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Belluomini v. Fred Meyer of Alaska Inc. (12/17/99) sp-5218

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA
     
ROBERT BELLUOMINI,            )
                              )    Supreme Court No. S-8338
               Appellant,     )
                              )    Superior Court No.
     v.                       )    3KN-96-357 CI  
                              )    
FRED MEYER OF ALASKA, INC.,   )    O P I N I O N  
                              )    
               Appellee.      )    [No. 5218 - December 17, 1999]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.


          Appearances:  Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellant.  Kathleen
Schaechterle and Kenton K. Pettit, Bogle & Gates, P.L.L.C.,
Anchorage, for Appellee.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.


          BRYNER, Justice.


I.   INTRODUCTION
          Robert Belluomini asserts that Fred Meyer breached the
covenant of good faith and fair dealing when it terminated his
employment after receiving multiple complaints about harassment,
including sexual harassment, from his coworkers.  He also argues
that in barring him from the store Fred Meyer violated his
constitutional rights, for which he deserves damages, including
punitive damages.  And Belluomini cites reversible error in the
trial court's handling of the case and disputes the award of
attorney's fees and costs.  We find no merit in these claims, and
thus we affirm the trial court's judgment.
II.  FACTS AND PROCEEDINGS
     A.   Factual History
          When the management of Fred Meyer in Soldotna hired
Robert Belluomini in March 1994, it was unaware of the
circumstances under which he had left his job in the fall of 1993
at a Fred Meyer store in Anchorage, after one month of employment. 
During Belluomini's short tenure at the Anchorage store, his direct
supervisor, Rob Martin, informed him that a co-worker had lodged a
complaint against him for sexual harassment.  Although the store
director had ordered Martin to fire Belluomini, Martin, who was
also Belluomini's roommate, allowed him to resign instead and
destroyed the records of the sexual harassment complaint.  Because
of the way Belluomini and Martin handled Belluomini's discharge,
Belluomini preserved his prospects of being rehired by Fred Meyer
in the near future.  Specifically, he hoped to work at the store
opening in Soldotna a few months later.
          Belluomini did begin working at the Soldotna Fred Meyer,
but soon afterward an employee visiting from the Anchorage store
recognized him and informed the store director, Richard Bucy, of
Belluomini's history.  Bucy and Sam Martin, a regional vice
president of Fred Meyer, met with Belluomini and other management
personnel.  Sam Martin informed Belluomini that he could continue
working for Fred Meyer, but only as long as he remained a model
employee.  Martin indicated that if there were any further
complaints of harassment or disruption lodged against Belluomini,
the company would terminate him immediately.  Belluomini chose to
continue working under those conditions.
          In May 1995 Martin learned that another employee had
lodged a complaint of sexual harassment against Belluomini.  In
response, Martin told Bucy to investigate the matter.  Bucy soon
told Martin that Belluomini had threatened several employees who
had complained about him.  These complaints encompassed
"harassment, foul language, [and] threatening conduct"by
Belluomini.  In the course of Bucy's investigation, two of the
three female employees who had complained about Belluomini
submitted written statements.  In one of these written statements
an employee complained that Belluomini had made lewd gestures
toward her.  In the second written statement another employee
reported that Belluomini had propositioned, harassed, intimidated,
and threatened her.  Additionally, two male employees reported
Belluomini had threatened to harm them and their property. 
Belluomini admitted to making statements to one of these men that
might have been construed as threatening.  But he claimed that the
two had reconciled. 
          After discussing this information, Martin and Bucy agreed
to terminate Belluomini immediately.  Following a conference with
human resources supervisor Christine DeWitt, Martin decided that it
was reasonable not to tell Belluomini about the reports of threats
and harassment or the identities of the complainants.  
          On May 10, 1995, Bucy called Belluomini into a meeting
with Vernon Brown, the store's loss prevention manager, and Ginger
Schneider, Belluomini's direct supervisor.  Bucy informed
Belluomini that Fred Meyer had received and investigated more
complaints of harassment and threats and had decided to terminate
Belluomini.   
          Belluomini asked who had made the allegations and what he
had been accused of doing.  In response, Brown read one of the
sexual harassment complaints to Belluomini without revealing the
complainant's name.  According to Brown, Belluomini did not comment
on the substance of the accusations but did assert that the
original accusation of harassment at the Anchorage store should not
be held against him because there was no proof to support it.
          Upon being terminated, Belluomini was told that, because
he had threatened employees, he would not be allowed on the
premises; Fred Meyer presented him with a notice of trespass, which
he read but refused to sign. 
     B.   Procedural History
          Belluomini sued Fred Meyer to gain access to his
personnel file, and in March 1996 he won a judgment on that claim. 
He then filed a complaint against Fred Meyer stating four causes of
action: (1) breach of the implied covenant of good faith and fair
dealing, (2) termination without good and just cause, (3) tortious
interference with his constitutional rights, and (4) a claim for
punitive damages based on the tortious interference claim.  
          The superior court granted Fred Meyer's motion to dismiss
Belluomini's third and fourth causes of action; Belluomini
abandoned the second.  Thus the only cause of action remaining at
trial was Belluomini's claim that Fred Meyer had breached the
implied covenant of good faith and fair dealing. 
          At the close of Belluomini's case-in-chief, the superior
court directed a verdict in favor of Fred Meyer, finding that
"[t]he decision to terminate Mr. Belluomini's employment was based
on the complaints of Mr. Belluomini's co-workers, complaints of
harassment and intimidation of co-workers, disruption of the
workforce, and insubordination."  The court also ruled that Fred
Meyer's sexual harassment policy "seems to require an opportunity
to be heard for the accused harasser,"but that the policy was
"ambiguous in that regard."  The court nevertheless ruled that "Mr.
Belluomini was provided with an opportunity to be heard."  The
court further ruled that Fred Meyer had terminated Belluomini
          for harassment of co-workers or otherwise
disrupting the workforce, [behavior for] which Mr. Belluomini was
not entitled to an opportunity to respond, nor to progressive
discipline.  Fred Meyer did not promise Mr. Belluomini otherwise,
nor could he have reasonably expected otherwise under the terms of
his at-will employment.  

