Susan J. WARE, Appellant, v. Brandie W. WARE, Appellee.
No. S-11687.
Supreme Court of Alaska.
June 1, 2007.
161 P.3d 1188
Tucker S. Thompson, Soldotna, for Appellee.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
In this intra-family dispute, two siblings vie for control of the family homestead. Susan Ware, a pro se litigant, sued her brother Brandie Ware on the theory that he unlawfully exerted his influence and will over their eighty-seven year old mother, Margaret, and convinced Margaret to give him the family homestead. Brandie moved for summary judgment, contending that Susan had not produced any evidence beyond her personal conviction that Margaret would not have given the land to Brandie unless she had been unduly influenced. The superior court granted Brandie‘s motion for summary judgment and awarded Brandie attorney‘s fees in excess of the statutory minimum. Because Susan has not provided any evidentiary support for her claim of undue influence, we affirm the superior court‘s grant of summary judgment. We also affirm the superior court‘s award of enhanced attorney‘s fees because the award was within the court‘s discretion.
A. Facts
In 1998 John Wesley Ware and his wife Margaret placed their homestead in a revocable living trust known as the Ware Family Trust. The homеstead encompasses several acres of land, five houses, and multiple unimproved lots on the Kenai Peninsula. John passed away in April 1999. Upon John‘s death, Margaret became owner of the family homestead. In March 2000, when Margaret was eighty-three years old, she transferred the homestead and other real and personal property into another revocable living trust entitled the Margaret Ware Revocable Living Trust (Trust).1 Margaret was named both grantor and trustee. Her four children—Roger, Brandie, Susan, and Lance—were the named beneficiaries. She had previously executed a will in which she provided that if her husband were to die before she did, the “home” would go to her four children.
The terms of the trust divided the property fairly evenly. Brandie, Roger, and Lance all own homes on the property, and under the terms of the trust they would individually acquire the land on which their homes sit. Susan would acquire the grantor‘s interest in the family home, as well as a Civil War powder horn. Roger would receive the family jewelry and Brandie would get another powder horn.
In February 2003, however, Margaret, in her capacity as trustee of the Trust, conveyed the entire homestead property to Brandie for ten dollars. Margaret signed the statutory warranty deed and recorded it. Upon receiving title to the property, Brandie quit-claimed his mother a life estate in the property.
Margaret sent a notarized letter to her son Lance in which she explained her decision to sell the property to Brandie:
Lance,
You must contact Brandie to converse about any property. My entire homestead property was sold to Brandie Ware. I am tired of being bothered by you scaring me into saying things like the land is mine. I told you on the telephone you should contact Brandie. I want you to know I sold all the land to Brandie. No more stress from you.
Margaret Ware
B. Proceedings
After Margaret deeded the property to Brandie, Susan sued Brandie on the grounds that he had exerted undue influence over their mother, and that he had been unjustly enriched as a result. Brandie denied the allegations and counter-claimed in order to quiet titlе.
Susan moved for an injunction in April 2004, requesting that the court prevent Brandie from “taking any more actions, including property transfers, of the Ware Homestead, during the pendency of this matter, without notifying the Court, Ms. Ware, and any interested parties.” The court denied Susan‘s motion for injunction because “it is not clear to the court what activities Plaintiff wishes to prohibit or require of Defendant, and because Plaintiff does not clearly indicate what sort of irreparable harm she believes she will suffer without entry of a preliminary injunction.” However, the court invited Susan to file a new motion specifically addressing these issues.
In July 2004 Brandie moved for summary judgment, arguing that Susan had alleged no facts to support her claim of undue influence. Rather, he argued, “[s]he has simply opined that she doesn‘t believe that her mother would deed the property to Brandie unless he unduly influenced her.” Brandie cited Margaret‘s deposition, in which Margaret testified that she had not been pressured into transferring the deed and that it was her idea to transfer title to Brandie. Susan replied, “The fact that the parties’ mother turned over everything to one child in the absence of a satisfactory explanation sufficiently stands out as to present a prima facie case of undue influence.” The court granted
In addition, the court ordered Susan to pay Brandie‘s attorney‘s fees pursuant to
Susan appeals both the summary judgment decision and the award of augmented attorney‘s fees.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying our independent judgment and adopting the rule “that is most persuasive in light of precedent, reason, and policy.”3 Summary judgment “is affirmed if the evidence in the record fails to disclose a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”4 All reasonable inferences of fact are drawn in favor of the nonmoving party and against the moving party.5 “The moving party has the burdеn of proving the absence of issues of material fact.”6 Once the moving party has made a prima facie showing of the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to show that it “can produce admissible evidence reasonably tending to dispute the movant‘s evidence.”7
We review an award of attorney‘s fees under an abuse of discretion standard.8 “The trial court has broad discretion in awarding attorney‘s fees; this court will not find an abuse of discretion absent a showing that the award was arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive.”9
