| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Estate of Erna Rousey (5/16/2025) sp-7770
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Estate of: )
) Supreme Court No. S-18497
ERNA ROUSEY. )
) Superior Court No. 3AN-20-01212 PR
)
) O P I N I O N
)
) No. 7770 - May 16, 2025
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: James Rousey, Jr., pro se, Palmer.
Christopher M. Brecht, Bankston Gronning Brecht P.C.,
Anchorage, for Lydia A. Cochran, Personal Representative
of the Estate of Erna Rousey.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
CARNEY, Justice.
INTRODUCTION
In the last few years of her life, Erna Rousey transferred five real
properties and nearly $225,000 in cash assets to her son, James "Jimmy" Rousey, Jr.
After her death, her estate sought recission of these inter vivos transfers on a theory of
undue influence. The superior court held that the estate was entitled to the property
Erna transferred to Jimmy, concluding that Jimmy maintained a confidential
relationship with his mother and that the property transfers were the result of undue
influence. It also awarded attorney's fees to the estate. Jimmy, now representing
----------------------- Page 2-----------------------
himself, challenges the rescission and attorney's fee award, making several arguments
on appeal. Because none of his arguments are persuasive, we affirm the recission. But
we vacate and remand the enhanced attorney's fee award for reconsideration based on
appropriate factors.
FACTS AND PROCEEDINGS
A. Facts
Erna Rousey was born in Germany in 1936. She met James Rousey Sr.
while he was stationed there with the United States Army. The two married in 1957
and later moved to the United States. They had four children: Lydia Cochran, Diana
Seekins, Mary Gordon, and Jimmy Rousey.
Erna and James were financially successful. By 2015, they had assembled
a substantial property portfolio. In addition to some property outside Alaska, they
owned five properties in Anchorage and Wasilla: a four-bedroom house on Maryland
Avenue, a three-bedroom house on Jay Circle, a duplex on East 10th Street, a mobile
home and two-bedroom house on Valley Side Circle, and a three-bedroom house on
South Canter Circle. The Rouseys lived in the Canter Circle home and rented out their
remaining properties. Jimmy was their property manager.
The Rouseys helped their children purchase their own properties. In 1994
the couple transferred a property in Alaska to Seekins and a house in Illinois to Gordon.
In 2003 they conveyed a house in Illinois to Cochran. In each case, they entered into
formalized, written purchase and sales agreements with the benefitting child. The
agreements set forth the terms of repayment, including interest. Seekins and Cochran
repaid their loans in full. Gordon was allowed to suspend payments while she
experienced some financial difficulties; James and Erna eventually forgave the
remaining mortgage and returned her payments to her.
The Rouseys helped their son as well. Jimmy and his cousin, James
Horine, purchased the Valley Side property but fell behind on mortgage payments in
-2- 7770
----------------------- Page 3-----------------------
2000 and risked foreclosure. Erna and James paid off the remaining loan balance (about
$20,000) in exchange for Jimmy and Horine transferring the property title to James.
Erna and James intended to help their children after they died, as well. In
2004 Erna executed a will dividing her estate between her four children equally if James
did not survive her. She designated two of her daughters, Cochran and Gordon, to serve
as her personal representatives if her husband could not.
As she aged, Erna began experiencing memory and cognition problems.
She complained about her failing memory to her doctor in 2014 and was administered
a screening test for cognitive impairment and dementia. The test uses a 30-point scale;
a score below 21 indicates dementia. Erna scored 20. The doctor concluded she had
possible mild cognitive impairment and recommended monitoring her condition. She
took the test again in 2015, this time scoring 24, and told Cochran that she had been
diagnosed with dementia.
In December 2015 Erna and James executed a quitclaim deed conferring
Valley Side back to Jimmy "in consideration of great love."1 Jimmy recorded the deed
the same day it was executed. Erna and James also executed a quitclaim deed
transferring Maryland Avenue to Jimmy for no consideration. That deed was not
recorded until 2017.
In 2016 Erna executed a new will at Joint Base Elmendorf-Richardson,
where she received free legal advice by virtue of James's military service. The
substantive provisions of the 2016 will remained the same as the 2004 version - her
estate was still to be divided equally among her children if James did not survive her.
However, the 2016 will designated Jimmy as one of the personal co-representatives
instead of Cochran.
1 Erna was not a grantee of the original 2000 deed transferring Valley Side
from Jimmy and his cousin to James.
-3- 7770
----------------------- Page 4-----------------------
James entered a rehabilitation center in Anchorage in May 2017 to recover
from a fall, leaving Erna living alone in Wasilla. She reported to her doctor that she
felt isolated because she lived so far from her husband and friends and that she had
become idle since James entered the rehabilitation center. She began to rely more
heavily on Jimmy, especially after a knee injury in late 2017 that her doctor reported
"severe[ly] decrease[d] [her] independence." Jimmy helped her with household upkeep
and yard care, drove her to appointments and social engagements, and advised her on
financial and legal matters.
Erna's memory problems continued in 2017 and 2018. She asked her
doctor for medication to slow her cognitive decline. She also began to rely on narcotic
medication for pain from her knee injury, eventually entering a "pain contract" with her
doctor to reduce her use of the painkillers.
James died on December 21, 2018. That same day, Jimmy recorded a
video of Erna purporting to be a video will. In the video, Erna stated that she wanted
to leave the Jay Circle and East 10th Street properties to the "two youngest," and then
2
corrected herself, clarifying that she intended to leave them to Jimmy and Gordon
because they did not have as much as her other two daughters. With prompting from
Jimmy, she stated that the Canter Circle property should be left to him. After Jimmy
asked Erna what she wanted to do with her bank accounts, she answered that they should
go with Canter Circle.
Jimmy stated in the video that they decided to record it "in case something
happens to [Erna]" before she updated her will in writing. He said that Erna had an
appointment with an estate planner that day, but she would be going alone because he
was too exhausted to take her to another meeting. But Erna did not meet with the estate
planner that day, or any other day. Nor did she draft or execute a new will.
2 Erna's two youngest children are Jimmy and Cochran. Gordon is her
second eldest.
-4- 7770
----------------------- Page 5-----------------------
A week after they recorded the video, Erna wrote a letter to her children
informing them that it was her "wish" that Canter Circle "be turned over to" Jimmy "to
do as he sees fit." She wrote: "I am alone here writing this, so no other influence
surrounding me!!!"
