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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kellis v. Crites (3/30/01) sp-5380

Kellis v. Crites (3/30/01) sp-5380

     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
                                 


KYNDELFAYE MERCEDES KELLIS,   )
                              )    Supreme Court No. S-9276
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-3249 CI
                              )
VIRGINIA L. CRITES,           )    O P I N I O N
                              )
             Appellee.        )    [No. 5380 - March 30, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances:  Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Appellant.  Barry J. Kell, Wilkerson
& Associates, Anchorage, for Appellee. 


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          A jury returned a verdict for a personal injury defendant
who had made a $250 pretrial offer of judgment.  This appeal
concerns the post-trial awards of litigation costs and attorney's
fees.  Because the parties agree that it was error to award the
defendant 100% of her attorney's fees under Civil Rule 68 and AS
09.30.065(a)(1), we vacate the fees award and remand.  We also
vacate the cost award and remand for submission of a cost bill to
the clerk of court. 
II.  FACTS AND PROCEEDINGS
          KyndelFaye Mercedes Kellis sued Virginia M. Crites in
January 1998 for injuries Kellis allegedly suffered as a result of
a 1996 car accident.  In February 1998 Crites, citing Alaska Civil
Rule 68 and AS 09.30.065, made Kellis an offer of judgment of $250.
Kellis did not accept the offer, which expired ten days later.  The
case went to trial in February 1999 on the issues of causation and
damages only.  The jury found for Crites and awarded Kellis no
damages.  The trial court entered judgment for Crites on March 4,
1999.
          Crites then filed separate motions for awards of costs
and attorney's fees.  Kellis objected.  The superior court awarded
Crites all requested costs ($7,461), and all of the attorney's fees
($30,434.50) incurred in her behalf, even though Crites had
requested only $22,825.87, seventy-five percent of the attorney's
fees incurred.  Kellis appeals both awards.
III. DISCUSSION
     A.   Standard of Review
          We review awards of costs and attorney's fees for abuse
of discretion, which exists if an award is arbitrary, capricious,
manifestly unreasonable, or improperly motivated. [Fn. 1]  We
interpret our civil rules de novo, [Fn. 2] adopting "the rule of
law which is most persuasive in light of precedent, policy, and
reason." [Fn. 3]
     B.   Attorney's Fees

          Kellis first argues that the trial court's award of full
attorney's fees violates AS 09.30.065(a)(1) [Fn. 4] and that the
trial court should have awarded, at most, seventy-five percent of
the reasonable attorney's fees incurred in Crites's behalf.  Crites
agrees that it was error to award her full attorney's fees, because
Crites had requested only seventy-five percent of her incurred
fees.  Crites did not ask the trial court to award full attorney's
fees under AS 09.30.065(b), [Fn. 5] and does not seek to justify
such an award on appeal.  We therefore vacate the award of full
attorney's fees and remand for an award of attorney's fees under
Alaska Civil Rule 68 and AS 09.30.065(a)(1).  
          Furthermore, we note that Rule 68 and AS 09.30.065(a)
apply only from the date when an offer of judgment is made. [Fn. 6] 
On remand, the superior court may not award Crites attorney's fees
per Rule 68 and AS 09.30.065 for services performed before February
6, 1998, when Crites made the offer of judgment. 

          Kellis next argues that the trial court should be allowed
to reduce a Rule 68 and AS 09.30.065 attorney's fees award by
applying the factors listed in Alaska Civil Rule 82(b)(3).  Kellis
claims that several of those factors dictate a downward variation
in this case.  Kellis cites Rule 82(b)(3)(I), which authorizes the
court to consider "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." [Fn. 7] 
Kellis also cites Rule 82(b)(3)(J), which authorizes the court to
consider "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 . . . ." [Fn. 8]
          Assuming the Rule 82(b)(3) factors apply to an award of
attorney's fees under Rule 68(b) and AS 09.30.065(a), they could be
relevant in this case only for the limited purpose of determining
whether the attorney's fees actually incurred by the offeror were
reasonable. [Fn. 9]  But in this case there is no dispute about the
reasonableness of the fees incurred by Crites: Kellis's superior
court response to Crites's itemized billing conceded that the
attorney's fees incurred by Crites were not "unreasonable as to
work performed, time expended or hourly rate."  Therefore, the Rule
82(b)(3) factors have no bearing on the Rule 68 and AS 09.30.065
award in this case.
          At oral argument before us, counsel for Kellis also
argued that Rule 68 and AS 09.30.065 violate the equal protection
clause of the Alaska Constitution. [Fn. 10]  Kellis did not raise
this argument in the superior court or in her opening brief.  It is
therefore waived. [Fn. 11]
     C.   Costs
          Kellis argues that the trial court's award of costs
should be vacated because Crites did not follow Alaska Civil Rule
79's requirement of filing a cost bill with the clerk of the trial
court. [Fn. 12]  Kellis also argues that it was error to award the
full costs Crites requested, because Crites did not sufficiently
itemize or explain the requested costs.  At oral argument before
us, counsel for Crites conceded that the trial court's award of
costs should be remanded.  We therefore vacate the trial court's
award of costs and remand so that the cost bill can be submitted to
the clerk of court. [Fn. 13]
          But we note that there was potentially a substantive
error in awarding Crites the full costs requested for expert fees,
$3,971.12.  Civil Rule 79(f)(7) permits a prevailing party to
recover witness fees according to Alaska Administrative Rule 7.
[Fn. 14]  That rule provides that the recovery of expert witness
fees is "limited to the time when the expert is employed and
testifying and shall not exceed $50.00 per hour, except as
otherwise provided in these rules." [Fn. 15]  Here, Crites's expert
testified for approximately one hour.  The award consequently
cannot be justified as a reimbursement of the fees charged by the
expert.  
          Crites's cost bill indicated that the claimed expert fees
also covered the expert's travel expenses.  Travel expenses for
witnesses are allowed by Civil Rule 79(g)(1)(D) "to the extent
permitted by Administrative Rule 7." [Fn. 16]  Administrative Rule
7 permits recovery of round-trip travel expenses for witnesses
required to travel in excess of thirty miles from the witness's
residence at the rate for state employees. [Fn. 17]  Here, Crites's
cost bill implies that her expert incurred travel expenses
approaching $4,000.  This amount seems excessive on its face,
considering normal, reasonable travel expenses.  Because Crites's
cost bill was ambiguous and did not permit the trial court to
distinguish between what appeared to be excessive fees and unknown
travel expenses, it was potentially error to award the full expert
witness fees Crites requested.
IV.  CONCLUSION
          We therefore VACATE the attorney's fee award and REMAND
for recalculation of the award under Rule 68 and AS 09.30.065 for
services performed on or after February 6, 1998.  We also VACATE
the award of costs and REMAND so that the clerk of court can
consider Crites's cost bill and Kellis's objections to the cost
bill. 