IV. DISCUSSION
A. The Superior Court Did Not Err in Granting Summary Judgment to Brandie on Susan‘s Undue Influence Claim.
1. Inter vivos transfers of property from parents to children are presumptively gifts.
While we have not previously addressed inter vivos transfers of property from parents to children, “a considerable body of precedent holds that an unexplained transfer of property from a parent to a child raises a rebuttable presumptiоn, or inference, that a gift was intended.”10 We
2. An inter vivos gift may be void if the grantor was unduly influenced or lacked capacity to make the gift.
A gift from parent to child may be void if obtained by improper means or undue influence.11 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....”12 We have previously held, in the context of testamentary gifts, that a 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 the mind and act of a [donor].”13 Additionally, we have held that a testamentary gift may be void if the grantor lackеd the mental capacity to understand the nature and extent of the gift he or she is making.14 We see no reason not to apply this reasoning to an inter vivos gift such as the one in this case.
In the present case, Margaret gave Brandie the land in exchange for ten dollars. The first issue we must resolve, then, is whether Margaret intended to gift the land to Brandie, or to sell it. To determine whether an individual has gratuitous intent we ask whether the parties had a close relationship; whether the plaintiff failed to request compensation; and whether the services performed were the sort one would expect to receive as a mere gratuity.15 Margaret and Brandie share a close mother-son relationship. She testified at her deposition that she decided, on her own, to transfer the homestead to Brandie, and that she wanted him to keep it. She stated that even if Brandie were willing to sign back the deed to her, she would decline. These facts indicate that Margaret‘s behavior meets the tests for gratuitous intent.
The only contrary indication is that Brandie paid Margaret ten dollars for the property and Margaret referred to having sold the property to Brandie. While the purpose of this payment is not clear, the amount is so nominal that it should not invalidate the gratuitous nature of Margaret‘s act.
Based on this analysis, the transfer from Margaret to Brandie is presumptively a gift. In order to challenge the gift, Susan bears the burden of proving that Brandie unduly influenced Margaret to deed him the property. She has attempted to meet this burden by arguing (1) that Brandie unduly influenced Margaret by coercing her into giving him the property; (2) that Brandie breached a fiduciary duty to Margaret; and (3) that Margaret lacked the mental capacity to make the gift. We analyze each argument in turn.
a. Susan failed to meet her burden of producing evidence that Brandie coerced Margaret into giving him the property.
The party challenging a gift has the burden of showing that the grantor “was
Margaret robustly denied that she was unduly influenced by Brandie. Indeed, she testified that the transfer to Brandie had been her idea. Susan concedes that her mother decided to give the property to Brandie rather than Susan “because she felt Susan couldn‘t take care of the place.” While Susan may disagree with her mother‘s assessments that Susan is not hardy enough to “put up with the hardships of living [as Margaret did] with a wood stove for heat and hot water” or that she cannot afford to pay the taxes on the house, these facts do not show compulsion by Brandie.
Susan asserts that Brandie coerced their mother into giving him the property by convincing her that it was necessary in order to avoid being placed in a nursing home. Susan‘s only proffered evidence, however, is that “Margaret was told by Roger that Lance wanted to put her in a nursing home.” This convoluted statement is hardly sufficient to implicate Brandie in a scheme to unduly influence Margaret.
Thus, even if the facts alleged by Susan are true, they do not show compulsion by Brandie.
b. Susan prоvided no evidence that Brandie owed fiduciary duties to their mother.
Susan asserts that Brandie and Margaret shared a confidential relationship, and that Brandie used his power over their elderly mother to unduly influence her. A confidential relationship exists “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.”17 We have recognized confidential or fiduciary relationships “between business partners or co-owners, between professionals such as lawyers and their clients, and in relationships involving trusts and guardianships.”18 Although the existence of a confidential relationship alone does not create a presumption of undue influence, when a principal in a confidential relationship benefits from that relationship, a presumption of undue influence arises.19 Accordingly, if Brandie and Margaret shared a confidential relationship, the transfer of prоperty would create a rebuttable presumption of undue influence.