In January 2019 Jimmy purchased a property on Vaunda Avenue from his
son-in-law. In February Erna designated Jimmy as the beneficiary of her account at
Alaska USA Federal Credit Union. In April she began transferring large sums of money
to him. Within three weeks, he received nearly $225,000 from Erna, including the
entire $172,496 balance of her savings account. By the end of the month, Erna was left
with only $950. She also made Jimmy an authorized signatory to her bank accounts,
which received her monthly survivor benefits from James, including his pension and
social security benefits.
On May 3 Erna transferred her remaining real properties - Jay Circle,
Canter Circle, and East 10th Street - to Jimmy, thereby giving him title to Jay Circle,
Canter Circle, East 10th Street, Maryland Avenue, and Valley Side. Erna told her
granddaughter that she transferred the properties to him so that she could qualify for
Medicare or Medicaid.
Erna died in December 2019. Ten days after her death, Jimmy purchased
a property on Donovan Drive.
B. Proceedings
In June 2020 Cochran filed a probate petition to adjudicate intestacy and
appoint a personal representative and a petition for recission of the inter vivos property
transfers to Jimmy. She sought the return of the Canter Circle, Jay Circle, East 10th
Street, Maryland Avenue, and Valley Side properties to Erna's estate, alleging that Erna
lacked the mental capacity to make the transfers, and that they were the product of fraud,
undue influence, or coercion and therefore were void or voidable. She asked the court
to impose a constructive trust over the properties and their rents, any cash or securities
Jimmy received as a beneficiary or joint owner on Erna's accounts, and any portion of
-5- 7770
----------------------- Page 6-----------------------
the Donovan Drive property that had been purchased with Erna's funds. Cochran also
argued Jimmy was ineligible to serve as personal representative because of a conflict
of interest presented by these claims. The court appointed Cochran the personal
representative and opened an informal intestate probate proceeding.
The petition for recission was stayed while the siblings tried to reach a
settlement. After settlement negotiations failed, Jimmy filed an opposition to Cochran's
petition. He maintained that the asset transfers were valid gifts, arguing that Erna had
sufficient mental capacity, that he had not breached any fiduciary duties, and that the
assets were not procured by undue influence. He further asserted the Maryland Avenue
and Valley Side properties were conveyed to him "in consideration of repayment of
loans related to the parcels."
The estate served initial discovery requests on Jimmy in August 2021. His
responses were due several weeks before his deposition scheduled for September 29.
After Jimmy expressed difficulty meeting that deadline, the estate agreed to delay it
until mid-October and rescheduled the deposition to November. Jimmy responded to
the discovery requests in October, but explicitly declined to answer the majority of the
interrogatories. He objected that the estate exceeded the 30-interrgatory limit imposed
by the discovery rules.3 He argued that Interrogatory No. 3 - which asked him to
identify the tenants, occupancy period, rent, and form that rent was received for each of
the seven properties in dispute - actually consisted of 28 separate interrogatories.
In November 2021, Jimmy requested a protective order to postpone his
deposition. The deposition had been scheduled while he was represented by a different
attorney, he explained, but his new counsel was unavailable on that date. He said the
estate "refused" to reschedule and asked the court to issue a protective order barring his
3 Alaska R. Civ. P. 33(a) provides that "a party may serve only thirty
interrogatories upon another party, including all discrete subparts" without leave by the
court or written stipulation.
-6- 7770
----------------------- Page 7-----------------------
deposition from being held as scheduled and rescheduling it to one of several proposed
dates. The estate partially opposed, explaining that it agreed with Jimmy that his
deposition must be postponed but objecting to the "very limited dates" that he offered
as alternatives. At the same time, it separately filed a motion to compel proper
discovery responses in which it argued that Jimmy's interrogatory responses were
vague, insubstantial, and incomplete.
The court granted the estate's motion to compel and denied Jimmy's
protective order in part. It ordered Jimmy to supplement his responses, produce
responsive documents and materials, and give Cochran as personal representative
access to the properties. In addition to rejecting Jimmy's objections to the
interrogatories, the court found that many of his responses "were facile, evasive and
incomplete." It also awarded the estate $9,000 in attorney's fees under Alaska Civil
4
Rule 37(a)(4)(A).
About three weeks before trial, Jimmy provided the estate with a
"significant amount of discovery," including the December 2018 video of Erna and
financial records, both of which were subject to the court's order to compel. Jimmy
claimed that he had not discovered the video until recently and that technical difficulties
prevented him from providing it earlier. The attorney for the estate expressed concern
that Jimmy was making "ad hoc determinations about relevance" to prevent the estate
from obtaining relevant information and preparing for trial. A week later, the attorney
informed the court that Jimmy had just provided "multiple boxes" and storage totes of
material, again expressing concern that the last-minute and limited discovery indicated
that Jimmy's disclosure was incomplete. He declined to seek a continuance but
"rais[ed] a flag concerning [the] adequacy of discovery."
4 Alaska R. Civ. P. 37(a)(4)(A) authorizes an award of attorney's fees for a
party that files a successful motion to compel.
-7- 7770
----------------------- Page 8-----------------------
Trial was held as scheduled in May 2022. Cochran testified as the
personal representative of the estate. She stated that Erna had been diagnosed with
dementia in 2014 or 2015 and became increasingly dependent upon Jimmy until her
death. She also testified that Jimmy frequently brought up the Medicaid look-back
period5 with his parents during this time and in January 2019 suggested to Erna that she
should transfer all of her assets to him so that she could qualify for Medicaid. Cochran
testified that Erna would not have needed Medicaid because her children could provide
long-term care and she had healthcare benefits through Medicare and TRICARE. She
claimed that Erna relied on Jimmy for financial and legal advice and that Jimmy
"controlled" their mother.
The estate called Erna's granddaughter and a friend of Erna's to describe
Erna's capacity and her relationship with Jimmy. The friend testified that Jimmy
"would normally keep [Erna] pretty much isolated from a lot of people that she knew"
and "was running her life."
The estate also called Jimmy as a witness. Jimmy denied that his mother
suffered from dementia. He said that she suffered only from "a little memory loss."
