author: FOX, Justice.

text:
    Chad Alan DOCKTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-17-0233
    Supreme Court of Wyoming.
    March 19, 2019
    Representing Appellant: Chad Alan Dockter, pro se.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   FOX, Justice.

[¶1] In his direct appeal, we affirmed Mr. Dockter's convictions and sentences for kidnapping, unlawful entry, misdemeanor theft, property destruction, interference with an emergency call, and domestic battery. While that appeal was pending, Mr. Dockter filed two motions for a new trial in the district court. The court denied those motions, and we affirm.

ISSUES

[¶2] Mr. Dockter raises seven issues for our consideration, which we rephrase as:

I. Did the district court abuse its discretion when it denied Mr. Dockter's motions for a new trial?
A. Was Mr. Dockter entitled to counsel to pursue a motion for a new trial after his direct appeal had ended?
B. Was Mr. Dockter's proposed evidence that he lived with the victim at the time of the crimes "newly discovered evidence"?
C. Can a defendant raise an ineffective assistance of counsel claim in a motion for a new trial based on "newly discovered evidence"?
D. Did Mr. Dockter's proposed evidence that the State failed to disclose it was prosecuting one of its witnesses warrant a new trial?
E. Does Mr. Dockter's contention that the State knowingly allowed two witnesses to commit perjury qualify as "newly discovered evidence"?
F. Can a defendant raise a claim of cumulative error in a motion for new trial based on "newly discovered evidence"?

FACTS

[¶3] To provide context for Mr. Dockter's claims in this appeal, we restate the facts from Mr. Dockter's direct appeal:

Appellant and the victim Amanda Yearsley dated for six months before Ms. Yearsley ended the relationship in May 2015. Ms. Yearsley then met with Appellant to inform him that she was pregnant in July of 2015. After that, the two communicated sporadically through early August 2015.
On August 14, 2015, Ms. Yearsley was at a bar where she worked ... when Appellant showed up. He stopped by to repay some money he owed her, and wanted to talk, but eventually he started to cause a scene. Because of his belligerent behavior, Ms. Yearsley suggested that they take the conversation back to her place. While they were at Ms. Yearsley's apartment, she used a smartphone, an iPhone 6, that Appellant had given her daughter. This apparently annoyed Appellant, so he snatched it from her and left. After Appellant departed with her cell phone, Ms. Yearsley called the police to report it, but she declined to pursue charges.
The next day, August 15, Ms. Yearsley activated her old iPhone 5. Later that day, while she was in the shower getting ready for work, the shower curtain swung open, and there was Appellant. He grabbed her by the throat, and took her out of the shower and into the bedroom. As she started to scream, he placed his other hand over her nose and mouth. Once in the bedroom, Appellant put Ms. Yearsley on the bed and told her she needed to listen to him and that she had no choice but to do so. She continued to squirm and scream, and Appellant body-slammed her onto the ground with one hand still on her throat and the other over her nose and mouth. Ms. Yearsley struggled to breathe and almost blacked out, which caused her to become still. Appellant then removed his hands and let her sit up.
Once free from Appellant's grasp, Ms. Yearsley ran to the bathroom and turned off the shower. She picked up a piece of the shower rod that had fallen on the floor and tried to defend herself with it. It was no use, however, as Appellant followed her to the bathroom and was able to pick her up in a "bear hug." However, she managed to grab her reactivated iPhone 5 from the bathroom counter before Appellant carried her out to the living room.
Once in the living room, Appellant sat down on the couch with Ms. Yearsley on his lap, still clenched in a bear hug. Appellant told her how much he loved her and that she just needed to listen to him. Unbeknownst to him, Ms. Yearsley had succeeded in dialing 911 and hitting send. When a dispatcher answered the 911 call, Appellant discovered what she had done. He grabbed the phone, punched Ms. Yearsley in the thigh, exited through the front door, and took off in his car.

Dockter v. State , 2017 WY 63, ¶¶ 3-7, 396 P.3d 405, 406 (Wyo. 2017) ( Dockter I ).

[¶4] In April 2016, a jury convicted Mr. Dockter of kidnapping Ms. Yearsley "with the intent to inflict bodily injury on or to terrorize her," unlawful entry into her home, misdemeanor theft of her iPhone, property destruction, interference with an emergency call, and domestic battery. In his direct appeal from those convictions, Mr. Dockter argued that the State failed to present sufficient evidence he unlawfully confined Ms. Yearsley or that he stole her iPhone. Dockter I , 2017 WY 63, ¶ 2, 396 P.3d at 406. We affirmed. Id. at ¶ 27, 396 P.3d at 411.

[¶5] We issued our decision in Dockter I on June 1, 2017. Before that, Mr. Dockter filed two pro se motions for a new trial under W.R.Cr.P. 33(c) in the district court: one on March 15, 2017 ("the First Motion"); and the other on May 3, 2017 ("the Second Motion"). In his First Motion, he argued that various documents established that he was living at Ms. Yearsley's address and that his counsel was constitutionally ineffective for not discovering and raising this at trial. He argued this evidence was "newly discovered" and that it refuted the charge that he unlawfully entered Ms. Yearsley's home.

