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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barios v Brooks Range Supply, Inc. (07/20/2001) sp-5433

Barios v Brooks Range Supply, Inc. (07/20/2001) sp-5433

     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
                                 


ANITA BARIOS,                 )
                              )    Supreme Court No. S-9266
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-561 CI
                              )
BROOKS RANGE SUPPLY, INC.,    )
an Alaska corporation;        )
JOHN P. DITTRICH,             )    O P I N I O N
                              )
             Appellees.       )    [No. 5433 - July 20, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Dan A. Hensley, Judge.


          Appearances: Steven J. Shamburek, Law Office
of Steven J. Shamburek, Anchorage, for Appellant.  Scott J.
Nordstrand, Owens & Turner, Anchorage, for Appellees.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          Anita Barios worked for Brooks Range Supply for six
years.  Three months after she was terminated, she sued Brooks
Range for failure to pay overtime during busy seasons, over lunch
hour, and on weekends.  Her complaint contained fifteen causes of
action.  The superior court dismissed most of her claims before
trial, found against her with regard to the other claims after a
trial, and awarded attorney's fees to Brooks Range.  Because the
trial court's factual findings that Barios did not work unpaid
overtime were not clearly erroneous, we affirm the dismissal of
those claims.  And because Barios did not work unpaid overtime, the
decision of the superior court to dismiss many of her related
claims on summary judgment is moot.  Finally, we conclude that
Barios has abandoned her argument that the award of attorney's fees
was improper.  Accordingly, we affirm the judgment of the superior
court in all respects.
II.  FACTS AND PROCEEDINGS
          Brooks Range Supply is an Alaska corporation engaged in
the business of providing industrial oilfield supplies and services
on the North Slope of Alaska.  Brooks Range has an Anchorage
office, which provides administrative support to its North Slope
operations, as well as a store at Prudhoe Bay.  
          Anita Barios worked for Brooks Range from 1990 until
October 1996 as one of three administrative employees in the
Anchorage office.  Her work included accounts receivable, accounts
payable, inventory, and other administrative duties.  Although she
was paid a set salary for her work, she did not have a written
employment agreement with Brooks Range. 
          Three months after her work with Brooks Range ended,
Barios filed a complaint for various wage law violations against
Brooks Range Supply and John P. Dittrich, the general manager of
Brooks Range and Barios's supervisor. [Fn. 1] 
          The basis of Barios's complaint was her claim that she
was not properly compensated for overtime that she had worked. 
Specifically, Barios claimed that she was not compensated for
overtime worked during busy inventory periods and as a result of
her pattern of working through lunch, after closing, and at home. 
Barios's fifteen claims against Brooks Range included failure to
pay minimum wage under the federal Fair Labor Standards Act (FLSA)
and the Alaska Wage and Hour Act (AWHA), failure to pay overtime
under the federal and state statutes, breach of contract, quantum
meruit, and breach of the covenant of good faith and fair dealing,
and sought liquidated damages, late payment damages, costs and
attorney's fees, foreclosure of lien, punitive damages, and
piercing the corporate veil. 
          After the complaint was filed, Brooks Range did agree to
pay Barios the overtime that she claimed for her inventory work at
Prudhoe Bay and other time that she had itemized by date and time
from 1994 to 1996. 
          Brooks Range then moved for summary judgment on most of
Barios's claims, except her claim for overtime and the related
remedy claims for wage lien, liquidated damages, and costs and
attorney's fees.  After briefing and oral argument, Superior Court
Judge Dan A. Hensley granted the motion and dismissed most of the
counts in the complaint.  
          The remaining claims were tried before Judge Hensley, who
issued a decision in favor of Brooks Range.  The court found that
the claims made by Barios were not credible and that Brooks Range
had presented sufficient evidence to establish that Barios was
often absent from the office during the work day and her duties
were not so demanding as to require overtime work.  The court
concluded that "more likely than not . . . Anita Barios did not
work unpaid overtime."
          Brooks Range subsequently filed a motion for attorney's
fees.  The court ruled that no attorney's fees would be awarded on
the overtime claims due to the fact that Brooks Range had agreed to
a pretrial settlement on some of those claims.  However, the court
did award fees in the amount of $12,539 to Brooks Range on the
common law claims.  The court described many of these claims as
"frivolous"and therefore awarded Brooks Range sixty percent of its
estimated fees incurred in defending the common law claims.  The
superior court denied a motion for reconsideration.      
          Barios raises seven points on appeal that can be
summarized as four challenges to the decision of the superior
court.  First, she challenges the court's factual finding that she
did not work the overtime hours that she claims and contends that
the court misapplied the burden of proof in making this finding. 
Second, she claims that it was improper for the superior court to
dismiss many of her claims on summary judgment.  Third, she argues
that the superior court erred when it excluded her expert from
testifying at trial.  And finally, Barios challenges the court's
award of attorney's fees to Brooks Range.  
III. STANDARD OF REVIEW
          A finding of fact made by the superior court shall not be
set aside unless clearly erroneous. [Fn. 2]  A clearly erroneous
finding is one that leaves this court with a definite and firm
conviction that a mistake has been made. [Fn. 3]  Due regard shall
be given to the opportunity of a trial judge to weigh the
credibility of witnesses. [Fn. 4]
          We review summary judgments de novo. [Fn. 5]  Drawing all
reasonable inferences in favor of the nonmovant, we determine
whether the undisputed facts entitle the movant to judgment as a
matter of law. [Fn. 6]
          We review rulings on the admissibility of evidence,
including the testimony of expert witnesses, for an abuse of
discretion. [Fn. 7]
          A trial court's award of costs and attorney's fees will
not be disturbed by this court on appeal, absent an abuse of
discretion. [Fn. 8]  We will find an abuse of discretion upon a
showing that an award is "arbitrary, capricious, manifestly
unreasonable, or . . . stem[s] from an improper motive."[Fn. 9]
     