Jimmy testified that he purchased the Valley Side and Maryland Avenue
properties from his parents. He stated that his father's purchase of the Valley Side
property was intended as a loan to Jimmy so that he could buy out Horine's share of the
property. Jimmy said he paid off the loan, but kept the property in James's name
because Jimmy believed he would lose his Medicaid benefits if he had title to the
property. Jimmy stated that he did not have a written purchase and sale agreement for
the Maryland Avenue property, but that his mother kept a "handwritten tally of the
payments that she received" from him, which "disappeared" once it was paid off. He
5 Transfers of assets at below-market rates during the five-year period
before a person applies for Medicaid may affect the person's eligibility. 7 Alaska
Administrative Code (AAC) 100.510; 42 U.S.C. § 1396p(c).
-8- 7770
----------------------- Page 9-----------------------
admitted that he drafted the quitclaim deeds for both properties, but when questioned,
did not explain why he waited two years to record the Maryland Avenue deed.
Jimmy testified that Erna conveyed her remaining assets to him in 2019
to prevent Medicaid from seizing them. He said that she also wanted him to sell the
properties and divide the proceeds with Gordon so that they could "achieve a certain
financial platitude equal" to Cochran and Seekins. He stated that he was unaware of
Erna's 2016 will or the contents of her 2004 will and thought the "financially smart"
way of avoiding expensive estate planning was "to transfer the properties right away."
And he explained that Erna added him to her bank account so that he could use those
funds to pay for her day-to-day needs.
Jimmy called several family and community members to describe his
relationship with Erna. Gordon stated that Erna suffered from memory loss and would
confuse Jimmy with her husband James. Jimmy's daughter testified that Erna trusted
Jimmy "quite a bit" but she was "strong-willed" and was not controlled by Jimmy.
Jimmy's former roommate testified that he did not observe any changes in Erna's
personality or in Jimmy and Erna's relationship between 2015 and 2019.
Both parties presented expert witnesses. The estate called Dr. Mark Zelig
as an "expert in cognitive psychology issues . . . and undue influence." Based on his
experience and review of Erna's medical records, Jimmy's deposition, and the 2018
video of Erna, Dr. Zelig described how Erna's cognitive impairment, isolation, idleness,
and reliance on narcotic medications made her more vulnerable to improper influence.
He testified that, in his opinion, Erna was suffering from dementia in 2019 and Jimmy
"took advantage of her vulnerability" and "her susceptibility" for his own benefit.
Jimmy called Dr. Georges Ghacibeh as an expert in neurology and
cognitive function. Dr. Ghacibeh testified that Erna's medical records indicated "some
decline in memory and cognitive function" but "she seemed quite with it."
The court issued findings of fact and conclusions of law. It held that
Jimmy exerted undue influence on Erna resulting in his unjust enrichment. It found
-9- 7770
----------------------- Page 10-----------------------
that Jimmy maintained confidential relationships with Erna between 2014 and 2019,
giving rise to the rebuttable presumption of undue influence. The court found that
Jimmy had failed to prove the propriety of the transfers. While recognizing that inter
vivos gifts from a parent to a child are presumed to be gifts, the court concluded that
Jimmy's testimony "abandoned the possibility that the challenged transfers were gifts."
As a result, the superior court concluded that the estate was entitled to
recission of the Maryland Avenue, East 10th Street, Jay Circle, and Canter Circle
transfers and the $224,034.39 withdrawn from Erna's accounts in 2019. It also found
that the estate was entitled to the Vaunda and Donovan Drive properties because they
were purchased with Erna's money. The court determined that the estate was entitled
to $201,700 for imputed rental income from the properties Jimmy wrongfully
possessed. Finally, the court also found that the estate was the prevailing party.
After receiving the court's findings of fact and conclusions of law, the
estate then filed an errata. In the errata the estate pointed out that the cash amount to
which it was entitled should be reduced by the value of Donovan Drive's purchase price
because Jimmy had been ordered to convey that property to the estate. Accordingly, it
said the original award of $224,034.39 (the amount of cash the court found Jimmy
received from Erna in April 2019) should be reduced by $145,315.95 (the purchase
price of Donovan Drive) to $78,718.44. Second, the estate corrected some
typographical errors, including the timeframe for which it was entitled to imputed rental
income and a paragraph where the court misidentified East 10th Street as Maryland
Avenue. The court issued amended findings of fact and conclusions of law
incorporating the estate's corrections.
Jimmy filed a motion for reconsideration before the court issued its
amended decision, which the court denied.
The estate moved for actual attorney's fees of $223,003 under Civil Rule
82(b)(3). The court found that Jimmy acted in bad faith and granted an enhanced award
of $178,400.
-10- 7770
----------------------- Page 11-----------------------
Jimmy appeals the recission and attorney's fee award.
STANDARD OF REVIEW
"We review the superior court's evidentiary rulings for an abuse of
discretion" and reverse "[e]rrors in the admission or exclusion of evidence . . . only if
necessary to ensure 'substantial justice.' "6 But we apply our independent judgment to
"whether - based on the evidence presented and the scientific literature available -
the technique or theory underlying the proposed expert testimony is sufficiently
reliable."7 We also "apply our independent judgment to questions of law, adopting the
8
rule of law most persuasive in light of precedent, reason, and policy."
We review the superior court's factual findings, including "[i]ssues of
testamentary capacity and undue influence" for clear error.9 "Clear error exists when
we are 'left with a definite and firm conviction that the superior court has made a
mistake. ' "10 "The trial court's factual findings enjoy particular deference when they
are based 'primarily on oral testimony, because the trial court, not this court, judges the
11
credibility of witnesses and weighs conflicting evidence.' "
6 Guilford v. Weidner Inv. Servs., Inc., 522 P.3d 1085, 1093 (Alaska 2023)
(quoting Luther v. Lander , 373 P.3d 495, 499 (Alaska 2016)).
7 State v. Sharpe, 435 P.3d 887, 900 (Alaska 2019).
8 Kuretich v. Alaska Tr., LLC, 287 P.3d 87, 88 (Alaska 2012) (quoting
Jacob v. State, Dep 't of Health & Soc. Servs., Off. of Child.'s Servs., 177 P.3d 1181,
1184 (Alaska 2008)).
9 Crittell v. Bingo, 36 P.3d 634, 638 (Alaska 2001).
10 Wiegers v. Richards- Wiegers, 420 P.3d 1180, 1182 (Alaska 2018)
(quoting Ethelbah v. Walker, 225 P.3d 1082, 1086 (Alaska 2009)).
11 Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield
v. Sheffield, 265 P.3d 332, 335 (Alaska 2011)).
