryl chose to put the findings in writing he could not include that expense in his                                                                                                                                                                                                                                   

 accounting of attorney's fees.                                                                                   When Jean objected and specifically requested written                                                                                                                                

 findings, the court stated that the expense of writing up the findings could be included                                                                                                                                     

in Daryl's attorney's fees if the findings were written up at Jean's request. Because Jean                                                                                                                                                                                                                        

 addresses these issues only cursorily and does not cite to authority for either argument,                                                                                                                                                                                                   

we consider them waived.                                                                                 State v. O'Neill Investigations, Inc.                                                                                                       , 609 P.2d 520, 528                                           

 (Alaska 1980) ("When, in the argument portion of a brief, a major point has been given                                                                                                                                                                                                                      

no more than cursory statement, we will not consider it further.                                                                                                                                                                          Failure to argue a point                                          

 constitutes an abandonment of it.").                                                                               



                                                  Jean also questions, in her Issues Raised on Appeal, whether the superior                                                                                                                                                                        

 court   complied   with   our   initial   remand   order.     Although   we   need  not   address   this  

 question,  we   note   that   the   superior   court   did   comply   with   our   remand   order   in  

reassessing its award of attorney's fees pursuant to Rule 82.                                                                                                                                                       



                         4                        Roderer v. Dash, 233 P.3d 1101, 1106 (Alaska 2010) (quoting Rhodes v.  

                                                                                                                                                                                                                                                                                                                            

Erion, 189 P.3d 1051, 1053 (Alaska 2008)).  

                                                                                                                                          



                         5                        Finkv. Municipalityof Anchorage, 379 P.3d 183, 188 (Alaska2016)(citing  

                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                                            -6-                                                                                                                                                 7185
  


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

                        "We review the award of sanctions under Rule 11 for abuse of discretion"                                                           6  



                                                                                                                                                      

and will "review[] all factors relevant to the issue of whether the attorney's inquiry into  



                                                                                                                             7  

                                                                                                           

facts and law was reasonable under an abuse of discretion standard." 



IV.         DISCUSSION  



                                     

            A.          Legal Background  



                                                                                                  

                        1.          Alaska Rule of Civil Procedure 82  



                                                                                                                                         

                        Rule 82 entitles the prevailing party in a civil suit to recover a percentage  

                                                      8    The rule establishes a schedule of default fee awards  

                                                                                                                                                

of reasonable attorney's fees. 



depending on whether the prevailing party recovered a money judgment and whether a  

                                                                                                                                                           

trial was held.9  A court may depart from these default amounts upon consideration of  

                                                                                                                                



certain factors outlined in subsection 82(b)(3), including the length of the trial, the  

                                                                                                                                             



complexity of the case, the reasonableness of the parties' claims and defenses, and "other  

                                                                                                                                                  

equitable factors deemed relevant."10   We have stated that "[i]n general, a trial court has  

                                                                                                                                                       



broad discretion to award Rule 82 attorney's fees in amounts exceeding those prescribed  

                                                                                                                                           



            5           (...continued)  



                                                                                                                                                

Cont'l Ins. Co. v. U.S. Fid. & Guar. Co., 552 P.2d 1122, 1125 (Alaska 1976)).  



            6           Alaska State Emps. Ass'n v. Alaska Pub. Emps. Ass'n                                              , 813 P.2d 669, 671          



(Alaska 1991) (citing                   Keen v. Ruddy             , 784 P.2d 653 (Alaska 1989)).              



            7           Id. (quoting Keen, 784 P.2d at 658).  

                                                                                 



            8           Alaska Civil Rule 82(a) provides:  "Except as otherwise provided by law  

                                                                                                                                                       

or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's  

                                                                                                                                           

fees calculated under this rule."  