[¶6] In his Second Motion, in addition to generally reasserting some of his arguments from his First Motion, Mr. Dockter argued that the State failed to disclose before trial that it was prosecuting one of its witnesses, Kyle Christensen, in a separate criminal case, and that Mr. Christensen and Ms. Yearsley committed perjury at his trial.

[¶7] The district court appointed the Public Defender's Office to represent Mr. Dockter. On June 16, 2017, the court held a hearing on both of Mr. Dockter's motions. At the beginning of the hearing, the Public Defender's Office objected to its appointment because Mr. Dockter's direct appeal had ended, and Mr. Dockter did not have the right to counsel to pursue his motions. The district court agreed and concluded that Mr. Dockter was not entitled to a public defender. The court then heard from Mr. Dockter, pro se , regarding his two motions.

[¶8] On August 1, 2017, the district court denied Mr. Dockter's motions. The court concluded the evidence that Mr. Dockter contended was newly discovered was "largely not newly discovered or deserving of any significant weight when compared to the trial evidence presented." This appeal followed.

STANDARD OF REVIEW

[¶9] "We generally review the district court's decision on a motion for a new trial for abuse of discretion." Emerson v. State , 2016 WY 44, ¶ 11, 371 P.3d 150, 153 (Wyo. 2016) (citations omitted). A court's discretion is limited to whether it could reasonably conclude as it did. Id. We will not disturb the court's decision "absent a showing that some facet of the ruling [was] arbitrary or capricious." Id. (citations omitted).

DISCUSSION

I. The district court did not abuse its discretion when it denied Mr. Dockter's motions for a new trial

[¶10] Because Mr. Dockter's motions were made nearly a year after his trial, the only avenue to secure a new trial was to present the trial court with "newly discovered evidence." W.R.Cr.P. 33(c). Motions for a new trial based on newly discovered evidence are "not favored by the courts and [are] viewed with great caution." Emerson , 2016 WY 44, ¶ 12, 371 P.3d at 153.

A defendant who seeks a new trial based on newly discovered evidence typically must demonstrate the following: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz., speaking to facts in relation to which there was evidence at the trial.

Id. A defendant must establish all four elements to warrant a new trial. Id.

A. Mr. Dockter did not have a right to counsel to pursue a motion for a new trial after his direct appeal ended

[¶11] Before addressing Mr. Dockter's substantive arguments, we consider his claim that he was entitled to counsel while he pursued his motions. The Public Defender Act does not grant a defendant the right to appointed counsel to pursue a post-conviction motion. Wyo. Stat. Ann. § 7-6-104 (LexisNexis 2017). Rather, a court has the discretion to appoint counsel in such circumstances. Patrick v. State , 2005 WY 32, ¶ 17, 108 P.3d 838, 844 (Wyo. 2005).

[¶12] Mr. Dockter quotes Story v. State , 788 P.2d 617, 627 (Wyo. 1990), to support his argument that he was entitled to counsel: "Without doubt, the hearing on a motion for new trial is a critical stage of the proceedings. It is the only opportunity to present to the trial court certain matters that may warrant a new trial, and to make a record on those matters for appellate review." This quote, however, does not support Mr. Dockter's argument. First, it is from the dissent in Story . Id. (Urbigkit & Macy, JJ., dissenting). Second, it is quoting a Texas case. Id. (quoting Owens v. State , 763 S.W.2d 489, 492 (Tex. App. 1988) ). While precedent from other jurisdictions is persuasive to this Court in some circumstances, it is not controlling. And, finally, the quote addresses when a court must hold an evidentiary hearing to determine a motion for a new trial, not the right to counsel in such circumstances. Id. Mr. Dockter was not entitled to appointed counsel to pursue his motions for a new trial.

B. Mr. Dockter's proposed evidence that he lived with the victim was not "newly discovered"

[¶13] Mr. Dockter attached various documents to his motions which he asserted established that he lived with Ms. Yearsley at the time of his crimes. These documents primarily consisted of his unemployment paperwork filed in July 2015 with the Wyoming Department of Workforce Services that listed Ms. Yearsley's address as his home address. He also attached an affidavit from an attorney who represented him in Colorado in August 2015 that stated Mr. Dockter's bond paperwork in Colorado showed he lived with Ms. Yearsley and that she appeared in court with Mr. Dockter in Colorado.

[¶14] Presumably, Mr. Dockter relied on this "newly discovered evidence" to refute the charge that he unlawfully entered Ms. Yearsley's home. See Wyo. Stat. Ann. § 6-3-307 (LexisNexis 2017). However, in his brief, Mr. Dockter admits that this evidence is not "newly discovered." Indeed, all of this evidence was available to him, or his attorney, at the time of his trial in April 2016. Because this evidence is not newly discovered, it was not a basis for a new trial under Rule 33(c), and the district court did not abuse its discretion when it denied his motions on this basis.

C. A defendant cannot raise an ineffective assistance of counsel claim in a motion for a new trial based on "newly discovered evidence"

[¶15] Mr. Dockter presents a myriad of arguments regarding his trial counsel's alleged constitutional ineffectiveness by not "conduct[ing] an adequate review into the facts of the case [police reports] and impeach[ing] the witnesses with those facts when glaring and crucial discrepancies existed in testimony," and his appellate counsel, presumably, for not raising trial counsel's ineffectiveness on appeal. However, the alleged ineffective assistance of trial counsel does not qualify as "newly discovered evidence" under Rule 33(c). In addition, Rule 33(c) is not the proper avenue to litigate appellate counsel's alleged ineffectiveness.