          Finding no evidence of bad faith or objective unfairness
in Belluomini's termination, nor any evidence that Fred Meyer
terminated him to deny him the benefits of his employment contract,
the court concluded that reasonable jurors could not differ in
their judgment that there was no breach of the implied covenant. 
The court therefore granted judgment on behalf of Fred Meyer,
awarding the company $52,233.85 in attorney's fees and $10,798.21
in costs. 
          Belluomini appeals this directed verdict, the dismissal
of his constitutional tort claim, the denial of his motion to amend
his complaint, and rulings forbidding him from calling certain
witnesses.  He also appeals the court's award of attorney's fees
and costs.
III. DISCUSSION
     A.   Did Fred Meyer Breach the Implied Covenant of Good Faith
and Fair Dealing in Its Termination of Belluomini?
          Belluomini argues that although he was an at-will
employee, Fred Meyer's personnel manual and sexual harassment
policy, as reinforced by his March 1994 meeting with Fred Meyer
managers, gave him "pre-termination rights"-- "both express and
implied"-- ensuring that his managers would conduct a thorough
investigation of any future accusations of sexual harassment before
disciplining him.  By failing to conduct such an investigation,
Belluomini claims, they breached the implied covenant of good faith
and fair dealing.  Belluomini insists that he presented sufficient
evidence in support of these allegations to survive a directed
verdict motion.          
          In reviewing a directed verdict, we consider the evidence
in the light most favorable to the non-moving party and will affirm
the verdict only if fair-minded jurors could not reach different
conclusions. [Fn. 1] 
          All at-will contracts carry an implied covenant of good
faith and fair dealing. [Fn. 2]  As we have stated, "[t]his
covenant does not lend itself to precise definition,"[Fn. 3] but
essentially requires that employers "treat like employees alike"
[Fn. 4] and "act in a manner which a reasonable person would regard
as fair."[Fn. 5]  The implied covenant contains both a subjective
and an objective component: the subjective, "good faith"component
prohibits an employer from terminating an employee for the purpose
of depriving the employee of the contract's benefits; the
objective, "fair dealing"component prohibits the employer from
dealing with the employee in a manner that a reasonable person
would regard as unfair. [Fn. 6]
          Belluomini focuses on the fair-dealing component of the
implied covenant.  He asserts that even if Fred Meyer had a good
faith reason for terminating his employment, the company
nevertheless breached the covenant by failing to follow its own
termination procedures, which establish an independent obligation
of fair dealing. [Fn. 7]
          At trial Belluomini drew this procedural rights argument
from Fred Meyer's sexual harassment policy, which outlined a three-
step process of investigating complaints of sexual harassment. 
Step 1 provides that the supervisor or human resources department
will interview the accuser; Step 2 directs the supervisor or the
department to interview witnesses; Step 3 calls for an interview of
the accused employee, stating in relevant part: 
          The accused employee has certain rights -- do
not assume (s)he is guilty before the investigation is complete. 
No employee should be disciplined for sexual harassment without
being given an opportunity to present his/her side of the story. 