However, there is no evidence of a confidential or fiduciary relationship between Brandie and Margaret. The mere fact of a parent-child relationship does not necessarily create fiduciary duties.20 In the case of Salvner v. Salvner,21 a father who wanted to recover property he gave to his children asserted that he had a fiduciary relationship with them.22 The Michigan Supreme Court rejected this claim, explaining that although the children assisted their father in many ways, “the record falls far short of establishing that [the father] was governed by their advice or that he depended on them in the making of decisions concerning his business affairs, or otherwise.”23 The court concluded that the father, “notwithstanding his physical condition, was able to determine for himself what he wished to do and to refuse to act against his own inclinations. What defendants did to assist him amounted to no
Similarly, Brandie‘s filial relationship with Margaret does not сreate any inherent fiduciary duties. Susan failed to provide evidence that Margaret was controlled by Brandie or depended on Brandie in making business decisions. Indeed, Margaret asserted in her deposition that she made her own decisions regarding the property, without advice from any of the children. While the record shows evidence of Brandie helping Margaret by checking her oil, cutting wood, and purchasing a new washing machine for her, these activities, like those of the children in Salvner, do not change the relationship from parent-child to that of a fiduciary. There is no evidence of a confidential relationship in this case.
Susan relies on a Third Circuit decision, Francois v. Francois,25 to support her assertion that Brandie owes Margaret confidential duties, but that case is of no assistance to her. In Francois v. Francois a husband claimed to have been defrauded by his wife. Although the court evaluated the husband‘s claim of unjust enrichment, it noted that marriage does “not automatically give rise to a confidential relationship.”26 Rather, a confidential relationship “arises when one party places confidence in the other with a resulting superiority and influence on the other side.”27
Susan has offered no evidence that Brandie held a superior, influential position with their mother. She simply states that Brandie “benefitted handsomely from his relationship with his mother to the detriment of her and his three siblings.” This assertion does not prove a confidential relationship. The superior court did not err in finding that no issue of material fact existed with regard to a confidential relationship between Brandie and Margaret.
c. Susan failed to provide evidence that Margaret lacked the mental capacity to make the gift.
Testamentary capacity is determined by analyzing whether the testator had sufficient mental capacity to understand (1) the nature and extent of her property; (2) the natural or proper objects of her bounty; and (3) the nature of her testamentary act.28 In the case of an inter vivos gift, we can similarly ask whether the donor had sufficient capacity to understand the nature and extent of her property, the object of her bounty, and the nature of her donative act.
We agree with the superior court that Susan did not adequately demonstrate that her mother was mentally incompetent. Margaret‘s deposition testimony shows no indication of an inability to understand the nature and extent of her property or the donative nature of her act. Moreover, she testified that she was not influenced by Brandie, and that she acted of her own accord. Because Susan failed to provide evidence rebutting Margaret‘s competence, she did not meet her burden in challenging the gift.
While it is unclear whether the superior court considered Margaret‘s age in assessing her competence, we reject Susan‘s assertion that age alone is an indicator of incompetence. Susan argues that the superior court abused its discretion when it failed to consider Margaret‘s age in determining whether Brandie unduly influenced Margaret. She contends that Margaret‘s age made her more susceptible to Brandie‘s alleged influencе. Susan attempts to prove undue influence by implying that her mother is particularly vulnerable to manipulation, emphasizing that Margaret is elderly, widowed, and afraid of being placed in a nursing home. Susan argues that, pursuant to the subjective standard for undue influence we enunciated in Crittell v. Bingo, we must consider Margaret‘s age as one of her “personal strengths and weaknesses” in assessing whether she
We reject the assumption that an older person is presumptively incompetent. Susan has provided no evidence showing that her mother‘s age had any impact on her ability to understand the nature and extent of her property or her desire to allocate it to Brandie. In fact, Susan does not actually contest Margaret‘s competence. In Brandie‘s request for admission, he asked Susan:
Please admit that your mother, Margaret Ware, was mentally competent and had testamentary capacity at the time that she deeded the homestead real property which is the subject of this action to Brandie Ware.
