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Bjorn-Roli v. Mulligan (2/15/2019) sp-7336

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



GAYLE  BJORN-ROLI,  PER  ERIK                              )
  

BJORN-ROLI,  MAIKEN  ERICKSON, )                                Supreme Court Nos. S-16607/16897
  

                                                                                               

and  KJERSTI  WALKER,                                      )   (Consolidated)  

                                                           )  

                             Appellants,                   )    Superior  Court  No.  3AN-14-04427  CI  

                                                           )  

          v.                                                                      

                                                           )   O P I N I O N  

                                                           )  

                                                                                                     

                   

PATRICIA MULLIGAN,                                         )   No. 7336 - February 15, 2019  

                                                           )  

                             Appellee.                     )  

                                                           )  



                                                                                                    

                                                          

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

                                                                                        

                   Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                                                                                                    

                   Appearances:  Brett von Gemmingen, Law Offices of Brett  

                                                                                                        

                   vonGemmingen, LLC, Anchorage,for Appellants. JamesM.  

                                                                                  

                   Gorski, Hughes White Colbo Wilcox & Tervooren, LLC,  

                                           

                   Anchorage, for Appellee.  



                                                                                                             

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

                                       

                   and Carney, Justices.  



                                       

                   WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                         

                   Two sisters were beneficiaries of their late parents' trusts.  One sister was  



                                                                                                                             

trustee  of  the  trusts  and  president  of  the  family  corporation.                          The  other  sister,  a  



                                                                                                                    

shareholder of the family corporation, disputed proposed trust distributions and various  


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aspects of the family corporation; she and her children sued the trustee for breach of  

                                                                                                                                



fiduciary duty in both trustee and corporate capacities.  The litigation resulted in two  

                                                                                                                              



appeals, which we consolidated for oral argument and decision.  

                                                                                                  



                    We  largely  affirm  the  superior  court's  decisions  because  they  were  

                                                                                                                   



discretionary and, under the applicable standard of review, we cannot say they were  

                                                                                                                            



unreasonable given the court's factual findings; but we remand for reconsideration of  

                                                                                                                                



certain trust property valuations, which may require minor distribution adjustments.  

                                                                                                                                 



II.       FACTS AND PROCEEDINGS  

                                  



          A.        Background  



                                                                             

                    1.        The Rude family and estate plan  



                                                                                                                           

                    Kenneth O. (known as Olin) and Edna L. Rude had two daughters, Gayle  



                                                                                                                  

Bjorn-Roli and  Patricia Mulligan.                      Gayle has three children:                  Per  Erik  Bjorn-Roli,  



                                                                                                                              

Maiken Erickson, and Kjersti Walker.  Patricia has two children:  Patrick Mulligan and  



                     

Erin Barber.  



                                                                                                      

                    Olin and Edna executed declarations of trust in 2000 (the KOR and ELR  



                                                                                                                              

trusts). The trusts were nearly identical, providing that upon the first spouse's death, that  



                                                                                                                                 

spouse's assets would be split into new trusts:  a marital trust for the lifetime benefit of  



                                                                                                                          

the surviving spouse and a family trust.  Upon the second spouse's death, the trusts'  



                                                                                                                         

assets would be reduced by specific gifts and the remaining assets distributed evenly  



                                                                           

between individual trusts for Gayle and Patricia.  



                                                                                                                        

                    The KOR and ELR trusts designated Olin and Edna as successor trustees  



                                                                                                                        

for  the  other's  trust,  and  Gayle  and  Patricia  as  successor  trustees  if  the  trustee  



                                                                                                                                

predeceased the grantor-spouse or became incapacitated.  Gayle and Patricia were to be  



                                                                                                                              

successor trustees "for only as long as it takes to liquidate trust assets and divide and  



                                                                                                                            

distribute  the  trust  estate";  Gayle  and  Patricia  each  would  be  sole  trustee  of  their  



                                                                                                                              

individual trusts after distribution of the family trusts.  The KOR and ELR trusts also  



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instructed that "all non-liquid trust assets be sold as soon as reasonably possible after  



                                                                                                                            

Grantor's death" and that "there be no common ownership of assets between the trusts  



                                                  

created for" Gayle and Patricia.  



                                                                                                                

                    Olin and Edna amended their trusts a few days later.  The amendments  



                                                                                                                                 

added property near Lake Louise as a specific gift to Patricia and allowed her to elect to  



                                                                                                                            

take property at Bootlegger's Cove as part of her trust share. The amendments also made  



                                                                                                                       

Patricia sole successor trustee of the KOR and ELR trusts upon the surviving spouse's  



                                                                                                                              

death.  The amendments further removed Gayle as trustee of her individual trust and  



                                                                                                                               

substituted a bank.   The amendments lastly made a trustee removable "only . . . in  



                                                                                                       

accordance with the provisions of the laws of the State of Alaska."  



                                                                                                                          

                    Olin amended the KORtrust a final time in 2007, a fewmonths after Edna's  



                                                                                                                               

death.  The amendment made Patricia co-trustee of the KOR trust with Olin during his  



                                                                                                                                

lifetime.       The amendment also  removed  the provision  instructing  that all assets be  



                                                                                                                             

liquidated, instead granting Patricia "full and sole authority and power to determine what  



                                                                                                        

assets of the trust are to be retained and what assets are to be sold."  



                                             

                    2.        Rumac, Inc.  



                                                                                                                       

                     Olin and Edna were among Rumac, Inc.'s original shareholders. Rumac's  



                                                                                                                            

principal asset is an ownership interest in land beneath an Anchorage hotel.  The hotel  



                                                                                                                              

leases the land and makes monthly payments to Rumac.   Patricia was secretary and  



                                                                                                                               

treasurer before Olin died; she then became president and Gayle became secretary.  



                                                                                                            

                    After Olin's death some Rumac shares were distributed evenly between  



                                                                                                                           

Patricia's and Gayle's families. Patricia also held some shares in trust for her and Gayle  



                                                                                                                              

in the KOR and ELR trusts.  Section 9.03 of the KOR and ELR trusts gave Patricia sole  



                                                                                                                             

voting  power  over  Rumac  stock  held  in  any  trust  created  by  Olin  or  Edna.                                       This  



                                                                                                                              

provision apparently was intended to prevent a voting deadlock between Gayle's and  



                                                                                                                          

Patricia's families; a conflict between this provision and the KOR and ELR trusts'  



                                                               -3-                                                         7336
  


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

appointments of the bank as the sole trustee of Gayle's individual trust would become  

                                                          



apparent later.  

                         



          B.        Facts  



                                                                        

                     1.        Patricia's first proposed distribution  



                                                                                                                            

                    After Edna's and Olin's deaths, Patricia became sole trustee of the KOR  



                                                                                                                               

and ELR trusts in 2010, responsible for distributing the remaining trust assets into two  



                                                                                                                              

new trusts for her and Gayle.  In March 2011 Patricia proposed distributing the trust  



                                                                                                                          

assets - cash, investments, real property, notes receivable, and equal shares of Rumac  



                                                                                                                          

stock.  Each individual trust would receive nearly $1.7 million in addition to the money  



                                                                                                                        

already distributed. Gayle would receive an investment property at Stuckagain Heights,  



                                                                                                                                

half-owned by the Rudes, with her share valued at $250,000. Patricia would receive the  



                                                                                                                              

Bootlegger's Cove property, to which she was given election rights in the KOR and ELR  



                                                                                                                          

trusts, valued at $625,000.  Patricia also would be assigned two creditor claims against  



                                                                                                                              

her daughter Erin arising from loans Olin had made:  the "Barber Note," a deed of trust  



                                                                                                                                   

note with a balance of about $170,000, and the "Barber car loan," a vehicle loan with a  



                  

balance of $2,400.  