-11- 7770
----------------------- Page 12-----------------------
We "review an award of attorney's fees under Civil Rule 82, including an
award of enhanced attorney's fees, for abuse of discretion."12 An abuse of discretion
exists "[only] if an award is 'arbitrary, capricious, manifestly unreasonable, or the result
of an improper motive.' "13 "But because an enhanced fee award . . . 'calls into question
a party's litigation conduct and the potential merits of the party's underlying motions,
we assess de novo the legal and factual viability of the party's motions and review
14
relevant findings of fact for clear error.' "
DISCUSSION
A. The Superior Court Was Not Required To Hold A Daubert/Coon
Hearing.
Jimmy first argues that the superior court erred by failing to conduct a
Daubert/Coon hearing on its own motion before admitting Dr. Zelig's expert testimony.
Under the Daubert/Coon standard, novel scientific testimony can be admitted only if it
is scientifically valid - i.e., "derived by the scientific method" and "supported by
appropriate validation" - and its methodology can be properly applied to the facts in
the case.15 We adopted the Daubert standard in State v. Coon.16
The estate proposed Dr. Zelig as an "expert in cognitive psychology issues
. . . and undue influence." Jimmy did not ask the court to conduct a Daubert/Coon
hearing. In fact, he accepted Dr. Zelig as a qualified expert. Because he did not object
to Dr. Zelig's expert testimony, he must prove that the superior court plainly erred -
12 Sykes v. Lawless, 474 P.3d 636, 646-47 (Alaska 2020) (quoting Herring
v. Herring, 373 P.3d 521, 528 (Alaska 2016)).
13 Id. at 647 (alteration in original) (quoting Keenan v. Meyer, 424 P.3d 351,
356 (Alaska 2018)).
14 Id. (cleaned up) (quoting Herring, 373 P.3d at 528).
15 State v. Sharpe, 435 P.3d 887, 893 (Alaska 2019) (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).
16 974 P.2d 386, 392-98 (Alaska 1999).
-12- 7770
----------------------- Page 13-----------------------
that its failure to conduct a Daubert/Coon analysis "involves an 'obvious mistake' that
is 'obviously prejudicial.' "17
The court did not plainly err. A Daubert/Coon analysis is not necessary
"when an area of expertise is well-known and has been fully considered by the
courts."18 In Samaniego v. City of Kodiak we affirmed the admissibility of psychiatric
testimony without a Daubert/Coon hearing when it was based on a typical medical
examination.19 We noted that we have "repeatedly recognized the validity of
20
. . . forensic psychological and psychiatric exams in civil and criminal contexts."
Dr. Zelig is a forensic psychologist. The court accepted him without
objection as an expert in "cognitive psychology issues relevant to this case and undue
influence." He offered his opinion based on Erna's medical records. His testimony
about Erna's capacity and vulnerability to undue influence, like the testimony in
Samaniego, was in an area of expertise previously considered by the courts and
21
therefore not subject to a Daubert/Coon analysis.
17 In re Hospitalization of Carter K., 557 P.3d 755, 761 (Alaska 2024)
(quoting In re Hospitalization of Tonja P., 524 P.3d 795, 800 (Alaska 2023)); see also
Alaska R. Evid. 103(d).
18 Coon, 974 P.2d at 398; see also Samaniego v. City of Kodiak, 80 P.3d 216,
220 (Alaska 2003).
19 80 P.3d at 220.
20 Id. (citing Fardig v. Fardig, 56 P.3d 9, 14 (Alaska 2002); J.S. v. State , 50
P.3d 388, 392 (Alaska 2002); In re S.H ., 987 P.2d 735, 740-41 (Alaska 1999); Nelson
v. State, 874 P.2d 298, 303 (Alaska App. 1994)).
21 See id.; see also J.S., 50 P.3d at 395 (crediting expert testimony by
forensic psychologist); Bateman v. State, 125 So. 3d 616, 625-27 (Miss. 2013)
(upholding admissibility of testimony given by expert qualified in forensic psychology
following Daubert analysis); State v. Brown, 347 So. 3d 745, 829 (La. 2022) (crediting
reliability and relevance of forensic psychiatry expert testimony); In re Est. of Dokken,
604 N.W.2d 487, 497-500 (S.D. 2000) (upholding admissibility of forensic
psychiatrist's expert testimony regarding testator's capacity); cf. AS 12.47.070(a)
-13- 7770
----------------------- Page 14-----------------------
B. The Court Did Not Err by Concluding That Jimmy Exercised Undue
Influence.
Jimmy argues that he did not exert undue influence over Erna. He
contends that the court erred by applying the law of undue influence for testamentary
gifts instead of inter vivos gifts and that it failed to recognize the presumption that
conveyances from parents to children are gifts. He also argues that the court erred by
finding he shared a confidential relationship with Erna in 2015 and that he obtained the
properties by undue influence.
We begin by reviewing the relevant legal framework and then address
each argument in turn. We conclude that the court properly applied the law of undue
influence and that the evidence supports its findings with respect to the transferred
property.
1. Legal framework.
Transfers of property from a parent to child are presumptively gifts.22 A
gift, however, may be void if obtained by undue influence.23 We use a subjective
standard to determine whether the influence exerted on the donor was undue,
considering the donor's "physical and mental condition, the person by whom [the
24
influence] was exerted, the time and place and all the surrounding circumstances."
The "party challenging the validity of a gift under a theory of undue influence must
produce proof of 'coercion or duress which would act as a dominating power' " over
25
the donor.
(requiring appointment of two qualified psychiatrists or forensic psychologists to
examine and report on mental condition of any defendant relying on insanity defense).
22 Ware v. Ware, 161 P.3d 1188, 1192-93 (Alaska 2007).
23 Id. at 1193.
24 Id. (quoting Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001)).
25 Id. (quoting Crittell, 36 P.3d at 639).
-14- 7770
----------------------- Page 15-----------------------
Ordinarily the party challenging a transfer must prove undue influence by
clear and convincing evidence.26 However, a presumption of undue influence arises
when the beneficiary shares a confidential relationship with the donor.27 "A
28
confidential relationship does not necessarily arise from a family relationship."
Rather, the inquiry is whether "one imposes a special confidence in another, so that the
latter, in equity and good conscience, is bound to act in good faith and with due regard
to the [other's] interests."29 We have recognized such relationships between business
partners, lawyers and their clients, and relationships involving trusts and
30
guardianships.