IV.  DISCUSSION
          A.   The Superior Court's Findings of Fact with Regard
to Barios's Overtime Claims Are Not Clearly Erroneous. 
          Barios appeals Judge Hensley's finding that she did not
work unpaid overtime.  In her brief, Barios includes extensive
excerpts of the testimony of Barios and her husband during the
trial.  Barios argues that Brooks Range's attempts to refute this
testimony are not persuasive because its witnesses contradicted one
another and because the individual witnesses' testimony was
internally inconsistent and unsupported by written records.  Brooks
Range sets out the trial court's decision at length and asserts,
"[t]he reasonableness of Judge Hensley's decision speaks for
itself."
          The overtime statutes upon which Barios relies specify
that an employer must pay overtime wages for work in excess of
eight hours a day or forty hours a week. [Fn. 10]  The law also
requires an employer to keep records of all hours worked by an
employee entitled to overtime pay. [Fn. 11]
          When an employer fails to keep records, an employee may
prove her claim if she presents sufficient evidence from which the
court may draw a "just and reasonable inference."[Fn. 12]  If the
employee meets this minimum threshold, the burden shifts to the
employer to "come forward with evidence of the precise amount of
work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee's evidence."[Fn. 13] 
          In this case, Brooks Range did not keep a record of
Barios's work hours under its admittedly mistaken belief that she
was a salaried employee who was not covered by statutory overtime
provisions.  As a result, Barios need only present sufficient
evidence to create a "just and reasonable inference"in order to
support her claim and shift the burden of proof to Brooks Range. 
          Barios maintained her own records with regard to some
overtime hours and claims that she worked even more overtime hours
based on her normal work patterns.  These additional claims fall
into the following six categories: (1) time worked during lunch
approximately three to four days per week for three years, (2)
working late at least three days a week and weekends, (3) extra
work in winter, (4) audit and inventory preparation amounting to
sixteen hours of overtime each year, (5) bank reconciliations which
took four hours and were performed at home each month, and (6) bank
deposits which amounted to one-half hour each day on the way home
from work. 
          To support these claims, Barios presented her own
testimony and testimony from her husband.  Based upon this
evidence, the superior court found that Barios had met her slight
burden of proof under the Mt. Clemens standard, and shifted the
burden of proof to Brooks Range. [Fn. 14]      
          Brooks Range presented evidence challenging the validity
of Barios's claims. In addition to the testimony of Barios's
supervisor, Dittrich, Brooks Range presented testimony from the
other two administrative employees who worked with Barios in the
Anchorage office, Loretta Wyler and Christina Taylor.  The
testimony of these witnesses challenged Barios's claims on several
points. 
          First, Wyler and Dittrich both testified that Barios was
consistently late for work.  Wyler testifed that Barios was roughly
thirty minutes late for work more often than not.  And Dittrich
testified that he spoke to Barios about her tardiness on several
occasions and eventually adjusted her work schedule so that she
could arrive later.  Despite this accommodation, Barios continued
to arrive late.  Barios concedes that she often arrived late, but
contends that she always made up that time by working through lunch
or staying late.  
          Second, Dittrich testified that Barios missed work to
attend as many as 150 medical appointments with her husband, who
was seriously injured in an auto accident in 1994.  Barios
dedicated a considerable amount of time to help her husband's
rehabilitation efforts.  She estimates that she only attended fifty
appointments with her husband, and that she made up that time by
working through lunch or staying late.  
          Third, Wyler and Taylor testified that there was not
enough administrative work in the office to necessitate overtime
work.  Often, there was not enough work for them to fill an eight-
hour day.  To corroborate this claim, they testified that after
Barios's departure they were able to complete all of her duties
without hiring additional help.  
          The court also relied upon other evidence.  There was
evidence challenging Barios's claims that she consistently made
bank deposits and that those deposits took thirty minutes.  Other
testimony established that Barios attended weekly non-working
lunches which were paid for by her boss, Dittrich.  And finally,
there was evidence that Barios ordinarily went home early or on
time. 
          Based upon this evidence, the court found that Barios's
claims were not credible, because even if she had worked extra
time, she did so to make up for other time when she was absent from
the office. 
          Barios's arguments do not lead to a firm conviction that
a mistake has been made.  Barios argues that the claims made by
Brooks Range's witnesses are not supported by written notes or
records, but written records are not required to meet the burden. 
The fact that the employer did not keep records means only that the
burden shifting standard of Mt. Clemens applies.  But the employer
may still meet its burden of proof through other forms of evidence. 
Although records kept by Barios may support her testimony, there is
no reason the judge cannot find the testimony of other witnesses to
be more credible in the absence of employer records.  Witness
credibility determinations are left to the trial court. [Fn. 15]  
          Barios also argues that the testimony of Brooks Range's
witnesses is not internally consistent.  Yet she fails to point to
a persuasive instance of such inconsistency.  
          Although the burden applied to employers who fail to keep
specific records under the Mt. Clemens standard is considerable, 
Brooks Range presented substantial evidence from several witnesses
that Barios did not work unpaid overtime.  The superior court did
not err in finding that the burden had been met in this case.
          B.   The Question Whether the Superior Court Erred by
