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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Matanuska-Susitna Borough (9/6/2002) sp-5624

Miller v. Matanuska-Susitna Borough (9/6/2002) sp-5624

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


WILLIAM H. MILLER and         )
BARBARA J. MILLER,            )    Supreme Court No. S-9735
                              )
             Appellants,      )    Superior Court Nos.
                              )    3PA-98-599 & 3PA-99-347 CI
     v.                       )
                              )    O P I N I O N
MATANUSKA-SUSITNA        )
BOROUGH,                 )    [No. 5624 - September 6, 2002]
                              )
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:   Kenneth D. Albertsen,  Palmer,
          for   Appellants.   Max  D.  Garner,   Birch,
          Horton,  Bittner and Cherot,  Anchorage,  for
          Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          I.    The  Matanuska-Susitna  Borough  imposed  a  road

improvement special assessment against each of nine lots  William

and  Barbara  Miller  own  in a newly  formed  local  improvement

district.  The superior court rejected the Millers administrative

appeal  challenging  the  assessment.   We  affirm,  because   we

conclude that (1) the borough ordinance allocating paving special

assessments  to  residential lots on a  per-lot  basis  does  not

conflict  with  state law, and (2) a borough  ordinance  limiting

special  assessments  to twenty-five percent  of  the  lots  tax-

appraised   value  does  not  apply  to  this  local  improvement

district.   We  also reject the Millers argument that  they  were

public  interest litigants who could not be held liable for  part

of the boroughs appellate attorneys fees.

II.  FACTS AND PROCEEDINGS

          The Matanuska-Susitna Borough Assembly created Suburban

Country Estates Road Paving Local Improvement District No. 245 by

enacting Ordinance 97-139 in 1997.1  That ordinance provided that

the  cost  of  the improvement shall be assessed equally  against

each  property within the road paving local improvement district.

The  Millers  own  nine lots in this local improvement  district.

The  Millers  lots  had been zoned and platted for  single-family

residential development, but are undeveloped.  Each of their lots

had  a  1997 tax-assessed value of $2,000 and a 1999 tax-assessed

value  of $4,000.  When the final cost of the road paving project

was calculated, the borough assessed $1,735.35 to property owners

for   each  parcel  of  property  they  owned  within  the  local

improvement  district; it assessed that amount for  each  of  the

Millers nine lots.

          At the public hearing on Ordinance 97-139 before it was

enacted,  the  Millers objected to the boroughs proposed  per-lot

method of assessment.  They argued that each lot owner should pay

a   percentage  of  the  paving  costs  commensurate   with   the

proportional value of each lot to the total value of all lots  in

the  local  development district. After the assembly enacted  the

ordinance notwithstanding their objections, the Millers  filed  a

superior  court complaint seeking a declaratory judgment.   Their

complaint,  filed  in 1998, alleged that the  borough  had  acted

contrary to law when it assessed the costs on a per-lot basis and

had  acted arbitrarily and unreasonably when it assessed each lot

equally even after it had acknowledged that the paving would  not

equally benefit each lot in the local improvement district.

          In  1999  the  Millers filed in the superior  court  an

          administrative appeal from the boroughs assessment, asserting

that  the  borough  had  erred  in assessing  the  costs  of  the

improvement  equally  among lot owners and that  this  method  of

assessment  was contrary to law.  The superior court consolidated

the Millers declaratory judgment action with their administrative

appeal.

          At oral argument on cross-motions for summary judgment,

the  parties  represented to the superior  court  that  they  had

agreed to proceed with the action under the Alaska Rules of Civil

Procedure.    But  the  court,  concerned  that   the   agreement

effectively  jettison[ed]  the  limited  appeal  from   a   final

assessment afforded by state law, decided to treat the case as an

appeal  of  an  administrative  decision.   The  superior   court

confined  its review to the evidence in the record created  below

plus  Robert  Ameens affidavit submitted by the Millers  to  show

that  the  assessed  properties  were  unequally  benefited.  The

superior  court  affirmed  the boroughs  assessment  against  the

Millers and awarded the borough attorneys fees and costs totaling

$2,716.03.

          The  Millers  appeal the denial of their administrative

appeal2 and the award of attorneys fees against them.