                                                                                                                            

                    Gayle objected to this proposed distribution.  She contested the real estate  



                                                                                                                            

valuations and suggested appraising the properties. Patricia responded that Gayle could  



                                                                                                                           

obtain appraisals at her own expense but that Patricia preferred using real estate broker  



                                              

opinions of value because of appraisers' poor performance during the latest real estate  



                                                                                                                             

bubble.   Patricia refused to consider any appraisals not supported by historical sales  



                                                                                                                              

figures from the previous two years.  Patricia later rejected Gayle's suggestion that they  



                                                                                                                             

sell the Stuckagain Heights property and split the proceeds, noting that keeping the trusts  



                                                                                                                            

active until sale would incur unnecessary expense and be contrary to the Rudes' estate  



          

plan.  



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

                                                                                                                              

                    In June an appraiser Patricia hired said that an interested buyer would pay  



                                                                                                                               

$95,000 for the remaining value of the Barber Note.  Gayle obtained appraisals on the  



                                                                                                                   

real property, valuing the Bootlegger's Cove property at $675,000 and the Stuckagain  



                                                                                                                              

Heights property at $170,000. Patricia reiterated that appraisals were unreliable and that  



                                                                                                                                     

relying on them instead of real estate brokers would be a breach of her fiduciary duty.  



                                                                                                                               

She kept the Bootlegger's Cove property at $625,000 and reduced the value of the  



                                                                 

Stuckagain Heights property to $225,000.  



                                                                                                                                

                    In December Gayleprovidednotice that she wantedPatriciatoliquidatethe  



                                                                                                                                     

Stuckagain Heights property and distribute the remaining assets immediately.  Gayle  



                                                                                                                               

stated that she thought distributing theproperty without aliquidation cost adjustment and  



                                                                                                                                     

at a value above its appraised value would be a breach of Patricia's fiduciary duties.  



                                                                                                         

Gayle did not want a distribution until the disagreement was settled.  



                                                                                                                              

                    Patricia accepted Gayle's terms "strictly for purposes of resolving this  



                                                                                                                             

dispute" and to "bring this unhappy situation to an end and hopefully salvage some type  



                                                                                                                          

of relationship with Gayle" and Gayle's children.   Patricia explained that she would  



                                                                                                                              

liquidate the non-liquid ELR trust assets, add liquidation costs to the properties, and  



                                                                                                                       

adopt Gayle's appraisal values, changing the value of the Stuckagain Heights property  



                                                                                                                                

from $225,000 to $170,000 and the Bootlegger's Cove property from $625,000 to  



                 

$675,000.  



                                                                                                                

                    2.        Patricia's second proposed distribution and stock redemption  



                                                                                                                                     

                    In  January  2012  Patricia  sent  Gayle  a  second  proposed  distribution.  



                                                                                                                                  

Patricia interpreted Gayle's demand to liquidate the Stuckagain Heights property as a  



                                                                                                                           

demand to liquidate all illiquid ELR trust assets, including the Rumac stock Gayle would  



                                                                                                                                

receive.       Patricia's proposed distribution  included:                        redeeming  the Rumac  stock  in  



                                                                                                                            

Gayle's ELR trust for cash; adding to Gayle's trust a $35,000 promissory note from  



                                                                                                                             

Gayle's daughter Maiken to Olin called the "Erickson Note"; combining the Barber Note  



                                                               -5-                                                         7336
  


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

                                                                                                                               

and  Barber  car  loan  values  totaling  $96,900;  changing  the  Bootlegger's  Cove  and  



                                                                                                                    

Stuckagain Heights property values to their appraised values; adding the properties'  



                                                                                                                           

liquidation costs; and moving both properties into Patricia's trust.  The changes would  



                                                                                                                                

leave Gayle's trust with no relevant illiquid assets except for the Rumac stock from the  



                                                                                                                           

KOR trust and the Erickson Note.   Patricia's equalization payment to Gayle would  



                                                                                                                              

increase from over $82,000 to over $141,000. Patricia also claimed about $70,000 from  



                                       

the trusts as trustee fees.  



                                                                                                                                  

                    A few days later Patricia, as Rumac president, signed a "Memorandum of  



                                                                                                                                

Action" announcing that she was redeeming half of the ELR trust's Rumac stock for  



                                                                                                                          

$275 per share, a price based on a 2007 stock redemption agreement between Rumac  



                                                                                                                  

shareholders.           The  Memorandum  did  not  acknowledge  a  2011  stock  redemption  



                                                                                                                           

agreement valuing Rumac stock at $350 per share. Patricia then canceled the ELR trust's  



                                                                                                                                      

stock certificate for the total shares and prepared a new certificate for the remaining half.  



                                                                                                                  

Patricia deleted Gayle's name and signature line from the certificate and signed only  



                

Patricia's own.  



                                                                                                                        

                    Four days after Patricia redeemed Gayle's ELR trust stock, Gayle objected  



                                                                                                                                 

to Patricia redeeming any Rumac stock.  The parties began protracted negotiations.  



                                                                         

                    3.         Patricia's third proposed distribution  



                                                                                                                                

                    Patricia rescinded the stock redemption in January 2014.  Gayle and her  



                                                                                                                                

children filed suit against Patricia that same day, but Patricia was not made aware of the  



                                                                                                                                 

suit until October.             Meanwhile Patricia sent Gayle a third  proposed  distribution  in  



                                                                                                                   

February.  The new proposed distribution reflected a rescission of the stock redemption  



                                                                                                                          

so the sisters would have equal Rumac shares.  It also included the Erickson and Barber  



                                                                                                                  

Notes, retained liquidation costs for the real estate, and restyled previous distributions  



                                                                                                                             

as  "cash  advances."                Patricia  subtracted  Gayle's  "cash  advance"  from  the  new  



                                                                                                         

equalization payment, reducing the equalization payment by almost $100,000.  



                                                                -6-                                                         7336
  


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

          C.	       Proceedings  



                    1.	       Gayle's first amended complaint; Patricia's counterclaim  

                                                                                                       



                    Gayle and her children filed their amended and operative complaint in  

                                                                                                                                



October.  Gayle alleged that Patricia breached her fiduciary duties as trustee and as a  

                                                                                                                                  



director and officer of Rumac, that she committed fraud, and that she could not validly  

                                                                                                                         



exercise  voting  rights  over  Gayle's  stock.                           Gayle  sought  the  following  relief:  

                                                                                                                                     



(1) removing Patricia as a director and officer of Rumac; (2) removing Patricia as trustee  

                                                                                                                          



of the KOR and ELR trusts; (3) removing Patricia's voting power over Gayle's Rumac  

                                                                                                                         



stock; and (4) compensatory and punitive damages.  

                                                                                



                    Patricia denied all claims.  She counterclaimed for judicial approval of her  

                                                                                                                               



trustadministration and proposed final distribution. Patricia'sproposed final distribution  

                                                                                                                   



retained the existing valuations for the Erickson and Barber Notes but no longer included  

                                                                                                                       



liquidation costs for the real estate.  The final distribution thus would result in Gayle  

                                                                                                                           



receiving cash, an equalization payment, and the Erickson Note. Patricia would receive  

                                                                                                                         



both real properties, the Barber Note, and the Barber car loan.  The sisters would retain  

                                                                                                                           



equal shares of Rumac stock.  In total each would receive over $1.5 million, including  

                                                                                         



the stock value.  

                          



                    2.	       Gayle's motion for summary judgment; the superior court's  

                                                                                                                        

                              reformation of the Rude trusts  

                                                                        



                    Before trial Gayle and Patricia cross-moved for summary judgment on the  

                                                                                                                               



dispute over Gayle's stock-voting rights. Gayle argued that Section 9.03 of the KOR and  

                                                                                                                               



ELR trusts - giving Patricia voting rights in any Rumac stock in Gayle's trust - was  

                                                                                                                              



illegal.       Patricia  argued  that  the  section's  language  and  intent  were  clear  and  

                                                                                                                             



unambiguous and that there were a number of ways the trusts could be reformed to  

                                                                                                                                



correspond to the Rudes' intent.  

