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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cizek v. Concerned Citizens of Eagle River (6/13/2003) sp-5697

Cizek v. Concerned Citizens of Eagle River (6/13/2003) sp-5697

     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

JENNIFER CIZEK and JOSEPH               )
CIZEK,                                                      )
                                   )      Supreme  Court  No.  S-
10293/10294
          Appellants/Cross-Appellees,   )
                                   )    Superior Court No.
     v.                                                         )
                                   3AN-98-7307 CI
                                   )
CONCERNED CITIZENS OF EAGLE             )    O P I N I O N
RIVER VALLEY, INC., NORA                )
FIRMIN, PATRICIA BALZARINI,                   )     [No.  5697  -
                                        June 13, 2003]
and CHARLES BALZARINI,                       )
                                   )
          Appellees/Cross-Appellants.   )
____________________________________    )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Brian C. Shortell, Judge.

          Appearances:  William S. Cummings, Ashburn  &
          Mason,   Anchorage,   for   Appellants/Cross-
          Appellees.   Suzanne H. Ewy, Law  Offices  of
          Suzanne  H. Ewy, Barrow, for Appellees/Cross-
          Appellants.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   Concerned Citizens of Eagle River Valley, Inc. brought

suit  against property owners who were seeking to have their land

rezoned  to permit its use as a private airstrip.  After settling

with  one  defendant  on  the  eve of trial,  Concerned  Citizens

prevailed  at  trial against the Cizeks, and the  superior  court

awarded  it $40,000 in attorneys fees.  The court justified  this

award  both as partial public interest litigant fees and enhanced

prevailing  party fees under Alaska Rule of Civil  Procedure  82.

We  affirm the superior courts action in its entirety: the  award

of  partial  attorneys fees under Civil Rule  82,  the  award  of

enhanced  fees under subsection (b)(3) of that rule, the superior

courts  use  of  the  Cizeks fees as  a  starting  point  in  its

calculations,  its  refusal  to  reduce  the  award  for  alleged

discovery  violations by Concerned Citizens, and  the  amount  of

fees awarded.

II.  FACTS1 AND PROCEEDINGS

          Steve  Dike owned property in Eagle River that included

a  private airstrip. In 1995 Dike petitioned the Municipality  of

Anchorage to rezone the property to allow the conditional use  of

the  airstrip  so  he  could develop the  property  as  a  fly-in

subdivision.  The Planning Commission granted the conditional use

request  and  the Anchorage Assembly provisionally granted  Dikes

rezoning  request,  requiring  that  he  first  file  a  plat  in

conformity with his plans.  No plat was filed, no further  action

was  taken, and the property was not rezoned.  In 1997 Dike  sold

half the property to John and Jennifer Cizek who planned to build

a home with an attached hangar and use the airstrip.

          In  1998 Concerned Citizens of Eagle River Valley, Inc.

(Concerned  Citizens) sued to enjoin Dike  and  the  Cizeks  from

using the airstrip, claiming that the nonconforming use right had

lapsed from non-use between 1985 and 1995.  Superior Court  Judge

Brian  C. Shortell ruled in favor of Concerned Citizens,  finding

that the nonconforming use right had lapsed.  The Cizeks appealed

that  determination to this court and we affirmed Judge Shortells

decision.

          Immediately  before trial, Concerned  Citizens  settled

with Dike, receiving $12,500 and waiving any other claim for fees

against him.  Following trial with the Cizeks, Concerned Citizens

filed  a  motion  for attorneys fees, asserting  public  interest

litigant   status   and   claiming  fees  totaling   $144,297.95.

          Determining this amount to be unreasonable and observing the

absence of an adequate showing of specific services rendered, the

court denied Concerned Citizens motion and gave it sixty days  to

address   these   deficiencies.   Concerned  Citizens   filed   a

reapplication for reasonable attorneys fees within the given time

frame,  claiming total fees of $144,078.95.  The Cizeks responded

with a summary of their fees to help determine the reasonableness

of Concerned Citizens claimed fees.