III. DISCUSSION

     A.   Standard of Review

          Because  the  superior court acted as  an  intermediate

court  of appeal, we independently review the boroughs decision.3

We employ the rational basis standard when reviewing questions of

law  that involve the boroughs expertise, and when reviewing  the

boroughs  application  of  law  to facts  when  that  application

implicates   administrative  expertise  or  involves  fundamental

policy  determinations.4  Under the rational basis  standard,  we

defer to the boroughs determination as long as it is supported by

the facts and has a reasonable basis in law.5

          The boroughs assessment determinations are presumed  to

be  correct,  and are reversed only upon a showing  of  fraud  or

          conduct so arbitrary as to be the equivalent of fraud, or so

manifestly  arbitrary and unreasonable as to be  palpably  unjust

and oppressive.6

          When   the  superior  court  acts  as  an  intermediate

appellate  court,  it  has broad discretion to  award  reasonable

attorneys fees under Appellate Rule 508(e).7  The superior courts

decision   should  not  be  disturbed  unless  it  is  manifestly

unreasonable.8

     B.   Was  the  Boroughs Allocation Method Contrary to  State

          Law?

          The  Millers argue that the boroughs per-lot assessment

method  violates state law because AS 29.46.060(a) mandates  that

improvement  costs be assessed against property in proportion  to

the benefit received.9  In reply to the boroughs argument that it

adopted,   in   accordance  with  state  law,  a  different   but

permissible  method of allocating costs for road improvements  in

local  improvement  districts like the one  at  issue  here,  the

Millers  contend that there is no rational basis for the boroughs

per-lot  assessment method given disparities in the size  of  the

lots in their local improvement district.

          Matanuska-Susitna  Borough (MSB) Code   03.28.140(A)(2)

controls  road paving special assessments like the Millers.    It

allocates road improvement costs on a per lot basis  thus equally

per   lot    to  residential  lots  in  road  special  assessment

districts:

          ALLOCATION   OF   COSTS   IN   ROAD   SPECIAL
          ASSESSMENT DISTRICTS.
          
                (A)  Assessments for costs of road  and
          drainage construction and improvements  shall
          be  allocated  among the parcels  within  the
          road special assessment district as follows:
               . . . .


          (2)  Areas zoned residential or restricted to
          residential  use. For areas zoned residential
          or  within  subdivisions where a majority  of
          the   lots   within   the   subdivision   are
          restricted to residential uses under recorded
          conditions,  covenants and restrictions,  the
          allocation  of costs shall be assessed  on  a
          per  lot  basis so that each lot is  assessed
          the same amount.
          
          Subsection  .140(A)(2)  is  one  of  the  borough  code

provisions  describing  the  boroughs  procedures  for  assessing

improvement costs and creating local improvement districts within

the  borough.10   Subsection .140(A)(2) governs road  improvement

special   assessments  and  therefore  encompasses  road   paving

assessments.   Accordingly,  we must  decide  whether  subsection

.140(A)(2) contravenes state law governing special assessments.

          Alaska  Statutes  29.46.01011 and  .02012  respectively

permit  municipalities  to assess private property  benefited  by

improvements  and to adopt procedures for creating local  special

assessment  districts.    Alaska  Statute  29.46.020(c)  requires

municipalities  such as the borough to comply  with  the  special

assessment  procedures set out in AS 29.46.030-29.46.100  if  the

municipality   does  not  prescribe  a  procedure   for   special

assessments as permitted by section .020.13  The borough chose to

prescribe    such    procedures.    By    enacting    MSB    Code

03.28.140(A)(2),14  the  borough  exercised  the   authority   AS

29.46.020(a) granted to it.  It consequently substituted its per-

lot  method  of  assessing a specific class of improvement  costs

for  road  improvements  benefiting  residential  lots   for  the

proportional benefit assessment method the legislature  generally

adopted in AS 29.46.060(a).15  It therefore prescribed a procedure

for special assessments as permitted by this section,16 exempting

itself from having to comply with AS 29.46.060(a) with respect to

road improvement special assessment districts.

          Although  there  are  other  possible  ways  to  assess

landowners in a local improvement district,17 the per-lot  method

the  borough  chose for road improvements benefiting  residential

lots   is   presumptively   valid.18    Accordingly,   MSB   Code

03.28.140(A)(2) does not violate AS 29.46.020 or .060.

