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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tenala Ltd. v. Fowler (12/23/99) sp-5219

Tenala Ltd. v. Fowler (12/23/99) sp-5219

     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
                                 


TENALA, LTD.,                 )
                              )    Supreme Court No. S-8625
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-91-383 CI
                              )
AUDREY FOWLER, as Personal    )    O P I N I O N
Representative of the ESTATE  )
of SALLY C. MAYO,             )
                              )
             Appellee.        )    [No. 5219 - December 23, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                   Charles R. Pengilly, Judge.


          Appearances:  Eugene R. Belland, Fairbanks,
for Appellant.  Ronald L. Baird, Anchorage, for Appellee.


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


          MATTHEWS, Chief Justice.      


I.   INTRODUCTION
          Audrey Fowler brought a quiet title action against
Tenala, Ltd.  Fowler prevailed and was awarded enhanced attorney's
fees.  We agree that enhanced attorney's fees were proper. 
However, we remand so that the superior court can make specific
findings on whether some of the fees claimed by Fowler were
actually related to this litigation. 
II.  FACTS AND PROCEEDINGS
          In 1991 Fowler, the representative of Sally Mayo's
estate, brought a quiet title action against Tenala, Ltd.,
involving two lots in Fairbanks. [Fn. 1]  After a three-day bench
trial, the superior court held that Mayo had adversely possessed
various portions of the lots. [Fn. 2] 
          The superior court concluded that Fowler was the
prevailing party.  Fowler's attorney submitted an affidavit and
supporting billing documents showing actual attorney's fees of
$27,459.00.  With regard to attorney's fees, the court stated:
               After a review of the attorneys fees
incurred as set forth in plaintiff's supporting documents, the
court concludes they are reasonable and necessarily incurred in
this litigation.

               Due to the complexity of this litigation,
both as to the facts and law the court concludes a greater than 30%
of actual attorneys fees should be awarded.  This case involved
complex issues of quiet title dealing with factual issues dating to
the 1920's.  There were numerous documents in the "chain of title"
as well as historical factual issues to be resolved.  Both the
legal and factual issues were hotly contested by defendant.  Fifty
percent (50%) of actual attorneys fees is reasonable under the
facts of this case.

               Therefore, plaintiff is awarded attorneys
fees in the sum of $13,730.00.