          After  an  evidentiary hearing, Judge  Shortell  issued

detailed findings of fact and conclusions of law.  The court held

that  Concerned  Citizens met the criteria  for  being  a  public

interest  litigant  but that the Cizeks  did  not,  as  they  had

sufficient  economic incentive to defend the  suit  even  if  the

action  only  involved narrow issues lacking general  importance.

The  court  stated  that, [a]lthough [Concerned  Citizens]  would

ordinarily  be  entitled  to  full fees  against  a  governmental

entity,  its strategic decision to litigate only against  private

parties,  its  frivolous request for penalties, its  use  of  the

penalty  claim for coercive purposes, and its request for penalty

damages should either deprive it of public-interest status or the

right  to  an  award  of  full reasonable fees.   Judge  Shortell

further  stated that this court has never approved  an  award  of

full  fees  against  a private party based on  the  other  partys

public interest litigant status.

          Judge  Shortell also found that Concerned Citizens  was

entitled  to a partial award of attorneys fees as the  prevailing

party  under Civil Rule 82(b).  Determining the fees  claimed  by

Concerned  Citizens to be excessive, the court used  the  $98,000

claimed  by the Cizeks as the base amount reasonably incurred  by

Concerned Citizens.2  The court then used Civil Rule 82(b)  as  a

guide  in  determining what percentage of this  base  amount  the

Cizeks  should  be required to pay.  It found that the  extensive

and  sometimes unduly repetitive motion practice generated by the

Cizeks  attorney,  the  long  duration  of  the  trial,  and  the

          reduction in fees incurred by Concerned Citizens due to the

performance  of  a  number of paralegal tasks by  its  individual

members justified an order requiring the Cizeks to pay $40,000 in

fees.   The  court stated both that this award was an appropriate

partial  public interest litigant fee and that if, on appeal,  we

found that Concerned Citizens was not a public interest litigant,

the award would stand independently under Civil Rule 82(b)(3).

          Both  the  Cizeks  and Concerned Citizens  appeal  this

award.

III. STANDARD OF REVIEW

          The  trial  courts  decisions as to  whether  fees  are

reasonable  and  should  be awarded are  reviewed  for  abuse  of

discretion.3   An  award constitutes an abuse of discretion  only

when it is manifestly unreasonable.4  Legal questions involved in

exceptions  to an award of attorneys fees are reviewed  de  novo,

while  exceptions that rely on factual findings are reviewed  for

clear error.5

IV.  DISCUSSION

     I.   A.   The Trial Courts Decision To Award Enhanced Partial
          Fees to Concerned Citizens Was Proper.
          
          1.   The  trial court did not err in holding the Cizeks
               responsible for Concerned Citizens attorneys  fees
               despite  the  Cizeks reliance on the municipalitys
               determination regarding the airstrip.
               
          The Cizeks argue that because they were subject to suit

based  on their reliance on the municipalitys determination  that

the  airstrip was a legal nonconforming use, they should  not  be

held  liable  for  attorneys  fees.  The  Cizeks  argument  rests

primarily  on  their  substantive appeal   they  argue  that  the

superior  court  erred in holding that they could not  reasonably

rely on the municipalitys decision.

          The  superior  court  ruled that  the  Cizeks  did  not

reasonably  rely  on  the  municipalitys  decision  finding   the

airstrip  to be a valid, nonconforming use and, even  if  such  a

decision  on  the  part  of  the  municipality  would  estop  the

municipality  from enforcement, Concerned Citizens could  not  be

          estopped from enforcing the zoning laws.6  We agreed with the

trial  courts reasoning.7  As the Cizeks base their  argument  on

their  substantive appeal, which we rejected, we likewise  reject

their claim for relief from attorneys fees.

          2.   The trial court did not err in awarding attorneys fees to
               Concerned Citizens although Concerned Citizens had no obligation
               to pay its attorney.
               
          1.   The Cizeks argue that Concerned Citizens attorney, Suzanne

Ewy,  donated her services and that Concerned Citizens was at  no

point under an obligation to pay her.  Because Concerned Citizens

did  not  incur any fees, the Cizeks argue that no fee  award  is

appropriate.   We  have held in several cases,  however,  that  a

clients  absence of obligation to pay for legal services rendered

does not preclude an award of attorneys fees under Civil Rule 82.8

Accordingly,  the  trial court did not err in  awarding  fees  to

Concerned   Citizens  despite  its  lack  of  an  obligation   to

compensate its attorney.

