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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lee v. Sheldon (8/31/2018) sp-7285

Lee v. Sheldon (8/31/2018) sp-7285

           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                                          



HOLLY  SHELDON  LEE  and                                           )  

SHELDON  AIR  SERVICE,  LLC,                                       )     Supreme Court Nos. S-16442/16471  

                                                                                                             

                                                                   )  

                                      

           Appellants and Cross-Appellees, )                             Superior  Court  No.  3AN-15-05117  CI  

                                                                   )  

           v.                                                      )     O                    

                                                                             P I N I O N  

                                                                   )  

                                                                                                                 

                                     

ROBERT DONALD SHELDON,                                             )     No. 7285 - August 31, 2018  

                                                    

individually and as Trustee of the                                 )  

                                                   

Roberta Reeve Sheldon 2014 Grantor                                 )  

                                      

Controlled Revocable Trust,                                        )  

                                                                   )  

                                   

           Appellee and Cross-Appellant.                           )  

                                                                   )  



                                                                                                                  

                                    

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

                                                                                                    

                      Judicial  District,  Anchorage,  Pamela  Scott  Washington,  

                                                                                        

                      Judge pro tem, and William F. Morse, Judge.  



                                                                                                                 

                      Appearances:               Robert  John,  Law  Office  of  Robert  John,  

                                                                                                                       

                      Fairbanks, for Appellants and Cross-Appellees.   Kevin G.  

                                                                                                           

                      Clarkson and Matthew C. Clarkson, Brena, Bell & Clarkson,  

                                                                                  

                      P.C., Anchorage, for Appellee and Cross-Appellant.  



                                                                                                              

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

                                            

                      and Carney, Justices.  



                                          

                      BOLGER, Justice.  


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

I.        INTRODUCTION  



                    Following mediation, a trust beneficiary and a trustee signed a document  

                                                                 



purporting to settle bitter family litigation and referring future disputes to the mediator  

                                                                                                                      



for resolution.  The beneficiary subsequently denied that she had settled and asked the  

                                                                                                                               



mediator to resolve the issue, and the mediator concluded that the parties had reached a  

                                                                                                                                  



binding settlement. The beneficiary tried to resurrect this issue in the superior court, but  

                                                                                                                               



the court concluded that the mediator's decision was within the scope of the authority  

                                                                                                                      



conferred by the parties.  We conclude that the superior court did not err by confirming  

                                                                                                                   



the mediator's decision.  We also conclude that the court did not err by denying the  

                                                                                                                               



beneficiary's petition to review the trustee's compensation, or by awarding Alaska Civil  

                                                                                                                            



Rule 82 attorney's fees to the trustee. We therefore affirmthe superior court's judgment.  

                                                                                                                                     



II.       FACTS AND PROCEEDINGS  

                                  



          A.        Creation Of Mountain House, LLC And Roberta Sheldon's Trust  

                                                                                                                      



                    In the 1960s, famed Alaska bush pilot Don Sheldon built a cabin - known  

                                                                                                                          



as the Mountain House - at the head of Ruth Glacier in Mount McKinley National Park  

                                                                                                                             



(now Denali National Park).  Following Don's death in 1975, his wife Roberta Sheldon  

                                                                                                                       



assumed control of the Mountain House. In 2006 Roberta created Mountain House, LLC  

                                                                                                                             



to own and manage the cabin.  

                                               



                    In early 2014 Roberta conveyed Mountain House, LLC and other assets  

                                                                                                                           



into a newly created revocable trust. The trust names the Sheldons' three children Holly,  

                                                                                                                          

Robert,  and  Kate1           as  beneficiaries  and  designates  Robert  as  successor  trustee.                               It  

                                                                                                                                 



establishes  procedures  for  distribution  of  real  and  personal  property  among  the  

                                                                                                                              



beneficiaries.  It also includes a penalty clause designed to dissuade the beneficiaries  

                                                                                                                



from contesting the trust's terms. The clause provides that persons who contest the trust  

                                                                                                                             



          1  

                                                                            

                    Kate Sheldon is not involved in this dispute.  



                                                               -2-                                                             7285  


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

or its provisions "shall not benefit in any way under this Trust . . . and shall not receive                                                                                                                                                                                



any distribution whatsoever."                           



                                             Following Roberta's death in June 2014, Robert became trustee.                                                                                                                                                                   Holly  



requested an accounting of trust assets in September, and Robert provided a list of assets                                                                                                                                                                                        



the following month. In December, Robert - acting in his capacity as trustee - drafted                                                                                                                                                                                       



an operating agreement appointing himself as manager of Mountain House, LLC.                                                                                                                                                                                                          The  



agreement provided that membership shares in the LLC would be distributed equally                                                                                                                                                                                          



among Holly, Robert, and Kate "[a]t such time as the Trustee deems suitable for both this                                                                                                                                                                                                



LLC and the Trust."                                                    



                       B.                    Initial Litigation   



                                             Over thefollowing months,                                                                   disagreementsarosebetween                                                                         Hollyand                          Robert  



concerning his administration of the trust.                                                                                                           Holly claimed that Robert had failed to                                                                                                



adequately  respond to her request for an accounting and that he also had failed to                                                                                                                                                                                                          



distribute trust assets that she had requested and that he had stated he would provide.                                                                                                                                                                             



                                             In  February   2015   Holly and                                                                        her   company, Sheldon                                                            Air   Service,   LLC  