          Tenala appealed the superior court's decision to this
court. [Fn. 3]  We partially reversed the superior court's decision
by holding that Mayo was entitled to a prescriptive easement rather
than a fee simple interest on a portion of one lot, [Fn. 4] and
that the south boundary line of one lot had been determined
erroneously. [Fn. 5]  
          With regard to the award of attorney's fees, we noted
that Tenala "makes no supporting arguments on appeal and merely
refers us to its trial memoranda on the issue.  Therefore, Tenala
has effectively abandoned these issues."[Fn. 6]  But we went on to
conclude that "[n]onetheless, because we have found that Fowler, as
representative of her mother's estate, acquired a prescriptive
easement and not fee title for most of the disputed portion of Lot
6, we vacate the attorney's fees and costs awards.  On remand, the
trial court will have to decide who is the prevailing party."[Fn.
7] 
          Upon remand, Fowler filed a motion requesting that the
superior court reaffirm its previous order awarding $13,730.00.
Tenala opposed and listed over fifty specific items in Fowler's
request that Tenala argued were not properly included as fees.  The
superior court held that Fowler "remains the prevailing party for
purposes of award of attorney's fees and costs and this court's
prior orders regarding same . . . are hereby reaffirmed."
          On this appeal, Tenala does not question the court's
ruling that Fowler was the prevailing party, but it does challenge
the enhanced award of attorney's fees.     
III. DISCUSSION
     A.   Standard of Review
          "The trial court has broad discretion in awarding
attorney's fees; we will not find an abuse of that discretion
absent a showing that the award was arbitrary, capricious,
manifestly unreasonable, or . . . stem[med] from an improper
motive."[Fn. 8]
     B.   Tenala's Previous Waiver Does Not Bar It from Objecting
to the Amount of the Attorney's Fee Award.
          Fowler argues that Tenala is barred from raising an
objection to the attorney's fees award because Tenala abandoned
that issue in its earlier appeal in Tenala I.  While it is true
that in Tenala I we observed that "Tenala has effectively
abandoned"its arguments concerning attorney's fees because it
referred only to trial court memoranda on the issue, [Fn. 9] the
overall effect of the Tenala I decision was to "vacate the
attorney's fees and costs awards."[Fn. 10]  The superior court was
directed to "re-evaluat[e]"the attorney's fees claims on remand.
[Fn. 11]  The fact that Tenala previously waived its attorney's
fees argument, therefore, relates to an award that was vacated. 
Tenala was free, on remand, to challenge any new attorney's fees
award.  Because Tenala opposed the new award in the superior court
and has properly presented its arguments on appeal, they are now
properly before us.
     C.   The Superior Court Did Not Abuse Its Discretion in
Awarding Attorney's Fees Relating to Count II of Fowler's First
Amended Complaint.
          In her first amended complaint, Fowler added a Count II
to her action, which described a 1927 quitclaim deed from Ed Ross
to Lee Mayo (Sally Mayo's husband).  Count II goes on to list
parties who potentially might claim an interest in Mayo's real
property.  Fowler asserts that the listed defendants were grantors
or grantees who were out of the chain of title to either lot. 
Tenala argues that any attorney's fees in preparing and pursuing
Count II should not be charged against Tenala because Fowler
abandoned Count II in the present action and because "Count II was
never pursued against any of the other defendants named in [the]
amended complaint."
          Count II relied upon a 1927 deed that added a color of
title basis to Sally Mayo's claims to one of the lots.  This was
the basis for the superior court's holding that Lee and Sally Mayo
acquired title to portions of one lot in 1934 through adverse
possession pursuant to the color of title statute, [Fn. 12] rather
than under the general adverse possession statute [Fn. 13] which
requires a ten-year period of possession.  Thus, contrary to
Tenala's assertions, Count II of Fowler's amended complaint was an
important component of her quiet title action on behalf of Sally
Mayo's estate.  
          Tenala's assertion that "Count II was never pursued
against any of the other [non-Tenala] defendants"is also without
merit.  Fowler was granted a default judgment against the parties
named in Count II.  
          Finally, even if it were the case that none of the
allegations contained in Count II of Fowler's amended complaint
formed the basis for her successful action against Tenala, the
superior court would still have been within its discretion to award
attorney's fees for work which included this claim.  As we stated
in Gold Bondholders Protective Council v. Atchison, Topeka and
Santa Fe Railway Co.: [Fn. 14]
          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.  We refuse to now alter the purview of Rule 82 by
requiring the niceties in apportionment urged by the Bondholders. 
We hold that the superior court did not abuse its discretion by
awarding Santa Fe attorneys' fees for time spent on issues on which
Santa Fe did not prevail.[ [Fn. 15]]
     D.   The Superior Court Did Not Abuse Its Discretion in Its
Use of Rule 82(b)(3).