                                                



            9           Alaska R. Civ. P. 82(b).  

                                                         



            10          Alaska R. Civ. P. 82(b)(3).  

                                                         



                                                                            -7-                                                                    7185
  


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

by the schedule of the rule, so long as the court specifies in the record its reasons for                                                          

departing from the schedule."                       11  



                                                                                               

                        2.         Alaska Rule of Civil Procedure 11  



                                                                                                     

                       Alaska Civil Rule 11 provides, in pertinent part:  



                                                                                                                             

                       By presenting  to  the court a pleading,  written  motion,  or  

                                                                                                                          

                        other paper - whether by signing, filing, submitting, or later  

                                                                                                                   

                        advocating it - an attorney or unrepresented party certifies  

                                                                                                                           

                       that to the best of the person's knowledge, information, and  

                                                                                                                          

                       belief,   formed   after   an   inquiry   reasonable   under   the  

                        circumstances:  



                                                                                                                         

                        (1) it is not being presented for any improper purpose, such  

                                                                                                                   

                        as to harass, cause unnecessary delay, or needlessly increase  

                                            

                       the cost of litigation;  



                                                                                                                           

                        (2)  the  claims,  defenses,  and  other  legal  contentions  are  

                                                                                                                            

                       warranted by existing law or by a nonfrivolous argument for  

                                                                                                                          

                        extending,  modifying,  or  reversing  existing  law  or  for  

                                                               

                        establishing new law; [and]  



                                                                                                                              

                        (3) the factual contentions have evidentiary support or, if  

                                                                                                                    

                        specifically so identified, will likely have evidentiary support  

                                                                                                                             

                        after a reasonable opportunity for further investigation or  

                                                 [12]  

                                                

                        discovery . . . . 



The rule is intended to minimize waste of party and judicial resources by deterring claims  

                                                                                                                                             

that "a modicum of investigation" would have revealed to be untenable.13  

                                                                                                             



            11         Kollander   I,   322   P.3d   897,   907   (Alaska   2014)   (alteration   in   original)  



(quoting  Johnson v. Johnson                       , 239 P.3d 393, 400 (Alaska 2010)).                



            12         Alaska R. Civ. P. 11(b).  

                                                        



            13         See Foster v. Michelin Tire Corp., 108 F.R.D. 412, 415 (C.D. Ill. 1985).  

                                                                                                                                                         

We have relied on federal decisions to interpret Alaska Civil Rule 11.  See, e.g., Alaska  

                                                                                                                                            

Fed. Sav. &Loan Ass'n of Juneau v. Bernhardt, 794 P.2d 579, 583 (Alaska 1990) (citing  

                                                                                                                                                         

Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir.1986); Golden Eagle Distrib.  

                                                                                                                                           

                                                                                                                                (continued...)  



                                                                         -8-                                                                   7185
  


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

                     An   attorney   need   not   have   engaged   in   subjective   bad   faith   or   willful  



                                                                14  

misconduct to incur Rule 11 sanctions.                                                                                                

                                                                     To comport with Rule 11 "an attorney is  



                                                                                                                              

obliged to make objectively reasonable efforts to ascertain the facts of the case before  

                                                                       15  Rather than inquiring into an attorney's  

                                                                                                                         

                                                     

making assertions of fact in court documents." 



good  faith,  courts  must  determine  "whether  there  was  a  reasonable  basis  for  the  

                                                                                                                                   

attorney's signature at the time the paper was submitted."16  As a U.S. District Court has  

                                                                                                                                    



noted, "[w]here . . . a plaintiff has made no inquiry or has made an inquiry that has  

                                                                                                                                   

revealed no information supporting a claim, the inquiry is ipso facto[] not reasonable."17  

                                                                                                                   



           B.	       The Superior Court Did Not Abuse Its Discretion Under Rule 82 In  

                                                                                                                                     

                     Awarding 60% Attorney's Fees To Daryl On Remand.  

                                                                                                  



                     Jean presents several iterations of her argument that the superior court  

                                                                                                                                



abused its discretion in awarding Daryl 60% of his reasonable attorney's fees.   She  

                                                                                                                                  



asserts that the court "change[d] on its whim Rule 82" and engaged in "open, arbitrary  

                                                                                                                           



lawmaking" in violation of the principle of separation of powers. She questions whether  

                                                                                                                            



the record contains sufficient evidence to award 60% attorney's fees and whether the  

                                                                                                                                    



increased  attorney's  fee  award  is  "warranted  in  the   absence  of  extraordinary  

                                                                                                                  



           13        (...continued)  



                                                                                                                 HARLES   ALAN  

Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir.1986); 5A C 

WRIGHT  & ARTHUR R. MILLER, FEDERAL PRACTICE AND  PROCEDURE   1334 (2d ed.                                                         

                                                                                                                 

Supp. 1987)).   