Dismissing Many of Barios's Claims on Summary Judgment Is Largely
Moot.
          The original complaint filed by Barios contained fifteen
different counts.  The superior court granted Brooks Range's motion
to dismiss most of those claims.  Barios argues that it was error
for the superior court to dismiss these causes of action prior to
trial. 
          However, most of the dismissed claims were tied to
Barios's contention that Brooks Range failed to pay overtime wages. 
Specifically, Barios's claims for late payment penalty, breach of
contract, quantum meruit, breach of the covenant of good faith and
fair dealing, punitive damages, and piercing the corporate veil are
all premised on Brooks Range's failure to pay Barios the overtime
wages that she was allegedly owed.  Because we affirm the superior
court's factual finding that Barios did not work unpaid overtime,
consideration of these claims is moot.  
          The superior court's decision to dismiss these claims on
summary judgment would not moot these issues if that decision had
affected Barios's ability to prove her overtime claims at trial. 
But it did not.  Barios had a full and fair opportunity to try her
claims for unpaid overtime before the court.  Because she was not
able to establish that she was entitled to overtime, each of the
claims premised on that entitlement would have necessarily failed.
          Only Barios's claim for wages owed under the minimum wage
law is not moot.  However, Barios fails to provide any coherent
argument to support the claim for minimum wage. [Fn. 16]  In fact,
Barios appears to have abandoned that claim.  The superior court
dismissed the minimum wage claim based on the admission by Barios's
own attorney that "[t]here's not a violation of the payment of . .
. the minimum wage, no, I don't dispute that." Based on this
admission to the superior court, we hold that the superior court
did not err by dismissing Barios's claim under the minimum wage
statutes. 
          C.   It Was Not an Abuse of Discretion for the Superior
Court To Exclude Barios's Expert Witness.
          Barios sought to call Randy Carr, Chief of Labor
Standards for the State of Alaska, Department of Labor, as an
expert witness at trial.  Carr was prepared to testify with regard
to the legal rule on the proper burden of proof in overtime claim
cases, pattern and practice claims, and the willfulness standard
under FLSA.  The superior court excluded Carr's testimony.  
          Barios argues that this exclusion was an abuse of
discretion.  Barios does not present a legal argument as to why the
superior court should not have excluded Carr's testimony, but
simply recounts what Carr would have said and claims that his
testimony was a "public service"that the court should not have
excluded.  Barios notes our statement in Osborne v. Hurst [Fn. 17]
that the test for whether a person qualifies as an expert is
"whether the jury can receive appreciable help from this particular
person on this particular subject."[Fn. 18]  
          Brooks Range responds that Carr's testimony amounted only
to unnecessary legal advice as well as factual and legal
conclusions that were properly excluded by the court. 
          In deciding to exclude the testimony of Carr, the
superior court noted that Carr was going to testify as to what the
ultimate resolution of the case should be.  Specifically, Carr
would have testified as to how he believed the case should be
resolved under the law based upon the facts presented to him by
Barios or under alternative hypothetical situations.  Although Carr
was an expert with regard to wage and hour law, the court found
that such testimony was not appropriate "in a case where the court
itself is required to interpret the law and form an opinion
regarding the witnesses's credibility." The superior court noted
that Carr's testimony would have been relevant
          [i]f there is a dispute regarding
interpretation of Alaska Labor Law, and if there is some
longstanding administrative interpretation which might help the
court or serve as precedent for interpreting law, and that would be
something I would rely on in interpreting the law, then that would
be different.  But no showing has been made that that's what this
witness is going to do.
Noting that Carr could only offer the court an opinion on how it
should rule, the superior court correctly found that is not "an
appropriate role for this witness to serve, regardless of the level
of his expertise."
          Barios failed to show that Carr's testimony would have
been of "appreciable help"in deciding this case.  Carr had no
firsthand knowledge of the factual circumstances at issue in this
case.  In addition, he did not offer legal expertise that would be
relevant to the court in determination of the case.  The court
inquired at length as to whether Carr's administrative expertise
provided some insight into longstanding interpretations of Alaska
law that would be of assistance to the court, but Barios's
attorneys failed to point to any such interpretations.  As a
result, Carr would have only given his opinion as to how he would
have decided the case under the applicable legal principles.  Since
Barios failed to identify any points of law or fact on which Carr
would have assisted the court, it was not error for the court to
exclude his testimony.
          D.   Barios Has Abandoned the Argument that the Award of
Costs and Attorney's Fees to Brooks Range Was Improper.
          Barios asserts a challenge to the award of attorney's
fees in her brief.  However, her argument does not coherently
discuss that point.  Although Barios makes sporadic comments
throughout the brief about the improper nature of the attorney's
fee award, we have long held that an issue given only cursory
treatment in the argument section of a brief will not be considered
on appeal. [Fn. 19]  Therefore, we hold that Barios has waived the
argument against the award of attorney's fees. 
V.   CONCLUSION
          The superior court properly found that Barios had not
worked unpaid overtime.  That finding moots the question whether
related claims were properly dismissed on summary judgment.  In
addition, the court did not err when it excluded Barios's expert. 
Finally, Barios abandoned her argument that the court improperly
awarded attorney's fees to Brooks Range.  Therefore, we AFFIRM the
decision of the superior court in all respects. 