Susan answered, “Of course my mother was mentally competent, but she was unduly influenced by my brother.” Susan also did not challenge the introduction of a note from Margaret‘s doctor declaring, “In terms of mental faculties/cognitive function, Ms. Margaret Ware ... is completely competent.”
While Margaret is elderly, Susan has not provided any evidence that Margaret‘s age is linked to incapacity or special vulnerability. Accordingly, we hold that the superior court did not err in granting Brandie‘s motion for summary judgment without making a specific finding regarding Margaret‘s age and competence.
B. The Superior Court Did Not Err in Granting Summary Judgment to Brandie on Susan‘s Other Claims.
1. There is no evidence that Margaret received legal advice from Brandie‘s lawyer, and in the absence of a confidential relationship Brandie is not required to provide his mother with independent counsel.
Susan next argues that Brandie failed to show that Margaret had independent legal representation. She implies that Brandie‘s lawyer counseled Margaret to give the property to Brandie, noting that the quit-claim deed Margaret signed was authored by Brandie‘s attorney. However, she provides no proof that Brandie‘s attorney acted improperly. Counsel for Brandie vigorously denies that he gave legal advice to Margaret.
Susan also appears to argue that Margaret was required to have independent counsel prior to granting title to Brandie. Specifically, she states, “If Brandie‘s intentions were altruistic he would have provided his mother with independent counsel to advise her.” Susan‘s contentions are unsupported by Alaska law.
Susan cites Trujillo v. Padilla,30 a New Mexico case setting aside a fraudulent conveyance of community property from wife to husband. In that case the New Mexico Supreme Court considered the absence of independent counsel as one factor in determining whether a husband defrauded his non-English speaking wife when he convinced her to transfer title to him the day before he filed for divorce.31 The court considered the wife‘s inability to read or write English, the husband‘s conscious effort to conceal the status and value of the property, and the husband‘s threat to kill the wife if she ever entered the premises.32 In examining the transfer of property between a married couple under the circumstances described, the court asserted that “a presumption is raised against the validity of the transaction in which the wife did not have competent and independent legal advice....”33 The New Mexico court justified this assertion by assuming a fiduciary relationship between married persons.34 However, the court did not suggest that, absent a fiduciary relationship, independent counsel was required to transfer title.
The present case addresses the duties of parents and children rather than husbands and wives. Susan contends that Brandie has a confidential relationship with their mother,
2. Susan‘s unjust enrichment claim lacks merit.
Susan argues that Brandie was unjustly enriched when he paid Margaret only ten dollars for property valued at $300,000. (Susan‘s argument ignores the life estate in the property that Margaret received.) “Unjust enrichment exists where the defendant received a benefit from the plaintiff and it would be inequitable for defendant to retain the benefit without compensating plaintiff for its value.”35 A party seeking to recover for unjust enrichment must show (1) a benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of such benefit; and (3) acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain it without paying the value thereof.36
Susan has not conferred a benefit upon Brandie. She was not involved in the transfer of property from Mаrgaret to Brandie. Moreover, Susan‘s equitable claim is meritless because she presented no evidence of inequitable conduct (fraud or undue influence) to support it. In addition, a claim of unjust enrichment is not appropriate where a benefit is given gratuitously, without expectation of payment.37 As discussed above, Margaret intended that the transfer of title be a gift to Brandie. Consequently, her claim of unjust enrichment lacks merit.
3. Because the prior trusts and will are amendable and revocable, the superior court did not err in disregarding them.
Provided Margaret acted of her own volition, as her deposition testimony reveals, there was no legal reason she could not revoke her living trust or amend her will. The trust in this case was revocable. Part IV, section A of the Margaret Ware Revocable Living Trust specifically states, “The grantor may amend or revoke this trust at any time, without notifying any beneficiary. An amendment must be made in writing and signed by the grantor. Revocation may be in writing or any manner allowed by law.” Section B states, “The powеr to revoke or amend this trust is personal to the grantor. A conservator, guardian or other person shall not exercise it on behalf of the grantor, unless the grantor specifically grants a power to revoke or amend this trust in a Durable Power of Attorney.” Under the language of the trust, then, Margaret had the right to amend or revoke the trust without notifying any of her children.