                        2  filed a lawsuit against Robert individually and in his capacity as trustee.  Holly  

(SAS),                                                                                                                                                                                                                                                                           



argued that Robert had "unlawfully detained . . . Trust assets without regard to the  

                                                                                                                                                                                                                                                                                         



beneficiaries' distribution rights" and that he had breached his fiduciary duties "[b]y  

                                                                                                                                                                                                                                                                                  

refusing to timely distribute Mountain House, LLCto the beneficiaries."3   She moved for  

                                                                                                                                                                                                                                                                                           



summary  judgment,  asking  the  superior  court  to  rule  that  Robert  was  required  "to  

                                                                                                                                                                                                                                                                                         



immediately distribute the Mountain House, LLC, to its three, equal owners."  Robert  

                                                                                                                                                                                                                                                                            



                       2                      SAS is a limited liability company owned by Holly and her husband David                                                                                                                                                            



Lee.   



                       3                     Holly's complaint also alleged breach of contract; she argued that Robert  

                                                                                                                                                                                                                                                                              

had  violated  a  previously  existing  agreement  granting  SAS  unrestricted  rights  to  

                                                                                                                                                                                                                                                                                            

transport Mountain House guests.  

                                                                                                                     



                                                                                                                                              -3-                                                                                                                                   7285
  


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

                                                                                                                                

brought a cross-motion for summary judgment, arguing that Holly had "no right to  



                                                                                                                         

distribution, immediate or otherwise, of an in-kind membership in the Mountain House,  



                                                                                                                              

LLC" and that Holly's complaint and litigation violated the trust's penalty clause.  



                                                                                                                            

                    In November 2015 the superior court ruled that under the terms of the trust,  



                                                                                                                                 

Robert was entitled to determine which children would receive membership interests in  



                                                                                             

Mountain House, LLC.   It also found that Robert was not obligated to immediately  



                                                                     

distribute Mountain House, LLC.  However, the court rejected Robert's argument that  



                                                                                                                         

Holly's litigation had triggered the trust's penalty clause. Noting that attempts to enforce  



                                                                                                                        

rights or "secure an interpretation of [an] instrument" generally do not trigger penalty  



                                                                                                                             

clauses, the court held that Holly had "advanced a reasonable interpretation of the trust  



                                                                                         

in light of an ambiguity."  Though the court "[found] her interpretation unsupported,"  



                                                                                                                                 

it concluded that Holly had merely sought to "clarify and enforce the trust," not void it,  



                            

nullify it, or set it aside.  



                                                                  

          C.        Mediation And Subsequent Disputes  



                                                                                                                       

                    Robert and Holly participated in mediation conducted by retired superior  



                                                                                                                          

court judge Eric Sanders in December 2015. Following the mediation, the parties signed  



a document titled "Mediator's Proposal" (Proposal).  Under the terms of the Proposal,  



                            

Holly would pay $25,000 into Mountain House, LLC.  She would receive a one-third,  



                                                                                                                         

non-voting interest in the LLC as well as various personal effects fromthe trust's corpus,  



                                                                                                                           

and she would be granted periodic access to the Mountain House.  The Proposal stated  



                                                                                                                        

that the parties had "reached an agreement to the settlement of all claims of all parties"  



                                                                                                                       

and would "execute a Settlement Agreement and Mutual Release of All Claims between  



                                                                                                                                

the parties as a result of the full and complete settlement reached." Lastly, paragraph 11  



                                                                                                                               

of the Proposal provided that "[a]ny disputes concerning [the Proposal's] terms or the  



                                                                                                                              

execution of these terms and the Settlement and Release shall be resolved finally and  



                                              

completely by Eric Sanders."  



                                                               -4-                                                         7285
  


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

                                                                                                                                  

                    Per the Proposal's terms, Robert sent Holly a draft settlement agreement to  



                                                                                                                                 

review.   In response Holly sent a "Response Regarding Term Sheet" (Response) to  



                                                                                                                           

Sanders arguing that the Proposal had not settled her claims against Robert. She argued  



                                                                                                                       

that at the time she signed the Proposal, she "believed [the] document was merely a  



                                                                                                                               

proposal . . . and that her signature would not result in a binding agreement."  She also  



                                                                                                                                

claimed that she "lacked sufficient information concerning the assets and liabilities ofthe  



                                                                                                                                  

Trust" to make an informed decision during the mediation and that Robert's failure to  



                                                                                                                          

provide this information "vitiate[d] [her] consent" to any settlement. Lastly, she argued  



                                                                                                                               

that even if she and Robert had reached a settlement, SAS had separate claims that had  



                                                                                                                                 

not yet been resolved.  Holly "requested that the mediation be reconvened to address all  



                                                                                                                                 

disputes."  She also indicated that her Response was "submitted within the context of  



                                                                                                                                

mediation" and that she "reserve[d] all rights as to whether the issues raised herein are  



                                    

subject to arbitration."  



                                                                                                                    

                    In response Robert submitted an "Arbitration Memorandum Regarding  



                                                                                                                

Settlement          Existence,         Scope,       Noncompliance,              and      Enforcement"             (Arbitration  



                                                                                                                                  

Memorandum) to both Holly and Sanders.  Robert argued that the parties had agreed to  



                                                                                                                          

a settlement when they signed the Proposal, that Holly had all the information she needed  



                                                                                                                         

to  make  an  informed  decision  regarding  settlement,  and  that  SAS's  claims  against  



                                                                                                                                 

Robert, the trust, and Mountain House, LLC had been resolved.   Robert attached an  



                                                                                                                      

accounting, which disclosed payments made for repair and renovation of the Mountain  



                                                                                    

House and legal fees related to the ongoing litigation.  