          Belluomini attempted to show at trial that Fred Meyer
violated Step 3 by firing him before hearing his side of the story
and by denying him information regarding the complaints.  On this
evidence, Belluomini contends, a jury could have found a breach of
the implied covenant.  In response to the other reasons Fred Meyer
gave for his termination -- non-sexual harassment, intimidation,
threats against employees, and insubordination (all behavior to
which the sexual harassment policy did not apply and for which
termination therefore could be immediate) -- Belluomini now argues
that Fred Meyer invented these reasons after the fact solely to
justify depriving Belluomini of his rights under its sexual
harassment policy.
          Fred Meyer responds that it has maintained all along that
it terminated Belluomini both for sexual harassment and for
intimidation and threats to employees, both male and female -- for
which termination is automatic and immediate; it did not have to
provide Belluomini with any "pre-termination rights."  According to
Fred Meyer's employee responsibility form, signed by Belluomini,
"Employee Conduct Which Will Result In Immediate Termination
Without Prior Warning"includes "[i]nsubordination, such as
willfully disobeying the instructions of an authorized person-in-
charge, or disrespectful conduct toward a supervisor or person-in-
charge"and "[o]ther employment-related misconduct which is
determined by the company to be of an equally serious nature." 
Fred Meyer points out that Belluomini introduced into evidence a
memorandum by manager Vernon Brown that describes the variety of
misconduct that formed the basis for the decision to terminate
Belluomini.  Fred Meyer further points out that at trial Belluomini
explicitly denied arguing that he had been fired in bad faith; he
insisted that the merits of his discharge were irrelevant and
offered no refutation of the accusations against him.  Thus Fred
Meyer contends that undisputed evidence at trial established that
Belluomini was fired for a number of reasons besides sexual
harassment.
          We agree with Fred Meyer.  The evidence that Belluomini
introduced supported his claim that Fred Meyer did not follow all
of its policies for termination of an employee for sexual
harassment.  But Belluomini did not dispute the evidence Fred Meyer
introduced to show that it had also terminated him for
insubordination, non-sexual harassment, and intimidation -- conduct
for which Fred Meyer's personnel manual provides no procedures
analogous to those that apply under its sexual harassment policy. 
          It was uncontested at trial that Belluomini was an at-
will employee and that except to the extent specified in the sexual
harassment policy, Fred Meyer did not need good cause to fire him. 
Belluomini asserts no legal or factual theory under which the
procedural rights accruing to an employee under the sexual
harassment policy might extend to an at-will employee fired for
other misconduct.  Belluomini has insisted that Fred Meyer's actual
reasons for firing him were irrelevant to his implied covenant
claim, arguing that this claim only concerned the procedural
fairness of his termination, not the underlying substantive
justification.  He stated in an affidavit to the trial court that
"what my accusers say I did to harass them and Fred Meyer's belief
that I committed harassment are not particularly germane to the
issue in my case for unjust discharge."  
          Given Belluomini's express disavowal of any claim of bad
faith against Fred Meyer, his attempt to resurrect this issue on
appeal is unavailing. [Fn. 8]  At trial Belluomini failed to
controvert substantial evidence showing that Fred Meyer had
numerous valid reasons for discharge apart from sexual harassment
and that it acted in good faith in ordering his termination.  Under
these circumstances, we hold that the superior court properly
directed a verdict in favor of Fred Meyer on Belluomini's implied
covenant claim. 
     B.   Did the Trial Court Err in Granting Fred Meyer's Rule
12(b)(6) Motion to Dismiss Belluomini's Constitutional Tort Claims?
          We review an order dismissing a complaint for failure to
state a claim de novo.  "'If, within the framework of the
complaint, evidence may be introduced which will sustain a grant of
relief to the plaintiff, the complaint is sufficient.' . . .  [We]
'must presume all factual allegations of the complaint to be true
and [make] all reasonable inferences . . . in favor of the
non-moving party.'"[Fn. 9] 
          Belluomini claims that the superior court committed error
in dismissing his constitutional tort claim and his related claim
for punitive damages.  When Fred Meyer terminated Belluomini, it
presented him with a notice forbidding him from entering any Fred
Meyer store or premises and threatening to prosecute him for
criminal trespass if he did so.  Four months later, a Fred Meyer
manager spotted Belluomini in the Soldotna store and told him that
he was not allowed in the store until the lawsuit was resolved and
that he would be arrested if he returned.  
          In his complaint, Belluomini claimed that this
prohibition tortiously interfered with his constitutional rights.
His theories in pressing this claim were that Fred Meyer had
wrongfully excluded him from the store "because he had exercised
his right and privilege granted by the constitution and laws of
Alaska to bring suit against Fred Meyer,"and also that Fred Meyer
had "oppressed and threatened him with the intent to deprive him of
a right and privilege granted him by Article 1 of the Alaska
Constitution,"namely, his "right of liberty to freely shop at a
retail place of business open to the public."  Belluomini sought
compensatory and punitive damages for Fred Meyer's interference
with these rights. 
          Before trial, the superior court dismissed Belluomini's
claim, ruling that Alaska law does not recognize the tort of
interference with a constitutional right.  Belluomini challenges
this ruling.  He relies on AS 11.76.110, which declares
interference with constitutional rights to be a "class A
misdemeanor,"and on AS 11.81.210, which provides that the criminal
code 
          does not bar, suspend, or otherwise affect any
right to or liability for damages, penalty, forfeiture, or other
remedy authorized by law to be recovered or enforced in a civil
action, regardless of whether the conduct involved in the
proceeding constitutes an offense defined in this title. 