           14        Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d 1220, 1228 (Alaska  

                                                                                                                            

1992) (citing Alaska Fed. , 794 P.2d at 583).  

                                                              



           15        Copeland v. State, 70 P.3d 1118, 1122 (Alaska App. 2003) (citing Tyler v.  

                                                                                                                                      

State, 47 P.3d 1095, 1100 (Alaska App. 2001)).  

                                                                 



           16        Luedtke, 834 P.2d at 1228 (citing Alaska Fed. , 794 P.2d at 583).  

                                                                                                                   



           17        Foster, 108 F.R.D. at 415.  

                                                        



                                                                  -9-	                                                          7185
  


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

circumstances not present in this record."                                                    She further argues that her claims were not                                              



                                                                                                                                                                                           18  

unreasonable and do not warrant an award of increased attorney's fees under Rule 82.                                                                                                            



                              The superior court based its attorney's fee award largely on one factor: the  

                                                                                                                                                                                        



reasonableness of the parties' claims and defenses.  During the hearing on remand Jean  

                                                                                                                                                                                     



attempted to re-litigate the merits of the case - in particular, her claim that her signature  

                                                                                                                                                                           



on  certain  home-sale  documents  was  forged  -  by  asserting  that  our  decision  in  

                                                                                                                                                                                         



Kollander I was erroneous and based on a "false analysis."  Once again, in an effort to  

                                                                                                                                                                                          



demonstrate that the record does not support an award of enhanced attorney's fees under  

                                                                                                                                                                                  



Rule 82, Jean continues to argue on appeal that the forgery allegation made at trial in  

                                                                                                                                                                                          



2012 was not unreasonable. She points to allegedly suspicious omissions in the relevant  

                                                                                                                                                                             



paperwork and claims that Daryl had the ability and opportunity to forge her signature.  

                                                                                                                                                                                                



                             But we have already affirmed the superior court's finding that Jean's claim  

                                                                                                                                                                                   

was barred by laches.19                                 Our prior determination is the law of the case,20  and Jean's  

                                                                                                                                                                                



argument to the contrary is manifestly unreasonable.  Furthermore, regardless of our  

                                                                                                                                                                                       



prior  determination,  those  claims  are  unreasonable  for  lack  of evidentiary  support.  

                                                                                                                                                                                                



               18            Jean also argues that Rule 82(b)(3)(F) "should be interpreted as requiring                                                                   



a   frivolous   or   very   near   frivolous   claim   to  be   made"   before   a   court   may   increase  

attorney's fees above the statutory schedule. Jean neither expands on this last argument                                                                                  

nor cites to any authority for her proposition, so we consider that argument waived.                                                                                                            

State v. O'Neill Investigations, Inc.                                         , 609 P.2d 520, 528 (Alaska 1980).                             



               19            Kollander I, 322 P.3d 897, 899 (Alaska 2014).  

                                                                                                                      



               20            E.g., Beal v. Beal, 209 P.3d 1012, 1016 (Alaska 2009) ("The law of the  

                                                                                                                                                                                       

case doctrine . . . generally 'prohibits the reconsideration of issues which have been  

                                                                                                                                                                                   

adjudicated in a previous appeal in the same case.' . . . The law of the case doctrine  

                                                                                                                                                                            

applies not only to issues explicitly addressed and decided in a prior appeal but also to  

                                                                                                                                                                                          

issues 'directly involved . . .' in a prior appellate decision . . . ." (footnotes omitted)  

                                                                                                                                                                           

(quoting State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 n.52  

                                                                                                                                                                                     

(Alaska 2003))).  

