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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gamble v Northshore Partnership (08/10/2001) sp-5445

Gamble v Northshore Partnership (08/10/2001) sp-5445

     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
                                 


BAXTER K. GAMBLE and          )
YANG-CHA GAMBLE,              )    Supreme Court No. S-9004
                              )
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3AN-93-433 CI
                              )
NORTHSTORE PARTNERSHIP,       )    O P I N I O N
                              )
             Appellee.        )    [No. 5445 - August 10, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances:  Albert Maffei, Law Offices of
          Maffei, Inc., Anchorage, for Appellants. 
Robert H. Hume, Jr., Copeland, Landye, Bennett and Wolf, LLP,
Anchorage, for Appellee.


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


          MATTHEWS, Chief Justice.      


          The trial court denied Baxter and Yang-Cha Gambles'
request to reform a recorded easement agreement in order to reduce
in size an easement crossing their land.  The court awarded full
attorney's fees, $102,067.30, to Northstore Partnership, which
included approximately $25,500 for work in a prior appeal to this
court.  We summarily affirm the denial of reformation, [Fn. 1]
affirm the award of full reasonable attorney's fees for work in the
superior court, but conclude that the award of fees on appeal was
excessive and should be reduced to $18,000.00.
I.   The Easement Agreement's Fee Provision Applies.
          Civil Rule 82 provides for the award of partial
attorney's fees to the prevailing party in litigation as a matter
of course.  But Civil Rule 82 may be overridden by agreements (or
statutory provisions) concerning attorney's fees. [Fn. 2]  The
provision in the easement agreement concerning attorney's fees
reads as follows:
               Should suit or legal action be instituted
to enforce any of the foregoing terms, covenants, conditions,
encumbrances, or easements, the losing party, in addition to any
judgement, order, or decree, agrees to pay the prevailing party its
reasonable attorney fees and court costs as may be awarded by a
court adjudging or decreeing such suit or action.

Contract provisions such as that in the easement agreement that
call for "reasonable attorney's fees"are interpreted as calling
for full reasonable attorney's fees. [Fn. 3]  By contrast, the
objective of Civil Rule 82 is to award partial attorney's fees.
[Fn. 4]
          The Gambles argue that the attorney's fees provision in
the easement agreement does not apply to the present case because
theirs was an action for reformation, not an action to enforce the
terms of the easement agreement.  Northstore counters that the suit
was a contest over the enforceability of the recorded easement.
Northstore notes that the case was concluded with a declaration
that "the recorded easement remains in full force and effect
according to its terms."
          We believe that Northstore has the better of the
arguments.  Its defense against the Gambles' suit for reformation
was similar to a counterclaim seeking a declaration that the
easement agreement was valid.  Northstore, in fact, filed such a
counterclaim, but dismissed it by agreement prior to trial.  But
this did not change the issues actually tried.  The trial focused
on the question of whether the recorded easement was enforceable
according to its terms. 
          Arguably there is a difference between a suit to enforce
an easement agreement and a suit to reform such an agreement.  An
enforcement suit presupposes an alleged violation of the agreement. 
The court must then determine whether such a violation has
occurred.  By contrast, a reformation suit does not necessarily
involve a violation.  Instead, the party seeking reformation
contends that the written agreement does not accurately reflect the
parties' actual agreement and seeks a decree conforming the written
agreement to the actual agreement.  A Florida court found this
distinction determinative in concluding that a contract's fee
provision did not apply to an action for reformation because it was
not an action to enforce the contract. [Fn. 5] 
          But there is another, broader, meaning of the contractual
language here involved.  A "suit . . . to enforce any of the . . .
terms"of an agreement can refer to a suit to confirm the validity
of the terms of an agreement in the face of a challenge. [Fn. 6] 
We believe that in this sense Northstore's defense can be regarded
as enforcement of the terms of the agreement.  This interpretation
has been accepted in other jurisdictions as well. [Fn. 7]
          The Gambles' action for reformation was the opposite of
an enforcement action.  They asked that the agreement as recorded
not be enforced, prompting Northstore's defense that the agreement
was valid and enforceable as written.  Although Northstore's
defense was not itself a suit or legal action, it could have been
framed as a counterclaim.  This fact, and the fact that for a time
the defense was expressed in a counterclaim, illustrates that the
difference between a suit and a defense to a suit can be of little
consequence.  Here, we believe that Northstore's defense, which
resulted in a declaration affirming the validity of the recorded
easement, fairly comes within the agreement's provision concerning
attorney's fees.
II.  The Gambles Have Not Demonstrated That the Attorney's Fees
Awarded for Services in the Superior Court Were Unreasonable.

