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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kozevnikoff v. Tanana Village Council (04/23/2004) sp-5800

Kozevnikoff v. Tanana Village Council (04/23/2004) sp-5800

     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


AARON KOZEVNIKOFF, SR.,       )
                              )    Supreme Court No. S-10881
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-02-645 CI
                              )
TANANA VILLAGE COUNCIL,       )    O P I N I O N
                              )
             Appellee.                   )     [No. 5800 -  April
                              23, 2004]
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:   Ella Anagick,  Law  Office  of
          Ella   Anagick,  Anchorage,  for   Appellant.
          Lloyd  Benton Miller and Marissa K. Flannery,
          Sonosky,  Chambers, Sachse, Miller &  Munson,
          LLP, Anchorage, for Appellee.

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

          CARPENETI, Justice.


I.   INTRODUCTION

          I.   A losing party interpreted notations made by a court

clerk  on  the  final  judgment (to  the  effect  that  costs  or

attorneys fees had not yet been awarded) as constituting a denial

of  the  opponents motion for costs and attorneys fees.   Because

the  superior  court  correctly rejected that interpretation,  we

affirm the superior courts award of costs and fees.

II.  FACTS AND PROCEEDINGS

          Aaron  Kozevnikoff sued for a declaration that a tribal

court  order concerning the custody of his two children was  null

and  void  on  the grounds that it violated his due  process  and

parental  rights.   The  Tanana Village Council  (TVC)  moved  to

dismiss  Kozevnikoffs  claim on jurisdictional  grounds  and  for

failure to state a claim upon which relief could be granted.   In

July 2002 Superior Court Judge Niesje J. Steinkruger granted TVCs

motion to dismiss on both grounds.

          In  August  TVC timely requested  attorneys fees  under

Alaska Civil Rule 82.1  Kozevnikoff opposed the motion and  filed

a  notice  of  appeal.   The superior court subsequently  entered

final  judgment dismissing Kozevnikoffs claims with prejudice  on

September 12, 2002.  Regarding attorneys fees the order read:

          FURTHER  ORDERED and ADJUDGED that Defendant,
          Tanana  Village Council, is awarded attorneys
          fees in the amount of $                     ;
          together  with  costs  in  the  amount  of  $
          ,    for    a    total    judgment    of    $
          ,  on which interest shall accrue at the rate
          of  4.25%  which  is the statutory  rate  per
          annum until paid in full.

(The underlined passage was handwritten by Judge Steinkruger.)

The  spaces  where a monetary amount would be entered  were  left

blank  and a court clerk  wrote w/ out cost or atty fees  on  the

certificate  of  distribution.   The  order  was  distributed  on

September 16, 2002.

          A  clerks  order dated October 1, 2002 held Kozevnikoff

liable   for   $220.48   in  costs.   The  final   judgment   was

redistributed  to  the  parties on  October  2  with  the  clerks

notation w/ costs (no atty fees yet).

          On October 15 Kozevnikoff and TVC agreed to dismiss the

merits  appeal.  Their Dismissal by Agreement stated  that:   (1)

This  case  having settled in full, the parties  agree  that  the

appeal  should be dismissed under Appellate Rule 511(a)  and  (2)

Each  party will bear its own costs and fees for the purposes  of

this  appeal.  Lloyd Miller, counsel for TVC, stated that Marissa

Flannery,  who  handled the superior court  litigation  for  TVC,

          proposed the fee language in the agreement to Ella Anagick,

Kozvenikoffs attorney, as part of an expressed understanding that

the Appellant would remain responsible for any fees or costs that

might be awarded in the superior court.

          On  October  13  Judge  Steinkruger  dismissed  without

prejudice TVCs August motion for fees due to the insufficiency of

the  affidavit  filed in support of the motion and  inconsistency

within  the motion itself.2  Judge Steinkruger gave TVC ten  days

to   file  a  supplemental  motion  for  fees.   TVC  filed   its

supplemental  motion on October 22 stating that its  actual  fees

were   $15,732.15   and   requesting  an  award   of   $3,146.43.

Kozevnikoff  opposed TVCs motion as being untimely and  violating

principles  of  res  judicata.   In  November  Judge  Steinkruger

awarded TVC $3,146.43 in attorneys fees.

III. STANDARD OF REVIEW

          We  review the trial courts award of attorneys fees for

an  abuse of discretion.3  When a review of an award of attorneys

fees  and  costs requires an interpretation of the  Alaska  Civil

Rules, we apply our independent judgment.4

IV.  DISCUSSION

     A.   The  September 12th Final Judgment Was Not a Denial  of
          TVCs Motions for Costs and Attorneys Fees.
          
          Kozevnikoff  argues  that the clerks  notation  w/  out

costs  or  atty fees  denied TVCs motions for attorneys fees  and

costs.  Kozevnikoff essentially claims that notations made  by  a

court clerk and not signed by the judge should be considered part

of a judicial order.  We reject this argument.

          Alaska  Civil  Rule  58  mandates  that  the  entry  of

judgment  not  be  delayed while the court  determines  fees  and

costs,5 making it appropriate for the court to enter the judgment

on  the merits without waiting for a final determination of  fees

and  costs.   Rule  58.1 draws a distinction between  a  judicial

order  and  a clerks certificate of distribution, providing  that

judgments  are effective when they are signed and will thereafter

be   distributed  by  the  court  clerk.6   Furthermore,  if  the

          September 12 order had been a judicial order denying fees, the

superior  court  would have had to provide the  parties  with  an

explanation  as  to  why  the court was  not  following  the  fee

schedule set out in Rule 82.7

          Because notations made by a clerk on the certificate of

distribution are not judicial orders and because a final judgment

may  be  issued  without  waiting  for  the  court  to  calculate

attorneys  fees and costs, we reject Kozevnikoffs  argument  that

the September 12 order denied TVCs August 16 motions for fees and

costs.