Belluomini asserts that this latter provision evinces a legislative
intent to create a private civil action for crimes such as
interference with a constitutional right. 
          But Belluomini argues against a long-standing legal
principle: state and federal courts have historically recognized
that the constitution protects individuals from state action but
not from similar deprivations by private actors. [Fn. 10]  Thus,
Alaska's criminal statute prohibiting interference with a
constitutional right, AS 11.76.110, does not itself imply a purely
private cause of action.  Neither does the criminal code's general
disclaimer that its provisions do not "affect any right to or
liability . . . authorized by law"[Fn. 11] create new remedies or
demonstrate a legislative intent to do so.  Because we find no
legal basis for recognizing interference with a constitutional
right as a private cause of action, we conclude that the superior
court properly dismissed Belluomini's constitutional tort claim. 
     C.   Did the Trial Court Err in Denying Belluomini's Motion to
Amend His Complaint Pursuant to Alaska Civil Rule 15(b)?
          We will reverse the trial court's denial of a litigant's
motion to amend its complaint only if we are left with a definite
and firm conviction that the lower court erred. [Fn. 12] 
          At the close of his case-in-chief, Belluomini moved to
amend his complaint to allege that, in dealing with Belluomini
after discovering his failure to disclose the prior incident of
sexual harassment in Anchorage, Fred Meyer converted Belluomini's
status from at-will employment to employment for cause.  In
particular, Belluomini pointed out that Fred Meyer Regional Vice
President Sam Martin told him that he could continue to work for
Fred Meyer but that Martin would personally conduct a thorough
investigation of any future complaints of sexual harassment against
him.  Belluomini reasoned that in return for his acceptance of
Martin's conditions of continued employment, Fred Meyer contracted
not to fire him for sexual harassment without first thoroughly
investigating and substantiating any future sexual harassment
allegations.   
          The trial court refused to allow this mid-trial
amendment.  On appeal Belluomini argues that this ruling was in
error.  He contends that the amendment he proposed would have
conformed his complaint to the evidence produced at trial and that
Fred Meyer had given the amendment its implicit consent. 
          A court should grant a party leave to amend where justice
requires and if the amendment will not result in injustice to the
opposing party. [Fn. 13]  Alaska Civil Rule 15(b) allows a party to
amend its complaint when an issue not included in the pleadings is
"tried by express or implied consent of the parties."
          But we have previously recognized that a party's failure
to object to an opponent's passing mention of a potential new claim
does not amount to an implied consent under Rule 15(b), commenting
that
          [s]uch a position . . . would require counsel
to comb through all the discovery adduced from an adverse party and
make motions to strike answers which are suggestive of unpled
theories.  This would be unduly burdensome on counsel, and would
needlessly increase the trial court's motion practice.[ [Fn. 14]]