D. Mr. Dockter's proposed evidence that the State failed to disclose it was prosecuting one of its witnesses did not warrant a new trial

[¶16] In his motions, Mr. Dockter asserted that the State suppressed the fact that it was prosecuting Kyle Christensen while Mr. Christensen was a witness for the State in Mr. Dockter's trial. While our standard of review in this case is whether the district court abused its discretion, "we [ ] review de novo the district court's decision to deny [the appellant's] motion for a new trial on the grounds that the State improperly suppressed exculpatory evidence." Davis v. State , 2017 WY 147, ¶ 18, 406 P.3d 1233, 1237 (Wyo. 2017) (citation omitted) (alteration in original). To warrant a new trial, the State must have suppressed evidence that was material to the defendant, and there must be a reasonable probability the result would have been different had the evidence been disclosed. See United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (citing Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) ).

[¶17] At trial, Mr. Christensen testified that he did not see any cars outside Ms. Yearsley's home at the time of the crimes. Mr. Dockter argued that the police reports indicate Mr. Christensen said he saw a "black Cadillac in front of the residence." As it pertains to his motions, Mr. Dockter claims the State failed to disclose that it was prosecuting Mr. Christensen at the time and that he could have used this to impeach Mr. Christensen regarding whether there was a car in front of Ms. Yearsley's home. This, apparently, went to the unlawful entry count because it could have refuted the State's argument that Mr. Dockter's car was in the alleyway behind Ms. Yearsley's home and that a person who has authority to be in a home "doesn't sneak around [the back]." The "newly discovered evidence" consisted of a scheduling order that was issued in both Mr. Dockter's and Mr. Christensen's cases on December 21, 2015, approximately four months before Mr. Dockter's trial, that showed Mr. Christensen had a pending criminal case.

[¶18] Before a Brady violation occurs, the government, through the prosecutor or its agents, must have "suppressed" the information by not disclosing it to the defendant. See Kyles v. Whitley , 514 U.S. 419, 437-38, 115 S.Ct. 1555, 1567-68, 131 L.Ed.2d 490 (1995). In addition, if a defendant's attorney knew, or should have known through due diligence, about potential evidence it is generally not newly discovered. See Beintema v. State , 969 P.2d 1124, 1127 (Wyo. 1998) ("Huskinson's plea agreement with the prosecution was not newly discovered evidence because the trial attorney knew about the plea agreement prior to Beintema's trial."). It is questionable whether this information was "suppressed" when the "evidence" Mr. Dockter relies on is a scheduling order, entered in Mr. Dockter's case, that showed the State had pending charges against Mr. Christensen. We find it unnecessary to decide this question because, even if Mr. Dockter's attorney had known of Mr. Christensen's pending criminal charges, we cannot conclude that there is a reasonable probability the result would have been different. See Bagley , 473 U.S. at 676, 105 S.Ct. at 3380.

[¶19] The district court concluded that "[t]he alleged inconsistency in Mr. Christensen's testimony was something that was explored or at least argued and could have been explored further had counsel found it valuable. The jury heard and evidently believed overwhelming evidence from the victim as it regarded the same issues Mr. Christensen testified about." Ms. Yearsley testified that it was her house and she "kicked [Mr. Dockter] out" in May 2015. Even if Mr. Dockter had been able to discredit Mr. Christensen's account of whether Mr. Dockter's car was out front, we cannot conclude that there is a reasonable probability the result would have been different.

E. Mr. Dockter's contention that the State knowingly allowed two witnesses to commit perjury did not qualify as "newly discovered evidence"

[¶20] Mr. Dockter argued that the prosecution knowingly permitted Mr. Christensen and Ms. Yearsley to commit perjury. He contended that Mr. Christensen and Ms. Yearsley lied about the location of Mr. Dockter's car. Ms. Yearsley told police that Mr. Dockter's car was parked in front, but testified at trial that it was parked in the back. He also argues that Ms. Yearsley lied about being pregnant.

[¶21] A prosecutor cannot "knowingly use[ ] perjured testimony to obtain a conviction."

Lacey v. State , 803 P.2d 1364, 1368-69 (Wyo. 1990) (citing Mooney v. Holohan , 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (citation omitted) ). As to the location of his car, the only "newly discovered evidence" that Mr. Dockter presented in support of his motion was the inconsistency between what the witnesses told police and what they testified to at trial. This is not "newly discovered" because the police reports Mr. Dockter relies on were available to him at trial. Moreover, merely pointing out inconsistencies in a witness's testimony is not sufficient to prove that the State knowingly allowed them to commit perjury. Rather, cross-examination is generally the proper method to bring those inconsistencies to the jury's attention.