          3.   The trial court did not give Concerned Citizens too many
               opportunities or too much time to establish reasonable fees.
               
          The  Cizeks next argue that the trial court abused  its

discretion  in  allowing Concerned Citizens  additional  time  to

supplement its motion, to file a reply, and to reapply for  fees.

Under  Civil Rule 82(c), a motion for an award of attorneys  fees

must be filed within ten days of the date of the distribution  of

the  final  judgment.  Failure to file within ten days,  or  such

additional time as the court may allow, is construed as a  waiver

of  the  partys right to recover attorneys fees.9  We  have  held

that  a  trial  court  will  not be  found  to  have  abused  its

discretion  in  allowing a party additional time  under  Rule  82

unless  the  amount  of  time  was unreasonable  or  resulted  in

prejudice to the opposing party.10

          Here,  the  trial court issued an order on January  31,

2000 stating that partial judgment had been entered on January 20

and  giving  Concerned  Citizens twenty days  to  supplement  its

earlier,  premature  request for an evidentiary  hearing  on  its

          public interest litigant status.  Concerned Citizens supplemented

its  motion  on  February  22.11 On March  7  Concerned  Citizens

requested  a  stay of proceedings until March 21  and  additional

time in which to file its reply to the Cizeks March 3 opposition.

The reply was filed on April 3.  The trial court issued its order

on  Concerned Citizens motion on September 15, denying the motion

and  granting  Concerned  Citizens  sixty  days  to  address  the

deficiencies  identified by the court in its  motion.   Concerned

Citizens filed its reapplication within that time.

          Given that the initial filing was early, that Concerned

Citizens  filed the supplement requested by the court within  the

specified  time, and that all briefing was completed  within  one

month  of  the  filing  of the opposition  to  fees,  the  courts

provision  of  additional  time  cannot  be  said  to  have  been

unreasonable, nor have the Cizeks demonstrated that  it  resulted

in  any prejudice to them.  We find that the court did not  abuse

its discretion in granting Concerned Citizens additional time  as

provided for by Civil Rule 82(c).

          4.   The trial court did not err in deciding that enhanced fees
               were  appropriate under Rule 82(b)(3).
               
          The  superior court awarded Concerned Citizens  partial

fees  based  on the courts determination that Concerned  Citizens

was  a  public interest litigant.  In the alternative, the  court

awarded Concerned Citizens enhanced partial fees under Civil Rule

82(b)(3).  Because we affirm the courts decision to award partial

fees  under  Civil Rule 82, we do not reach the question  whether

the  award  of  fees based on Concerned Citizens public  interest

litigant status was appropriate.

               a.   The Cizeks offer no basis for their argument that public
                    interest status was improperly used as a factor under Rule
                    82(b)(3).
                    
          The  Cizeks first argue that the trial court improperly

considered  the  public interest nature of the case  in  awarding

enhanced fees to Concerned Citizens.  The Cizeks offer no support

for  their position that the court considered Concerned  Citizens

          status as a public interest litigant in awarding fees under Rule

82.   Instead  the  Cizeks seem to rely on their  arguments  that

Concerned  Citizens should not have been granted public  interest

litigant  fees  in the first place.  Because we  find  the  trial

courts  decision  to  award fees under Civil  Rule  82(b)  to  be

adequately  supported by the equitable factors it  cites  in  its

decision  and  because the Cizeks point to  no  facts  supporting

their theory that the court considered the public interest status

of  Concerned Citizens as a factor in determining fees under Rule

82, we reject this argument.

               b.   The equitable reasons cited by the trial court support an
                    award of enhanced fees.
                    
          a.   The Cizeks next argue that none of the reasons stated by the

court  for enhancing attorneys fees supports its doing so.  Under

Civil  Rule 82(b)(2), in cases which have gone to trial but which

have  not resulted in an award of money damages to the prevailing

party, the court is instructed to enter an award of 30 percent of

the prevailing partys reasonable actual attorneys fees which were

necessarily incurred.  This award may be varied on the  basis  of

relevant  equitable factors as provided in Civil  Rule  82(b)(3).