     C.   Did  the  Millers  Show  that  the  Per-Lot  Method  Is
          Irrational?
          
          The  Millers  argue that the factual  record  does  not
          support the boroughs implicit conclusion that each lot benefited
equally;  they consequently argue that this court should overturn
the  assessments.  To prevail, the Millers had  to  overcome  the
presumption   of  correctness  that  attaches  to  the   boroughs
conclusion that the paving project has conferred an equal benefit
on  their  land.19  To do so, the Millers had to  show  that  the
benefit  to  their  property was grossly  disproportionately  low
compared  with  the  benefit conferred upon  the  other  assessed
properties.20
          In Kissane v. City of Anchorage, a territorial district
court  held  before  statehood that benefit to  property  is  not
limited  to  the  immediate increase in  property  value  to  the
landowner.21  The district court held that costs could be assessed
to  a landowner for increased public parking even though his land
was  zoned  for business but used only for residential  purposes.
In  City of Wasilla v. Wilsonoff, we held that property benefited
from  installation of a water main because it provided a  near-by
fire  hydrant, even though the landowner testified that it  would
be  difficult to hoist a fire hose up an embankment to reach  her
house and that fire insurance rates would not decrease for twenty
years.22   Similarly,  in Weber v. Kenai  Peninsula  Borough,  we
concluded that property benefited from installation of a gas line
even though the landowner had no intention of connecting to it.23
          Here, the superior court concluded that the record from
the  October  27,  1996 public hearing on the  local  improvement
district  contained ample testimony by residents identifying  the
benefits   from  the  paving  project.   For  example,  residents
testified that reduced vehicle wear and tear and health  benefits
from  reduced  dust would outweigh the cost of the  project.   In
addition, tax-assessment records indicate that the value of  each
of  the  Millers lots increased by $2,000 during  the  two  years
following   the  approval  of  the  local  improvement  district.
Furthermore, the superior court correctly observed that [i]f  the
[Millers] ever developed their lots, they or their successors  in
interest would enjoy the benefit of cleaner air, smoother travel,
and  increased  value on par with all of the other landowners  in
          the [local improvement district].
          The  Millers  supplemented the agency record  with  the
affidavit of real estate appraiser Robert Ameen.  He stated:
          4.    Unless the various properties within  a
          paving  local improvement district  are  each
          valued  identically,  they  usually  do   not
          benefit equally from the road being paved.
          5.    A  higher-valued  property  receives  a
          greater benefit from the paving than  does  a
          lesser-valued  property.   The   larger   the
          difference between the values of the  various
          properties   within   the   local   improving
          district,  the greater the disparity  between
          the   benefit  received  by  each   property.
          Accordingly, if the cost of paving is  to  be
          allocated  among the properties in accordance
          with the benefit received, the cost should be
          allocated  proportionately  based  upon   the
          value of each individual property.
          6.    It is my understanding that the Borough
          in this case allocated the costs of paving on
          a  pro-rata  basis,  assessing  each  lot  an
          identical   portion   of   the   total   cost
          irrespective  of the value of the  individual
          property.     Such    an    assessment     is
          disproportionate.
This  evidence does not rebut the presumption of correctness that
attaches  to  the boroughs decision or the record  evidence  that
paving  substantially  benefited  the  Millers  parcels.   Ameens
affidavit  merely  concludes that paving will  cause  the  market
value  of  properties of greater value to increase more than  the
market  value of lower valued properties.  It does not rebut  the
conclusion  that  the  Millers lots will  receive  a  substantial
benefit because paving will reduce dust and vehicle wear and tear
and  will  increase the monetary value of each lot.  Neither  the
evidence  before  the borough nor the Ameen affidavit  undermines
the  boroughs conclusion that the Millers have benefited from the
paving and that when and if they develop their property they will
benefit  on  par  with  the other property owners  in  the  local
improvement district.
          The  Millers  argue that the superior court  could  not
properly deny their cross-motion for summary judgment in reliance
upon  the  $2,000  increase in the post-improvement  tax-assessed
value  of  their  property.  They contend that  the  borough  was
required to submit additional evidence proving that the increased
tax valuation of their lots reflects a corresponding increase  in
their  fair  market value.  They also argue that the borough  has
not  shown  that  any  increase in value is attributable  to  the
paving.  But this argument misconstrues the procedural posture of
the  Millers  superior court case.  Relying on  our  decision  in
Balough v. Fairbanks N. Star Borough,24 the superior court treated
their  case  as if it were an appeal of an agency decision.   The
court  analogized  the boroughs assessment  determination  to  an
agency  decision and the Millers lawsuit to an appeal  from  that
decision.  Because the superior court treated the Millers  action
as  an administrative appeal, the civil rules did not require the
borough  to  introduce additional evidence to  demonstrate  equal
benefit  to the properties.  The relevant evidentiary  record  in
the  superior  court was the borough record and the  supplemental
affidavit of Ameen.
          The  superior court did not err in concluding that  the
Millers  did  not  overcome  the boroughs  presumptively  correct
finding of equal benefit.
     D.   Did  the Twenty-Five Percent Limit Imposed by MSB  Code
          03.28.080(B) Apply to these Assessments?
          