Margaret also had the legal right to amend her will. A prospective heir “generally has no recognized right to a living relative‘s property.”38 We have held that “a decedent‘s property interests devolve to heirs and devisees only upon death.”39 Until Margaret dies, she is free to amend her will.
The superior court did not err in finding an absence of genuine issues of material fact regarding Margaret‘s prior trusts and will.
4. Susan failed to raise below the validity of the statutory warranty deed.
On appeal, Susan seeks to challenge the validity of the deed, arguing that Brandie incorrectly used a statutory warranty deed to transfer property that was encumbered by the homes of his brothers. But she failed to raise this contention in the supеrior court.
C. The Superior Court Did Not Abuse Its Discretion in Awarding Attorney‘s Fees Pursuant to Civil Rule 82(b)(3) .
On appeal, Susan argues that the superior court erred in awarding attorney‘s fees in excess of the standards provided in
Because Susan is pro se, we choose to review the reasons given by the superior court to determine if they show that the superior court abused its discretion. For the reasons that follow, we conclude that the court did not abuse its discretion in awarding enhanced fees.
In defending Susan‘s complaint, Brandie‘s counsel billed him $9,931.50.45 Under the schedule of
The superior court has broad discretion to enhance attorney‘s fees above the amount prescribed by the
In the present case the superior court recited several reasons for awarding Brandie enhanced attorney‘s fees. Specifically, the court stated:
a) although the issues involved were not inherently complex, plaintiff‘s conduct of the litigation added additional and unnecessary levels of complexity to the action;
b) defendant‘s counsel‘s hourly rates and number of hours expended were reasonable and defendant‘s counsel made substantive efforts to minimize fees actually charged to defendant;
c) the defenses of defendant were reasonable, and in fact, prevailed, while the claims of plaintiff were unreasonable and bordering on bad faith;
d) the issues at stake were significant compared to the amount of work done, both in economic and personal terms;
e) a substantial fee award will not be unduly onerous tо plaintiff nor will it improperly discourage similar claims of good-faith litigants.
The first reason implicates factors (A) and (F) of
The second reason cited by Judge Brown implicates factors (C) and (E) of
The third reason cited by Judgе Brown—that Brandie‘s defenses were reasonable while Susan‘s claims bordered on bad faith—implicate factors (F) and (G). This reason alone can justify an award of enhanced fees.55 It was not an abuse of discretion to determine that Susan‘s claims were unreasonable and bordered on bad faith. As noted above, she provided absolutely no evidence to support any of her theories: undue influence,56 fiduciary duty,57 mental incompetence,58 confidential relationship,59 unjust enrichment,60 or any other theory.61 She persisted in her claims despite her mother‘s deposition testimony in which Margaret clearly refuted Susan‘s claims of mental incompetence and undue influence. Yet Brandie was required to defend each claim.
The fourth reason cited by Judge Brown—that the issues at stake were significant compared to the amount of work done—is amply supported by the record of this case. The property was valued at $426,200.62 This amount is obviously significant compared to the $8,000 in fees awarded by the court.
In sum, the superior court‘s decision to enhance the attorney‘s fees awarded was not an abuse of discretion.
V. CONCLUSION
Beсause Susan introduced no evidence of undue influence, we AFFIRM the superior court‘s grant of summary judgment on the undue influence claim. Because Susan failed to show error with regard to her other claims for summary judgment, we AFFIRM the superior court‘s rulings on those claims. Because the superior court did not abuse its discretion in the award of attorney‘s fees, we AFFIRM the superior court‘s award of attorney‘s fees.
FABE, Justice, with whom BRYNER, Chief Justice, joins, dissenting in part.
A. Susan Has Sufficiently Raised the Claim that the Enhanced Award Was Erroneous.
The court adopts a decidedly narrow reading of Susan‘s briefing, asserting that she “has not argued on appeal that the reasons given by Judge Brown [for awarding enhanced attorney‘s fees] were erroneous.”1 However, under the “less demanding stаndard” by which we judge a pro se litigant‘s performance,2 I believe that Susan has in fact raised this argument.
In her briefing before this court, Susan points out that “an award of attorney‘s fees after trial should be based upon the appropriate criteria set forth in
B. None of Brandie‘s Arguments Justified an Enhanced Award.
A review of Brandie‘s memorandum in support of his request for attorney‘s fees in superior court reveals that none of his arguments—arguments that the superior court apparently relied upon—justified an enhanced award of attorney‘s fees in this case.