In  departing  from the general rule, the court  must  state  any

reasons for its variation from the prescribed percentage of fees.12

We review reasons relying on factual findings for clear error.13

          In   its  order  awarding  Concerned  Citizens  partial

attorneys   fees,  the  superior  court  cited  several   factors

justifying an increase under Civil Rule 82(b)(3):

          Plaintiffs    attorney   was   required    to
          participate in extensive and sometimes unduly
          repetitive  motion  practice,  most   of   it
          generated  by  the Cizek[s]  attorney,  which
          increased  the  complexity of the  case,  and
          which,   in  most  cases,  was  resolved   in
          plaintiff[s] favor.  The trial  was  long  in
          duration, requiring many extra hours of  work
          that  should be compensated.  The  plaintiffs
          reduced their attorneys bills by performing a
          number of paralegal tasks themselves.
          
The  Cizeks argue that the length and complexity of the case will

be  reflected in the fees themselves and therefore should not  be

used  to increase the percentage of fees awarded.  However, these

factors are explicitly listed as permissible considerations under

Civil  Rule 82(b)(3), and therefore are an appropriate basis  for

the  trial  courts decision.  According to Civil  Rule  82(b)(3),

enhanced  fees may be based on factors such as the complexity  of

the litigation,14 the length of the trial,15 the reasonableness of

the  claims and defenses pursued,16 and the relationship  between

the  amount of work performed and the significance of the matters

at  stake.17  The Cizeks have not demonstrated that  any  of  the

findings  underlying  the  trial  courts  decision  were  clearly

erroneous.

          Once   these   findings  have  been  made,   the   only

requirement imposed on the trial court by the civil rules is that

the  court  explain the reasons behind any variation in  the  fee

schedule.  The court retains broad discretion to award  fees  and

to  alter  the amount it intends to award.18  Because  the  court

clearly  stated its reasons for enhancing the award of  attorneys

fees  to  Concerned  Citizens, we affirm its  decision  to  award

enhanced fees under Rule 82.

               c.   The trial court did not err in declining to reduce the fees
                    awarded pursuant to Rule 82(b)(3).
                    
          Finally,  with  respect to the fee  award,  the  Cizeks

argue  that,  rather  than  increasing  the  amount  under   Rule

82(b)(3),  the  trial  court should have  reduced  the  award  to

Concerned  Citizens on the basis of the above-discussed equitable

factors.   The Cizeks contend that Concerned Citizens claimed  an

unreasonable  number of hours, did not attempt  to  minimize  its

fees,  pursued an unreasonable claim in bad faith, and  attempted

to influence a non-party, the municipality, with its litigation.

          Under  Rule  82(b)(3), the court may vary a  fee  award

based on, among other things, the reasonableness of the number of

hours  expended,  the  attorneys effort to  minimize  fees,   the

reasonableness of the claims, bad faith conduct,  the  extent  to

which a fee award may be so onerous that it would deter similarly

          situated litigants from voluntary use of the courts, the extent

to which a partys claims suggest an influence apart from the case

at bar, and any other equitable factors the court deems relevant.19

Here,  the  court accounted for the unreasonableness of Concerned

Citizens  fees  by  discounting its claimed  fee  altogether  and

instead using the Cizeks fee as the basis for the award.  In  the

substantive appeal, we affirmed the lower courts decision,  which

indicates  our belief that Concerned Citizens pursued  reasonable

claims in good faith.20

          Again,  the  decision to award and to alter fees  under

Rule  82  is committed to the discretion of the trial  court  and

will  only  be reversed if the court has abused its discretion.21

As  Judge  Shortells decision not to penalize Concerned  Citizens

for  the  reasons  argued by the Cizeks  cannot  be  said  to  be

manifestly unreasonable, we reject the Cizeks position and affirm

the holding of the trial court.

     B.   The Trial Court Did Not Err in Calculating the Base Amount
          of Concerned Citizens Reasonable, Actual Attorneys Fees.
          