                                                   



                                                               -7-	                                                        7336
  


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

                                       The superior court denied Gayle's motion and granted Patricia's in part.                                                                                                                                                



The court found that Section 9.03 of the KOR and ELR trusts established that the Rudes                                                                                                                                                    



intended   Patricia   to   have   voting   power   over   Rumac   stock   in   Gayle's   trust   during  



Patricia's lifetime.                                    But because Patricia was not a trustee of Gayle's trust, she lacked                                                                                                             



power to vote Gayle's Rumac stock. And Patricia could not create a separate trust solely                                                                                                                                                   



for the Rumac stock without violating the Rumac stock redemption agreement.                                                                                                                                                                    The  

court therefore reformed the trusts under AS 13.36.350(a)1 to make Patricia co-trustee  



of Gayle's resulting trust, with the sole duty of voting any Rumac stock held in that trust.  

                                                                                                                                                                                                                                                               



All other duties remained with the bank.  

                                                                                                      



                                       The case proceeded to a bench trial on Gayle's three remaining claims.  

                                                                                                                                                                                                                                 



                                       3.                 Bench trial; the superior court's rejection of Gayle's claims  

                                                                                                                                                                                                                               



                                       Trial took place in November 2015.  The superior court issued its decision  

                                                                                                                                                                                                                                    



in March 2016.  The court ruled that Gayle failed to prove her fraud claim.  The court  

                                                                                                                                                                                                                              



found that Patricia never misrepresented her ability to unilaterally redeem stock and that  

                                                                                                                                                                                                                                                 



Gayle had proven no damages from the putative redemption.  Although the redemption  

                                                                                                                                                                                                                           



was invalid because it contradicted Rumac bylaws, the court stated that this did not  

                                                                                                                                                                                                                                                  



amount to fraud.  

                                                  



                                       The superior court declined to remove Patricia as trustee of the KOR and  

                                                                                                                                                                                                                                                 



ELR trusts.  The court found that Patricia committed only one breach of her fiduciary  

                                                                                                                                                                                                                                 



duty as trustee - using trust funds to maintain the Bootlegger's Cove property while  

                                                                                                                                                                                                                                           



letting her son live in it rent-free.  The court found that Patricia's proposed distributions  

                                                                                                                                                                                                                       



otherwise satisfied her duty to expeditiously administer the trusts and that all other duties  

                                                                                                                                                                                                                                           



                    1                  See  AS 13.36.350(a) ("[A] court may reform the terms of an irrevocable                                                                                                             



trust, even if the trust instrument is not ambiguous, to conform to the settlor's intention                                                                                                                                       

if the failure to conform was due to a mistake of fact or law . . . and if the settlor's intent                                                                                                                                            

can be established by clear and convincing evidence.").                                                                        



                                                                                                                          -8-                                                                                                                7336
  


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

were "adequately performed."  The court determined that the one breach could be cured  

                                                                                                                            



as part of the final distribution and that removal was otherwise unnecessary.  

                                                                                                                     



                    The superior court declined to remove Patricia as a Rumac director and  

                                                                                                                              



officer.  The court noted that Patricia's unilateral redemption of the ELR trust's stock  

                                                                                                                            



violated Rumac's bylaws, but it found that the redemption was not motivated by personal  

                                                                                                                       



advantage because Patricia indicated willingness to rescind the redemption or redeem an  

                                                                                                                                 



equal portion of her own stock.  The court otherwise found no past misconduct and no  

                                                                                                                                



reason to believe the error would occur again.  

                                                                       



                    Finally, the court generally approved Patricia's final distribution proposal.  

                                                                                                                                     



The court also ordered Patricia to submit a new distribution schedule conforming to the  

                                                                                                                               



following changes:  (1) she would reimburse the trusts for all expenses to maintain the  

                                                                                                                               



Bootlegger's Cove property since July 2010; (2) the Bootlegger's Cove property was  

                                                                                                                              



valued  at  $630,500,  representing  the  $675,000  appraised  value  minus  $44,500  in  

                                                                                                                                



liquidation  costs;  (3)  the  Stuckagain  Heights  property  was  valued  at  $151,000,  

                                                                                                                   



representing the $170,000 appraised value minus $19,000 in liquidation costs; (4) the  

                                                                                                                               



$35,000 Erickson loan had been forgiven and would not be assigned to either family; and  

                                                                                                                               



(5) the Barber Note and car loan were valued at $96,400, but $35,000 was forgiven.  

                                                                                                                                 



                    4.        Gayle's objections; final judgment  

                                                                       



                    Patricia submitted a new proposed distribution conforming to the court's  

                                                                          



order. The proposed distribution reimbursed the KOR and ELR trusts about $75,000 for  

                                                                                                                                



the Bootlegger's Cove property maintenance costs.  The distribution otherwise valued  

                                                  



the assets as the court ordered.  

                                                



                    GayleobjectedtoPatricia'sproposedfinaldistribution,arguing that Patricia  

                                                                                                                         



owed Gayle's trust prejudgment interest on the value of the Bootlegger's Cove property  

                                                                                                                       



and its maintenance costs.   The superior court ordered Patricia to pay prejudgment  

                                                                                                                



                                                               -9-                                                         7336
  


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

interest on the value of the property and its maintenance costs to the KOR and ELR  

                                                                                                                      



trusts.  

           



                    Patricia submitted a revised proposed final distribution in September, and  

                                                                                                                               



Gayle objected once again, arguing that Patricia's prejudgment interest payment on the  

                                                                                                                                



value of the Bootlegger's Cove property should be made to Gayle's trust and not to the  

                                                                                                                                



KOR and ELR trusts.  Patricia responded that her breach had harmed both the KOR and  

                                                                                                                                



ELR trusts and that the prejudgment interest payment made those trusts whole.   In  

                                                                                                                                 



January 2017 the superior court approved Patricia's revised proposed final distribution,  

                                                                                                                  



with prejudgment interest paid to the KOR and ELR trusts rather than to Gayle's trust.  

                                                                                                                                      



                    5.         First appeal  

                                        



                    Gayle appealed, contending that the superior court erred by declining to  

                                                                                                                                  



remove Patricia from her Rumac positions and as trustee of the KOR and ELR trusts; by  

                                                                                                                                 



making Patricia co-trustee of Gayle's trust to vote her Rumac stock; by ordering the  

                                                                                                                                



prejudgment interest payment to the KOR and ELR trusts instead of Gayle's trust; by  

                                                                                                                                 



effectively  enforcing  the  Erickson  Note  against  Gayle's  trust  by  reducing  the  

                                                                                                                               



distribution; by discounting the Barber Note assigned to Patricia's trust; by assigning  

                                                                                                                      



liquidation costs to the real properties; by allowing Patricia to retain trustee fees; and by  

                                                                                                                                 



allowing Patricia to reimburse her attorney's fees with KOR and ELR trust funds.  

                                                                                                                    



                    6.         Post-judgment proceedings; Gayle's second appeal  

                                                                                                       



                    The final judgment incorporated a distribution schedule awarding nearly  

                                                                                                                           



$1 million in cash andbonds to Gayle'strustand approved tentatively reserving $60,000,  

                                                                                                                        



half  each  from  the  KOR  and  ELR  trust  funds,  for  winding-up  expenses.                                         Patricia  

                                                                                                                         



distributed over $870,000 to Gayle's trust by May.  Later that month Patricia provided  

                                                                                                                       



notification that Gayle's trust had been funded and that Patricia had increased the KOR  

                                                                                                                             



and ELR trusts' reserves from $60,000 to $250,000 because the pending appeal meant  

                                                                                                                           



those trusts could not be closed.  