                   



                                                                                           -10-                                                                                    7185
  


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

Testimony from the bank agent who dealt with the contested home closing in no way                                                                                                                                                            



 suggests fraud or perjury on Daryl's part.                                                                                   Indeed, the agent testified that there was                                                                     



nothing remarkable or unusual about the home closing or the clerical discrepancies Jean                                                                                                                                                     



cites as evidence of fraud.                                                 Nothing else in the record supports Jean's contentions.                                                                                                         The  



 superior court's determination that Jean's claims were not reasonable was not erroneous.                                                                                                                                  



                                       In observing that Daryl's defense of laches was reasonable, the superior                                                                                                                  



court noted the amount of time that had passed between the alleged injury and Jean's                                                                                                                                                   



bringing suit and the prejudice occasioned by "the delay and the lack of exhibits" in                                                                                                                                                              



Jean's claim of forgery. Again, we have already affirmed the reasonableness of Daryl's                                                                                                                                             



laches   defense   in   our   affirmation  of   the   superior   court's   decision   on   the   merits   in  

                                     21         Because  Jean's  claim  was  unreasonable  and  Daryl's  defense  was  

Kollander   I .                                                                                                                                                                                                                             



reasonable, the court's decision to award Daryl 60% attorney's fees was not an abuse of  

                                                                                                                                                                                                                                                   



discretion.  



                    C.	                Jean Waived The Argument That The Superior Court Abused Its  

                                                                                                                                                                                                                                                

                                       DiscretionInIncludingPost-RemandAttorney'sFees InItsAttorney's  

                                                                                                                                                                                                                         

                                       Fee Award.  

                                                   



                                       Jean argues that the court erred in including post-remand attorney's fees in  

                                                                                                                                                                                                                                                    



its  attorney's  fee  award.                                                     She  reasons  that  because  the  attorney's  fee  award  was  

                                                                                                                                                                                                                                            



ultimately reduced, she was the prevailing party on remand and Daryl should not be  

                                                                                                                                                                                                                                                  



awarded that portion of attorney's fees.  Jean has not cited to any precedent to support  

                                                                                                                                                          



her argument, nor did she raise the issue of post-remand attorney's fees in her statement  

                                                                                                                                                                                                                              

of points on appeal.  We therefore consider her argument waived.22  

                                                                                                                                                                                                    



                   21                 Kollander I  , 322 P.3d at 903-06.                                      



                   22                 Hootch v. Alaska State-Operated Sch. Sys.                                                                               , 536 P.2d 793, 808 n.58 (Alaska                                     



 1975) ("A point omitted from appellants' statement of points on appeal ordinarily will                                                                                                                                                       

not be considered by this court. Appellate Rule 9(e) provides: The appellant shall serve  

                                                                                                                                                                                                                                          

                                                                                                                                                                                                                   (continued...)  



                                                                                                                       -11-	                                                                                                               7185
  


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

                        We note, however, that even if she had                                       not waived the argument, her                      



assertion   that   she   was   the   prevailing   party   on   remand   is   without   merit.     We   have  



previously noted that "prevailing party" status does not necessarily depend on recovery,                                                    

                                                                                                                           23    Because Daryl  

but rather depends on "which party prevails on the main issues."                                                                                  



prevailed on the merits both at trial and on appeal, and the merits of the case were no  

                                                                                                                                                        



longer  at  issue  on  remand,  the  superior  court's  determination  that  Daryl  was  the  

                                                                                                                                                       



prevailing party was not unreasonable.  

                                              



            D.	         The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Sanctioning  

                                                                                                                                      

                        Merrill Under Rule 11.  

                                                                



                        1.	         Rule 11 requires a reasonable inquiry into the factual basis of a  

                                                                                                                                                           

                                    motion and cannot be satisfied by a showing of good faith.  

                                                                                                                                           



                        Citing to the Ninth Circuit case Barber v. Miller, Jean asserts that a Rule 11  

                                                                                                                                                         



sanction may be issued sua sponte only for conduct "akin to an act of contempt of court"  

                                                                                                                                                  

and not for "simple mistakes of law or fact."24  But Alaska has not adopted this approach,  

                                                                                                                                            

and Alaska's Rule 11 cannot be satisfied by a mere showing of good faith.25                                                                The court  

                                                                                                                                                    



            22          (...continued)  



                                                                                                                                                      

and file with his designation a concise statement of the points on which he intends to rely  

                                                                                                                      

on the appeal.  The court will consider nothing but the points so stated.").  