Thus Fred Meyer's failure to object to Belluomini's comments
concerning his new contract theory does not imply that the company
consented to trial on that issue.  
          In any event, any error in denying Belluomini's motion to
amend the complaint would have amounted to harmless error.  The
theory advanced in Belluomini's proposed amendment is essentially
identical to the one that he advanced in his implied covenant
claim.  Belluomini relies on the same facts to support both claims,
and both claims stumble on the same legal pitfall:  Both rely on
facts tending to establish, at most, that Fred Meyer needed to make
a formal determination of good cause before it could fire
Belluomini for sexual harassment; these facts provide no basis for
concluding that the company needed to make a comparable good-cause
determination before firing Belluomini for other reasons.  
          We thus find no reversible error in the denial of
Belluomini's motion to amend his complaint. 
     D.   Did the Trial Court Abuse Its Discretion in Denying
Belluomini's Attempts to Supplement His Witness List?
          We review the trial court's admission or exclusion of
evidence for abuse of discretion. [Fn. 15]  We will reverse such a
decision only when left with the definite and firm conviction that
the trial court erred in its decision. [Fn. 16]
          Belluomini argues that the trial court erred in
precluding him from calling witnesses in the course of the trial. 
Specifically, he wished to call Fred Meyer employees Christine
Carmichael, Kenneth Pearcy, Ginger Schneider, and Richard Steen,
after learning that Fred Meyer would not be calling them as
witnesses.  In his offer of proof, Belluomini asserted that he
would elicit testimony from these witnesses to show bad faith on
the part of Fred Meyer. 
          But the trial court could properly reject Belluomini's
requests to call these witnesses because he had failed to include
them on his witness list and offered no good reason for this
omission.  Moreover, because Belluomini had expressly disavowed any
claim of bad faith against Fred Meyer, the proposed witnesses'
testimony concerning Fred Meyer's bad faith would have been wholly
irrelevant.  Accordingly, we conclude that the trial court did not
abuse its discretion in refusing Belluomini's attempts to
supplement his witness list.
     E.   Did the Trial Court Abuse Its Discretion in Awarding
Attorney's Fees and Costs to Fred Meyer?
          "An award of attorney's fees will only be reversed for an
abuse of discretion, which exists if the award is arbitrary,
capricious, manifestly unreasonable, or the result of an improper
motive."[Fn. 17]  Questions as to the reasonableness of fees
awarded under Civil Rule 82 are committed to the sound discretion
of the trial court. [Fn. 18]
          The trial court awarded Fred Meyer $54,233.85 in fees --
thirty percent of its total fees, pursuant to Rule 82(b)(2) -- and
$10,798.21 in costs.  In doing so, the trial court made no
independent fee calculation but awarded Fred Meyer all of its
requested fees.  The clerk of court did provide its own calculation
of costs.  Belluomini contests several components of this total,
amounting to $47,747.50.
          1.   Fees
               a.   Fees for motions for summary judgment
          Belluomini opposes the award of attorney's fees for Fred
Meyer's motions for summary judgment, totaling $32,186.50, because
those motions were unsuccessful.  Fred Meyer defends the fee award,
asserting that it did not have to prevail to be awarded fees.
          We have addressed this question squarely, in Gold
Bondholders Protective Council v. Atchison, Topeka and Santa Fe
Railway Company, stating, 
          This contention is untenable.  Rule 82(a) does
not require that attorneys' fees be calculated with reference to
the disposition of individual issues.  Rather, it expressly
provides that a reasonable award of fees shall be made, at the
trial court's discretion, to the prevailing party.  The clear
meaning of that provision is that the party who prevails on the
principal dispositive issue is entitled to reasonable costs
calculated according to the trial court's discretion.[ [Fn. 19]]
We see no reason to depart from that holding here.
               b.   Attorney's fees for interviews, expert
witnesses