                                                                                                                     

                    After both documents hadbeensubmittedto Sanders, theparties exchanged  



                                                                                                                               

a series of emails discussing the nature of their dispute.  Robert sought to clarify that  



                                                                                                                               

"this is an arbitration at this point" and that the parties were no longer "mediating at this  



                                                                                                                                

time."  Holly stated that she did "not agree with Robert's position but would like to see  



                                                                                                                            

all issues resolved to avoid further litigation expense" and that the parties would "have  



                                                                -5-                                                         7285
  


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

                                                                          

to agree to disagree on this point."  In response to a question about subpoenas, Robert  



                                                                                                                         

stated that he was "under the impression that [the parties were] waiting for . . . Sanders  



                                                                                                                                      

to issue a decision as an arbitrator under paragraph 11 of the Mediator's Proposal."  



                                                                                                                               

Holly replied that she wanted to take Robert's deposition, stating, "I do not have any  



                                                                                                                                 

objection to rescheduling the depo until after [Sanders] has reviewed the matter."  In  



                                                                                                                                

response Robert again noted, "We are awaiting . . . [Sanders's] decision regarding the  



                                                                                                                           

existence  and  scope  of  the  settlement  that  was  reached  at  the  December  1,  2015,  



                                                                                                                           

mediation."  And Holly again confirmed that she was anticipating that Sanders would  



                                                                                                                          

issue a decision on the issues she had raised: "[P]lease confirmwhether Robert is willing  



                                                                                                                               

to agree to reschedule the deposition until after [Sanders] has issued his decision."  



                                                                                                                               

                     Sanders issued a decision in February 2016.  He stated that the parties had  



                                                                                                                                

identified disputes to be resolved "[p]ursuant to paragraph 11" of the Proposal.   He  



                                                                                                                                

concluded that Holly had settled her claims against Robert when she had executed the  



                                                                                                                          

Proposal  and  that  she  "must  comply  with  [its]  terms  and  conditions."                                     He  further  



                                                                                                                           

concluded that the Proposal had settled SAS's claims against Robert but not its claims  



                                                                                                                          

against Mountain House, LLC. Sanders directed the parties to "execute a mutual release  



                                                              

which is consistent with this decision."  



                                                                 

          D.        Motions To Continue And Enforce  



                                                                                                                                

                    In March 2016 Holly filed a motion to continue the trial scheduled in the  



                                                                                                                         

superior court. She again contended that the December 2015 mediation had not resulted  



                                                                                                                   

in a binding settlement; in the alternative, she argued that fraud and fiduciary misconduct  



                                                                                                                            

on Robert's part vitiated her consent to any settlement that may have occurred.  Holly  



                                                                                                               

denied that the parties had already submitted these issues to arbitration, characterizing  



                                                                                                 

her earlier Response as a request for "assistance" presented to Sanders "in the context  



                                                                                                                                

of the mediation."              She sought a continuance to  investigate "facts surrounding  the  



                                                                                                                     

Trustee's various breaches of fiduciary duty."   In response Robert filed a motion to  



                                                                -6-                                                         7285
  


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

                                                                                                                               

enforce, arguing that the parties had already submitted these issues to arbitration and that  



                                                                                                                    

 Sanders's decision directing Holly to comply with the terms of the Proposal constituted  



                                                                                                                         

a binding arbitration award.  In the alternative, he argued that the court should enforce  



                                                                                                                         

the terms of the Proposal even if it concluded that Sanders's decision was not the product  



                                           

of arbitration.  Robert also argued that Holly had violated the trust's penalty clause by  



                                               

filing her motion to continue.  



                                                                                                                               

                     The superior court issued an order denying Holly's motion to continue and  



                                                                                                                            

granting in part Robert's motion to enforce.  The court explained that Holly had asked  



                                                                                                                     

 Sanders to determine whether the Proposal constituted a binding settlement agreement  



                                                                                                                               

and  that  she  now  sought  to  overturn  both  Sanders's  arbitration  decision  and  the  



                                                                                                                                   

underlying settlement agreement.   The court concluded that the Proposal was "not a  



                                                                                                                        

proposal" but rather a settlement agreement; the court reasoned that "given the wording  



                                                                                                                            

of the document, the presence of Holly's attorney, and her signature," it was a "near  



                                                                                                                     

certainty"that Holly understood shewas settling her claims. The court furtherconcluded  



                                                                                                                                      

that Holly's reliance on Robert's diligence in reporting trust costs was not "justifiable":  



                                                                                                                                

Holly "knew the trust had costs, knew that she did not know the precise value of the  



                                                                                                                     

costs, and knew Robert had a duty to disclose the costs but had not done so." Therefore,  



                                                                                                                                

Holly's  fraud  claim  could  not  vitiate  her  consent  to  the  terms  of  the  Proposal  -  



                                                                                                                                      

including paragraph 11, the provision providing for arbitration of subsequent disputes.  