          The Gambles argue that the $102,067.30 in attorney's fees
awarded was unreasonable.  Their sole argument on this point is
that the fees charged by Northstore's attorneys were double the
amount of fees billed to the Gambles by the Gambles' attorneys.
While a discrepancy of this nature can be some evidence that fees
are unreasonable, it is not conclusive on that point as there are
a number of other possible explanations for such a discrepancy. 
The burdens assumed by opposite sides of litigation are not
necessarily equal, and it is a judgment call as to whether such a
discrepancy reflects over-preparation and over-billing  by one set
of attorneys, or under-preparation and under-billing by the other
set of attorneys.  Here there was much discovery practice, two sets
of motions for summary judgment, and a five-day trial.  The trial
court reviewed the itemized statements of Northstore's attorneys
and was personally aware of the quality and quantity of the work
that they did at the trial level.  On this record we are unable to
say that the trial court abused its discretion in determining that
Northstore's attorney's fees for work in the superior court were
reasonable. 
III. The Trial Court Did Not Err in Awarding Attorney's Fees for
Work Done by Northstore's Attorneys on Appeal.

          The trial court's award of attorney's fees included
approximately $25,500 of fees incurred by Northstore in the prior
appeal of this case. [Fn. 8]  In that appeal we reversed
Northstore's summary judgment and remanded for further proceedings
in the superior court. [Fn. 9]  We also awarded the Gambles $1,000
in attorney's fees pursuant to Appellate Rule 508(e).  Following
the subsequent trial, the court awarded full attorney's fees to
Northstore, including attorney's fees from the previous appeal to
this court.  The Gambles challenge this aspect of the attorney's
fee award on two grounds in addition to their argument that the
fees were excessive.
          First, the Gambles contend that the provision of the
easement agreement concerning attorney's fees does not cover work
on appeal.  We find no merit to this contention.  The language of
the provision does not imply a limitation to fees incurred at the
trial level.  The general rule in other jurisdictions is that
contractual provisions providing for the allowance of attorney's
fees to the winning party are construed to include fees incurred
both at the trial level and on appeal. [Fn. 10]  We agree with this
rule.  It is consistent with our holding in Rosson v. Boyd. [Fn.
11]  In Rosson,  we determined that in an action under a fee-
shifting statute, AS 34.35.005(b), [Fn. 12] the eventual prevailing
party was entitled to full reasonable attorney's fees on appeal as
well as at trial.  The statute did not specifically provide for
appellate attorney's fees but we concluded that it would be
"incongruous"to construe the statute to apply only in the superior
court. [Fn. 13]  A similar incongruity would result if fees under
the contract provision at issue here were only allowed for work in
the superior court.  The provision has the evident purpose of
shifting reasonable fees to the winner in litigation concerning the
contract.  This purpose would only be partly achieved by limiting
application of the provision to fees incurred in the superior
court.  We therefore conclude that the contract calls for fee
shifting at all court levels. 
          The rule that fee-shifting provisions apply to fees
incurred on appeal as well as at the trial court level has been
held to apply regardless of whether the party who ultimately
prevailed won or lost in an intermediate appeal. [Fn. 14] 
          A party who wins an outright victory should
recover all his fees without offset for the fees incurred by the
other party.  

               The trial courts, of course, should be
allowed the discretion to exclude from a fee award the fees
incurred by a prevailing party in making frivolous procedural
maneuvers; the primary concern in setting rules for attorney fee
awards must be the encouragement of efficient litigation.  Where,
however, the superior court considers a motion for summary judgment
meritorious and the defendant goes on to prevail in the case, the
fact the summary judgment is reversed does not show the motion was
frivolous.  To the contrary, were we to hold a defendant who wins
a case and is entitled to fees must pay the fees plaintiff incurred
in defeating a motion for summary judgment, we would discourage the
use of summary judgment, often an efficient means for disposing of
litigation, in actions where the defendant has a strong case.[ [Fn.
15]]

We also agree with this aspect of the rule.  It is to be expected
that the prevailing party may not win at every intermediate step in
litigation.  Contract provisions such as that in the present case
shift fees based on the final result of litigation.  They do not
call for the apportionment of fees based on how or at what level of
court various intra-litigation disputes are resolved.  
          If such apportionment were allowed, a party
who wins an unmitigated victory in a case where fees are provided
for by contract would have his right to fees offset by the fact his
opponent won discovery, evidentiary or other rulings during
trial. . . .  [T]here is no real distinction between that scenario
and a case such as the one at bench where the settlement of an
interim issue, such as summary judgment, requires a side trip to
the court of appeal.[ [Fn. 16]]