[¶22] As to Ms. Yearsley's pregnancy, she testified at trial that she was pregnant when Mr. Dockter assaulted her in August 2015 and that she had told him on July 25, 2015, that she was pregnant. Mr. Dockter cites to Ms. Yearsley's testimony that the last contact she had with him was in late-May 2015, but that she still claimed to be pregnant at the trial in April 2016. Mr. Dockter's attorney brought up Ms. Yearsley's remarkably long pregnancy in closing argument and pointed out that, if it was Mr. Dockter's child, she was "six to eight weeks over due." Mr. Dockter's attorney also attempted before trial to prevent the State from mentioning that Ms. Yearsley was pregnant. Because Mr. Dockter's attorney addressed the issue of Ms. Yearsley's pregnancy before and at trial, it was not "newly discovered."

F. A claim of cumulative error is not cognizable in a motion for new trial based on newly discovered evidence

[¶23] Mr. Dockter argues that the cumulative effect of his alleged errors warrants a new trial. However, the only avenue for Mr. Dockter to receive a new trial was by demonstrating that he had acquired "newly discovered evidence." W.R.Cr.P. 33(c). Under our cumulative error doctrine, we review whether the cumulative effect of two or more errors "deprived [a defendant] of a fair trial." Buszkiewic v. State , 2018 WY 100, ¶ 43, 424 P.3d 1272, 1284 (Wyo. 2018). To warrant a new trial based on newly discovered evidence, a defendant must establish the four elements discussed above for each piece of allegedly newly discovered evidence. Emerson , 2016 WY 44, ¶ 12, 371 P.3d at 153. The cumulative error doctrine applies to trial errors, not claims that rely on newly discovered evidence.

CONCLUSION

[¶24] Mr. Dockter did not provide the district court with "newly discovered evidence," and thus, the court did not abuse its discretion when it denied Mr. Dockter's motions. Affirmed.

      The jury acquitted him of strangulation of a household member.

      In Mr. Dockter's brief, he includes a claim that "his Constitutional protections against double jeopardy by proxy of collateral estoppel were infringed upon when the Wyoming Supreme Court utilized acquitted conduct as their ultimate finding of fact to support the material element[s] of kidnapping." He then argues, from what we can discern, that the evidence was insufficient to convict him of kidnapping because the jury acquitted him of the strangulation of a household member charge. Mr. Dockter's attempt to relitigate his kidnapping conviction is barred by res judicata, and we will not consider it further. See Thomas v. JLC Wyoming, LLC , 2019 WY 14, ¶ 38, 434 P.3d 104, 115 (Wyo. 2019).

      We have previously described these elements as "factors," even though all four must be present to warrant a new trial. See Emerson , 2016 WY 44, ¶ 12, 371 P.3d at 153 ; Terry v. State , 2002 WY 162, ¶ 10, 56 P.3d 636, 639 (Wyo. 2002). This is not accurate. A court may weigh some or all factors in determining an issue or claim. Elements, on the other hand, are like pieces of a puzzle; if one piece is missing, the entire claim fails.

      It is unclear from the paperwork if it was filled out by Mr. Dockter, someone at the unemployment office based on information from Mr. Dockter, or by some other means.

      The State did not charge Mr. Dockter with any crime that included Ms. Yearsley's pregnancy as an element.

      In his brief, Mr. Dockter adds an argument that the State improperly vouched for Mr. Christensen's credibility in closing argument. This argument was barely touched on in Mr. Dockter's second motion for a new trial, and we will not consider it for the first time on appeal. See Barrowes v. State , 2019 WY 8, ¶ 21, 432 P.3d 1261, 1267-68 (Wyo. 2019).


source: Caselaw Access Project

author: BY THE COURT:

license: Public Domain

text:
    Nathan David BYRD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    S-18-0214
    Supreme Court of Wyoming.
    March 27, 2019
    ORDER AFFIRMING THE DISTRICT COURT'S JUDGMENT AND SENTENCE
    [¶ 1] This matter came before the Court upon its own motion following the filing of the pro se "Brief of Appellant." Pursuant to a plea agreement, Appellant entered an unconditional Alford guilty plea to one count of sexual abuse of a minor in the third degree. Wyo.Stat.Ann. § 6-2-316(a)(i). The district court imposed a 13 to 15-year sentence. Appellant filed this appeal to challenge the district court's June 27, 2018, "Judgment, Sentence and Order of Incarceration."
    [¶ 2] On December 17, 2018, Appellant's court-appointed appellate counsel filed a "Motion to Withdraw as Counsel," pursuant to Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). This Court subsequently entered an order that permitted Appellant to "file with this Court a pro se brief specifying the issues he would like the Court to consider in this appeal." Appellant has filed a pro se "Brief of Appellant."
    [¶ 3] Now, following a careful review of the record, the " Anders brief" submitted by appellate counsel, and the pro se "Brief of Appellant," this Court finds that appellate counsel's motion to withdraw should be granted and the district court's "Judgment, Sentence and Order of Incarceration" should be affirmed.
    [¶ 4] With respect to the pro se "Brief of Appellant," this Court finds that, based on the record extant, Appellant has not provided any reason to conclude this appeal has merit. With respect to Appellant's complaint that the district court did not accept the sentencing recommendation contemplated by the plea agreement, this Court notes the plea agreement included a "sentencing recommendation" agreement, the type contemplated by W.R.Cr.P. 11(e)(1)(B). Under such an agreement (and as Appellant was advised), that rule does not require that a defendant be permitted to withdraw his plea if the district court does not accept the sentencing recommendation. With respect to Appellant's complaints about the district court's firearms advisements, this Court finds the district court provided the employment or occupational advisement required by Wyo.Stat.Ann. § 7-11-507(a)(ii). (Arraignment Transcript, p. 4-5; Change of Plea Transcript, p. 8-9) Finally, with respect to Appellant's claims that trial counsel was ineffective, this Court finds the claims are not supported by the record extant. It is, therefore,
    [¶ 5] ORDERED that the Wyoming Public Defender's Office, court-appointed counsel for Appellant, Nathan David Byrd, is hereby permitted to withdraw as counsel of record for Appellant; and it is further
    [¶ 6] ORDERED that the district court's June 27, 2018, "Judgment, Sentence and Order of Incarceration" be, and the same hereby is, affirmed.
    [¶ 7] DATED this 27th day of March, 2019.
   BY THE COURT:

/s/ MICHAEL K. DAVIS

Chief Justice


author: WINFREE, Justice.

text:
    Link C. FANNON, Appellant, v. Nola POLO, Personal Representative of the Estate of June Scheele, Appellee.
    Supreme Court No. S-16724
    Supreme Court of Alaska.
    February 8, 2019
    Wayne G. Dawson, Dawson Law Group, LLC, Anchorage, for Appellant.
    Danny W. Burton, Eagle River, for Appellee.
    Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
   WINFREE, Justice.

I. INTRODUCTION

The primary issue in this appeal is whether the superior court correctly interpreted two property restrictions, one found in a subdivision declaration and the other in a deed's greenbelt covenant, to ultimately determine that the deed's greenbelt covenant is enforceable. We conclude that the superior court correctly applied interpretation rules by looking at the instrument language without regard to extrinsic evidence and correctly ruled that the subdivision declaration did not preclude the deed's greenbelt covenant. We therefore affirm the superior court's decision.

II. FACTS AND PROCEEDINGS

A. Facts

Between 1984 and 1986 August Scheele obtained requisite permitting to create Scheele Solid Subdivision in Wasilla. The subdivision consists of seven lots; one lot - Lot 1, Block 1 - has a water well historically supplying the other lots through a subdivision water system.

In 1990 August and the other owners of the Scheele Solid Subdivision lots entered into a covenant (the Declaration) prohibiting using the lots for: (1) residential housing; (2) the sale of alcoholic beverages; (3) junkyards, dumps, or rubbish disposal or storage; and (4) churches and places of worship. The Declaration also provided that all current and future owners could enforce the restrictions "through any proceedings, at law or in equity," specifically including injunctive relief.

In 1992 August conveyed the five lots he owned, including Lot 1, Block 1, to himself and his wife, June Scheele, as tenants by the entirety. August died a few years later. In 1998 June conveyed Lot 1, Block 1 to a new owner; they signed a separate agreement for the new owner to assume responsibility for the well and water system. The quitclaim deed for Lot 1, Block 1 was signed by the buyer; the deed was made subject to assumption of the water system obligations and the following restrictive greenbelt covenant (Greenbelt Covenant):

Allowed Uses . Lot 1, Block 1 Scheele Solid Subdivision may not be used for any purpose other than use as a greenbelt and use for continued maintenance and operation of the water system located thereon. For the purposes of this covenant, "greenbelt" means maintenance of trees and natural cover in those areas and of the kind, as presently exist. In interpreting this covenant, a court should resolve doubts in meaning against the free use of land, rather than in favor of the free use of land. (Emphasis in original.)

The Greenbelt Covenant provides for enforcement

by the grantor, by any owner of land within Scheele Solid Subdivision, by any person owning land within one-half mile or any boundary of Lot 1, Block 1 ... or by any public agency, and which may be enforced through injunction or any other remedy available at law or in equity.

June passed away in November 2012 and her daughter, Nola Polo, was appointed as the personal representative of June's estate.

In April 2014 Link Fannon acquired Lot 1, Block 1, along with the well and water system, from an owner subsequent to June Scheele's 1998 transaction. The deed to Fannon made no mention of the Greenbelt Covenant. Fannon intended to increase the well's production to service at least another ten acres of neighboring commercial property and to "sell bulk water" to the Department of Transportation for a Parks Highway upgrade. Fannon then began clear-cutting trees on Lot 1, Block 1.

B. Proceedings

1. Preliminary injunction

In June 2014 June's estate brought suit against Fannon for violating the Greenbelt Covenant's terms; the estate sought damages, a preliminary injunction against further clear-cutting, and an affirmative injunction to restore trees. The estate requested expedited consideration of its request for a preliminary injunction. After hearings in July and August, the superior court entered a preliminary injunction barring further tree clearing but required the estate to post a $60,000 bond before the injunction took effect.

Fannon answered the complaint, counterclaiming, among other things, that the Greenbelt Covenant conflicted with the Declaration. Fannon did not assert that either covenant was ambiguous.

The estate moved for partial summary judgment in March 2015, arguing that no genuine issues of material fact precluded the court from granting a permanent negative injunction. Fannon requested additional time to respond, which the court granted. By April the estate's attempts to post a bond to effectuate the preliminary injunction had failed. The court granted Fannon's motion to lift the preliminary injunction, and Fannon resumed clear-cutting trees on the lot.