                                                                                                                        

                     In light of these conclusions, the court denied Holly's motion to continue  



                                                                                                                                

and granted Robert's motion to enforce "in so far as it [sought] enforcement of the  



                                                                                                                         

arbitration decision."  The court noted, however, that "the remedy sought in Holly's  



                                                                                                                              

motion" was "a new trial date and further discovery" rather than nullification of any trust  



                                                                                                                          

provisions.  Accordingly, the court denied Robert's motion as it related to the penalty  



                                                                                                                              

clause.  Having concluded that the parties had settled all claims, the court entered final  



                  

judgment.  



                                                                -7-                                                         7285
  


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

             E.            Post-Judgment Motions And Attorney's Fees                                               



                           Robert subsequently                        moved   for   attorney's fees under                                   Rule 82.              Holly  



opposed   and  petitioned   the   superior   court   to   review   Robert's   compensation   and  



attorney's fees under AS 13.36.055.                                       The court denied Holly's petition on the basis that                                         



she had "settled the case without insisting that [Robert] provide more of an accounting                                                                 



than he already had before and during the course of the litigation."                                                                       Concluding that   



Holly's   post-mediation   litigation   conduct   had   been   vexatious,   the   court   awarded  



                                                                       4  

enhanced attorney's fees to Robert.                                       



III.         DISCUSSION  



                           Holly appeals the superior court's enforcement of Sanders's arbitration  

                                                                                                                                                        



decision,  the  court's  denial  of  her  petition  to  review  Robert's  compensation  and  

                                                                                                                                                                     



attorney's fees, and the court's award of attorney's fees to Robert. Robert cross-appeals  

                                                                                                                                                   



the superior court's ruling that Holly did not violate the trust's penalty clause, but asks  

                                                                                                                                                                     



that  we  address  his  cross-appeal  only  if  we  do  not  affirm  the  superior  court's  

                                                                                                                                                              



enforcement of the arbitration decision.  

                                                                                 



             A.            The Superior Court Did Not Err By Confirming Sanders's Decision.  

                                                                                                                                                          



                           Holly          challenges               the        superior            court's           conclusion                that        Sanders's  

                                                                                                                                                       

February 2016 decision constituted an enforceable arbitration award.5  She contends that  

                                                                                                                                                                       



             4             See  Alaska R. Civ. P. 82(b)(3).             



             5             Holly frames the issue differently and incorrectly, arguing that the superior  

                                                                                                                                                              

court erred in finding the Proposal to be an enforceable settlement agreement.  But as  

                                                                                                                                                                         

Robert points out, the court did not just find the Proposal to be an enforceable settlement  

                                                                                                                                                         

agreement; "[r]ather, thesuperior courtenforced anarbitrationdecision thatdetermined"  

                                                                                                                                                      

that the Proposal was an enforceable settlement agreement.  (Emphasis added.)  Thus,  

                                                                                                                                                                        

the pertinent question is not whether the Proposal was enforceable but rather whether the  

                                                                                                                                                                     

superior  court  properly  confirmed  Sanders's  determination  that  the  Proposal  was  

enforceable.  



                                                                                    -8-                                                                            7285
  


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

the   question   Sanders   addressed   - whether                                             the   Proposal   was   a   binding   settlement  



agreement -cannot                         be resolved by an arbitrator. Robert                                  responds that Holly challenged  



Sanders's authority "only after Sanders ruled                                                   against her" and that Holly therefore                      



waived this challenge.                          



                           We have not previously addressed whether a party waives an attack on an                                                                       



arbitrator's authority to decide an issue by submitting the issue to the arbitrator for                                                                                



                                                                                                                                                                            6  

decision.   However, other jurisdictions have answered this question in the affirmative.                                                                                       



A   recent   Illinois   appellate   decision,  Advocate   Financial   Group   v.   Poulos ,   is  

                                                                                                                                                                        

representative.7                   The appellants in that case challenged an arbitration award on the  

                                                                                                                                                                       



ground that the contract containing the arbitration provision had expired before the  

                                                                                                                                                                       

arbitration commenced.8                               The court concluded that the appellants had forfeited this  

                                                                                                                                                                      

                    9     It  noted  that  the  appellants  had  been  "notified  in  writing  that  plaintiff  

argument.                                                                                                                                                    



intended to proceed to arbitration under the agreement" but had neither moved the court  

                                                                                                                                                                    



              6            See Piggly Wiggly Operators'  Warehouse, Inc. v. Piggly Wiggly Operators'  



 Warehouse  Indep.  Truck  Drivers  Union,  Local  No.  1,  611  F.2d  580,  584  (5th  Cir.  1980);  

Paige  Elec.   Co.   v.  Davis   &  Feder,  P.A.,   231   So. 3d   201,   205-06   (Miss.   App.   2017)  

("[P]articipation  in arbitration proceedings waives the  right to object to an  arbitrator's  

authority."),  cert.  denied,  229  So.  3d  122  (Miss.  2017);  Adams  v.  Barr,  182  A.3d  1173,  

 1179 (Vt. 2018)  ("[A]t  some  point  prior  to  the  actual  arbitration  hearing  a  party  who  

participates   in   an   arbitration   proceeding   without   objecting   to   the   validity   of   the  

arbitration  agreement may  waive  the  ability  to make  that  objection.");   Welty  v.  Brady,  

 123  P.3d  920,  928  (Wyo.  2005)  ("[W]hen  an  issue  appears  to  be  submitted  to  arbitration  

by the  parties  and there  is  no  objection  to the  arbitrator's  consideration of  a  particular  

issue,   a   later   claim   the   arbitrator exceeded   its   authority  by   considering   that   claim   is  

waived.").  