          The  Cizeks argue that Concerned Citizens claimed  fees

were  excessive and unreasonable, requiring that the court assess

no  fees against the Cizeks.  However, there is no indication  in

our  case  law  that the proper response to an  unreasonable  fee

request  is to deny an award altogether, and the Cizeks  cite  no

support for their argument.

          Rather  than relying on the fees submitted by Concerned

Citizens, the court substituted the Cizeks fees as the basis  for

determining the fee award.  The Cizeks now argue that the  courts

use of their fees as a substitute for Concerned Citizens fees was

unfair and constituted an inaccurate account of the fees incurred

by Concerned Citizens.

          In  determining what constituted  reasonable  fees  for

Concerned  Citizens,  the  trial court  stated  that  the  amount

requested  by  Concerned Citizens (over $144,000) was  excessive,

considering  the  moderately complex  legal  and  factual  issues

present.   The court further found that the $108,000  charged  by

          the Cizeks counsel was also excessive.  However, in light of the

aggressive  litigation techniques employed  by  both  sides,  the

court  decided to consider the Cizeks fee as the upper  limit  of

reasonableness.   Given  the broad discretion  committed  to  the

trial  court in determining what fees are reasonable,22 we affirm

its use of the Cizeks fees as a reasonable estimation of what Ewy

could have claimed for this litigation.

     C.   The Superior Court Did Not Err in Declining To Reduce the
          Fee Awarded by Imposing Discovery Sanctions under Civil Rule
          37(c)(2).
          
          The  Cizeks  next argue that Concerned  Citizens  acted

unreasonably in refusing to admit that the airstrip  was  capable

of  being  used and was actually used between 1984 and 1995.   On

this basis, they contend that the trial court should have granted

their  Civil Rule 37(c)(2) motion for discovery sanctions against

Concerned  Citizens  for  its  refusal  and  that  the  award  of

attorneys fees against them should have been offset by the amount

of the sanctions.

          Civil  Rule 37(c)(2) provides for an award of sanctions

in  the  form  of attorneys fees where a party, in a request  for

admission, refuses to admit the truth of any matter that is later

proven to be true.23  In this case, it was the responsibility  of

the  trial  court to determine whether Concerned Citizens  had  a

reasonable  basis for believing that the airstrip was unused  and

unusable.24  That the airstrip was ultimately proven to be usable

does  not  necessarily  mean  it was unreasonable  for  Concerned

Citizens to refuse to admit that it was usable.

          Here,  Concerned Citizens presented evidence  that  the

airstrip  was  not used and was not usable during the  period  in

question,  while the Cizeks offered the testimony of  two  pilots

who  stated that they had used the airstrip every year during the

same period.  Based on the conflicting testimony presented to the

court,  it  found  that Concerned Citizens did  not  unreasonably

persist in its denial that the airstrip was capable of being used

and  was  actually used at least once each year between 1984  and

          1995.  The trial court did not err in refusing to offset the

attorneys  fee  award  against the Cizeks  by  levying  sanctions

against Concerned Citizens under Rule 37(c)(2).

     D.   The Trial Court Appropriately Accounted for Dikes Settlement
          with Concerned Citizens.
          
          Finally,  the Cizeks argue that the superior court  did

not  reduce  Concerned  Citizens base fee  amount  by  enough  to

account for its settlement with Dike.  They point to our decision

in  Thorstenson  v.  ARCO Alaska, Inc.25 as authority  for  their

contention  that  Dikes participation in  the  case  should  have

resulted  in a greater reduction in the fees awarded against  the

Cizeks.