            23          Alaska Constr. &Eng'g, Inc. v. Balzer Pac. Equip. Co. , 130 P.3d 932, 935- 

                                                                                                                                                     

36 (Alaska 2006) (quoting Cont'l Ins. Co. v. U.S. Fid. &Guar. Co., 552 P.2d 1122, 1125  

                                                                                                                                                    

(Alaska 1976)).  

                



            24          See  146 F.3d 707, 711 (9th Cir. 1998) (first citing Hadges v. Yonkers  

                                                                                                                                              

Racing Corp., 48 F.3d 1320, 1329 (2d Cir. 1995); then citing FED. R.C                                                        IV. P.11        advisory  

                                                                                                              

committee's note to 1993 amendment).            



            25          Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989) (holding that Alaska Civil  

                                                                                                                                                     

Rule 11 "creates an objective standard of 'reasonableness under the circumstances,' and  

                                                                                                                                                       

is intended to be more stringent than a mere 'good faith' formula" (quoting Golden Eagle  

                                                                                                                                                   

Distrib. Cor. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986))); Tyler v. State,  

                                                                                                                                                   

                                                                                                                                    (continued...)  



                                                                           -12-	                                                                   7185
  


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

of appeals has held that Rule 11 imposes on attorneys "an obligation to make objectively                                                



reasonable efforts to ascertain the facts of the case before making assertions of fact in                                                       

court documents."                26  



                                                                                                                                               

                        The superior court found that Merrill made no inquiry at all into the factual  



                                                                                                                                              

basis of his motions accusing the opposing party and counsel of dishonesty.  Merrill  



                                                                                                                                                        

himself admits, albeit obliquely, that he did not conduct an inquiry into the existence of  



                                                                                                                                                      

the  contested  document.                         Merrill's  failure  to  conduct  any  inquiry,  reasonable  or  



                                                                                                                                                      

otherwise, into the factual basis of his contempt and show cause motions supports the  



                                                                                                

superior court's decision to sanction him under Rule 11.  



                                                                                                                                                      

                        Jean also argues that because her underlying claim of perjury has merit, the  



                                                                                                                                              

patently false allegations in the motions should be overlooked.  But we have already  



                                                                                                   27  

                                                                                                        

                                                                                        

determined that the perjury claim was barred by laches. 



            25          (...continued)  



                                                                                                                                                   

47 P.3d 1095, 1100-01, 1109 (Alaska App. 2001) (rejecting bad faith standard for Rule  

                                                                                                                                                    

 11  sanction  and  sanctioning  attorney  despite  assumption  that  attorney  did  not  

                                                              

subjectively intend to mislead the court).  



                                                                                                                                                

                        Federal courts requiring subjective bad faith "akin to a contempt of court"  

                                                                                                                                         

do so based on the federal rule's safe harbor provision for party-initiated sanctions,  

                                                                                                                                                   

which does not exist in Alaska Civil Rule 11.   Compare Fed R. Civ. P. 11(c), with  

                                                                                                                                                     

Alaska R. Civ. P. 11.  See In re Bees, 562 F.3d 284, 287 (4th Cir. 2009) ("Because a sua  

                                                                                                                                                     

sponte order to show cause does not provide an attorney with Rule 11's twenty-one day  

                                                                                                                                              

safe harbor provision, . . . 'a court is obliged to use extra care in imposing [sua sponte]  

                                                                                                                                                   

sanctions on offending lawyers.' " (quoting Hunter v. Earthgrains Co. Bakery, 281 F.3d  

                                                                                                                                        

 144, 151 (4th Cir. 2002) (alteration in original)) (citing Fed. R.  Civ. P. 11(c)(2)));  

                                                                                                                                

Barber,  146  F.3d  at  711  (noting  link  between  federal  safe  harbor  provision  and  

                                                                       

heightened requirement for sua sponte sanctions).  



            26          Tyler, 47 P.3d at 1100.  

                                                       



            27          Kollander I, 322 P.3d 897, 906 (Alaska 2014).  We also note that Jean has  

                                                                                                                                                             

                                                                                                                                   (continued...)  