With these principles in mind, we consider Jimmy's arguments.
2. The law of undue influence applies equally to testamentary and
inter vivos gifts.
Jimmy first argues that the money and property Erna transferred to him
were inter vivos gifts, not testamentary. He contends that the court's reliance on
Paskvan v. Mesich31 was improper because the estate offered no evidence that he was
present when Erna drafted her wills or the handwritten statement he claims she intended
as a codicil. The estate responds that the court applied the correct legal standard.
In Paskvan we held that a presumption of undue influence arises in the
testamentary context when the principal or sole beneficiary under a will had a
26 Purcella v. Olive Kathryn Purcella Tr., 325 P.3d 987, 994 (Alaska 2014).
27 Ware, 161 P.3d at 1194.
28 Purcella, 325 P.3d at 994; accord Ware, 161 P.3d at 1194-95.
29 Ware, 161 P.3d at 1194 (quoting Paskvan v. Mesich, 455 P.2d 229, 232
(Alaska 1969)).
30 Id. (citing Paskvan, 455 P.2d at 232 (partners or co-owners); Cummings
v. Sea Lion Corp., 924 P.2d 1011, 1021 (Alaska 1996) (lawyers and clients); Alaska
State Emps. Assoc. v. Alaska Pub. Emps. Assoc., 825 P.2d 451, 459 (Alaska 1991)
(trusts and guardianships)).
31 455 P.2d 229 (Alaska 1969).
-15- 7770
----------------------- Page 16-----------------------
confidential relationship with the testator and participated in the drafting of the will.32
We later extended Paskvan to inter vivos transfers of property in Ware v. Ware,
"see[ing] no reason not to apply [the same] reasoning to an inter vivos gift."33 We stated
that "if [the donor and recipient] shared a confidential relationship, the transfer of
34
property would create a rebuttable presumption of undue influence."
Jimmy's argument overlooks Ware. The transfers occurred while Erna
35
was alive, so there is "no reason not to apply" the same reasoning from Paskvan .
Because the superior court concluded that Jimmy had "multiple overlapping
confidential relationships" with Erna, the property transfers created a rebuttable
36
presumption of undue influence.
Jimmy further argues that it does not matter if he maintained a confidential
relationship with Erna because she did not benefit from the relationship. His argument
is based on an understandable misreading of Ware, which stated that the presumption
of undue influence arises "when a principal in a confidential relationship benefits from
that relationship."37 Jimmy interprets this to mean the presumption exists when the
principal - here Erna - benefits. In reality the inverse should be and is true. But our
inartful excerpt from Paskvan in Ware has led to a misunderstanding about how the
presumption works.38 We take this opportunity to clarify any misunderstanding: the
presumption of undue influence arises when the fiduciary in a confidential relationship
32 Id. at 233.
33 Ware, 161 P.3d at 1193.
34 Id. at 1194.
35 Id . at 1193.
36 Id. at 1193-94.
37 Id.
38 See Ian W. Fraser, Ware v. Ware and the Presumption of Undue Influence
in Confidential Relationships, 38 ALASKA L. REV. 341 (2021) (describing
misunderstanding).
-16- 7770
----------------------- Page 17-----------------------
receives a benefit from the principal.39 Because the superior court concluded that Erna
had a confidential relationship with Jimmy that conferred a benefit upon him, it did not
err by applying the presumption of undue influence.
3. Although they are presumed to be gifts, inter vivos transfers
from parent to child may be void due to undue influence.
Jimmy's second argument is that the court erred by ignoring the
presumption that inter vivos transfers of property from parents to children are gifts. He
contends that he did not "abandon[] the gift presumption" by his testimony as the court
found, and therefore it was error to shift the burden to him to prove that the transfers
were intended as gifts.
The gift presumption is just that - a presumption. It is an inference
assumed to be true unless it is overcome by evidence to the contrary.40 And while
41
"[i]nter vivos transfers of property from parents to children are presumptively gifts,"
we recognized in Ware that "[a] gift from parent to child may be void if obtained by
improper means or undue influence."42 When a parent transfers property to a child, the
party challenging the transfer bears the burden of proving that the recipient unduly
influenced the parent to make the transfer.43 The burden then shifts to the recipient to
44
present evidence showing that the parent was not unduly influenced.
39 Ware, 161 P.3d at 1194-95; see also Purcella v. Olive Purcella Kathryn
Tr., 325 P.3d 987, 994 (Alaska 2014).
40 Presumption, BLACK 'S LAW DICTIONARY (12th ed. 2024); Alaska R.
Evid. 301(a); see also Osterkamp v. Stiles, 235 P.3d 178, 191 (Alaska 2010) (holding
gift presumption rebutted by "weightier evidence" that funds were intended as loan).
41 Ware, 161 P.3d at 1192.
42 Id. at 1193.
43 See id.
44 See In re Est. of McCoy, 844 P.2d 1131, 1135 (Alaska 1993).
-17- 7770
----------------------- Page 18-----------------------
The superior court found that the estate satisfied its burden. It held that
the estate presented clear and convincing evidence that Jimmy obtained Erna's property
by undue influence. The burden then shifted to Jimmy to present evidence that the
transfers were, in fact, intended as gifts. The superior court concluded that he had failed
to do so. The court did not ignore the gift presumption; it determined that the estate's
evidence overcame it.
The superior court found that "none of the challenged transfers were
gifts." Though Jimmy's trial brief argued that the transfers were gifts, at trial he
testified that he earned or paid for all of the properties Erna transferred to him. He also
claimed interchangeably that the April 2019 cash and real property transfers were
intended to shield Erna's assets from supposed Medicaid seizure or to operate as a living
trust for Erna's care or a testamentary trust for Jimmy's and Gordon's benefit. Based
on this conflicting evidence, the court did not clearly err by concluding that the transfers
45
were not gifts.
4. The court did not err by finding a confidential relationship
existed between Jimmy and Erna.
Jimmy's third argument is that the superior court erred by concluding he
had a confidential relationship with Erna since 2015. The estate responds that the
court's factual findings show that Erna placed special trust and confidence in Jimmy to
establish a confidential relationship.
A confidential relationship arises "when one imposes a special confidence
in another, so that the latter, in equity and good conscience, is bound to act in good faith
and with due regard to the interests of the one imposing the confidence."46 It may exist
45 See Osterkamp, 235 P.3d at 191.
46 Ware, 161 P.3d at 1194 (quoting Paskvan v. Mesich , 455 P.3d 229, 232
(Alaska 1969)); see also Fiduciary Relationship, BLACK 'S LAW DICTIONARY (12th ed.