          The  Millers  argue in their opening brief  that  their
assessments  were illegal because they exceeded  the  twenty-five
percent  limit  imposed by MSB Code  03.28.080(B).25   Citing  AS
29.46.020(c),  the  Millers contend that  state  law  requires  a
borough  to either follow state procedure for special assessments
or  create  its  own  procedure.  They  argue  that  because  the
borough, by enacting subsection .080(B), adopted a procedure that
proscribes  special assessments exceeding twenty-five percent  of
the  property  tax  value, the borough  had  to  adhere  to  this
limitation.   The borough argues in response that it  permissibly
adopted a different procedure when the assembly enacted Ordinance
99-034.   That  ordinance confirmed the Suburban Country  Estates
          Road Paving Local Improvement District and exempted that local
improvement  district from the twenty-five  percent  cap.26   The
Millers reply brief does not address the cap issue.
          The  superior court agreed with the borough.   It  held
that  Ordinance 99-034, which specifically permitted  assessments
exceeding  the limit set by subsection .080(B), was a  subsequent
legislative act that released the borough from the constraints of
a prior legislative act.
          The  superior  court  was  correct.   Boroughs  act  as
legislative bodies when they enact ordinances or code provisions.27
In   its  legislative  capacity,  the  borough  assembly  enacted
procedures  for special assessments. One such enactment  was  MSB
Code    03.28.080(B),  which  imposed  the  twenty-five   percent
assessment  limitation.  But another was Ordinance 99-034,  which
superseded  the  existing procedure with respect  to  this  local
improvement district.
             In  Jefferson v. City of Anchorage,28 the  Anchorage
City  Council enacted an ordinance increasing the mayoral  salary
at  the  beginning of the next mayoral term.  This new  ordinance
contravened  an existing ordinance that only permitted  a  salary
increase  within  thirty  days after a mayoral  term  began.   We
concluded  that  there is no illegality when  a  new  legislative
provision   of  equal  dignity  and  authority  supplants   prior
legislation.29  That holding controls here.
          These  assessments were not subject to the  twenty-five
percent limitation imposed by subsection .080(B).
     E.   Are  the Millers Public Interest Plaintiffs Who  Should
          Not Be Assessed Attorneys Fees?
          