1. Complexity
Brandie admitted in superior court that “[t]his action was not inherently complex,” but argued that an enhanced award was nonetheless justified because Susan‘s “unfamiliarity with certain procedures caused additional complexity.”5 Although
The primary purpose of
Although the court is correct that we have repeatedly upheld the use of the complexity factor in cases where actual total hourly fees form the basis of an award of attorney‘s fees,11 we have just as often questioned its use. This case represents no less than the fourth time that we have confronted the rule‘s shortcomings and explained the double-counting problem.12 On at least two occasions we have explicitly admitted that there is a “weakness in the rule.”13 When a
literal reading of one of our own rules has been shown time and again to lead to questionable results, it is our responsibility to depart from precedent and articulate a limiting construction of that rule.14 In the context of
In the case at hand, Brandie‘s award of attorney‘s fees was based upon the total hourly fees he paid to his attorney. A standard, non-enhanced award would therefore have automatically taken into account any attorney‘s fees stemming from Susan‘s litigation methods. An enhanced award was unnecessary and, in my opinion, contrary to the proper construction of
2. Length of trial
Brandie also argued that an enhanced award was justified under
3. Reasonableness of rate, time, and number of attorneys
Brandie also argued that an enhanced award was justified because he employed a single attorney who worked a reasonable number of hours and charged a reasonable rate. Although
4. Efforts to minimize fees
Brandie also argued that an enhanced award was justified under
The court recognizes that we must reject Brandie‘s argument “to the extent that [it] relied on his filing of a summary judgment motion” as evidence of his and his attorney‘s efforts to minimize fees.19 Given that Brandie cited his summary judgment motion as “[t]he primary minimizer of fees in this action,” I believe we must reject the bulk of Brandie‘s argument that he is entitled to an enhanced award under
5. Reasonableness of claims and vexatious or bad faith conduct
Brandie also argued that an enhanced award was justified because Susan‘s claims were “inherently unreasonable and borderline bad faith.”20 Although the court is correct that a finding of bad faith under
6. Relationship between the amount of work performed and the significance of the matters at stake
Brandie also argued that “the relationship between the amount of work performed and the significance of the matters at stake justified an enhanced award.”23 In support of this argument, Brandie noted that if Susan had won by summary judgment, she would have been entitled to an award of $22,500 in attorney‘s fees. According to Brandie, this amount represented the “attorney fee value of this case.” As a practical matter, however, Susan was not represented in this case and would not have been entitled to any attorney‘s fees had she prеvailed. Even assuming that the matters in this case were significant in their own right, it is doubtful that this fact alone justified such a substantially enhanced award.
7. The enhanced award will deter pro se litigants from accessing the court.
In addition to the arguments detailed above, Brandie also consistently called attention to Susan‘s pro se status in his motion for enhanced attorney‘s fees. For example, Brandie stated that “although Susan was skilled, she is not an attorney and her unfamiliarity with certain procedures caused additional complexity“; that “as a pro se litigant, Susan often used procedures and raised
arguments and issues which were inapposite or inappropriate“; that “her pro se status added an entire level of complexity to this action“; and that “[i]f Susan had been represented by counsel, ... the situation would have been resolved more quickly.” Taken together, these statements represented a not-so-subtle argument that Susan‘s pro se status, in and of itself, justified an enhanced award. While the superior court did not expressly adopt this argument, it based its decision to enhance the award, at least in part, upon
We are left, then, with a legal proceeding in which a litigant was, at least in appearance, penalized for pursuing her case pro se. Because pro se litigants are often economically distressed, this apparent threat of a pecuniary penalty for pursuing a case pro se is particularly onerous and likely to dissuade potential pro se litigants from exercising their constitutional right to access the courts. This is unacceptable. The right to access the courts is an “important right”24 that should be enjoyed by all Alaskans equally, whether they be parolees or free,25 children or adults,26 pro se litigants or lawyers. If for no other reason, we should remand the issue of attorney‘s fees so as to reassure future pro se litigants that there is no penalty for passing through the courthouse doors without an attorney at their side.
C. The Issue of Attorney‘s Fees Should Be Remanded.
Fоr the reasons stated above, I believe that the issue of attorney‘s fees should be remanded to the superior court for recalculation using the appropriate factors under