2024) (defining confidential relationship as "[a] relationship in which one person is
-18- 7770
----------------------- Page 19-----------------------
as a matter of law, such as "between business partners or co-owners, between
professionals such as lawyers and their clients, and in relationships involving trusts and
guardianships,"47 or as a matter of fact.48 We have stated that a familial relationship
does not necessarily give rise to a confidential relationship; whether a confidential
relationship exists depends on whether "one party places confidence in the other with a
49
resulting superiority and influence on the other side."
Substantial evidence supports the court's conclusion that Jimmy
maintained "multiple overlapping confidential relationships" with Erna between 2014
and 2019. The record shows that Jimmy did more than just help Erna with ordinary
activities; she depended on his advice regarding legal, financial, and medical decisions.
Based on his advice, she divested herself of all of her assets to qualify for Medicaid, an
insurance coverage that she did not even need because she was already covered by two
other health insurers. She made him a signatory to her bank account, a personal
representative in her will, and an alternative agent for her power of attorney for health
care. Dr. Zelig testified that Erna explicitly trusted Jimmy and he exerted financial
control over her after James's death.
Jimmy argues that the evidence presented at trial shows that he was his
parent's employee, not their partner, in managing their properties. Therefore, he argues,
under a duty to act for the benefit of another on matters within the scope of the
relationship").
47 Ware, 161 P.3d at 1194 (quoting Munn v. Thorton , 956 P.2d 1213, 1220
(Alaska 1998)).
48 See Paskvan, 455 P.2d at 232 (analyzing facts of business relationship);
Purcella v. Olive Kathryn Purcella Tr., 325 P.3d 987, 994 (Alaska 2014) (considering
facts of familial relationship to determine whether confidential relationship existed).
49 Ware, 161 P.3d at 1195 (quoting Francois v. Francois, 599 F.2d 1286,
1292 (3d Cir. 1979)); see also Purcella, 325 P.3d at 994.
-19- 7770
----------------------- Page 20-----------------------
the court erred by finding that the Maryland Avenue transfer was the product of undue
influence.
His trial testimony indicates otherwise. Jimmy testified that he found the
Maryland Avenue property and negotiated its purchase. He claimed that he asked his
parents to help by co-signing a loan, but instead they insisted on purchasing it outright
and having him pay them back. Unlike his sisters, however, Jimmy never entered into
a purchase and sales agreement for the property with his parents. He testified his debt
was repaid by the rent and management fees collected from the property, which his
mother tracked in a handwritten tally.50 Yet Erna continued to pay electric bills and
property taxes for Maryland Avenue even after Jimmy took title.
Jimmy's involvement in the other properties was similarly extensive. He
found properties for Erna and James to purchase even though they were not looking for
rental properties. Jimmy also remodeled several properties according to "100 percent
me and my vision" for them. While his parents paid for the materials for repairs and
remodels, Jimmy supplied the labor and said he was not compensated for his work.
Jimmy's role as property manager thus resembles a joint venture more
than an employer-employee relationship.51 The years-long relationship, without any
written agreements or direct compensation with his parents, demonstrates that they
placed in him "a level of trust beyond that in ordinary business relationships."52 Based
50 He said the handwritten tally "disappeared" once he repaid his parents.
51 A joint venture is "an association of two or more persons to carry out a
single business enterprise for profit, for which purpose they combine their property,
money, effects, skill and knowledge." Gavora, Inc. v. City of Fairbanks, 502 P.3d 410,
415 (Alaska 2021) (quoting N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1187
(Alaska 1977)).
52 Williams v. Baker, 446 P.3d 336, 340 (Alaska 2019) (quoting Munn , 956
P.2d at 1220).
-20- 7770
----------------------- Page 21-----------------------
on this "special confidence," we cannot say the superior court clearly erred when it
concluded that Jimmy shared a confidential relationship with Erna since at least 2014.
5. The superior court did not err by finding the property transfers
were the result of undue influence.
Jimmy argues that the court erred by finding that he unduly influenced
Erna because it did not find that coercion or duress acted as a dominating power in her
mind. He also reasons that the evidence would not support such a finding, especially
for the 2015 property transfer. The estate responds that Jimmy failed to provide credible
evidence to rebut the presumption of undue influence triggered by his confidential
relationship with Erna.
A grantor is unduly influenced when another person exercises such control
over her that she "is unable to exercise 'free and deliberate judgment' or is coerced 'into
doing something that would not have been done absent the influence.' "53 To prove
that a property transfer was the product of undue influence, the party challenging the
transfer must show by clear and convincing evidence that: "(1) the target of the alleged
undue influence was susceptible to influence; (2) another person had the opportunity to
exert influence; (3) improper influence was, in fact, exerted; and (4) the [transfer] shows
signs of the improper influence."54 However, when the recipient of the property is in a
confidential relationship with the grantor, the transfer of property itself creates a
rebuttable presumption of undue influence.55 As a result, the burden shifts to the
53 Purcella, 325 P.3d at 993-94 (quoting In re S.K.L.H., 204 P.3d 320, 328
n.41 (Alaska 2009)).
54 Id. at 994; see also Ware, 161 P.3d at 1193 ("When examining the
relationship between parent and child for proof of undue influence, we will consider
'the effect of the influence which was, in fact, exerted upon the mind of the [donor],
considering his physical and mental condition, the person by whom it was exerted, the
time and place and all the surrounding circumstances.' " (alteration in original) (quoting
Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001))).
55 Ware, 161 P.3d at 1194.
-21- 7770
----------------------- Page 22-----------------------
recipient to show that he did not take advantage of the confidential relationship to
influence the grantor to transfer property to him.56
The court's finding that Jimmy exercised undue influence over Erna is
supported by the record. In light of its finding that Jimmy maintained a confidential
relationship with Erna and the rebuttable presumption of undue influence, the court
noted that the estate needed only to prove by a preponderance of the evidence that the
transfers were the result of undue influence. The court nevertheless found that the estate
proved by clear and convincing evidence that Erna's real property transfers to Jimmy
were the result of undue influence.