          In  Thorstenson,  the trial court  awarded  fees  to  a

prevailing defendant after a co-plaintiff settled shortly  before

the  case  was resolved.26  The trial court first estimated  that

approximately  75% of the work would have had to have  been  done

had [defendant] been opposing but a single plaintiff.27  The court

then awarded the defendant seventy-five percent of that figure.28

We  noted  that there was, so to speak, an overlap  in  the  work

performed  in  the defense of each plaintiffs claim.29   But  the

trial courts methodology assigned to the remaining plaintiff  the

entire  amount of this overlap, with no explanation.30   We  held

that  each plaintiff should be charged with a proportional  share

of  the  fees  incurred prior to the resolution  of  his  or  her

claims,  as charging the last remaining plaintiff with a  grossly

disproportionate  share  of fees creates  perverse  incentives.31

Notably,  we  did  not hold that attorneys fees  must  always  be

equally apportioned, but rather that a remaining party may not be

asked  to  bear  an unreasonably heavier burden of  the  cost  of

litigation than a party who chooses to settle.32

          Here,  unlike  in  Thorstenson, the  trial  court  made

specific findings to justify different treatment of the former co-

parties.  The  court  determined  that  Concerned  Citizens  base

allowance for fees should be discounted by $10,000 to account for

its settlement with Dike for the following reasons:

          This  $10,000  figure is a fair  estimate  of
          fees  incurred  solely  against  Dike[;]   it
          cannot  be  a precise determination.   It  is
          relatively small because the Cizeks and  Dike
          litigated   as  a  unit  against   [Concerned
          Citizens],   because  the  bulk   of   active
          litigation  involved  the  case  against  the
          Cizeks,  and because Dikes active efforts  in
          this case were small, compared to the Cizeks.
          
The  first reason for the courts unequal apportionment  that  the

Cizeks  and  Dike litigated as a unit against Concerned  Citizens

actually  supports an equal apportionment of fees.  However,  the

courts  second  and  third reasons for its apportionment  provide

sufficient  support for an unequal apportionment.   The  superior

court  was  in  the  best  position  to  determine  against  whom

Concerned Citizens litigation efforts were focused, and it  found

the  bulk of active litigation efforts to be directed against the

Cizeks.   The  court separately found that Dikes  active  efforts

were  small.  This finding too supports an unequal apportionment.

Considering these factors, even if both Dike and the  Cizeks  had

proceeded  to  trial,  the court would  have  been  justified  in

charging  the Cizeks with a greater share of fees.   Using  as  a

basis  for  calculation the approximately $77,000  found  by  the

superior court to have been incurred by Concerned Citizens before

trial,  the superior courts apportionment of $10,000 to Dike  and

award  of  $40,000  against  the Cizeks  in  favor  of  Concerned

Citizens   results   in   the  Cizeks   being   responsible   for

approximately fifteen percent more and Dike fifteen percent  less

than  a theoretically equal apportionment.33  We find the reasons

offered  by  the superior court for its unequal apportionment  of

fees to be sufficient to justify this different treatment of  the

defendants,  and  therefore reject the Cizeks argument  that  the

court   did   not  adequately  account  for  Concerned   Citizens

settlement with Dike in calculating the Cizeks share of fees.

V.   CONCLUSION

          Because  the  trial  court did not err  either  in  the
framework  in  which it apportioned fees  that  is,  in  awarding
enhanced  partial fees to Concerned Citizens, in calculating  the
base  amount  of  Concerned Citizens fees, and  in  declining  to
          reduce the award in the ways the Cizeks urged  or in the amount
of fees awarded, we affirm its decision to award enhanced partial
attorneys fees under Civil Rule 82(b)(3).
_______________________________
     1    The underlying facts in this opinion are taken from our
opinion in the substantive appeal, Cizek v. Concerned Citizens of
Eagle River Valley, Inc., 41 P.3d 140, 142 (Alaska 2002).

     2    The Cizeks actually claimed $108,000 in fees, which the
court  deemed  the  upper  limit  of  fees  that  can  be  called
reasonable  here.  The court then discounted the Cizeks  fees  by
$10,000 to account for those fees incurred against Dike before he
settled.

     3     Alderman  v. Iditarod Props., Inc., 32 P.3d  373,  380
(Alaska 2001).

     4     Thorstenson  v. ARCO Alaska, Inc., 780 P.2d  371,  376
(Alaska 1989).

     5    Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).

     6     Cizek  v.  Concerned Citizens of Eagle  River  Valley,
Inc., 41 P.3d 140, 145 (Alaska 2002).

     7    Id.

     8     Arctic  Slope  Native Assn v. Paul, 609  P.2d  32,  38
(Alaska  1980) (discussing Gregory v. Sauser, 574 P.2d  445,  445
(Alaska 1978)).