                                                   



                                                               -10-                                                         7336
  


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

                                                                                 In late June Gayle moved to compel Patricia to distribute the remaining                                                                                                                                                                                                                                                                                                                



 trust funds and to sanction her for violating the court's orders.                                                                                                                                                                                                                                                                                                                                               The superior court                                                                  



  granted the motion in part, ruling that Patricia had violated the court's judgment and that                                                                                                                                                                                                                                                                                                                                                                                                                   



  she needed to seek court permission before deviating from the final judgment. The court                                                                                                                                                                                                                                                                                                                                                                                                              



  awarded Gayle attorney's fees for successfully moving to compel and held the remainder                                                                                                                                                                                                                                                                                                                                                                                  



  of the requested relief in abeyance until Patricia sought approval to deviate from the                                                                                                                                                                                                                                                                                                                                                                                                                          



judgment or abided by its original terms.                                                                                                                                                                                                               



                                                                                 Patricia   moved   to   amend   the   judgment,   requesting   court   approval  to  



  increase the trust reserves to $250,000. She also requested that the judgment be amended                                                                                                                                                                                                                                                                                                                                                                                      



 to include a new distribution schedule reflecting the current trust asset values.                                                                                                                                                                                                                                                                                                                                                                                                           Gayle  



  opposed, arguing that Patricia had not met her burden of proving that the increase in trust                                                                                                                                                                                                                                                                                                                                                                                                              



 reserves was necessary                                                                                                                               and that amending the final distribution schedule would be                                                                                                                                                                                                                                                                                                     



 tantamount to judicially approving Patricia's trust withdrawals since the final judgment                                                                                                                                                                                                                                                                                                                                                                                    



  date.   Patricia replied with additional evidence supporting the amendments, and the                                                                                                                                                                                                                                                                                                                                                                                                                           



  superior court amended the judgment in November.                                                                                                                                                                                                 



                                                                                 Gayle appealed, arguing that Patricia's actions constituted an additional                                                                                                                                                                                                                                                                                                              



 violation of her fiduciary duty justifying her removal from other fiduciary positions.                                                                                                                                                                                                                                                                                                                                                                                                                                                  



  Gayle also argued that the superior court erred by granting the motion to amend and                                                                                                                                                                                                                                                                                                                                                                                                                         



  amending the final distribution schedule.                                                                                                                                                 



                                                                                 We consolidated Gayle's appeals for oral argument and consideration.                                                                                                                                                                                                                                                                            



 III.                                     STANDARD OF REVIEW                                                                                           



                                                                                 When deciding questions of law, we "adopt the rule of law that is most                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                             2           For mixed questions of law and  

 persuasive in light of precedent, reason, and policy."                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                         2                                       Bd.   of   Trs.,   Anchorage   Police   &   Fire   Ret.   Sys.   v.   Municipality   of  



Anchorage , 144 P.3d 439, 445 (Alaska 2006) (citing                                                                                                                                                                                                                                                                                         Rockstad v. Erikson                                                                                                         , 113 P.3d                       

                                                                                                                                                                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                                                                                                        -11-                                                                                                                                                                                                                                              7336
  


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

fact,   "we   review   factual   questions   under   the   clearly   erroneous   standard   and   legal  



                                                                                          3  

questions using our independent judgment."                                                                                                                                   

                                                                                             We will find clear error only "when we are  



                                                                                                                                                                         

left with a definite and firm conviction based on the entire record that a mistake has been  

               4    "We will find an abuse of discretion upon a showing that a decision was  

made."                                                                                                                                                                    



                                                                                                                                                                                5  

 'arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive.' " 

                                                                                                                                                                                    



We review claims not raised before the superior court only to the extent they may  

                                                                                                                                                                         

constitute plain error.6  

                                  



IV.	          DISCUSSION  



              A.	           The Superior Court Did Not Abuse Its Discretion By Declining To                                                                                 

                            Remove Patricia As Rumac Director And President.                                             



                            Gayle argues for Patricia's removal as a director and president of Rumac   



for Patricia's breach of corporate fiduciary duty.  The superior court found that Patricia  

                                                                                                                                                                   



violated the Rumac bylaws by unilaterally redeeming stock in the ELR trust, but the  

                                                                                                                                                                            



court declined to remove Patricia from her positions.                                                          



                            Alaska Statute 10.06.463 provides:                   



              2             (...continued)  



                                           

 1215, 1219 (Alaska 2005)).  



              3  

                                                                                                                                                                     

                           Ben M. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

204 P.3d 1013, 1018 (Alaska 2009) (citing                                              A.M. v. State             , 945 P.2d 296, 304 n.10 (Alaska                  

 1997)).  



              4            Brown  v.  Knowles,  307  P.3d  915,  923  (Alaska  2013)  (quoting  In  re  

                                                                                                                                                                             

Protective Proceedings of W.A., 193 P.3d 743, 748 (Alaska 2008)).  

                                                                                                                            



              5            Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018) (quoting Tracy  

                                                                                                                                                                       

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 279 P.3d 613, 616  

                                                                                                 

(Alaska 2012)).  

                  



              6            Mitchell v. Mitchell, 370 P.3d 1070, 1082 (Alaska 2016) (citing Laughlin  

                                                                                                                                                                

v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010)).  

                                                                                         



                                                                                     -12-	                                                                              7336
  


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

                                       The   superior   court   may,   at   the   suit   of   the   board  or   the  

                                       shareholders holding at least 10 percent of the number of                                                                                                             

                                       outstanding shares of any class, remove fromoffice a director                                                                                        

                                       for fraudulent or dishonest acts, gross neglect of duty, or                                                                                                           

                                       gross abuse of authority or discretion with reference to the                                                                                                        

                                       corporation and may bar from reelection a director removed                                                                                          

                                       in that manner for a period prescribed by the court.                                                                                                           The  

                                       corporation shall be made a party to the suit.                                                                       



In deciding whether to remove a director, a court should consider:                                                                                                                                



                                       (1)   the egregiousness of the                                                        underlying   violation; (2)                                                  the  

                                       defendant's past record of misconduct; (3) the defendant's                                                                                 

                                       role   or   position   at   the   time   of   the   violation;   (4)   the  

                                       defendant's degree of scienter; (5) the defendant's economic                                                                                     

                                       stake   in  the   violation;   .   .   .   (6)   the   likelihood   that   the  

                                       misconduct will recur. . . . [And (7)] whether there is reason                                                                                            

                                       to suspect that shareholder democracy will be insufficient to                                                                                                           

                                       prevent reelection of an unfit director.                                                                      [7]  



                                       Gayle argues that Patricia should be removed because she manipulated  

                                                                                                                                                                                                                      



Gayle's stock holdings and devalued Rumac's share price from $350 to $275.  Gayle  

                                                                                                                                                                                                                                        



also  lists  in  her  reply  brief  other  breaches  of  Patricia's  corporate  duties,  but  these  

                                                                                                                                                                                                                                           



breaches all stem from the stock redemption, which the superior court found was "the  

                                                                                                                                                                                                                                              



one and only act in which Patricia . . . was shown not to have acted in accordance to the  

                                                                                                                                                                                                                                                  



corporate bylaws."  

                             



                                       The superior court found that Patricia had committed neither fraud nor  

                                                                                                                                                                                                                                                



egregious misconduct by redeeming the stock. The court also found that Patricia did not  

                                                                                                                                                                                                                                                  



have intent to personally gain, that the violation had been cured, and that the violation  

                                                                                                                                                                                                                      



likely would not occur again.  In light of these findings, it was not unreasonable for the  

                                                                                                                                                                                                                                                  



court to decline to remove Patricia as a Rumac director. And although AS 10.06.643 and  

                                                                                                                                                                                                                                                 



our  case  law  do  not  relate  directly  to  officer  removal,  assuming  the  court  had  

                                                                                                                                                                                                                                              



                   7  

                                                                                                                                                                                                                   

                                      Martinez v. Cape Fox Corp., 113 P.3d 1226, 1233 (Alaska 2005).  