          The Gambles' second point is that the trial court's award
of fees to Northstore for work done by Northstore's attorneys on
appeal is impermissible because it conflicts with the award made by
this court to the Gambles for attorney's fees on appeal.  The
Gambles also argue that only the supreme court, not the trial
court, may award attorney's fees for work done in the supreme
court.
          In response, Northstore recognizes an important Alaska
case on this issue, Continental Insurance Co. v. United States
Fidelity and Guaranty Co. [Fn. 17]  In Continental, the trial court
awarded Fidelity attorney's fees for work on appeal, even though at
the conclusion of the appeal this court had directed that neither
party to the appeal should be awarded attorney's fees. [Fn. 18]  We
concluded that the award made by the trial court was erroneous
because it conflicted with the counterpart to what is now Appellate
Rule 508(e) and with our order concerning attorney's fees made at
the conclusion of the appeal. [Fn. 19]  Northstore contends that
the holding in Continental is inapplicable to the situation now
presented, primarily because Continental did not involve a
contractual fee-shifting provision: "while in general it is
appropriate for appellate costs to be awarded under Appellate Rule
508, a prevailing party seeking reimbursement under an attorney fee
agreement should be able to include the costs of interlocutory
appeals in the judgment obtained from the trial court." Northstore
points out that when this court decided the appeal in this case it
was unknown who would ultimately prevail and be entitled to
contractual attorney's fees.  This problem was not presented in
Continental because that case involved statutory, rather than
contractual, attorney's fees. [Fn. 20]  Additionally, at the
conclusion of the appeal in Continental, the question of liability
was fixed. [Fn. 21]
          Another case relevant to the question before us is Rosson
v. Boyd. [Fn. 22]  That case involved a mechanic's lien fore-

closure. [Fn. 23]  Alaska Statute 34.35.005(b) provides that the
plaintiff who prevails in enforcing a mechanic's lien is entitled
to reasonable attorney's fees.  The contractor prevailed at trial
and was awarded attorney's fees of $20,328. [Fn. 24]  The owner
appealed on the merits and contended that the award of attorney's
fees was an abuse of discretion. [Fn. 25]  The contractor cross-
appealed on the merits and concerning attorney's fees. [Fn. 26] 
The contractor argued that the court should have awarded full
actual attorney's fees, $27,847.50, under the statute. [Fn. 27]  
We rejected the owner's appeal in its entirety and the contractor's
appeal on the merits. [Fn. 28] But with respect to attorney's fees,
we determined that it was unclear whether the trial court had
followed the statute.  We therefore remanded for a determination of
full reasonable fees under the statute. [Fn. 29]  
          Initially, under the appellate rules we awarded $750 in
attorney's fees to the contractor. [Fn. 30]   On rehearing we
reconsidered the $750 award. [Fn. 31]  Holding that the statute
applied to attorney's fees on appeal, we turned to the question of
which court should determine the amount of fees for work on appeal.
[Fn. 32]  The owner argued that the supreme court should make the
determination, whereas the contractor argued that the superior
court should do so. [Fn. 33]  We held that under the facts
presented, the supreme court should make the award. [Fn. 34]  But
we limited the effect of our ruling to cases where the ultimate
winner was determined on appeal: 
          Our decision is limited to instances in which
the appellate disposition is completely dispositive of the case and
no further trial court proceedings are contemplated.  In such
circumstances we think it is more efficient for the supreme court
to assess the attorney's fee request.[ [Fn. 35]]

          The limiting language quoted above suggests that the
Rosson rule should not apply to appeals that are not dispositive on
the merits.  California and Arizona courts have also found this
distinction critical in determining whether to award attorney's
fees on appeal. [Fn. 36]  This also would mean that the rule in
Continental, that only the supreme court should determine
attorney's fees for work performed in the supreme court, [Fn. 37]
should not apply to cases not disposed of on the merits on appeal
where attorney's fees are to be fixed not by the court rules but,
as in Rosson, by a special statute [Fn. 38] or, as here, by a fee-
shifting contract.
          We agree with these implications of Rosson.  Where
appeals are not dispositive on the merits but merely stepping
stones to an as-yet-unknown final result, and where there is a
statutory or contractual provision calling for an award of full
attorney's fees to the party who ultimately prevails, full fees for
work on appeal can best be assessed in the trial court at the
conclusion of the case.  As we noted in Rosson, where the case on
the merits is fully disposed of on appeal, "it is more efficient
for the supreme court to assess"attorney's fees; [Fn. 39] it is
likewise more efficient for the superior court to assess attorney's
fees when the case is not finally decided on appeal.  If the rule
were otherwise, new proceedings would have to be initiated in the
supreme court merely to complete the case.  For these reasons we
conclude that the superior court had authority to award attorney's
fees to Northstore for work done by its attorneys in this court in
the prior appeal brought by the Gambles. 
IV.  The Attorney's Fees Awarded for the Prior Appeal Were
Excessive.