Witness testimony, including Dr. Zelig's, established that Erna was
susceptible to undue influence because of her diminished mental capacity, isolation,
confusion, and reliance on Jimmy. The evidence also demonstrated that Jimmy had the
opportunity to exert influence over her through the trust and reliance she placed in him
and his access to her bank accounts. And testimony, including his own, demonstrated
that Jimmy took advantage of Erna's confusion about Medicaid to convince her to
transfer her assets to him.
The evidence also revealed the transfers appeared to have been caused by
Jimmy's improper influence. Jimmy admitted that he drafted the deeds transferring
Maryland Avenue, East 10th Street, Jay Circle, and Canter Circle to him, only
submitting them to Erna for her signature. Erna signed the Maryland Avenue deed on
the same day she signed the Valley Side deed - a property in which she did not have
any interest - which suggests that she did not understand the nature or extent of her
property. Jimmy's explanation that she conveyed the property to him to qualify for
Medicaid is unpersuasive in light of other evidence that Erna already had health
insurance and that, even if the lookback period was a concern, she would have needed
56 Id. ; see also Paskvan v. Mesich, 455 P.2d 229, 233 (Alaska 1969).
-22- 7770
----------------------- Page 23-----------------------
to wait five years to apply to Medicaid. Jimmy testified that the transfer of the Maryland
Avenue property was proper because it had always been his. But the court gave
"minimal weight" to his testimony and we give "particular deference" to findings
"based 'primarily on oral testimony, because the trial court, not this court, judges the
57
credibility of witnesses and weighs conflicting evidence.' "
The superior court properly considered the relevant undue influence
factors and its findings are supported by the record. It did not err by finding that Jimmy
had a confidential relationship with Erna and exercised undue influence over her.
C. The Various Claimed Factual Errors Are Moot.
Jimmy argues that the superior court erred in its first findings of fact and
conclusions of law by misidentifying the date that the Maryland Avenue property was
conveyed; by ordering him to return Donovan Drive, Vaunda, and the cash value of the
April 2019 bank transfers; and by accepting the estate's proposed findings of fact and
conclusions of law with errors. The estate pointed out these clerical errors and
miscalculations in its errata; the superior court made the corrections in its amended
findings of fact and conclusions of law. The amended findings of fact and conclusions
of law superseded and replaced the initial findings of fact and conclusions of law nunc
58
pro tunc . Jimmy's claims regarding these factual errors are therefore moot.
D. The Court Did Not Err By Requiring Jimmy To Reimburse The
Estate For Collected Rents.
The superior court found that Jimmy would be unjustly enriched if he were
allowed to keep any rents received from the transferred properties. Based on the
57 Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield
v. Sheffield, 265 P.3d 332, 335 (Alaska 2011)).
58 In re Hospitalization of Jacob S. , 384 P.3d 758, 770 (Alaska 2016) ("[A]
claim is moot if it is no longer a present, live controversy, and the party bringing the
action would not be entitled to relief, even if it prevails." (alteration in original) (quoting
In re Hospitalization of Gabriel C., 324 P.3d 835, 839 (Alaska 2014))).
-23- 7770
----------------------- Page 24-----------------------
fiduciary duty he owed as the constructive trustee of the estate's assets to provide for
the highest and best use of the property, it concluded that he was responsible for the
rents "that were gained, or were available" for the properties he wrongfully possessed.
Specifically, the court ordered him to reimburse the estate for imputed rental income
from the Maryland Avenue, East 10th Street, Jay Circle, and Donovan Drive properties.
Jimmy argues that it was error to order reimbursement for periods when the properties
were unrentable, contending their unrentable states were caused by Erna's direct
decisions.
The record does not support Jimmy's argument. The court found that he
was responsible for the imputed rental income for East 10th Street, Jay Circle, and
Donovan Drive from the date he took title to the properties and for rent from Maryland
Avenue from the date James died because Erna's rights in that property vested under
her right of survivorship upon James's death. It relied on Jimmy's testimony for the
properties' current rental incomes. While any imputation of rental income is somewhat
speculative, the superior court reasonably relied on the properties' actual rental income
as provided by Jimmy to calculate their estimated income.59 Jimmy did not present
evidence that the properties were unrentable at any time due to Erna's decisions. To
the contrary, he indicated that he was the final decision-maker on significant repairs
after he took possession of the properties. On these facts, we are not left with a definite
and firm conviction that the superior court made a mistake in calculating the properties'
60
imputed rental income.
However, it was error not to account for the assets held by Gordon that
are subject to the constructive trust. Jimmy gave $50,000 to Gordon from Erna's
59 See Sawicki v. Haxby, 186 P.3d 546, 550-51 (Alaska 2008) (affirming
imputed income based on recent actual wages).
60 See Rohde v. Rohde, 507 P.3d 986, 992 (Alaska 2022) ("We review . . . the
amount of income imputed for clear error.").
-24- 7770
----------------------- Page 25-----------------------
monetary transfers. The constructive trust therefore includes those funds, even though
they are held by Gordon. Jimmy is entitled to a credit for any amount directly returned
to the estate or considered an advancement from the estate as part of the distribution of
assets under Erna's 2016 will.
E. The Court Properly Considered Erna's Intent.
Jimmy argues that the court did not consider his parents' intent with
respect to the inter vivos property transfers or Erna's intent regarding how the properties
in her estate were to be managed after her death. The estate responds that the court
appropriately considered the evidence presented. We agree with the estate.
The court considered Erna's 2004 and 2016 wills, the 2018 handwritten
statement, the December 2018 video, and various testimony to determine her
testamentary intent. It accepted the handwritten codicil as evidence of her donative
intent but gave it "minimal weight," concluding that "the document itself [was] a
product of [Jimmy's undue] influence." Similarly, the court accepted the December
2018 video as evidence of Erna's donative intent, but found that it presented "additional
cause for concern" as it demonstrated "Erna's susceptibility to influence or suggestion
from or by Jimmy." The court considered all of the evidence of Erna's intent presented
at trial. It did not err by affording minimal weight to evidence that it concluded was the
61
product of undue influence.
Jimmy also argues that the trial court erred by not first determining if Erna
might have destroyed her original 2004 will after executing the 2016 will. Whether
Erna destroyed her original copy of her 2004 will is irrelevant because Erna's 2016 will
expressly revoked all prior wills and codicils. In addition, neither party challenges the
validity of the 2016 will; the existence of the original 2004 will is immaterial.
61 See Crittell v. Bingo, 36 P.3d 634, 642 (Alaska 2001) (invalidating will
executed under undue influence).