                                                                                                                        -13-                                                                                                                            7336  


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

discretionary authority to remove Patricia as Rumac president,                                                                                                          it  similarly was not                     



unreasonable for the court to decline to do so.                                                               



                                  Gayle also argues in her reply brief that the superior court made two clearly                                                                                            



erroneous factual findings to support its decision not to remove Patricia as a Rumac                                                                                                                   



director:   that Gayle initiated the stock redemption and that Rumac was not harmed by                                                                                                                               



the redemption.                           Gayle waived this argument by raising it for the first time in her reply                                                                                            

brief.8  



                                  We therefore conclude that the superior court did not abuse its discretion  

                                                                                                                                                       



by declining to remove Patricia as a director and president of the corporation.  

                                                                                                                                                                      



                 B.	              The Superior Court Did Not Abuse Its Discretion By Declining To  

                                                                                                                                                                                                                    

                                  Remove Patricia As Trustee Of The KOR And ELR Trusts.  

                                                                                                                                                                                 



                                  Gayle argues that Patricia's breach of fiduciary duty in administering the  

                                                                                                                                                                                                                    



KOR and ELR trusts warrants her removal as trustee.  But AS 13.36.076 specifies four  

                                                                                                                                                                                                                 



ways that a trustee may be removed:  (1) by a trust protector; (2) by a person specified  

                                                                                                                                                                                                     



in the trust instrument; (3) under a procedure specified in the trust instrument; or (4) by  

                                                                                                                                                                                                                     



a court.  The KOR and ELR trusts did not create a trust protector, and the trusts provide  

                                                                                                                                                                                                        



that removal of a trustee may be accomplished only "in accordance with the provisions  

                                                                                                                                                                                                 



of the laws of the State of Alaska."  Therefore Patricia may be removed only by a court.  

                                                                                                                                                                                                            



                                  To remove a trustee, a court must find that removal is "in the best interests  

                                                                                                                                                                                                       



of all the beneficiaries" and that either (1) "the trustee has committed a serious breach  

                                                                                                                                                      



of trust" or (2) "a trustee is unfit, is unwilling, or persistently fails to administer the trust  

                                                                                                                                                                                                                



                 8                See Crittell v. Bingo                                , 83 P.3d 532, 536 n.19 (Alaska 2004) (stating that                                                                        



issue raised for first time in reply brief is deemed waived); Alaska R. App. P. 212(c)(3)                                                                                                          

("Th[e]   [reply]   brief   may   raise   no   contentions   not   previously  raised   in   either   the  

appellant's or appellee's briefs.").                            



                                                                                                         -14-	                                                                                                 7336
  


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

                       9  

effectively."   A court also may remove a trustee for lack of cooperation among co-                                                                           



trustees or when all qualified beneficiaries request removal because of a substantial                                                          

                                                10   These latter two provisions cannot apply because there are  

change in circumstances.                                                                                                                                      



no co-trustees and Patricia has not requested her own removal.  

                                                                                                       



                         The superior court found that Patricia violated her trustee duties by using  

                                                                                                                                                          



trust funds to maintain the Bootlegger's Cove property while letting her son live in it rent  

                                                                                                                                                             



free.  But the court concluded that "[i]n totality, Patricia . . . adequately performed her  

                                                                                                              



duties as trustee."  The court also found that Patricia was trustworthy, transparent, had  

                                                                                                             



not secreted money to her advantage, and had no bookkeeping irregularities.  The court  

                                                                                                                                                          



therefore declined to remove Patricia as trustee.  

                                                                                             



                         Patricia's  personal  use  of  the  Bootlegger's  Cove  property  prior  to  its  

                                                                                                                                                               



distribution to her undoubtedly was a breach of her fiduciary duties, but breach alone  

                                                                                                                                                          

does not mandate removal.11  Thesuperior court weighed Patricia's violation against "the  

                                                                                                                                                             



totality of her efforts" and concluded that "[a]ll actions taken, whether procedurally  

                                                                                                                                           



correct or not, were made openly and with notice given to Gayle."  In light of these  

                                                                                                                                                          



findings,  the  superior  court's  decision  not  to  remove  Patricia  was  not  manifestly  

                                                                                                                                               



unreasonable and therefore not an abuse of discretion.  

                                                                                   



             C.	         The Superior Court Did Not Abuse Its Discretion After Reforming  

                                                                                                                                              

                         The KOR And ELR Trusts By Allowing Patricia To Be Co-Trustee Of  

                                                                                                                                                               

                         Gayle's Trust.  

                                          



                         Gaylearguesthatthesuperiorcourt abused itsdiscretion bynaming Patricia  

                                                                                                                                                      



co-trustee of Gayle's trust for Rumac voting purposes.  Gayle does not challenge the  

                                                                                                                                                              



             9           AS 13.36.076(b)(1)-(2).   



             10          Id.  at (b)(2).   



             11          See  RESTATEMENT  (THIRD)  OF  TRUSTS   37 cmt. e (A                                              M. L    AW. I  NST . 2003)             .  



                                                                              -15-	                                                                       7336
  


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

court's reformation analysis, instead arguing that the court abused its discretion by                                                                                                                                                                  



allowing Patricia to be co-trustee of Gayle's trust in light of Patricia's previous fiduciary                                                                                                                                        



duty violations.                                



                                        Thesuperior court                                     did not abuseits                               discretionby naming Patriciaco-trustee                                                



of Gayle's trust for the sole purpose of voting Gayle's Rumac stock.                                                                                                                                               As the court's         



summary judgment order explains, the KOR and ELR trusts established by clear and                                                                                                                                                                    



convincing evidence Olin's and Edna's intent to give Patricia sole power to vote all                                                                                                                                                                    



Rumac stock in Gayle's trust. The order also explains that Patricia would lack power to                                                                                                                                                                   



vote Rumac stock in Gayle's trust if not a trustee and that Patricia could not create a                                                                                                                                                                     



separate trust solely for the Rumac stock without violating the Rumac stock redemption                                                                                                                                        



agreement.   This left reformation with Patricia as co-trustee of Gayle's trust the only                                                                                                                                                          

                                                                                                                                                   12     The superior court thus did not err  

remaining option to conform to the Rudes' intent.                                                                                                                                                                                                      



or abuse its discretion by reforming the KOR and ELR trusts to make Patricia co-trustee  

                                                                                                                                                                                                                                   



of Gayle's trust.  

                                                  



                    D.	                 The  Superior  Court  Did  Not  Err  By  Ordering  Patricia  To  Pay  

                                                                                                                                                                                                                                                  

                                        Prejudgment Interest To The KOR And ELR Trusts.  

                                                                                                                                                                                         



                                        Gayle argues that the court erred by ordering Patricia to pay prejudgment  

                                                                                                                                                                                                                          



interest to the KOR and ELR trusts, rather than to Gayle's trust, for Patricia's use of the  

                                                                                                                                                                                                                                                       



Bootlegger's Cove property.  The court ordered Patricia to pay interest to the trusts on  

                                                                                                                                                                                                                           



both  the  property's  value  and  maintenance  costs.                                                                                                             Gayle  does  not  challenge  the  

                                                                                                                                                                                                                                                     



repayment of maintenance costs, but argues that "Patricia harmed Gayle by distributing  

                                                                                                                                                                                                                             



the Bootlegger's Cove property to herself without an equal distribution to Gayle."  

                                                                                                                                                                                                                            



                                        The superior court ordered Patricia to pay interest to the trusts because the  

                                                                                                                                                                                                                                                       



home's value that accrued to Patricia should have accrued to the trusts.  The court's  

                                                                                                                                                                                                                                          



                    12                 See AS  13.36.350(a).  

                                                               



                                                                                                                          -16-	                                                                                                                              7336  


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

initial order stated that "[i]f [the Bootlegger's Cove property] was still a trust asset,                                                                                                                                                                          



 [Patricia] would have been collecting rent from the tenant residing in the home."  Had                                                                                                                                         



Patricia properlytreated theBootlegger's Covepropertyas                                                                                                                                  KORandELRtrust property,                                       



the appreciation and rents would have been received by those trusts - not Gayle's trust.                                                                                                                                                                                                



The superior court thus did not commit legal error by ordering Patricia to repay the KOR                                                                                                                                                                            



and ELR trusts directly.                          