2. Motion to determine rule of law

The estate asked the court to determine the rule of law on several issues, including interpretation of the covenants. The court understood the estate to be requesting the following rulings: (1) "intent is not relevant in interpreting covenants" and (2) "interpretation of covenants is a question of law."

Fannon opposed the motion and simultaneously cross-moved for summary judgment, asserting that no genuine issues of material fact precluded the court from determining that the Greenbelt Covenant was void because it contradicted the Declaration's plain meaning and its drafters' intent. Fannon repeatedly asserted that the Declaration is unambiguous and restricts the lots to commercial use only, but he made no argument about the Greenbelt Covenant's ambiguity.

The court partially granted the estate's motion, ruling that the law articulated in HP Ltd. Partnership v. Kenai River Airpark, LLC controlled interpretation of the covenants.

3. Motion to compel deposition of the estate's attorney

In September, by agreement of the parties, the court stayed its decision on the two summary judgment motions. Fannon then moved to compel the estate's attorney's deposition and the production of any documents in his possession related to Scheele Solid Subdivision. Fannon argued that the information was relevant because the attorney had drafted both the Declaration and the Greenbelt Covenant and therefore was the sole person who could testify to the deceased founders' intent. Fannon contended that the work product was not privileged because it "was not done in preparation or anticipation of litigation with [Fannon]," and he later argued that the estate had waived the attorney-client privilege through its discovery responses.

The superior court initially granted Fannon's motion to compel, agreeing that the estate had waived the attorney-client privilege. But when the estate moved for reconsideration, the court changed its decision. The court held that because Fannon did not contend that the Declaration was ambiguous, "[e]xtrinsic evidence is irrelevant" and the estate's attorney's testimony about the founders' intent would be "inadmissible." The court also disagreed with Fannon's assertion, raised for the first time in his reconsideration opposition, that the Greenbelt Covenant was ambiguous. The court granted the estate's motion for reconsideration, and it denied Fannon's motion to compel the estate's attorney's deposition.

4. Summary judgment order

In March 2016 the court granted the estate's motion for partial summary judgment and denied Fannon's. The court ruled it would not consider "[e]xtrinsic evidence of the covenantors' intents" for either restrictive covenant. Finding that neither covenant presented any ambiguity, the court limited its inquiry to the plain language of the restrictive covenants. The court rejected Fannon's contention that the Declaration required the subdivision lots to be used only for commercial purposes; the court found that such a restriction was neither contained in the Declaration nor implied by the list of prohibited activities. The court also found that the Declaration was not intended to be "the exclusive source of restrictions on the lots" and thus did not prohibit lot owners from imposing subsequent restrictions upon their land. Because the Declaration "d[id] not prohibit either of the activities protected by the [Greenbelt Covenant]" or "prevent the further restriction of [the subdivision's lots]," the court held that the Declaration and the Greenbelt Covenant did not conflict. Concluding that the Greenbelt Covenant "is valid and enforceable" and finding that Fannon had violated it, the court entered a permanent prohibitory injunction preventing Fannon from conducting activities outside the Greenbelt Covenant's scope.

The summary judgment ruling narrowed the issues, and the resulting trial focused almost entirely on damages and affirmative injunctive relief. The superior court found that the estate "failed to establish damages" or to provide a reason "why the greenbelt should be restored." The court reiterated that the Greenbelt Covenant is valid and enforceable, referencing the order granting partial summary judgment. The court concluded that "[Fannon's] plans to upgrade the water system c[ould] still be accomplished without violating the [Greenbelt Covenant] by utilizing" an existing right-of-way easement granted to the Matanuska-Susistna Borough. The court then entered another permanent injunction, ordering Fannon to "refrain from further activities inconsistent with the 1998 [G]reenbelt [C]ovenant."

Fannon requested clarification of the superior court's order, asking whether certain activities qualified as "continued use and maintenance of the water system" and what it meant to "fully utiliz[e] the Borough's prior and current right of way easements." The court ruled that Fannon's questions "were not at issue at trial and therefore are not properly before the [c]ourt."

Fannon appeals the court's decisions: (1) granting the estate's motion for summary judgment and denying his; (2) denying his motion to compel the estate's attorney's deposition; and (3) denying his clarification request.

III. STANDARD OF REVIEW

"We review grants of summary judgment de novo," "affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law." "The interpretation of a covenant is a question of law to which we apply our independent judgment." Rulings on motions for reconsideration are reviewed for abuse of discretion.

IV. DISCUSSION

A. Fannon Did Not Preserve His Argument That The Greenbelt Covenant Is Ambiguous.

Fannon argues that the Greenbelt Covenant is "susceptible to multiple interpretations": one requiring courts to construe its provisions against the free use of land; another "allowing the owner of Lot 1, Block 1, to develop and grow the water system and distribution." Fannon contends the superior court erred by failing to identify this ambiguity and "determine the scope and meaning of the full agreement in light of all available evidence."

But Fannon did not preserve this argument; he failed to properly raise it before the superior court. He made this argument only in his opposition to the estate's motion for reconsideration of a discovery order. The court rejected the argument in that context. This was not error, as a court is not required to consider an issue raised for the first time in the context of a motion for reconsideration. Because Fannon failed to make this argument at any other point unrelated to the motion for reconsideration, the argument is forfeited, and we do not need to consider it on appeal.