          Tenala argues that the superior court "erred in
calculating and awarding attorney fees under Civil Rule 82(b)(3)."
[Fn. 16] We have held that "[i]n general, a trial court has broad
discretion to award Rule 82 attorney's fees in amounts exceeding
those prescribed by the schedule of the rule, so long as the court
specifies in the record its reasons for departing from the
schedule."[Fn. 17]
          In the present case, the superior court specified that it
was awarding attorney's fees that exceeded the Rule 82 schedule
"[d]ue to the complexity of this litigation." This was not an
erroneous determination.  The "complexity of the litigation"is a
factor listed in Rule 82(b)(3). [Fn. 18]  The superior court noted
that "[t]his case involved complex issues of quiet title dealing
with factual issues dating to the 1920's." An examination of the
superior court's initial memorandum decision and our decision in
Tenala I reveals that this claim of legal and factual complexity
was not inaccurate. [Fn. 19]  
          Tenala also argues that the superior court erred because
it only considered one of the eleven factors set forth in Rule
82(b)(3).  We rejected a similar argument in Osborne v. Hurst: [Fn.
20]
               Hurst also challenges the superior
court's decision to award him attorney's fees in an amount less
than the scheduled fee in Alaska Civil Rule 82(b)(2).  In
particular, he argues that the superior court erred in reducing the
attorney's fee award because it did not explain its analysis of all
the possible reasons, under Rule 82(b)(3), for deviating from the
schedule set forth in Rule 82(b)(2).  We disagree.  If one or more
Rule 82(b)(3) factors justifies departure from the schedule for fee
awards, the trial court may base its decision on those factors,
without specifically explaining why the other factors are not
relevant.[ [Fn. 21]]  
     E.   The Specific Itemized Billings Objected to by Tenala.
          Before the superior court and this court, Tenala lists
over fifty specific billing entries by Fowler's attorneys that
Tenala argues should not have been included in the superior court's
attorney's fees award.  The superior court did not specifically
address any of these disputed claims, and on appeal, neither does
Fowler.  
          The itemized list of objected-to claims set forth in
Tenala's brief can be broken down into three general categories:
(1) fees that relate to other defendants (mainly the defendants
listed in Count II of Fowler's amended complaint), not to Tenala;
(2) fees that are said to be duplicative, mainly because they
involve a new attorney reviewing files relating to the case; and
(3) fees that do not relate to the action against Tenala at all,
but are for probate and estate work done on behalf of the Mayo
family by Fowler's attorneys.
          For reasons set forth in Part III.C, above, it was not an
abuse of discretion for superior court to have included fees
relating to defendants other than Tenala in its attorney's fees
award.   
          The court did not abuse its discretion in awarding fees
that were allegedly duplicative.  We have held that "to the extent
that work performed is duplicative and unnecessary, it should not
be considered in determining a proper award under Civil Rule 82."
[Fn. 22]  In Integrated Resources Equity Corp. v. Fairbanks North
Star Borough [Fn. 23] we affirmed an award of attorney's fees even
though there was "some duplication"among attorneys. [Fn. 24]  Most
of Tenala's allegations concerning alleged duplicative legal work
relate to Fowler's attorneys reviewing files for this case.  But
reviewing files is not, per se, unnecessarily duplicative work.
[Fn. 25]  Tenala has not shown that the entries in question were
duplicative and unnecessary and thus, it was not an abuse of
discretion for the superior court to include them as part of its
award of attorney's fees. 
          Finally, we conclude that it was an abuse of discretion
to award attorney's fees for services relating to Mayo family
probate and estate work that was not related to the quiet title
action against Tenala.  Our review of the record indicates that the
following expenditures, and perhaps more, may relate to Mayo family
estate and probate matters and therefore should be excluded from
any attorney's fees award.
           1/11/91  CCD   $35.00
          11/25/91  CCD   $21.00
          11/27/91  WAB   $77.50
          12/13/91  WAB  $310.00
            2/9/92  CCD   $60.00
            4/6/92  CCD   $40.00
           7/28/92  PJA  $148.00
           7/29/92  WAB  $263.50
           7/30/92  PJA   $74.00
           1/15/93  PJA   $18.50
           1/22/93  PSM  $157.50
           1/26/93  PJA   $92.50
           4/16/93  RLB2 $129.50
          Upon remand, the superior court should reexamine these
and the other billing entries objected to by Tenala.  If the
billings are not reasonably related to the litigation in this case,
as the above listed billings appear not to be, they should be
excluded from the services on which the attorney's fees award is
based.
IV. CONCLUSION
          We REMAND for the superior court to examine and make
findings about the billing entries objected to by Tenala.  All
other aspects of the superior court's award are AFFIRMED.


                            FOOTNOTES


Footnote 1:

     Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1117 (Alaska 1996)
(Tenala I).


Footnote 2:

     Id. 


Footnote 3:

     Id.


Footnote 4:

     Id. at 1118-20.


Footnote 5:

     Id. at 1122-23.


Footnote 6:

     Id. at 1123.


Footnote 7:

     Id. at 1124.  The heading of this part of the Tenala I opinion
essentially says the same thing, "Although Tenala Waived Any
Argument with Respect to the Costs and Attorney's Fees Awards, We
Vacate These Awards Due to Our Partial Reversal of the Trial Court
and Remand Them for Re-evaluation in Light of Our Holdings." Id.
at 1123.