                      E.	                  There Are Insufficient Findings To Justify Discounting The Barber                                                                                                                                                

                                           And Erickson Notes.                              



                                           Gayle argues that valuing the Barber Note below its full face value was                                                                                                                                                      



error. She specifically contests the investor's appraisal which considered the likelihood                                                                                                                                                            



of full payment being made.                                                                      We previously have held that it was clear error for a                                                                                                                          



superior court to assign a note its face value if there were little chance of recovering the                                                                                                                                                                               



                13  

loan.                                                                                                                                                                                                                                                                                   

                        But in this case the appraised value accounted for the likelihood of full payment.  



                                                                                                                                                                                                                                                                        

The superior court therefore did not clearly err by valuing the note below its full face  



value.  



                                                                                                                                                                                                                                                                           

                                           Gayle also argues that discounting the Barber Note by the value of the  



                                                                                                                                                                                                                                                                                        

Erickson Note "was both an error of law . . . and an abuse of [the court's] discretion."  



                                                                                                                                                                                                                                                                 

The Barber Note - apparently a trust asset - secured by a deed of trust on real estate,  



                                                                                                                                                                                                                                                                    

was valued at $95,000 before the court's order. The Erickson Note - apparently a trust  



                                                                                                                                                                                                                                                                                        

asset - secured by Maiken's Rumac stock, was valued at $35,000.  The court ordered:  



                                                                                                                                                                                                                                                                  

"The Erickson loan is forgiven and the $35,000 asset will not be assigned to either  



                                                                                                                                                                                                                                                    

trustee. . . .  The Barber loan is forgiven in part, in the amount of $35,000."  



                                                                                                                                                                                                                                                                 

                                           The superior court's order does not explain how it decided the notes would  



                                                                                                                                                                                                                                          

be forgiven by $35,000.  The court stated that "[n]either party presented evidence that  



                      13                   Brosnan  v.  Brosnan,  817  P.2d  478,  480-81  (Alaska   1991).  



                                                                                                                                    -17-                                                                                                                                          7336  


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

either grandparent ever intended for either note to be acted on as if their grandchild had                                                                                         



                                                                                                                             14  

defaulted on the loan."                            The court cited AS 13.36.109(19)                                              as authority for Patricia to  



                                                                                                                                                                       

release the trusts' potential claim against Maiken for $35,000 and noted that "keeping  



                                                                                                                                                  

peace within the family does benefit the beneficiaries of the trust."  



                                                                                                                                                                                   

                             Nothing  in  the  record  supports  a  finding  that  the  Rudes  forgave  the  



                                                                                                                                                                                   

Erickson  Note  altogether  or  discounted  the Barber  Note by  $35,000.                                                                                      Because the  

                                                                                                            15  as Gayle argues, had Maiken made  

                                                                                                                                                                               

Erickson Note apparently was payable on demand, 



no  interest  or  principal  payments  for  ten  years  the  Note  might  have  become  

                                                                                                                                                                        

unenforceable.16                      But the court did not determine whether the Erickson Note retained  

                                                                                                                                                                         



value or otherwise was barred by the statute of limitations and thus unenforceable. And  

                                                                                                                                                                                 



even considering courts' broad equitable powers, there seems to be no basis in equity for  

                                                                                                                                                                                     



the court sua sponte to forgive part of a loan held as a trust asset.   With insufficient  

                                                                                                                                                     



findings to explain the court's exercise of its equitable powers to forgive the Erickson  

                                                                                                                                         



Note and to discount the Barber Note by the value of the Erickson Note, we must vacate  

                                                                                                                                                                             



and remand for further consideration of these issues.  

                                                                                                   



               14            AS 13.36.109(19) ("[A] trustee may perform all actions necessary . . . . to                                                                            



pay or contest a claim, to settle a claim by or against the trust by compromise, arbitration,                                                                      

or otherwise, and to release, in whole or in part, a claim belonging to the trust.").                                                                                           



               15            See AS 45.03.108(a)(2) ("A promise or order is payable on demand if it  

                                                                                                                                                                                       

. . . . does not state a time of payment.").  

                                                              



               16            See AS 45.03.118(b) ("[I]f demand for payment is made to the maker . . .  

                                                                                                                                                                                        

an action to enforce . . . the note must be commenced within six years after the demand";  

                                                                                                                                                                      

if there has not been a demand, enforcement "is barred if neither principal nor interest  

                                                                                                                                             

on the note has been paid for a continuous period of 10 years.").  

                                                                                                                                            



                                                                                         -18-                                                                                  7336
  


----------------------- Page 19-----------------------

                       F.	                    The   Superior   Court   Did   Not   Abuse   Its   Discretion   By   Assigning  

                                              Liquidation Costs To The Stuckagain Heights And Bootlegger's Cove                                                                                                                                                                         

                                              Properties.  



                                              Gayle next argues that the superior court erred by valuing the Bootlegger's                                                                                                                                     



Cove and Stuckagain Heights properties with liquidation costs.                                                                                                                                                                      She argues that we                                          



should adopt a bright-line rule that "only allow[s] liquidation costs when they are a                                                                                                                                                                                                                 



certainty due to an actual sale."                                                                                    Gayle's argument is not whether the value of the                                                                                                                          



properties with the liquidation costs is correct, but whether the superior court could                                                                                                                                                                                                 



assign liquidation costs at all.                                                                        



                                              Gayle argues that "[a]bsent an actual sale, Alaska law allows sales costs to                                                                                                                                                                          



be considered only in the event of a forced sale." In support she cites three divorce cases                                                                                                                                                                                              



holding that the superior court must consider liquidation costs if one party may be                                                                                                                                                                                                              



disadvantaged by those costs.                                                                               But those cases do not hold that liquidation costs are                                                                                                         

                                                                                                                                                                              17       And as Patricia notes, liquidation  

available  only in the case of actual or forced sales.                                                                                                                                                                                                               



costs in other contexts appropriately can be considered when "the possibility of sale" is  

                                                                                                                                                                                                                                                                                                     

all that is contemplated.18                                                                   Adopting a bright-line rule that liquidation costs are never  

                                                                                                                                                                                                                                                                                       



                       17                     See Day v. Williams                                                    , 285 P.3d 256, 266-67 (Alaska 2012) (vacating and                                                                                                                       



remanding because superior court failed to consider costs associated with forced sale of                                                                                                                                                                                                           

real property, and because it was unclear whether property distribution would be just and                                                                                                                                                                                                      

fair);  Beal v. Beal                                           , 88 P.3d 104, 117 (Alaska 2004) (affirming superior court's selling                                                                                                                                                

costs award to wife because wife was economically disadvantaged party);  Tollefsen v.  

 Tollefsen, 981 P.2d 568, 572 (Alaska 1999) (holding that "although the superior court  

                                                                                                                                                                                                                                                                                     

expressly found that [wife] was the economically disadvantaged party, the court's failure  

                                                                                                                                                                                                                                                                                      

to make provision for the costs of repairs and sale of the real property awarded to [wife]  

                                                                                                                                                                                                                                                      

defeated its stated goal of awarding her the greater share of the marital estate").  



                       18                     See, e.g., AS 10.06.630(a) ("The fair value [of shares owned by plaintiffs  

                                                                                                                                                                                                                                                                            

in a suit for involuntary dissolution] shall be determined on the basis of the liquidation  

                                                                                                                                                                                                                                                                     

value, taking into account the possibility of sale of the entire business as a going concern  

                                                                                                                                                                                                                                                                               

in a liquidation.").  