B. The Greenbelt Covenant Does Not Conflict With The Declaration, And Fannon's Other Arguments About The Greenbelt Covenant Lack Merit.

Fannon contends that because June added the Greenbelt Covenant "unilaterally," and because the Covenant benefits a residence outside the subdivision at the expense of the subdivision's commercial purpose, the Greenbelt Covenant is incompatible and conflicts with the Declaration's express intent. But we see no error in the superior court's interpretation of the interaction between the two covenants, nor its conclusion that they are compatible. "Where the language of a covenant is not ambiguous, the plain meaning governs."

The superior court, after concluding that no ambiguity existed in either the Declaration or the Greenbelt Covenant, appropriately limited its analysis to the plain meaning of both covenants. The Declaration's text does not delineate an "express intent to limit the subdivision to commercial use only," as Fannon contends. The Declaration makes clear that the subdivision is non-residential, but it does not prohibit a lot's use as a greenbelt. Nor does the Declaration emphasize that courts should construe the document's intent to maximize each lot's commercial productivity. Perhaps most significantly, the Declaration does not reference the water system on Lot 1, Block 1 at all, or place any mandates on its use or disuse.

We further conclude, contrary to Fannon's contention that the Greenbelt Covenant and the Declaration are incompatible, that the Greenbelt Covenant does not conflict with the Declaration. By its plain language, the Greenbelt Covenant merely adds a new restriction on Lot 1, Block 1 - a restriction on which the Declaration is silent. The Greenbelt Covenant does not require that other lots in the subdivision also preserve tree cover nor does it grant the purchaser of Lot 1, Block 1 "rights ... that are inconsistent with rights granted earlier" in the Declaration. It also does not lift the Declaration's prohibitions on building a junkyard, residence, liquor store, or church, and is therefore not in contravention of the Declaration.

Fannon's argument that the Greenbelt Covenant "dooms" other property owners to an eventual loss of their water supply and "is completely antithetical" to the subdivision's commercial purpose is belied by the plain text of the covenant. The Greenbelt Covenant allows for "use as a greenbelt and use for continued maintenance and operation of the water system located thereon." (Emphasis added.) Any owner of Lot 1, Block 1 may do what is reasonably necessary to prevent the well from falling into disrepair or dysfunction and continue the subdivision's enterprises.

Fannon's argument that the Greenbelt Covenant is void because it constitutes a "unilateral revision to [a] common plan or general scheme of development" is unavailing. The Greenbelt Covenant does not amend, modify, or conflict with the Declaration. And June's putative intent to benefit property outside the subdivision is irrelevant; a covenant is not invalid simply because it confers benefits upon a third party - in this case, the estate and future owners of the Blodgett Lake residence. That June personally benefitted from a restriction placed on her own property does not invalidate the Greenbelt Covenant or place it in conflict with the Declaration.

We conclude that the Greenbelt Covenant does not conflict with the Declaration, and we affirm the superior court's summary judgment ruling.

V. CONCLUSION

The superior court's decision is AFFIRMED.

      A greenbelt is "[a]n undeveloped area of land around a city, esp. one set aside for parks or farmland or preserved as natural wilderness." Greenbelt , Black's Law Dictionary (10th ed. 2014).

      270 P.3d 719, 729 (Alaska 2012) (stating that, in interpreting covenant, "the plain meaning governs" if covenant is unambiguous; if covenant is ambiguous it should be "construed within [its] own four corners ... to effectuate the intent of the parties" to the extent that intent "serves to limit the scope and effect of the restriction" (quoting Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n , 59 P.3d 275, 278 (Alaska 2002) )).

      Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 516 (Alaska 2014).

      Hagen v. Strobel , 353 P.3d 799, 802 (Alaska 2015) (quoting Kelly v. Municipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012) ).

      HP Ltd. P'ship , 270 P.3d at 726 (quoting Hurst , 59 P.3d at 277 ).

      See Engstrom v. Engstrom , 350 P.3d 766, 769 (Alaska 2015).

      See McCarter v. McCarter , 303 P.3d 509, 513 (Alaska 2013) (holding argument raised for first time in motion for reconsideration waived).

      HP Ltd. P'ship , 270 P.3d at 729 (quoting Hurst , 59 P.3d at 278 ).

      See id. at 729 ("Covenants are construed within their own four corners." (quoting Hurst , 59 P.3d at 278 )); 20 Am. Jur. 2d Covenants, Etc. § 170 (2015) ("Where the language of a restrictive covenant is plain and unambiguous, a court is limited to applying the words of the agreement and is prohibited from considering extrinsic evidence regarding the parties' intent ....").
      Fannon argues that the superior court erred by granting the estate's motion for reconsideration and denying his motion to compel the estate's attorney's deposition. But extrinsic evidence like the information Fannon sought in the deposition - details about the Declaration's drafters' intent - is irrelevant because the Declaration is unambiguous. See HP Ltd. P'ship , 270 P.3d at 729. We thus see no error in the superior court's determination that the deposition was "not reasonably calculated to lead to admissible evidence," and we do not reach Fannon's remaining arguments about the estate's waiver of the attorney-client privilege.