          In reviewing the award of fees for the prior appeal we
believe that an independent standard which gives deference to the
determination of the superior court is appropriate.  This hybrid
standard is similar to that used in reviewing bar association
discipline cases. [Fn. 40]  It takes into account our primary
authority to award attorney's fees on appeal and our advantaged
perspective on that subject, and balances these factors against the
reasons of efficiency and finality that justify resting the power
to make such awards in the superior court in the first instance.  
          Employing this standard we have reviewed the work
performed for Northstore in the earlier appeal.  Considering the
various components determining a reasonable fee expressed in Rule
1.5 of the Rules of Professional Conduct, most importantly the lack
of novelty of the issues, the nature of the controversy, the result
obtained, and the time and labor that should have been required, 
we believe that a full reasonable fee should not have exceeded
$18,000.  On remand the superior court should modify the award in
accordance with this conclusion. 
          For the above reasons, the judgment on the merits is
AFFIRMED; the award of fees for services in the superior court is
AFFIRMED; and the award of fees for services before this court is
VACATED and REMANDED with instructions to enter an award of
$18,000.  



                            FOOTNOTES


Footnote 1:

     The trial court determined that the grantor, the Small
Business Administration, agreed to the recorded easement.  The
court determined that the original intent of the parties was to
grant an easement on the existing curb cuts and that the recorded
easement was faithful to this intent.  This holding by the trial
court is supported by evidence and is not clearly erroneous.  We
therefore affirm the denial of reformation of the recorded
easement.  Because this issue is dispositive, we do not consider
the other issues raised with respect to reformation.


Footnote 2:

     See Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989); Ursin
Seafoods, Inc. v. Keener Packing Co., 741 P.2d 1175, 1181 (Alaska
1987); Alaska R. Civ. P. 93.


Footnote 3:

     See Jackson, 776 P.2d at 788; Ursin, 741 P.2d at 1181.


Footnote 4:

     See Malvo v. J.C. Penney Co., 512 P.2d 575, 588 (Alaska 1973).


Footnote 5:

     See Natarajan v. Horn, 402 So. 2d 596, 596-97 (Fla. Dist. App.
1981) (interpreting contract clause providing that "Any party
failing to comply with the terms of this contract will pay all
expenses, including a reasonable attorney's fee, incurred by the
other party to this contract as a result of such failure.").


Footnote 6:

     See Webster's Third New Int'l Dictionary 751 (1969)  ("enforce 
1 : to give force to : REINFORCE ").


Footnote 7:

     See, e.g., Wong v. Davidian,  253 Cal. Rptr. 675, 679-80 (Cal.
App. 1988) (awarding attorney's fees for reformation suit because
it is suit to enforce the contract); Webb v. Culver, 509 P.2d 1173,
1175-76 (Or. 1973) (suit for reformation is suit to enforce the
contract for attorney's fee purposes); Tomlinson v. Clarke, 803
P.2d 828, 832 (Wash. App. 1991) (treating action for reformation as
one to enforce a contract) aff'd 825 P.2d 706 (Wash. 1992).


Footnote 8:

     The prior appeal encompassed a cross-appeal by Northstore.  We
consider the cross-appeal as part of the prior appeal since the two
cases were consolidated and considered together.


Footnote 9:

     See Gamble v. Northstore Partnership, 907 P.2d 477 (Alaska
1995).


Footnote 10:

     See Amos Flight Operations, Inc. v. Thunderbird Bank, 540 P.2d
1244, 1249 (Ariz. 1975); Buescher v. Lastar, 132 Cal. Rptr. 124,
126 (Cal. App. 1976); Ingle v. Perkins, 510 P.2d 480, 482 (Idaho
1973); Hollinger v. McMichael, 594 P.2d 1120, 1120-21 (Mont. 1979);
Edwards v. Mesch, 763 P.2d 1169, 1172 (N.M. 1988); Management
Servs. Corp. v. Development Assocs., 617 P.2d 406, 408-09 (Utah
1980); Puget Sound Mut. Sav. Bank v. Lillions, 314 P.2d 935, 940
(Wash. 1957); Cline v. Rocky Mountain, Inc., 998 P.2d 946, 953
(Wyo. 2000); see also 25 C.J.S. Damages sec. 50(c) (1966) ("As a
general rule, contract provisions for allowance of attorney fees
are construed to include both trial and appellate fees.").