     9    Alaska R. Civ. P. 82(c).

     10     Alderman v. Iditarod Props., Inc., 32 P.3d  373,  397
(Alaska 2001).

     11     Under Alaska Civil Rule 6(a), when the last day of  a
filing period is a Saturday, Sunday or legal holiday, that day is
not  counted and the last day of the filing period is shifted  to
the  next  business day.  Because February 20 was  a  Sunday  and
February  21 was Presidents Day, a legal holiday, the  filing  on
February 22 was timely.

     12    Alaska R. Civ. P. 82(b)(3).

     13    Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000).

     14    Alaska R. Civ. P. 82(b)(3)(A).

     15    Alaska R. Civ. P. 82(b)(3)(B).

     16    Alaska R. Civ. P. 82(b)(3)(F).

     17    Alaska R. Civ. P. 82(b)(3)(H).

     18     Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d  99,
102-03 (Alaska 1988).

     19    Alaska R. Civ. P. 82(b)(3)(C), (E), (F), (G), (I), (J),
and (K).

     20     Cizek  v.  Concerned Citizens of Eagle River  Valley,
Inc., 41 P.3d 140, 147 (Alaska 2002).

     21    Taylor Constr. Servs., 758 P.2d at 102.

     22     Cf.  Dansereau v. Ulmer, 955 P.2d 916, 918-19 (Alaska
1998)  (upholding trial courts determination that time  submitted
was   unreasonable   and   favorably   observing   trial   courts
substitution  of reasonable time);  Integrated Res. Equity  Corp.
v.  Fairbanks  N. Star Borough, 799 P.2d 295, 304  (Alaska  1990)
(reserving decision whether too much time was spent by  attorneys
for prevailing party to discretion of trial judge).

     23    Alaska R. Civ. P. 37(c)(2) provides:

          If  a party fails to admit the . . . truth of
          any matter as requested under Rule 36, and if
          the party requesting the admission thereafter
          proves  .  .  . the truth of the matter,  the
          requesting party may apply to the  court  for
          an order requiring the other party to pay the
          reasonable  expenses incurred in making  that
          proof,  including reasonable attorneys  fees.
          The  court  shall  make the order  unless  it
          finds   that   (A)  the  request   was   held
          objectionable pursuant to Rule 36(a), or  (B)
          the  admission  sought was of no  substantial
          importance, or (C) the party failing to admit
          had  reasonable  ground to believe  that  the
          party  might  prevail on the matter,  or  (D)
          there  was other good reason for the  failure
          to admit.
          
     24    See Dobos v. Ingersoll, 9 P.3d 1020, 1026 (Alaska 2000)
(explaining that it is province of trial court to examine  record
and  determine if reasonable foundation exists for partys  belief
that it will prevail on particular issue).

     25    780 P.2d 371 (Alaska 1989).

     26    Id. at 376.

     27    Id.

     28    Id.

     29    Id.

     30    Id.

     31    Id. at 376-77.

     32    Id.

     33     Based  on  Judge  Shortells  calculations,  Concerned
Citizens  reasonable  fees  before  settlement  would  have  been
approximately  $77,000.  This represents seventy-one  percent  of
the total fee base of $108,000.  If the court split this seventy-
one  percent equally between the Cizeks and Dike, each  would  be
responsible  for thirty-five and one-half percent of total  fees.
Because  only  the  Cizeks litigated after the  settlement,  they
would  be  responsible  for  all  of  the  remaining  twenty-nine
percent.  Thus, the final award would have been apportioned sixty-
four and one-half percent to the Cizeks (thirty-five and one-half
percent  plus  twenty-nine percent) and thirty-five and  one-half
percent to Dike.  In that the court apportioned $10,000 of  total
fees  to  Dike and ordered the Cizeks to pay $40,000, the  Cizeks
actually  incurred eighty percent of the total fee award.   Thus,
Dikes  apportioned  share was about fifteen  percent  lower  than
theoretically  equal  apportionment while the  Cizeks  share  was
correspondingly about fifteen percent above equal apportionment.