      See 1 Restatement (Third) of Prop.: Servitudes § 4.12 ( Am. Law Inst . 2000) ("Except as enabled by operation of a recording act, the creator of [a] servitude lacks the power to grant rights to later purchasers that are inconsistent with rights granted earlier.").

      See 1 Restatement (Third) of Prop.: Servitudes § 2.6 ( Am. Law Inst . 2000) (noting "the benefit of a servitude may be granted to a person who is not a party to the transaction that creates the servitude"); see also cmt. e. (stating "the parties to a transaction creating a servitude may freely create benefits in third parties, whether the servitude is a covenant, easement, or profit").

      Fannon asserts in his points on appeal that the superior court erred by enjoining him from engaging in further activities inconsistent with the Greenbelt Covenant "without delineating what future use, maintenance or modification to the water system is allowed under the injunction." Fannon makes only a vague reference to this line of argument in his opening brief, claiming that the injunction prohibits him from "work[ing] on" or "repair[ing]" the water system. Because he failed to develop the argument in his brief, we will not consider it on appeal. See Petersen v. Mut. Life Ins. Co. of N.Y. , 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal."). Even had Fannon developed this argument in his opening brief, we agree with the superior court that the questions he raised in his clarification request were not properly before the superior court, and it thus would be improper to consider them on appeal. See Harvey v. Cook , 172 P.3d 794, 802 (Alaska 2007) ("[I]ssues not properly raised in the trial court will not ordinarily be considered on appeal.").


text:
    Gayle BJORN-ROLI, Per Erik Bjorn-Roli, Maiken Erickson, and Kjersti Walker, Appellants, v. Patricia MULLIGAN, Appellee.
    Supreme Court Nos. S-16607/16897 (Consolidated)
    Supreme Court of Alaska.
    February 15, 2019
    Brett von Gemmingen, Law Offices of Brett von Gemmingen, LLC, Anchorage, for Appellants.
    James M. 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 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 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 KOR trust a final time in 2007, a few months 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' 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.

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 Gayle provided notice that she wanted Patricia to liquidate the Stuckagain Heights property and distribute the remaining assets immediately. Gayle stated that she thought distributing the property without a liquidation 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 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.

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 trust administration and proposed final distribution. Patricia's proposed 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.

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) 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 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.

Gayle objected to Patricia's proposed final distribution, 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 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 and bonds to Gayle's trust and 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.

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 persuasive in light of precedent, reason, and policy." For mixed questions of law and fact, "we review factual questions under the clearly erroneous standard and legal 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 made." "We will find an abuse of discretion upon a showing that a decision was '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.

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:

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 from office 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.[ ]

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 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.

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 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 change in circumstances. These latter two provisions cannot apply because there are 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. The superior 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.

Gayle argues that the superior court abused its discretion by naming Patricia co-trustee of Gayle's trust for Rumac voting purposes. Gayle does not challenge the 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.

The superior court did not abuse its discretion by naming Patricia co-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 remaining option to conform to the Rudes' intent. The superior court thus did not err 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 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 properly treated the Bootlegger's Cove property as KOR and ELR trust 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 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 either grandparent ever intended for either note to be acted on as if their grandchild had 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 Erickson Note apparently was payable on demand, as Gayle argues, had Maiken made no interest or principal payments for ten years the Note might have become unenforceable. 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.

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 available only in the case of actual or forced sales. And as Patricia notes, liquidation costs in other contexts appropriately can be considered when "the possibility of sale" is all that is contemplated. Adopting a bright-line rule that liquidation costs are never 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 Did Not 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 allow Patricia 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.

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 Abuse Its 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 paid to 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 for attorney's fees incurred on behalf of a trust. The KOR and ELR trusts also authorize the trustee to act as "reasonably necessary" in administering each trust, including to "employ attorneys ... and compensate them and pay their expenses from 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 overruling the superior court's order. The court allowed Patricia to increase trust 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 increase trust 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).

Whether to grant a motion to amend under Rule 60(b)(6) is within the trial 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 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 whenever such action is necessary to accomplish justice." Patricia had the burden of proving that relief was proper under Rule 60(b)(6), and she supported her motion with 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 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.

      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.").

      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 1215, 1219 (Alaska 2005) ).

      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) ).

      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) ).

      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) ).

      Mitchell v. Mitchell , 370 P.3d 1070, 1082 (Alaska 2016) (citing Laughlin v. Laughlin , 229 P.3d 1002, 1005 (Alaska 2010) ).

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

      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.").

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

      Id. at (b)(2).

      See Restatement (Third) of Trusts § 37 cmt. e ( Am. Law. Inst. 2003).

      See AS 13.36.350(a).

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

      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.").

      See AS 45.03.108(a)(2) ("A promise or order is payable on demand if it .... does not state a time of payment.").

      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.").

      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").

      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.").

      AS 13.36.078(1)(A) ("Except as otherwise provided in the trust instrument, ... 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."); 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.").

      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.").

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

      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.").

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

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

      Id. at 597 n.12 (emphasis omitted) (quoting Clauson v. Clauson , 831 P.2d 1257, 1261 (Alaska 1992) ).

      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.").