              7            8 N.E.3d 598 (Ill. App. 2014).  

                                                                           



              8            Id. at 609.  

                                       



              9            Id.  



                                                                                    -9-                                                                            7285
  


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

to stay the arbitration proceeding nor filed any motion before the arbitrator arguing that                                                             



                                                                            10  

the claims were not subject to arbitration.                                                                                            

                                                                                 Instead, having "unilaterally decided that  



                                                                                                                                                         

their position was correct," the appellants had "made a calculated decision . . . to do  

                                                                                     11  The court thus held that the appellants  

                                                                                                                                            

                                                                  

nothing in response" to the notice of arbitration. 

had failed to "object in a timely manner."12  

                                                           



                        The waiver rule adopted in Illinois and other jurisdictions is compatible  

                                                                                                                                          

with the relevant provisions of Alaska's Revised Uniform Arbitration Act.13                                                                     Alaska  

                                                                                                                                                 



Statute 09.43.500 indicates that a court must vacate an arbitration award if there was no  

                                                                                                                                                         



agreement  to  arbitrate  -  but  only  if  the  appellant  "rais[ed]  the  objection  under  

                                                                                                                                                  

AS 09.43.420(c) not later than the beginning of the arbitration hearing."14   Furthermore,  

                                                                                                                                      



while the Act provides that "[t]he court shall decide whether an agreement to arbitrate  

                                                                                                                                               

                                                                                                                15 AS 09.43.340 indicates  

exists or a controversy is subject to an agreement to arbitrate,"                                                                             

                                                                                              



that  the  party  disputing  the  existence  of  an  enforceable  agreement  to  arbitrate  is  

                                                                                                                                                          

                                                                              16    These provisions are consistent  with a  

responsible for raising the issue in court.                                                                                                                

                                                                    



            10          Id.  at  609-10.  



            11          Id.  at  610.  



            12          Id.  at  609;  see  also  id.  ("A  party cannot   'sit  silent,  wait  until  an  adverse  



award  [is]  issued,  and  then  first  argue  that  the  arbitrator  did  not  have  the  authority  even  

to  hear  the  claim.'  "  (alteration  in  original)  (quoting  First  Health  Grp.  Corp.  v.  Ruddick,  

911  N.E.2d   1201,   1213  (Ill.  App.  2009))).  



            13          AS 09.43.300-.595.  

                                



            14          AS  09.43.500(a)(5); see  AS  09.43.420(c)  (providing that  a party  to  an  

                                                                                                                                                         

arbitration proceeding may object to "lack or insufficiency of notice").  

                                                                                                                  



            15          AS 09.43.330(c).  

                                



            16          See  AS  09.43.340(b)  ("On  application  of  a  person  alleging  that  an  

                                                                                                                                                         

                                                                                                                                     (continued...)  



                                                                           -10-                                                                     7285
  


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

 conclusion   that   a   party   objecting   to   an   arbitrator's   authority   bears   the   burden  of  



presenting a timely objection in arbitration or in court - and that failure to do so may                                                                                                                                                                                                                                                                                                                                                                                                   



result in forfeiture of the objection on appeal.                                                                                                                                                                                                                           



                                                                              In light of both persuasive authority from other jurisdictions and Alaska                                                                                                                                                                                                                                                                                                                     



 statutes governing arbitration proceedings, we hold that a party to arbitration can waive                                                                                                                                                                                                                                                                                                                                                                                        



 objections to the arbitrator's authority by failing to raise them in a timely manner.                                                                                                                                                                                                                                                                                                                                                                                                       We  



next address whether this rule bars Holly from asserting on appeal that Sanders could not                                                                                                                                                                                                                                                                                                                                                                                                          



resolve the parties' dispute over the enforceability of the Proposal.                                                                                                                                                                                                                                                                                                                                 



                                                                              There is no dispute that both parties signed the Proposal, paragraph 11 of                                                                                                                                                                                                                                                                                                                                                



which states that "[a]ny disputes concerning [the Proposal's] terms or the execution of                                                                                                                                                                                                                                                                                                                                                                                                                  



these terms . . . shall be resolved finally and completely by Eric Sanders."  Thereafter,                                                                                                                                                                                                                                             



Holly invoked this mechanism - albeit implicitly - when she requested that Sanders                                                                                                                                                                                                                                                                                                                                                                                    



 determine whether a valid settlement agreement existed between her and Robert and                                                                                                                                                                                                                                                                                                                                                                                                            



whether   her   signature   on   the   Proposal   was   induced   by   fraud.     She   stated  that   she  



 "reserve[d] all rights" as to whether these two issues were "subject to arbitration," and,                                                                                                                                                                                                                                                                                                                                                                                                 



in a subsequent filing, she stated that she "view[ed] the . . . process as part of the                                                                                                                                                                                                                                                                                                                                                                                                           



mediation."    However, she did not affirmatively state that resolution of either issue                                                                                                                                                                                                                                                                                                                                                        



would exceed Sanders's authority. And Robert raised the same issues in his Arbitration                                                                                                                                                                                                                                                                                                                                                              



Memorandum, which he submitted to Sanders and served upon Holly.                                                                                                                                                                                                                                                                                                                                                          This document   



referred to Sanders as an "Arbitrator," and, in correspondence exchanged following                                                                                                                                                                                                                                                                                                                                                                        



 submission of the Arbitration Memorandum, Robert explicitly asserted that the parties                                                                                                                                                                                                                                                                                                                                                                                       



were engaged in "an arbitration . . . under paragraph 11 of the . . . Proposal."                                                                                                                                                                                                                                                                                                                                                                                



                                       16(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 arbitration proceeding has been initiated or threatened but that there is not an agreement  

                                                                                                                                                                                                                                                                                                                                                            

to arbitrate, the court shall proceed summarily to decide the issue.").  