          Belluomini also challenges $1,560 in fees for Fred
Meyer's counsel's time spent interviewing and consulting with
expert witnesses; he contends that Fred Meyer never called these
witnesses at trial and informed Belluomini well before trial that
it did not intend to call them.  Fred Meyer responds that it had to
consult with these witnesses to prepare to rebut the expert
testimony that Belluomini initially stated he would present at
trial but then did not.  Fred Meyer also claims that it needed
expert testimony to rebut testimony as to damages claims that
Belluomini presented at trial.  The record backs up Fred Meyer's
argument that these attorney's fees were incurred for a legitimate
purpose, and Belluomini does not establish that the amount of
disputed fees was unreasonable.
               c.   Fees for second attorney
          Belluomini opposes compensation for a second attorney
representing Fred Meyer, whose fees totaled $12,818, arguing that
the case was not so complex that it required more than one attorney
to be present at trial.  Fred Meyer responds that a second attorney
was necessary; it also notes that Belluomini's counsel employed two
paralegals and other assistants.
          We see no reason, and Belluomini offers none, to overrule
the discretion of the trial court here.  Belluomini has failed to
show that the trial court's findings are manifestly unreasonable or
otherwise oppressive. [Fn. 20]  "It is . . . for the trial judge to
determine whether too much time was spent by attorneys for the
prevailing party or whether too many attorneys were employed."[Fn.
21]  Given that Belluomini makes no substantive argument about the
fairness of this award, we uphold the judgment of the trial judge,
who was able to gauge firsthand in this case whether a second
attorney was necessary.
               d.   Fees for opposition to petition for review
          Belluomini contests $l,l83 of the fee award, alleging
that it was based on Fred Meyer's preparation at the appellate,
rather than trial court, level.  But before the trial court entered
its award of fees, Fred Meyer withdrew its request for the fees
relating to this appeal.  Thus, the issue is moot. [Fn. 22] 
               e.   Calculation of fees
          Belluomini objects that the trial court awarded Fred
Meyer more than thirty percent of its fees without explaining its
departure, in violation of Rule 82(b).  But in fact the trial
court's calculation does equal thirty percent, save a small
discrepancy attributable to a clerical error. [Fn. 23] 
          2.   Costs
          Belluomini disputes the trial court's award of costs,
stating that Fred Meyer did not serve on him a cost bill and notice
of hearing, as required by former Civil Rule 79(a).  He asserts
that the court should have construed Fred Meyer's failure as a
waiver of its right to recover costs. 
          But our review of the record shows that the confusion
over costs resulted from an amendment to Rule 79 that took effect
at the time costs were at issue in this case.  Belluomini does not
contend that the failure to file a notice prejudiced him in any
way, either by denying him a timely hearing or diminishing his
opportunity to object to the costs filed.  To find a waiver under
these circumstances would amount to "senseless formalism"of the
kind that we have abjured in other cases involving cost awards.
[Fn. 24]  Accordingly, we find no error in the cost award.
IV.  CONCLUSION
          For the foregoing reasons, we AFFIRM the superior court's
judgment. [Fn. 25]


                            FOOTNOTES


Footnote 1:

     See Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897
P.2d 47, 53 n.5 (Alaska 1995).


Footnote 2:

     See Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska
1997).


Footnote 3:

     Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789
(Alaska 1989) (quoted in Luedtke v. Nabors Alaska Drilling, Inc.,
834 P.2d 1220, 1223 (Alaska 1992)).


Footnote 4:

     Jones, 779 P.2d at 789 n.6.


Footnote 5:

     Luedtke, 834 P.2d at 1224.