Footnote 11:

     727 P.2d 765 (Alaska 1986).


Footnote 12:

     AS 34.35.005(b) provides that "[i]n an action to enforce a
lien, the court shall allow as part of the costs . . . a reasonable
attorney fee for the foreclosure of the lien."


Footnote 13:

     727 P.2d at 767.


Footnote 14:

     See, e.g., Leo Eisenberg & Co. v. Payson, 785 P.2d 49, 55
(Ariz. 1989) (en banc); Allstar Builders Corp. v. Zimmerman, 706
So. 2d 92, 92-93 (Fla. Dist. App. 1998).


Footnote 15:

     Presley of S. Cal. v. Whelan, 196 Cal. Rptr. 1, 3 (Cal. App.
1983).


Footnote 16:

     Id.


Footnote 17:

     552 P.2d 1122 (Alaska 1976).


Footnote 18:

     See id. at 1124.


Footnote 19:

     See id. at 1127.


Footnote 20:

     See id. at 1124.


Footnote 21:

     See id.


Footnote 22:

     727 P.2d 765 (Alaska 1986).


Footnote 23:

     See id. at 766.


Footnote 24:

     See Boyd v. Rosson, 713 P.2d 800, 801 (Alaska 1986), reh'g
granted, 727 P.2d 765. 


Footnote 25:

     See Boyd, 713 P.2d at 802.


Footnote 26:

     See id.


Footnote 27:

     See id. 


Footnote 28:

     See id. 


Footnote 29:

     See id.


Footnote 30:

     See Rosson v. Boyd, 727 P.2d 765, 766 (Alaska 1986).


Footnote 31:

     See id.


Footnote 32:

     See id. at 767.


Footnote 33:

     See id.


Footnote 34:

     See id.


Footnote 35:

     Id.


Footnote 36:

     See Leo Eisenberg & Co. v. Payson, 785 P.2d 49, 55 (Ariz.
1989) (en banc) ("At this procedural juncture, however, we cannot
determine who will be the 'successful party' on appeal after
remand. . . .  [T]he ultimate successful party in this case should
recover reasonable attorneys' fees for all stages of the
litigation, including review before this court."); Presley of S.
Cal. v. Whelan, 196 Cal. Rptr. 1, 2 (Cal. App. 1983) ("The winner
in the action . . . is yet to be determined. . . . [A] party who
prevails on appeal is not entitled . . . to the fees he incurs on
appeal where the appellate decision does not decide who wins the
lawsuit but instead contemplates further proceedings in the trial
court.  An attorney fee award . . . must wait until the lawsuit is
completely and finally decided.") (citations omitted); see also
Allstar Builders Corp. v. Zimmerman, 706 So. 2d 92, 93 (Fla. App.
1998) ("At this juncture, Zimmerman is not the ultimate prevailing
party in the litigation and any award of fees is premature.  This
result would, of course, be different if the [issue] were
ultimately adjudicated in Zimmerman's favor and a judgment entered
thereon.  A fee award at that time would be appropriate.").


Footnote 37:

     Continental, 552 P.2d at 1127. 


Footnote 38:

     Rosson, 727 P.2d at 767. 


Footnote 39:

     Id.


Footnote 40:

     See Disciplinary Matter Involving Frost, 863 P.2d 843, 844
(Alaska 1993). 

           In the Supreme Court of the State of Alaska



Baxter K. and Yang-Cha Gamble, )
                               )          Supreme Court No. S-09004
                 Appellant(s), )
                   v.          )                   Order
                               )          Petition for Rehearing
Northstore Partnership,        )                     
                               )                     
              Appellee(s).     )       Date of Order: August 10, 2001 
                               )
Trial Court Case # 3AN-93-00433CI

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


     On consideration of the Petition for Rehearing, titled Motion
for Reconsideration (Prior Appeals Fees), filed on May 21, 2001, 
and the Response, filed on July 6, 2001,

     It is Ordered:

     1.   The Petition for Rehearing is Granted.

     2.   Opinion No. 5407, issued on May 11, 2001, is Withdrawn.

     3.   Opinion No. 5445, is issued on this date in its place.

     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                                                  
                                   Marilyn May
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     Trial Court Appeals Clerk
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