                            FOOTNOTES


Footnote 1:

     See Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009,
1016, 1018 (Alaska 1999) (reviewing for abuse of discretion
attorney's fees awarded under Alaska Civil Rule 82 and costs
awarded under Alaska Civil Rule 79); Andrus v. Lena, 975 P.2d 54,
59-60 (Alaska 1999).     


Footnote 2:

     See Bobich v. Hughes, 965 P.2d 1196, 1197 (Alaska 1998)
(interpreting Alaska Civil Rule 68); D.L.M. v. M.W., 941 P.2d 900,
902 (Alaska 1997) (interpreting Alaska Civil Rules 79 and 82).


Footnote 3:

     Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996) (quoting
Guin V. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).


Footnote 4:

     AS 09.30.065(a)(1) provides: "[I]f the offer [of judgment] was
served no later than 60 days after both parties made the
disclosures required by the Alaska Rules of Civil Procedure, the
offeree shall pay 75 percent of the offeror's reasonable actual
attorney fees."  (Emphasis added.)


Footnote 5:

     AS 09.30.065(b) provides: 
     
                    Notwithstanding (a) of this section, if the
                    amount awarded an offeror for attorney fees
                    under the Alaska Rules of Civil Procedure is
                    greater than a party would receive under (a)
                    of this section, the offeree shall pay to the
                    offeror attorney fees specified under the
                    Alaska Rules of Civil Procedure and is not
                    required to pay reasonable actual attorney
                    fees under (a) of this section.
                    
                    
                    Footnote 6:
                    
                         See Alaska R. Civ. P. 68(b); AS
                    09.30.065(a).
                    
                    
                    Footnote 7:
                    
                         Alaska R. Civ. P. 82(b)(3)(I).
                    
                    
                    Footnote 8:
                    
                         Alaska R. Civ. P. 82(b)(3)(J).
                    
                    
                    Footnote 9:
                    
                         It is not necessary here to consider the
                    effect of this sentence in Rule 68(c): "A
                    party who receives attorney fees under this
                    rule may not also receive attorney fees under
                    Civil Rule 82."  We note that appellee does
                    not claim that an award under Rule 82 would
                    exceed her award under Rule 68.
                    
                    
                    Footnote 10:
                    
                         See Alaska Const. art. I, sec. 1
                    (providing
                    that "all persons are equal and entitled to
                    equal rights, opportunities, and protection
                    under the law").    
                    
                    
                    Footnote 11:
                    
                         See Gunderson v. University of Alaska,
                    Fairbanks, 902 P.2d 323, 327 n.5 (Alaska 1995)
                    (holding that arguments not raised before
                    trial court or not included in statement of
                    points on appeal will not be considered on
                    appeal).       
                    
                    
                    Footnote 12:
                    
                         See Alaska R. Civ. P. 79 (b), (d).
                    
                    
                    Footnote 13:
                    
                         See id.
                    
                    
                    Footnote 14:
                    
                         Alaska R. Civ. P. 79(f)(7).
                    
                    
                    Footnote 15:
                    
                         Alaska R. Admin. P. 7(c).
                    
                    
                    Footnote 16:
                    
                         Alaska R. Civ. P. 79(g)(1)(D).
                    
                    
                    Footnote 17:
                    
                         See Alaska R. Admin. P. 7(b).