Footnote 8:

     Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 44
(Alaska 1998) (citations and quotations omitted) (alterations in
original).


Footnote 9:

     Tenala I, 921 P.2d at 1123.


Footnote 10:

     Id. at 1124.


Footnote 11:

     Id.


Footnote 12:

     See AS 09.45.052.


Footnote 13:

     See AS 09.10.030.


Footnote 14:

     658 P.2d 776 (Alaska 1983).


Footnote 15:

     Id. at 779 (emphasis in original) (citations omitted);  see
also Nielson v. Benton, 957 P.2d 971, 973 (Alaska 1998) ("courts
need not apportion fees by issue in civil cases").


Footnote 16:

     Civil Rule 82(b)(3) states:

                         The court may vary an attorney's fee
                    award calculated under subparagraph (b)(1) or
                    (2) of this rule if, upon consideration of the
                    factors listed below, the court determines a
                    variation is warranted:
                    
                         (A) the complexity of the litigation;
                    
                         (B) the length of trial;
                    
                         (C) the reasonableness of the attorneys'
                    hourly rates and the number of hours expended;
                    
                         (D) the reasonableness of the number of
                    attorneys used;
                    
                         (E) the attorneys' efforts to minimize
                    fees;
                    
                         (F) the reasonableness of the claims and
                    defenses pursued by each side;
                    
                         (G) vexatious or bad faith conduct;
                    
                         (H) the relationship between the amount
                    of work performed and the significance of the
                    matters at stake;
                    
                         (I) the extent to which a given fee award
                    may be so onerous to the non-prevailing party
                    that it would deter similarly situated
                    litigants from the voluntary use of the
                    courts;
                    
                         (J) the extent to which the fees incurred
                    by the prevailing party suggest that they had
                    been influenced by considerations apart from
                    the case at bar, such as a desire to
                    discourage claims by others against the
                    prevailing party or its insurer; and,
                    
                         (K) other equitable factors deemed
                    relevant.
                    
                    If the court varies an award, the court shall
                    explain the reasons for the variation.
                    
                    
                    Footnote 17:
                    
                         State v. Johnson, 958 P.2d 440, 445 n.10
                    (Alaska 1998). 
                    
                    
                    Footnote 18:
                    
                         See Alaska R. Civ. P. 82(b)(3)(A).
                    
                    
                    Footnote 19:
                    
                         We note that complexity works poorly as
                    an independent enhancing factor in Rule
                    82(b)(2) cases where hourly fees, rather than
                    the amount of a money judgment, serve as the
                    measure of the fees to be awarded.  Hourly
                    fees are usually already greater because of
                    the complexity of a case.  Thus using
                    complexity as an enhancing factor over-counts
                    the effect that complexity has on fees.  But
                    this points to a weakness in the rule, not to
                    trial court error.  We also note that Tenala
                    did not argue this point, either on appeal or
                    before the trial court.  For this reason, too,
                    it should not serve as a basis for reversal of
                    the trial court's decision.
                    
                    
                    Footnote 20:
                    
                         947 P.2d 1356 (Alaska 1997).
                    
                    
                    Footnote 21:
                    
                         Id. at 1362 n.3 (emphasis added).
                    
                    
                    Footnote 22:
                    
                         Alaska State Fed'n of Labor v. State,
                    Dep't of Labor, 713 P.2d 1208, 1212 (Alaska
                    1986) (citing State v. Fairbanks North Star
                    Borough Sch. Dist., 621 P.2d 1329 (Alaska
                    1981)).
                    
                    
                    Footnote 23:
                    
                         799 P.2d 295 (Alaska 1990). 
                    
                    
                    Footnote 24:
                    
                         Id. at 304.
                    
                    
                    Footnote 25:
                    
                         See Abbott v. Kodiak Island Borough
                    Assembly, 899 P.2d 922, 925 n.3 (Alaska 1995)
                    (reviewing court did not regard 7.6 hours of
                    "file review"by an attorney as unnecessary or
                    excessive).