                                                                                                                                                                                                                                                -11-                                                                                                                                                                                                                                      7285
  


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

                            Upon   learning   that   Robert   believed  arbitration   proceedings   had   been  



initiated, Holly could have informed Sanders of her disagreement. In the alternative, she                                                                                    



could have applied to the superior court, "alleging that an arbitration proceeding [had]                                                                                 

                                                                                                                                                                     17    The  

been initiated or threatened but that there [was] not an agreement to arbitrate."                                                                                          

court would then have "summarily . . . decide[d] the issue."18                                                                   But rather than take any  

                                                                                                                                                                            



action to address the dispute, Holly elected to await Sanders's decision on whether the  

                                                                                                                                                                             



Proposal was an enforceable settlement agreement, while "agree[ing] to disagree" with  

                                                                                                                                                                          



Robert on the issue whether that decision would constitute a binding arbitration award.  

                                                                                                                                                                                     



Like the appellants in Advocate Financial Group , Holly was aware that Sanders was  

                                                                                                                                                                           



likely to issue an arbitration decision on the issues that had been submitted to him, but  

                                                                                                                                                             

she "necessarily made a calculated decision . . . to do nothing."19   She therefore forfeited  

                                                                                                                                                                  



her argument that Sanders exceeded his authority when he concluded that the Proposal  

                                                                                                                                                                 



was a binding and enforceable settlement agreement.  

                                                                                        



                            Because we hold that Holly failed to assert her objections to the arbitrator's  

                                                                                                                                                             



authority in a timely manner, we need only decide whether the superior court erred by  

                                                                                                                                    



confirming  Sanders's  arbitration  award.                                                   We  review  a  superior  court's  decision  

                                                                                                                                                                 

confirming an arbitration award de novo.20                                                 "An arbitrator's decision is accorded great  

                                                                                                                                                                         



deference," which "extends to both the arbitrator's factual findings and the arbitrator's  

                                                                                                                                                            

interpretation and application of the law."21  

                                                                                              



              17           Id.  



              18           Id.  



              19           Advocate Fin. Grp. v. Poulos                                 , 8 N.E.3d 598, 609-10 (Ill. App. 2014).                              



              20           McAlpine v. Priddle, 321 P.3d 345, 348 (Alaska 2014).  

                                                                                                                                 



              21  

                                                                                                                                                                             

                            State v. Alaska Pub. Emps. Ass'n, 199 P.3d 1161, 1162 (Alaska 2008); see  

                                                                                                                                                       (continued...)  



                                                                                     -12-                                                                                7285
  


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

                                         Here, thepartiessignedtheProposalfollowing                                                                                               alengthymediation session.                                                             



The Proposal outlines the terms of an agreement and states that "[t]he parties . . . have   



reached an agreement to the settlement of all claims of all parties based upon discussions                                                                                                                                         



 and negotiations in [the] mediation."                                                                                Holly was represented by counsel during the                                                                                          



mediation, and her counsel signed the Proposal.                                                                                                          And the mediation and settlement                                             



process was overseen by neutral party Sanders.                                                                                                  Accordingly, we conclude that there is                                                                           



 adequate   record   support   for   Sanders's   conclusion   that   the   Proposal   was   a   valid,  



 enforceable settlement agreement.                                                                        



                                         We   reach   the   same   conclusion  regarding   Holly's   claim   that   Robert  



 fraudulently induced her acquiescence to the Proposal's terms. Holly argued to Sanders                                                                                                                                                       



that Robert "withheld material                                                             information from[her] prior to and during the mediation."                                                                                                                     



But in order to prove that the parties' agreement was voidable, Holly would need to                                                                                                                                                                            



                                                                                                                                                                                                                                                                 22  

 establish that she justifiably relied on Robert's representations concerning the trust.                                                                                                                                                                                 



Holly was aware at the time she signed the Proposal that Robert had incurred costs while  

                                                                                                                                                                                                                                                     



managing the trust and that Robert had not provided all the information she wanted  

                                                                                                                                                                                                                                               

regarding trust expenditures.23   She nonetheless participated in the mediation and agreed  

                                                                                                                                                                                                                                                  



to settle the dispute.  Therefore, "the course of dealings between the parties before and  

                                                                                                                                                                                                                                                           



                    21(...continued)  



                                                                                                                                                                                                                                                               

also Moore v. Olson, 351 P.3d 1066, 1071 (Alaska 2015) ("An 'arbitrator's findings of  

                                                                                                                                                                                                                                                           

both fact and law . . . receive great deference.' " (omission in original) (quoting  OK  

                                                                                                                                                                                                   

Lumber Co. v. Alaska R.R. Corp., 123 P.3d 1076, 1078 (Alaska 2005))).  



                    22                   See RESTATEMENT  (SECOND) OF  CONTRACTS   164 (A                                                                                                               M.L          AW  INST . 1981).   