                                                                 



                                                                                                                                               -19-	                                                                                                                                      7336
  


----------------------- Page 20-----------------------

 appropriate absent a certain sale thus would fail to acknowledge that liquidation costs                                                                                                                                                                                                                                                                                                                                                                                                                                        



may be appropriate when a sale is possible but not guaranteed.                                                                                                                                                                                                                                                                                                                                               



                                                                                    In   this   case   the   superior   court   found   reliable   Patricia's   accountant's  



 "opinions regarding valuation methods used to wrap up the distribution of estate or trust                                                                                                                                                                                                                                                                                                                                                                                                                                          



 assets."     The court "relie[d] upon her testimony on those                                                                                                                                                                                                                                                                                                                              issues."     The accountant   



testified that the liquidation costs were based on typical closing costs, that the liquidation                                                                                                                                                                                                                                                                                                                                                                                              



 costs were no more speculative than an appraisal of the property's market value would                                                                                                                                                                                                                                                                                                                                                                                                                                  



be, and that liquidation costs are not uncommon. Because the superior court reasonably                                                                                                                                                                                                                                                                                                                                                                                                     



 could rely on this expert testimony, it did not abuse its discretion by applying liquidation                                                                                                                                                                                                                                                                                                                                                                                               



 costs to the Stuckagain Heights and Bootlegger's Cove properties.                                                                                                                                                                                                                                                                                            



                                           G.	                                       The Superior Court DidNot                                                                                                                                                                Abuse Its Discretion By Allowing Patricia  

                                                                                     To Retain Trustee Fees.                                                                                                     



                                                                                     Gayle argues that the superior court abused its discretion by allowing                                                                                                                                                                                                                                                                                                                                          



Patricia to retain trustee fees charged to the KOR and ELR trusts despite breaching her                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 fiduciary duties.  The court ruled that "[t]he provisions regarding . . . trustee fees shall                                                                                                                                                                                                                                                                                                                                                         



remain the same as the proposed distribution attached to the Proposed Final Judgment."                                                                                                                                                                                                                                                                                                                                                                                                                                                                             



 That distribution provided for $28,500 in trustee fees.                                                                                                                                                                                                                                                                                                    Gayle does not challenge this                                                                                                                                               



 amount's reasonableness, but rather the                                                                                                                                                                                                             court's decision to allowPatricia to retain trustee                                                                                                                                                                                                              



 fees at all.                                                     



                                                                                     Trustee fees are governed by AS 13.36.078 and AS 13.36.198.                                                                                                                                                                                                                                                                                                                                                                   These  



 statutes provide that a trustee is entitled to reasonable compensation or compensation as                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 dictated by the trust instrument unless the trustee violates fiduciary duties, in which case                                                                                                                                                                                                                                                                                                                                                                                                                                        

the trial court has discretion to deny compensation in whole or in part.                                                                                                                                                                                                                                                                                                                                                                                     19  



                                           19                                       AS13.36.078(1)(A) ("Exceptas otherwiseprovided inthetrust instrument,                                                                                                                                                                                                                                                                                                                                



 . . . a trustee is entitled to be reimbursed out of the trust property, with interest as                                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                                                                                    -20-	                                                                                                                                                                                                                                                          7336
  


----------------------- Page 21-----------------------

                                     The    KOR    and    ELR    trusts    allowed    Patricia    to    retain    "reasonable  



compensation   commensurate   with   services   actually   performed."     The   court   found  



Patricia   to   be   honest,   trustworthy,   and   transparent,   and   it   noted   she   "adequately  



performed her duties as trustee" considering "the totality of her efforts." These findings                                                                                                                               



support the court's decision not to deny Patricia trustee compensation.                                                                                                                            It was therefore     



not unreasonable and not an abuse of discretion to allow Patricia to retain trustee fees.                                                                                                                                        



                   H.	               The Superior Court Did Not AbuseIts                                                                           Discretion By Allowing Patricia  

                                     To Reimburse Her Attorney's Fees With Trust Funds.                                                                                          



                                     Gayle argues that the court abused its discretion by allowing Patricia to pay                                                                                                                    



her legal fees with trust funds.                                                      Gayle argues that "[a]ttorney's fees are . . . not usually   



paidto a             trustee when they have                                           violated their fiduciary duties"and that                                                                  "indemnification  



is ordinarily unavailable" when "the trustee is found to have committed a breach of                                                                                                                                                      



trust."   



                                     Alaska Statutes 13.36.109 and 13.36.078 permit a trustee to be reimbursed                                                                                                  

                                                                                                                                            20        The  KOR  and  ELR  trusts  also  

for   attorney's   fees   incurred   on   behalf   of   a   trust.                                                                                                                                                                 



authorize  the  trustee  to  act  as  "reasonably  necessary"  in  administering  each  trust,  

                                                                                                                                                                                                                                



including to "employ attorneys . . . and compensate them and pay their expenses from  

                                                                                                                                                                            



                   19                (...continued)  



                                                                                                                                                                                                                                      

appropriate, for . . . expenses that were properly incurred in the administration of the  

                                                                                                                                                                                                                                       

trust."); AS 13.36.198 ("If a trustee violates a provision of [the Alaska Trusts Act], the  

                                                                                                                                                                                                                                                  

trustee may be removed as trustee . . . and denied compensation in whole or in part.").  



                   20                AS 13.36.109(24), (28) ("[A] trustee may perform all actions necessary to  

                                                                                                                                                                                                                                          

accomplish the proper management, investment, and distribution of the trust property,  

                                                                                                                                                                                                                               

including . . . . to employ . . . . attorneys . . . [and] to prosecute or defend an action, claim,  

                                                                                                                                                                                                                                       

or proceeding in order to protect trust property and the trustee in the performance of the  

                                                                                                                                                                                                                                         

trustee's duties."); AS 13.36.078(1)(A) ("[A] trustee is entitled to be reimbursed out of  

                                                                                                                                                                                                                       

the trust property, with interest as appropriate, for . . . expenses that were properly  

                                                                                                      

incurred in the administration of the trust.").  



                                                                                                                  -21-	                                                                                                          7336
  


----------------------- Page 22-----------------------

income or principal or both."                                                                                                                                    The trusts further authorize the trustee to defend against                                                                                                                                                                                                                    



lawsuits   and   "to   retain   such   legal   counsel   and   ancillary   personnel   as   it   may   deem  



appropriate."    



                                                                         As trustee of the KOR and ELR trusts, Patricia was authorized to use the                                                                                                                                                                                                                                                                                                                    



trusts' funds to defend suits against her as trustee.                                                                                                                                                                                                                                     As explained above, the superior                                                                                                              



court found that "[i]n totality, Patricia . . . adequately performed her duties as trustee."                                                                                                                                                                                                                                                                                                                                                                                                



In light of these findings, the superior court did not abuse its discretion by allowing                                                                                                                                                                                                                                                                                                                                              



Patricia to reimburse her attorney's fees with trust funds.                                                                                                                                                                                                                        



                                    I.	                                  The Superior Court Did Not Abuse Its Discretion By Subsequently                                                                                                                                                                                                                                                               

                                                                         Declining To Remove Patricia From Her Fiduciary Capacities After                                                                                                                                                                                                                                                                                                             

                                                                         The Final Judgment.                                       



                                                                         Gayle argues that Patricia's violation of the court's final judgment was also                                                                                                                                                                                                                                                                                                           



a breach of her fiduciary duties.                                                                                                                                                 Gayle argues that following this breach, "[u]nder no                                                                                                                                                                               



circumstances should Patricia be allowed to act in any further fiduciary capacity in                                                                                                                                                                                                                                                                                                                                                                                      



Rumac, Inc., the KOR and ELR trusts, and Gayle's trust."                                                                                                                                                                                                                                                                       



                                                                         Gayle   failed   to   request   this   remedy   from   the   superior   court.     Gayle  



requested an order compelling Patricia to deposit the withheld funds as well as additional                                                                                                                                                                                                                                                                                                                                      



funds into Gayle's trust, an order prohibiting Patricia from using trust funds to pay                                                                                                                                                                                                                                                                                                                                                                            



attorney's fees, and an order sanctioning Patricia, with attendant attorney's fees for                                                                                                                                                                                                                                                                                                                                                                              



Gayle. Gayle also sought an evidentiary hearing and oral argument.                                                                                                                                                                                                                                                                                                             But at no point did                                                                   



Gayle argue to the superior court that Patricia's violation of the final judgment warranted                                                                                                                                                                                                                                                                                                                                     



her removal from fiduciary capacities.                                                                                                                                                                             



                                                                         Reviewing for plain error, we find no "obvious mistake" that would justify                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                 21                 The court allowed Patricia to increase trust  

overruling the superior court's order.                                                                                                                                                                                                                                                                                                                                                                                                                     



                                    21                                   See  Mitchell v. Mitchell, 370 P.3d 1070,  1082  (Alaska  2016)  ("[W]e  review  



                                                                                                                                                                                                                                                                                                                                                                                                               (continued...)  