     B.   The Superior Court Did Not Abuse Its Discretion When It

          Allowed  TVC  To  Supplement Its  Original  Motion  for

          Attorneys Fees.

          Under  Alaska  Civil Rule 82 parties must file  motions

for attorneys fees within ten days of the clerks distribution  of

the  judgment  or  within a reasonable time   determined  by  the

court.8  The question here is whether the trial court abused  its

discretion  in granting TVC ten days to supplement  its  original

motion for attorneys fees.9   A trial court will not be found  to

have abused its discretion in allowing a party additional time to

supplement   its  original  motion  under  Rule  82  unless   the

additional time (1) was unreasonable or (2) resulted in prejudice

to the opposing party.10

          1.   The amount of time granted was reasonable.

1.              On October 13 Judge Steinkruger gave TVC ten days

to  file  a  supplemental motion for attorneys fees  because  its

original  motion  and supporting affidavit were not  sufficiently

clear.   The  superior  court has the  discretion  to  allow  for

supplementation when the moving party fails to adequately support

its claim for fees.11  Alaska Civil Rule 60 also allows a party to

correct a clerical error arising from oversight or omission12 and

has  been  used by this court to allow a party to supplement  its

original  motion  for  attorneys fees when  the  original  motion

contained a clerical error.13  Because the superior court has the

power to correct clerical errors, omissions, and ambiguities in a

partys  motion  for attorneys fees and because  ten  days  was  a

reasonable  amount  of  time, it was not unreasonable  for  Judge

Steinkruger  to allow TVC ten days to file a supplemental  motion

for fees.

          2.   The supplemental motion did not prejudice Kozevnikoff.
               
          Allowing a party to supplement its original motion  for

attorneys  fees  may  constitute an abuse  of  discretion  if  it

prejudices  the  opposing party.14  As his  own  brief  concedes,

Kozevnikoff  suffered  prejudice only because  of  his  erroneous

belief  that  the  September 12 order was a denial  of  attorneys

fees,  not  because Judge Steinkruger allowed TVC to correct  its

clerical error in a supplemental motion.

          Kozevnikoff  also argues that his mistaken belief  that

the  September  12 order constituted a denial of fees  and  costs

should  lead  to  a  reversal of the superior courts  award.   He

argues that because of his misplaced reliance on the finality  of

the  September 12 order he suffered prejudice settling his appeal

on the assumption that no attorneys fees or costs were awarded to

[the]  Appellee.   Kozevnikoffs  argument  of  reliance  is   not

supported by the record,15 nor does it justify denying TVC  costs

and fees to which it is entitled.

          Because   Kozevnikoff  was  not  prejudiced   by   TVCs

supplemental  motion  and  because  it  was  reasonable  for  the

superior  court to give TVC ten days to supplement  its  original

motion, there was no abuse of discretion.

     C.   TVC Was Not Required To File a Motion for Reconsideration
          Under Alaska Civil Rule 77.
          
          Kozevnikoff argues that TVC should not receive fees  or

costs because it  failed to file a Motion for Reconsideration  of

the  September 12 order pursuant to Civil Rule 77.   Because  the

September 12 order was not a judicial ruling denying TVCs  motion

for  costs  and attorneys fees, TVC was not required  to  file  a

motion to reconsider under Rule 77.

V.   CONCLUSION

          We AFFIRM the superior courts award of $220.48 in costs

and $3,146.43 in attorneys fees to TVC.



_______________________________
     1    Rule 82(b) states in pertinent part:

          [The  court] shall award the prevailing party
          in  a  case resolved without trial 20 percent
          of  its  actual  attorneys  fees  which  were
          necessarily incurred.  The actual fees  shall
          include   fees  for  legal  work  customarily
          performed  by  an  attorney  but  which   was
          delegated    to   and   performed    by    an
          investigator,   paralegal,  or   law   clerk.
          Alaska R. Civ. P. 82(b).
          
     2     TVCs motion for fees requested $3,146.46, stating that
this  amount  represented twenty percent of its actual  attorneys
fees,   but  TVCs affidavit in support of the motion stated  that
TVCs actual attorneys fees were $3,146.43.

     3     Hunt  v. Univ. of Alaska, Fairbanks, 52 P.3d 739,  742
(Alaska 2002).

     4     City  of  Kodiak v. Parish, 986 P.2d 201, 202  (Alaska
1999).

     5    Alaska R. Civ. P. 58.

     6    Alaska R. Civ. P. 58.1(a)(2), (d).

     7     Alaska  R.  Civ. P. 82(b)(3) (stating [i]f  the  court
varies  an  award, the court shall explain the  reasons  for  the
variation).   See  also Patrick v. Sedwick,  413  P.2d  169,  179
(Alaska  1966) (reasons for deviating from set fee schedule  must
appear in record).

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

     9     TVCs original motion for attorneys fees is not subject
to this analysis because its was filed within the time limits set
forth in Rule 82.

     10     Cizek  v.  Concerned Citizens of Eagle River  Valley,
Inc., 71 P.3d 845, 849 (Alaska 2003) (citing Alderman v. Iditarod
Props., Inc., 32 P.3d 373, 397 (Alaska 2001)).

     11     Gonzalez v. Safeway Stores, Inc., 882 P.2d  389,  399
(Alaska 1994).

     12    Alaska R. Civ. P. 60(a).

     13    Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990).

     14    See Alderman, 32 P.3d at 397.

     15      At  the  time  that  Kozevnikoff  entered  into  the
settlement,  he  should have at least been  on  notice  that  the
superior  court  had granted TVC costs and had  not  yet  awarded
attorneys fees.