                                                     



                    23                  Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593, 601 (Alaska 2004)  

                                                                                                                                                                                                                                                    

 ("Whether reliance is justified in a given case seems to us more likely to turn on the  

                                                                                                                                                                                                                                                            

 course of dealings between the parties before and during the dispute.").  

                                                                                                                                                                                        



                                                                                                                             -13-                                                                                                                      7285
  


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

 during the dispute" adequately supports Sanders's conclusion that Holly's decision to                                                                                               

 settle her claims was not procured through fraud.                                                       24  



                             The  record  thus  supports  Sanders's  determination  that  the  parties  had  

                                                                                                                                                                                 



 settled their claims and that Holly must comply with the Proposal.  The superior court  

                                                    

 did not err when it confirmed Sanders's arbitration decision.25  

                                                                                                                                       



                                                                                                                                                                         

               B.	           The Superior Court Did Not Err By Refusing To Consider Holly's  

                                                                                                                                                                    

                             Petition Regarding Trustee Compensation And Attorney's Fees.  



                                                                                                                                                                         

                             Holly argues that the superior court should have considered her petition  



                                                                                                                                                                           

under AS 13.36.055 for review of Robert's compensation and attorney's fees before  



 awarding him enhanced attorney's fees.  Robert responds that the court's earlier entry  



                                                                                                                             

 of final judgment precluded Holly's petition for a review.  



                                                                                                                                                                       

                             We conclude that the superior court did not err by refusing to consider  



                                                                                                                                                                         

 Holly's petition.  By the time Holly filed her petition, the superior court had already  



                                                                                                                                                                             

 issued afinaljudgment"[c]onfirming and enforcing" Sanders's arbitration award, which  



                                                                                                                                                                                      26  

                                                                                                                                                                                           

 in turn had confirmed and enforced the parties' settlement agreement, the Proposal. 



                                                                                                                                                                                     

 The Proposal had "settle[d] . . . all claims of all parties," including the claims raised in  



                                                                                                                                                                            

the complaint. Thus, as the superior court explained in rejecting Holly's petition, "[t]his  



                                                                                                                                                                       

 case [had] ended."   Although the superior court may have had authority to consider  



               24	           Id.  



               25            Further, because the Proposal settled "all claims of all parties," no claims                                                                  



remained to be decided at trial and there was no need for additional discovery.                                                                                        We thus   

reject Holly's argument that the superior court erred in denying her motion to continue                                                                                

the trial.          



               26            See  Richard  v.  Boggs,  162  P.3d  629,  633  (Alaska  2007)  ("A  'final'  

                                                                                                                                                                           

judgment is one that disposes of the entire case and ends the litigation on the merits."  

                                                                                                                                                                        

 (quoting Mattfield v. Mattfield, 133 P.3d 667, 673 (Alaska 2006))).  

                                                                                                                               



                                                                                        -14-	                                                                                 7285
  


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

                                                                                                  27  

 Holly's petition in the present proceeding,                                                          Holly does not explain why it was an abuse                                             



 of discretion for the court to instead require that she bring her petition "in a separate                                                                                           



                               28  

proceeding."                         



                                                                                                                                                                                

                C.	             The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Awarding  

                                                                                                                                                                

                                Enhanced Attorney's Fees For The Post-Mediation Litigation.  



                                                                                                                                                                                   

                                Holly argues that the superior court erred by awarding Robert enhanced  



                                                                                                                                                                                            

 attorney's fees under Rule 82.  She contends that Robert was not the "prevailing party"  



                                                                                                                                                                                                            

 in the suit and was thus not entitled to recover a percentage of reasonable attorney's fees.  



                                                                                                                                                                                        

 In the alternative, she argues that the court erred by characterizing her litigation conduct  



                                      

 as "vexatious."  



                                                                                                                                                                                                  

                                Rule 82 includes a schedule of default fee awards to be granted to the  



                                                                               29  

                                                                                                                                                                                         

 "prevailing party" in a civil suit.                                                   However, a court may deviate from the default  



                                                                                                                                                                                       

 schedule upon consideration of factors outlined in subsection (b)(3), including whether  



                                                                                                                                                                                      30  

                                                                                                                                                                                             "[I]n  

 either  party  engaged  in  "vexatious  or  bad  faith  conduct"  during  litigation. 



                                                                                                                                                                                      

 general, a trial court has broad discretion to award Rule 82 attorney's fees in amounts  



                                                                                                                                                                                                     

 exceeding those prescribed by the schedule of the rule, so long as the court specifies in  



                27             See Marshall v. First Nat'l Bank Alaska                                                       , 97 P.3d 830, 836 (Alaska 2004)                               



 (approving, in dictum, beneficiary's filing of AS 13.36.055 petition for review following                                                                                          

judgment on beneficiary's petition for substitution of trustee, explaining that this "was                                                                                                     

 far more efficient than commencing a new proceeding"). We do not decide whether the                                                                                                               

reasoning in                  Marshall  - a probate matter - would apply in the present case.                                                                              



                28              The superior court left open the question whether the present case would  

                                                                                                   

have "res judicata effect" on any subsequent litigation involving AS 13.36.055.  We  

                                                                                                                                                                                                 

 likewise decline to address the question as it is not ripe for review.  