          A  superior court sitting as an intermediate  appellate
court considers an award of appellate attorneys fees under Alaska
Rule of Appellate Procedure 508(e).30 This rule gives courts broad
discretion in awarding fees.31  Such fee awards must be justified
and reasonable.32
          The  Millers  argue that the superior  court  erred  in
awarding  attorneys fees to the borough because the Millers  were
public  interest  litigants,  who  were  therefore  exempt   from
          attorneys fees.33
          It  is  an abuse of discretion to award attorneys  fees
against  an unsuccessful public interest plaintiff who  raises  a
claim  in  good  faith.34   A four-part  test  determines  public
interest  litigant status: (1) Is the case designed to effectuate
strong  public  policies?   (2) If the plaintiff  succeeds,  will
numerous people receive benefits from the lawsuit?  (3) Can  only
a private party have been expected to bring this suit?  (4) Would
the  purported public interest litigant have sufficient  economic
incentive  to file suit even if the action involves  only  narrow
issues  lacking general importance?35  We review a  trial  courts
determination  of  a litigants public interest status  under  the
abuse  of  discretion  standard.  Such an abuse  is  regarded  as
present  only  where  the  trial courts decision  appears  to  be
manifestly unreasonable or motivated by an inappropriate purpose.36
          The  superior court concluded that the Millers did  not
qualify  as  public  interest  plaintiffs  because  they  had   a
significant financial stake in this action that would  only  have
accrued  to them.  The Millers do not argue persuasively  to  the
contrary.   Only  they  would have directly  benefited  had  they
persuaded the superior court to impose their preferred assessment
scheme  on the borough.  Had they succeeded, other landowners  in
the local improvement district would have been forced to shoulder
greater costs.  The Millers appeal was in their private interest.
          The  Millers  also  briefly argue that  the  award  was
excessive  because  it  gave the borough thirty  percent  of  its
actual fees. The Millers do not adequately brief this argument,37
and  it  is unavailing in any event.  The superior court  gave  a
well-reasoned  explanation  for its  attorneys  fees  award.   It
explained  that the Millers procedural approach to the  case  and
their  dual  filings  took  this matter over  unnecessary  ground
raising  both parties fees in the process.  The court also  found
that  the  Millers  appeal  was  knowingly  risky  in  that  they
attempted to have their assessment preference legislated . . . by
the  court  with  almost no legal claim to do so.   There  is  no
reason  to  think  the superior court abused  its  discretion  in
          awarding attorneys fees against the Millers.
IV.  CONCLUSION
          We  AFFIRM the superior court order denying the Millers
appeal  from the boroughs final assessment.  We also  AFFIRM  the
judgment awarding attorneys fees and costs to the borough.
_______________________________
     1    Matanuska-Susitna Borough Ordinance No. 97-139 (1997).

     2     The Millers also submitted a second motion for summary
judgment  on  January 10, 2000, the morning of oral  argument  on
their   first  motion.   Their  second  motion  asserted  a   new
substantive  ground  for summary judgment.   The  superior  court
treated  their  second motion as an appeal of the  administrative
agency  decision, permitted the borough to respond, and  disposed
of  it  in  the  same Memorandum and Order on Cross  Motions  for
Summary  Judgment that the Millers are appealing to  this  court.
The  superior  court concluded that the argument  in  the  second
motion  had  not  been  raised at the  administrative  level  and
therefore had been waived.  The Millers do not appeal the  denial
of  their  second motion, and their briefs in our  court  do  not
raise the substantive ground they argued in their second motion.

     3     Weber  v. Kenai Peninsula Borough, 990 P.2d  611,  613
(Alaska 1999) (citation omitted).

     4    Id. (citation omitted).

     5    Id. (citation omitted).

     6    City of Wasilla v. Wilsonoff, 698 P.2d 656, 658 (Alaska
1995)  (quoting Kissane v. City of Anchorage, 159 F.  Supp.  733,
737 (D. Alaska 1958)).

     7     Rosen v. State Bd. of Pub. Accountancy, 689 P.2d  478,
482 (Alaska 1984).

     8     Cook  Inlet Pipeline v. Alaska Pub. Util.  Commn,  836
P.2d 343, 354 (Alaska 1982).

     9     AS  29.46.060 reads in pertinent part: (a) At any time
after  approval of an improvement plan, the governing body  shall
assess the authorized percentage of the cost against property  in
the  district included in the plan in proportion to  the  benefit
received. . . .

     10    See MSB Code  03.28.010 - .180.

     11      AS   29.46.010  reads  in  pertinent  part:  (a)   A
municipality may assess against . . . private real property to be
benefited  by  an improvement all or a portion  of  the  cost  of
acquiring, installing, or constructing capital improvements.

     12    AS 29.46.020 reads in pertinent part:

          (a)    A   municipality  may   prescribe   by
          ordinance the procedures relating to creating
          special  assessment districts,  making  local
          improvements,    levying    and    collecting
          assessment, and financing improvements
          
               . . . .

          (c)   To the extent that a municipality  does
          not   prescribe  a  procedure   for   special
          assessments as permitted by this section, the
          municipality  shall comply with  the  special
          assessment procedures set out in AS 29.46.030
          - 29.46.100.
          
     13    AS 29.46.020(c).

     14    MSB Code  03.28.140(A) reads in pertinent part: (2) . .
.  For  areas  zoned residential or within subdivisions  where  a
majority  of  the lots within the subdivision are  restricted  to
residential   uses  under  recorded  conditions,  covenants   and
restrictions, the allocation of costs shall be assessed on a  per
lot basis so that each lot is assessed the same amount.