                                                                          -13-                                                                    7185
  


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

                       The sanctioned motions in this case explicitly relied on the home-closing                                



document as the basis for Daryl's alleged contempt.                                              Merrill demonstrably failed to                     



conduct   a   reasonable   inquiry   into   the   source   of   that   document,   in   violation  of   the  

                                                           28    The superior court, therefore, did not abuse its  

requirements of Alaska Rule 11.                                                                                                                    



discretion in sanctioning this conduct.  

                                                                     



                       2.          Merrill was not sanctioned for "improper purpose" alone.  

                                                                                                                                     



                       Jean also asserts that the superior court sanctioned Merrill solely for having  

                                                                                                                                            



an improper purpose in filing the motions, and that a sanction for improper purpose  

                                                                                                                                         



without a concurrent finding of frivolousness amounts to "assessing the thoughts and  

                                                                                                                                                 



motivations of counsel with a view . . . toward punishing those thoughts alone."  She  

                                                                                                                                                



argues that "improper purpose" cannot be the sole basis for a Rule 11 sanction; rather,  

                                                                                                                                            



improper purpose must be found in conjunction with a determination that the attorney's  

                                                                                                                                      



filing was frivolous.  Her argument is inapposite.  

                                                                   



                       The superior court stated that the basis for its sanction was Rule 11(b)(3),  

                                                                                                                                        

which required Jean's submission to have evidentiary support or a likelihood thereof.29  

                                                                                                                                                         



            27         (...continued)  



                                                                                                                                                   

pointed to no evidence in the record to support her underlying claim of perjury.   In  

                                                                                                                                                    

particular, as noted above, the bank agent's trial testimony in no way suggests fraud or  

                                                                                                                                                    

perjury on Daryl's part.  The superior court found Daryl's version of events credible in  

                                                                                                                                               

2012, and we defer to its credibility determination.  Whitesides v. State, Dep't of Pub.  

                                                                                                                                                 

Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001) (observing that  

                                                                                                                                            

"[t]his court consistently grants deference to trial courts where credibility is at issue"  

                                                                                                                     

(citing Kohl v. Legoullon, 936 P.2d 514, 518 n.5 (Alaska 1997))).  



            28         See Tyler, 47 P.3d at 1100; Keen, 784 P.2d at 658.  

                                                                                                        



            29         Alaska R. Civ. P. 11(b)(3) provides, "By presenting to the court a pleading,  

                                                                                                                                       

written motion, or other paper . . . an attorney . . . certifies that to the best of the person's  

                                                                                                                                         

knowledge,  information,  and  belief,  formed  after  an  inquiry  reasonable  under  the  

                                                                                                                                                 

                                                                                                                               (continued...)  



                                                                        -14-                                                                  7185
  


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

Jean does not address the court's Rule 11(b)(3) finding; instead, she discusses only the                                                                                                 



standard for an "improper purpose" sanction under Rule 11(b)(1). Although the superior                                                                                       

                                                                                                                                                     30  the primary basis  

court did find that Merrill filed the motions for an improper purpose,                                                                                                               



for the sanctions was, and is, Rule 11(b)(3).  Jean's argument that the superior court  

                                                                                                                                                                                    



erred in sanctioning Merrill for improper purpose alone is therefore without merit.  

                                                                                                                                                                         



V.             CONCLUSION  



                             WeAFFIRMthesuperior court's Rule82 attorney'sfeeaward to Daryl and  

                                                                                                                                                                                        



its Rule 11 sanction of Merrill.  

                                                    



               29             (...continued)  



                                                                                                                                                                                          

circumstances . . . the factual contentions have evidentiary support or, if specifically so  

                                                                                                                                                                                

identified, will likely have evidentiary support after a reasonable opportunity for further  

                                                                 

investigation or discovery. . . ."  



               30            Based on "the nature of the particular motions," "the tone of the pleadings,"  

                                                                                                                                                                       

and the fact that Merrill was the source of the document, the court found that Merrill had  

                                                                                                                                                                                        

submitted the motions, at least in part, in order to increase the cost of litigation.  

                                                                                                                                                                                 



                                                                                           -15-                                                                                     7185
  

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