-25- 7770
----------------------- Page 26-----------------------
F. The Attorney's Fee Award Must Be Remanded And Reconsidered.
Civil Rule 82(b) establishes a presumptive schedule for the award of
attorney's fees.62 A court may award fees greater than the amount prescribed if it
63
determines that an enhancement is warranted after consideration of various factors.
But an award of 80% of full fees is a substantially full award and may be granted only
64
upon a finding that the non-prevailing party engaged in bad faith or vexatious conduct.
That conduct must occur "during the litigation, not during the underlying transaction
65
that is the subject of the litigation."
The superior court granted the estate an enhanced award of $178,400, or
80% of its actual attorney's fees. It concluded that the enhancement was warranted in
light of Jimmy's bad faith "in terms of the fraud he perpetrated against Erna . . . , his
decision to oppose the relief requested in the Petition, and his conduct during the course
of litigation." The court also observed that "[t]he level of fraud and deceit perpetrated
by [Jimmy], and the sheer breadth of his dishonesty, was extraordinary" and required
"extraordinary levels of legal work, perseverance, and thoroughness" to "[d]evelop[]
and present[] the evidence."
Jimmy argues that the superior court abused its discretion "by punishing"
him with "excessive attorney's fees." The estate responds that the enhanced award was
appropriate in light of Jimmy's litigation conduct. It points to his evasive and "utterly
confounding" testimony, inadequate discovery disclosures, and subsequent attempt to
collaterally attack the court's judgment by filing a separate action as examples of his
bad faith.
62 Alaska R. Civ. P. 82(b)(1)-(2).
63 Alaska R. Civ. P. 82(b)(3).
64 Marathon Oil Co. v. ARCO Alaska, Inc. , 972 P.2d 595, 604-05 (Alaska
1999).
65 Cole v. Bartels, 4 P.3d 956, 961 n.24 (Alaska 2000) (emphasis in original).
-26- 7770
----------------------- Page 27-----------------------
Bad faith for the purpose of determining attorney's fees requires
"[d]ishonesty of belief or purpose."66 And the effect of that dishonesty "must be such
that the parties are prevented from litigating the action on an equal plane"; merely
evasive responses or discovery delays "do not, in themselves, constitute bad faith or
67
vexatious conduct."
While the superior court could have been more detailed in its findings,
there is sufficient evidence that Jimmy acted in bad faith during the course of litigation.
The record reveals a pattern of obstruction and delay. After multiple extensions, missed
deadlines, and repeated admonitions to comply with discovery obligations, Jimmy
furnished significant disclosures going "directly to the heart of the matter" just weeks
before trial. He turned over multiple boxes of Erna's documents and personal
belongings less than two weeks before trial began. According to counsel for the estate,
several boxes contained irrelevant and non-responsive materials, including trash and rat
droppings. Jimmy did not provide the original copy of Erna's handwritten letter that he
asserted was a codicil until halfway through trial.
These late and incomplete disclosures affected the estate's ability to
prepare a defense to Jimmy's claims, preventing the parties from litigating on an equal
plane and substantially increasing the estate's attorney's fees. We therefore are not
68
persuaded that the court clearly erred by finding that Jimmy acted in bad faith.
66 Bragg v. Teslow, 533 P.3d 533, 539 (Alaska 2023) (alteration in original)
(quoting Johnson v. Johnson , 239 P.3d 393, 400 (Alaska 2010)).
67 Gallant v. Gallant, 945 P.2d 795, 803 (Alaska 1997) (quoting Kowalski v.
Kowalski, 806 P.3d 1368, 1373 (Alaska 1991)).
68 See Mellard v. Mellard, 168 P.3d 483, 488 (Alaska 2007) (affirming
enhanced award based on defendant's refusal to engage in discovery); Khalsa v. Chose ,
261 P.3d 367, 377 (Alaska 2011) (observing in dicta that enhanced award for
unreasonable nondisclosure was not abuse of discretion).
-27- 7770
----------------------- Page 28-----------------------
However, to the extent that the court may have relied on Jimmy's bad faith
in convincing Erna to transfer assets to him, that reliance was error. "[T]he court may
not hold actions before litigation started . . . against the losing party."69 And the order
does not explain why the court found that Jimmy opposed the petition in bad faith.
Unsuccessful claims, defenses, and motions do not, on their own, justify enhanced
fees.70 Instead, the losing party's claims must be "collectively or individually so
lacking in merit" as to imply bad faith.71 Without further explanation, we are not
convinced that Jimmy's opposition was so baseless and unsupported to suggest bad
faith. In light of our concerns about two of the three bases on which the court relied for
the enhancement, we vacate the attorney's fee award and remand to the court for
72
reconsideration based on appropriate factors.
CONCLUSION
We VACATE and REMAND the superior court's final judgment with the
instruction to credit Jimmy the $50,000 he gave to Gordon, and credit for any amount
directly returned to the estate or any advancement from the estate as part of the
distribution of assets under Erna's 2016 will. We also VACATE the attorney's fee
69 Riddle v. Lanser, 421 P.3d 35, 50 (Alaska 2018); cf. Sykes v. Lawless, 474
P.3d 636, 647 (Alaska 2020) (affirming enhanced award when losing party brought suit
as vehicle to advance underlying fraud); Crittell v. Bingo, 83 P.3d 532, 537-38 (Alaska
2004) (same).
70 Riddle, 421 P.3d at 49 ("A party need not prevail on his claims or defenses
for them to be reasonable.").
71 Bragg, 533 P.3d at 540 (quoting Johnson , 239 P.3d at 401).
72 We note that the court properly excluded costs and fees related to the
discovery violations for which Jimmy had already been sanctioned, see Riddle, 421
P.3d at 50 n.44, and that it is not foreclosed from awarding enhanced fees on remand,
see Johnson, 239 P.3d at 404.
-28- 7770
----------------------- Page 29-----------------------
award and REMAND for further consideration consistent with this opinion. We
otherwise AFFIRM the superior court's rulings.73
73 Jimmy also argues that he should be reimbursed by the estate for his time
improving the rental properties and his costs associated with such improvements. He
first raised this argument in his motion for reconsideration. Because he did not timely
present this claim, it is waived. See Fischer v. Kenai Peninsula Borough Sch. Dist.,
548 P.3d 1086, 1092 (Alaska 2024).
-29- 7770
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