     15     AS 29.46.060 reads in pertinent part: (a) At any time
after  approval of an improvement plan, the governing body  shall
assess the authorized percentage of the cost against property  in
the  district included in the plan in proportion to  the  benefit
received. . . .

     16    AS 29.46.020(c).

     17     The borough itself generally follows the proportional
benefit  method  for  assessing costs other than  costs  in  road
special  assessment districts.  See MSB  03.28.080(A)  (providing
generally   for  imposition  of  special  assessment   costs   in
proportion  to  the  benefit received).  If MSB   03.28.140(A)(2)
does  not  apply, per  MSB  03.28.140(A)(1), the borough assesses
road improvement costs in special assessment districts either  by
lot size or frontage length.

     18     City of Wasilla v. Wilsonoff, 698 P.2d 656, 657,  658
(Alaska 1985) (We agree with the city that its special assessment
determination  carries with it a presumption of correctness.   If
the  apportionment  of special assessments and  the  question  of
benefits  are matters upon which reasonable men may  differ,  the
determination by the municipal authorities will be  sustained  by
the  courts.  )  (quoting  in part 2 Charles  Antieau,  Municipal
Corporation Law  14.46 (1985)); see also Weber v. Kenai Peninsula
Borough, 990 P.2d 611, 614 (Alaska 1999) (reiterating presumption
that  municipal legislative assessment decisions  are  valid  and
applying presumption to creation of assessment districts).

     19    See Wilsonoff, 698 P.2d at 657.

     20     We  stated  in  Wilsonoff   that  [t]his  presumption
favoring  a  city councils assessment determination concomitantly
places a heavy burden of proof on the  challenging party.  Id. at
658.   We then approvingly quoted Professor Antieau: [A] property
owner  seeking  to  overturn  a special  assessment  against  his
property  has  the  burden  of proving that  the  assessment  was
grossly  beyond  benefit, disproportionate or otherwise  illegal.
Id.  (quoting 2 Charles Antieau, Municipal Corporation Law  14.46
(1985) (emphasis added in Wilsonoff)).

     21    159 F. Supp. 733, 738 (D. Alaska 1958).

     22    698 P.2d 656, 658 (Alaska 1985).

     23    990 P.2d 611, 616 (Alaska 1999).

     24    995 P.2d 245, 256 (Alaska 2000).

     25     MSB Code  03.28.080(B) provides: The total amount  of
assessments for an improvement may not exceed the allowable  cost
of  the improvement under A.S. 29.46.110.  An assessment may  not
exceed  25  percent  of  the assessed  value  for  real  property
taxation of the property assessed.

     26     Matanuska-Susitna Borough Code Ordinance  No.  99-034
(1999).

     27     Griswold v. City of Homer, 925 P.2d 1015, 1019 &  n.3
(Alaska 1996) (citing Concerned Citizens of S. Kenai Peninsula v.
Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).

     28    513 P.2d 1099, 1101 (Alaska 1973).
          
     29    Id. at 1102.

     30    Appellate Rule 508(e) states:

          Attorneys  Fees.   Attorneys  fees   may   be
          allowed in an amount to be determined by  the
          court.   If  such an allowance is  made,  the
          clerk   shall  issue  an  appropriate   order
          awarding  fees  at  the  same  time  that  an
          opinion or an order under Rule 214 is  filed.
          If  the  court determines that an  appeal  or
          cross-appeal is frivolous or that it has been
          brought simply for purposes of delay,  actual
          attorneys fees may be awarded to the appellee
          or cross-appellee.
          
     31     Agen  v. State, Dept of Revenue, 945 P.2d 1215,  1221
(Alaska 1997).

     32     Carr-Gottstein  Props. v. State, 899  P.2d  136,  148
(Alaska 1995).

     33     The Millers mistakenly cite Civil Rule 82 rather than
Appellate Rule 508.

     34     Carr-Gottstein  Props., 899 P.2d  at  147  (citations
omitted).

     35    Id. (citations omitted).

     36    Valley Hosp. Assn, Inc. v. Mat-Su Coalition for Choice,
948 P.2d 963, 972 (Alaska 1997).

     37    See Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-
14  (Alaska 1992) (Where a point is not given more than a cursory
statement in the argument portion of a brief, the point will  not
be considered on appeal.) (citations omitted).