                                                                                                                                           



                29             See Alaska R. Civ. P. 82(b).  

                                                                                   



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

                                                                          



                                                                                                -15-	                                                                                         7285
  


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

                                                                                                   31  

the   record   its   reasons   for   departing   from   the   schedule."                                  "We   review   awards   of  



attorney's   fees   for   abuse   of   discretion   and   will   reverse   'if   the   award   is   arbitrary,  

                                                                                                            32   "The determination  

capricious, manifestly unreasonable, or improperly motivated.' "                                                           



of which party is the prevailing party is . . . subject to the trial court's discretion and is  

                                                                                                                                                

reviewable only for abuse of discretion."33  

                                                  



                       The prevailing party in a civil suit is the party who "prevails on the main  

                                                                                                                                    

issues."34  Here, as the superior court noted, the parties' litigation can be divided into two  

                                                                                                                                            



phases:         the  first  "preceded  the  expected  execution  of  a  settlement  agreement  and  

                                                                                                                                           



dismissal of the litigation," while the second "followed [Holly's] refusal to abide by the  

                                                                                                                                             



mediation agreement."  The court based its award of enhanced attorney's fees on the  

                                                                                                                                             



costs incurred during the second, post-mediation phase. Holly argues that she should be  

                                                                                                                                               



"deemed the prevailing party" in the post-mediation litigation because she received  

                                                                                                                                    



"significant information . . . concerning Robert's actions and expenditures as Trustee"  

                                                 

                                                          35   However, Holly's suggestion that she "achieve[d]  

over the course of the proceedings.                                                                                            

                                      

                                                                            36   Holly first unsuccessfully attempted to  

the goals of [her] litigation" is unconvincing.                                                                                                

                                                     



dispute the finality of the parties' settlement.   She then sought to proceed to trial, at  

                                                                                                                                               



           31         Kollander v. Kollander                 , 400 P.3d 91, 95 (Alaska 2017) (quoting                            Kollander  



v.  Kollander, 322 P.3d 897, 907 (Alaska 2014)).                      



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



           33         Fink  v.  Municipality  of  Anchorage ,  379  P.3d   183,   188  (Alaska  2016).  



           34         Kollander,  400  P.3d  at  97  (quoting  Alaska  Constr.  &  Eng'g,  Inc.  v.  Balzer  



Pac.  Equip.  Co.,   130  P.3d  932,  935-36  (Alaska  2006)).  



           35          See DeSalvo v. Bryant, 42 P.3d 525, 530 (Alaska 2002) ("Even without  

                                                                                                                        

formal judicial relief, many plaintiffs achieve the goals of their litigation.").  

                                                                                                            



           36         Id.  



                                                                     -16-                                                                7285
  


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

which point the superior court enforced Sanders's arbitration decision and ended the                                                                                                                                                                                                                                                                                                                                                 



litigation.   Robert prevailed at every stage of post-mediation litigation; accordingly, the                                                                                                                                                                                                                                                                                                                                          



 superior court did not abuse its discretion in concluding that he was the prevailing party.                                                                                                                                                                                                                                                                                                                             



                                                                    The superior court based its decision to enhance the attorney's fees award                                                                                                                                                                                                                                                                        



largely on one factor:  the vexatious nature of Holly's post-mediation litigation.  After                                                                                                                                                                                                                                                                          



 signing   the   Proposal,   Holly   argued   that   it   did   not   constitute   a   binding   settlement  



 agreement - a claim "soundly rejected" by Sanders.                                                                                                                                                                                                                                     The superior court noted that                                                                          



 Sanders   had   overseen   the   parties'   mediation   and   was   thus   well-situated   to   "gauge  



 [Holly's]   understanding  of   the   various   counterproposals   and   participation   in   the  



discussions that led to the agreement." After Sanders issued his decision, Holly "ignored                                                                                                                                                                                                                                                                                                                



the result that she did not like" and attempted to "restart the trial process."                                                                                                                                                                                                                                                                                                     While Holly   



contends that "the record evidences that [she] litigated reasonably and in good faith," she                                                                                                                                                                                                                                                                                                                                          



neither cites evidence to support this contention nor disputes the evidence the superior                                                                                                                                                                                                                                                                                                                   



court relied upon in arriving at its decision to enhance attorney's fees.                                                                                                                                                                                                                                                                                                          Because the   



record adequately supports the superior court's rationale, we conclude that the decision                                                                                                                                                                                                                                                                                                                   

to enhance attorney's fees was not an abuse of discretion.                                                                                                                                                                                                                                          37  



IV.                               CONCLUSION  



                                                                    For the foregoing reasons, we AFFIRM the judgment of the superior court.  

                                                                                                                                                                                                                                                                                                                                                                                                                         



                                  37                                Holly also argues that Rule 82 is inapplicable                                                                                                                                                                                 to suits in which a beneficiary                                                     



 seeks   construction   and   enforcement   of   a   trust   document.     We   have   not   previously  

 articulated such a rule, and the authorities Holly cites do not support this proposition.                                                                                                                                                                                                                                                                                                                                                              

See, e.g.                                  ,  Barber v. Barber                                                                         , 915 P.2d 1204, 1209-10 (Alaska 1996) (holding that it was                                                                                                                                                                                                                         

 error to award attorney's fees to trustee where "trustee was [not] sued for breach of                                                                                                                                                                                                                                                                                                                                                   

 fiduciary duty" but was instead "a neutral party, seeking to establish in advance that a   

particular course of action was . . . in the best interests of all the beneficiaries"). We thus                                                                                                                                                                                                                                                                                                                                 

decline to address Holly's argument.                                                                                                  



                                                                                                                                                                                                                 -17-                                                                                                                                                                                                         7285
  

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