                                                                                                                                                                                                                                 -22-	                                                                                                                                                                                                                                                7336  


----------------------- Page 23-----------------------

 reserves based at least in part on her memorandum attributing the need to                                                                                                                                         "unforeseen  



 additional litigation and trust accounting expenses." Patricia's record keeping has never                                                                                                                                              



 been called into question; the court previously concluded that Patricia was trustworthy,                                                                                                                            



 transparent,   had   not   secreted   money   to   her   advantage,   and   had   no   bookkeeping  



 irregularities.    The court therefore did not commit plain error by allowing Patricia to                                                                                                                                                        



 continue serving in her fiduciary capacities.                                                  



                    J.	                The Superior Court Did Not Abuse Its Discretion By Granting The                                                                                                                                      

                                       Motion To Amend The Final Judgment.                                                       



                                       Gayle argues that the court erred by granting Patricia's motion to modify                                                                                                                   



 the final judgment and increasetrust                                                                 reserves without sufficient legal basis. Gayle                                                                                 argues  



 that Patricia failed to prove "extraordinary circumstances" justifying relief under Alaska                                                                                                                                         



 Rule of Civil Procedure 60(b)(6).                                                                



                                                                                                                                                                                                    22  

                                       Whether to grant a motion to amend under Rule 60(b)(6)                                                                                                                                                

                                                                                                                                                                                                         is within the trial  



                                                                                                                                                                 23  

                                                                                                                                                                                                                                               

 court's discretion and reviewed for abuse of discretion.                                                                                                                Gayle argues, however, for  



                                                                                                                                                                                                                                                  

 legal error because Patricia's moving papers were insufficient "as a matter of law" to  



                                                                                                                                                                                                                                

justify relief under any circumstances.  We decline to deviate from our normal standard  



         

 of review.  



                                                                                                                                                                                                         

                                       Although                         Rule                60(b)(6)                       requires                      a         showing                       of           "extraordinary  



                                                                                                                                                                                                                                          

 circumstances," the text provides broadly that a court may modify judgment for "any  



                    21                 (...continued)  



                                                                                                                                                                                                                                                

 matters that were not raised below and not listed in a statement of points on appeal for  

                                                                                                                                                                                                                     

 plain error." (quoting Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010))).  



                    22                 Alaska R. Civ. P. 60(b) ("On motion and upon such terms as are just, the  

                                                                                                                                                                                                                                               

 court may relieve a party . . . from a final judgment . . . . [including for] (6) any other  

                                                                                                                                                                                                                                         

 reason justifying relief from the operation of the judgment.").  

                                                                                                                                             



                    23                Johnson v. Johnson, 394 P.3d 598, 600 (Alaska 2017).  

                                                                                                                                                                                 



                                                                                                                       -23-	                                                                                                              7336
  


----------------------- Page 24-----------------------

                                                                                                                             24  

 other reason justifying relief from the operation of the judgment."                                                              We also have held           



that Rule 60(b)(6) "should be liberally construed to enable courts to vacate judgments  

                                                                                                               25   Patricia had the burden of  

whenever such action is necessary to accomplish justice."                                                                                                         

                                                                                                26  and she supported her motion with  

proving that relief was proper under Rule 60(b)(6),                                                                                                           

                                                                                



 an affidavit and updated accounting of the trusts showing that over $430,000 had been  

                                                                                                                                                             



 expended on legal and accounting fees between 2010 and 2017, or over $60,000 per  

                                                                                                                                                                



year.  Appeals can easily take over a year to conclude, and the original trust reserves  

                                                                                                                                                      



were set at only $60,000.  Patricia's evidence therefore warranted an increase in trust  

                                                                                                                                                             



reserves.  Amending the final judgment to provide for increased reserves to account for  

                                                                                                                                                                



unanticipated litigation falls within the purpose of Rule 60(b)(6)'s catch-all provision.  

                                                                                                                                                                       



 The superior court did not abuse its discretion by granting Patricia's motion to amend.  

                                                                                                                                                        



             K.	          We Do Not Consider Gayle's Argument That The Superior Court  

                                                                                                                                                         

                          Erred By Approving Patricia's Attorney's Fees Without Evidence Of  

                                                                                                                                                                 

                          Their Reasonableness.  

                                       



                          After being sanctioned for deviating from the original final judgment, in  

                                                                                                                                                                  



 September 2017 Patricia moved to amend the judgment and increase reserves to account  

                                                                                                                                                       



 for continued litigation and trust expenses. Included was a request to approve the trusts'  

                                                                                                                                                          



post-judgment fees and taxes from the earlier judgment date of July 31, 2016 through  

                                                                                                                                                       



May 2017, based on attached account statements.  Gayle generally objected to all post- 

                                                                                                                                                             



judgment  expenditures  from  the  trusts  because  Patricia  had  not  demonstrated  

                                                                                                                                          



reasonableness.  Gayle also tangentially challenged charging the trusts for legal fees  

                                                                                                                                                              



             24           See Juelfs v. Gough                   , 41 P.3d 593, 597 (Alaska 2002).                   



             25           Id.  at 597 n.12 (emphasis omitted) (quoting                                       Clauson v. Clauson                   , 831 P.2d     



 1257, 1261 (Alaska 1992)).             



             26           See Sandoval v. Sandoval, 915 P.2d 1222, 1224 (Alaska 1996) ("A party  

                                                                                                                                                            

moving for relief from judgment has the burden of proving his entitlement to relief.").  

                                                                                                                                                     



                                                                               -24-	                                                                        7336
  


----------------------- Page 25-----------------------

                                                                                                                                                   

associated with defending Patricia's actions as a Rumac officer and director in the first  



                                                                                                                                                    

appeal, when Gayle separately argued that the trusts also should pay her legal fees and  



                                                                                                                                                   

costs associated with that earlier appeal.   This argument about paying Gayle's fees  



                                                                                                                                             

apparently was raised in response to the court's earlier order that Patricia, as trustee,  



                                                                                                                                            

could use trust funds to defend the first appeal.  The request for payment of Gayle's  



                                                                                                              

attorney's fees and costs for the first appeal was not granted.  



                                                                                                                                                    

                        It is only the latter tangential point about attorney's fees and costs - and  



                                                                                                                                                

only those associated with defending Patricia in the first appeal regarding Rumac issues  



                                                                                                                                              

-  that  is  on  appeal,  not  the  general  objection  to  the  reasonableness  of  the  trusts'  



                                                                                                                                                    

expenses. But we are not persuaded that this attorney's fees and costs issue properly was  



                                                                                                                                                   

raised to the superior court as a stand-alone issue, when it was set out in only one  



                                                                                                                                                     

sentence in a section actually directed to an argument that the court should order that the  



                                                                                                                                                    

trusts pay Gayle's attorney's fees and costs in the first appeal.   Although we do not  



                                                                                                                                                      

consider Gayle's argument, we note that she is not precluded from raising this issue on  



                                                                                       

remand after the current appeals are concluded.  



V.          CONCLUSION  



                        We VACATE the superior court's order valuing the Erickson and Barber  

                                                                                                                                              



Notes and REMAND for further proceedings consistent with this opinion.                                                                In all other     



respects, we AFFIRM the superior court's decisions.                          



                                                                         -25-                                                                    7336
  

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