                            FOOTNOTES


Footnote 1:

     The initial complaint also listed defendants David Moncrieff
(president of Brooks Range) and National Bank of Alaska,  but
Barios voluntarily dismissed her claims against both Moncrieff and
the bank.  For simplicity, we will refer to the remaining
defendants collectively as "Brooks Range."


Footnote 2:

     See American Computer Inst., Inc. v. State, 995 P.2d 647, 651
(Alaska 2000). 


Footnote 3:

     See id.


Footnote 4:

     See id.


Footnote 5:

     See Gerber v. Juneau Bartlett Memorial Hosp., 2 P.3d 74, 75-76
(Alaska 2000).


Footnote 6:

     See id.


Footnote 7:

     See Nelson v. Progressive Corp., 976 P.2d 859, 865 n.9 (Alaska
1999).


Footnote 8:

     See Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20,
44 (Alaska 1998).


Footnote 9:

     Id. (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska
1979)).


Footnote 10:

     See AS 23.10.060(b); 29 U.S.C. sec. 207(a) (1998).


Footnote 11:

     See AS 23.10.100(a).


Footnote 12:

     Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946),
superseded by statute on other grounds as stated in Carter v.
Panama Canal Co., 463 F.2d 1289, 1293 (D.C. Cir. 1972); see also
Alaska Int'l. Indus., Inc. v. Musarra, 602 P.2d 1240, 1248 n.27
(Alaska 1979) (adopting a similar rule for AWHA claims).  


Footnote 13:

     Anderson, 328 U.S. 680, 687-88.


Footnote 14:

     Although Barios alleges that the trial court misapplied the
Mt. Clemens standard, she does not make clear how it was
misapplied.  There is no question that the court considered and
applied Mt. Clemens to this case.  Barios gives us no reason to
think that it was applied improperly.


Footnote 15:

     See American Computer Inst. v. State, 995 P.2d 647, 651
(Alaska 2000).


Footnote 16:

     During the period in question, the minimum wage averaged
around four dollars per hour while Barios earned between twelve and
nineteen dollars per hour. 


Footnote 17:

     947 P.2d 1356 (Alaska 1997).


Footnote 18:

     Id. at 1362 (quoting Crawford v. Rogers, 406 P.2d 189, 192
(Alaska 1965)).


Footnote 19:

     See, e.g., Adamson v. University of Alaska, 819 P.2d 886, 889
n.3 (Alaska 1991); see also Stosh's I/M v. Fairbanks North Star
Borough, 12 P.3d 1180, 1183 (Alaska 2000); Petersen v. Mutual Life
Ins. Co., 803 P.2d 406, 411 n.8 (Alaska 1990); State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Fairview
Development, Inc. v. City of Fairbanks, 475 P.2d 35, 36 (Alaska
1970).