Footnote 6:

     See id. at 1223-24.


Footnote 7:

     See Arco Alaska, Inc. v. Akers, 753 P.2d 1150, 1154-55 (Alaska
1988).


Footnote 8:

     See Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985) ("As a general rule, a party may not present new
issues or advance new theories to secure a reversal of a lower
court decision.").


Footnote 9:

     Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988) (quoting
Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983) and 2A
J. Moore & J. Lucas, Moore's Federal Practice  12.07, at 12-63
(1986) (citation omitted) (alterations in original)).


Footnote 10:

     See U.S. Const. amend. XIV ("nor shall any state deprive any
person of life, liberty, or property, without due process of law .
. ."); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)
("In 1883, this Court in the Civil Rights Cases affirmed the
essential dichotomy set forth in that Amendment between deprivation
by the State, subject to scrutiny under its provisions, and private
conduct, 'however discriminatory or wrongful,' against which the
Fourteenth Amendment offers no shield.") (citation omitted); Miner
v. Commercial Fisheries Entry Comm'n, 635 P.2d 827, 829 (Alaska
1981) ("It is a basic tenet of due process that its prerequisites
are state action and the deprivation of an individual interest of
sufficient importance to warrant constitutional protection."); cf. 
Thoma v. Hickel, 947 P.2d 816, 824 & n.5 (Alaska 1997) (evincing
judicial hesitance to recognize direct constitutional remedies).


Footnote 11:

     AS 11.81.210.  


Footnote 12:

     See Siemion v. Rumfelt, 825 P.2d 896, 898 n.2 (Alaska 1992). 



Footnote 13:

     See Alaska R. Civ. P. 15(a); Estate of Thompson v. Mercedes-
Benz, Inc., 514 P.2d 1269, 1271 (Alaska 1973).


Footnote 14:

     Superior Fire Protection Co. v. Du Alaska Co., 772 P.2d 1088,
1089 (Alaska 1989).


Footnote 15:

     See Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).


Footnote 16:

     See Bliss v. Bobich, 971 P.2d 141, 144 n.3 (Alaska 1998).


Footnote 17:

     Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 1997).


Footnote 18:

     See Integrated Resources Equity Corp. v. Fairbanks N. Star
Borough, 799 P.2d 295, 304 (Alaska 1990).  


Footnote 19:

     658 P.2d 776, 779 (Alaska 1983) (footnote omitted).


Footnote 20:

     See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20,
39 (Alaska 1998); Feichtinger v. Conant, 893 P.2d 1266, 1268
(Alaska 1995).


Footnote 21:

     Integrated Resources Equity Corp., 799 P.2d at 304.


Footnote 22:

     We note that in the body of Fred Meyer's memorandum in reply
to Belluomini's objection to its fee application Fred Meyer
reported $494 in appellate fees.  But in the conclusion of the same
memorandum it misstates that withdrawn amount as $442, apparently
omitting $52 in fees associated with its preparation of its
petition for review.  The trial court's attorney's fee order
overlooked this discrepancy and awarded Fred Meyer fees based on
the additional $52.  Accordingly, upon return of this case to the
superior court, the court should correct this error.  See Alaska
Civil Rule 60(a).


Footnote 23:

     See supra note 22. 


Footnote 24:

     See Fairbanks N. Star Borough v. Tundra Tours, Inc., 719 P.2d
1020, 1038-39 (Alaska 1986) (ruling that to deny a party costs
because it filed its cost bill prematurely "would be 'senseless
formalism,'"where the early filing "did not deprive the school
district of a timely hearing.  On the contrary, the school district
attended the cost hearing, and stated its objections verbally and
in writing"); Isaacson Structural Steel Co. v. Armco Steel Corp.,
640 P.2d 812, 815 (Alaska 1982); see also City and Borough of
Juneau v. Commercial Union Ins. Co., 598 P.2d 957, 960 (Alaska
1979) (allowing trial court to invoke Civil Rule 94 to relax rules
to prevent injustice and permit taxation of costs, where party
suffered no prejudice by late filing of notice of cost bill
hearing).


Footnote 25:

     Because we affirm the judgment, we need not address
Belluomini's claim that upon retrial he should be allowed to
present evidence of future wage losses.