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Dawson v. Temanson (02/25/2005) sp-5872
Dawson v. Temanson (02/25/2005) sp-5872
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
VELMA M. DAWSON, )
) Supreme Court No. S-10774
Appellant, )
) Superior Court No. 1JU-01-1567
CI
v. )
) O P I N I O N
ANGELA TEMANSON and KEN )
GARRISON, ) [No. 5872 - February 25, 2005]
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Z. Kent Sullivan, Baxter Bruce
Sullivan P.C., Juneau, for Appellant. J.
Kate Burkhart and Mark Regan, Juneau, and
Andrew Harrington, Fairbanks, Alaska Legal
Services Corporation, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
After prolonged litigation in two lawsuits, a
residential landlord successfully evicted tenants from the
basement apartment in her home and was awarded damages against
them. When she moved for attorneys fees, the superior court
adopted the full, reasonable attorneys fees standard, but awarded
her fees of only $750. We conclude that the court correctly
adopted the full, reasonable attorneys fees standard for awards
under AS 34.03.350. But because the reasons given for the award
do not adequately explain why awarding less than fifteen percent
of the fees the landlord incurred in the second lawsuit satisfied
the full, reasonable standard under the circumstances, we hold
that it was an abuse of discretion to award the prevailing party
only $750. We therefore vacate the award and remand.
II. FACTS AND PROCEEDINGS
Velma Dawson owned and lived in a home on Glacier
Highway in Juneau. Angela Temanson and Ken Garrison rented a
basement apartment in her home, beginning with a lease starting
on or about July 3, 2000. After the lease period ended, the
tenancy became month-to-month.
Dawson decided to renovate and sell her home. On
September 27, 2001 she sent Temanson and Garrison a Notice to
Quit and Termination of Rental Agreement by certified mail. The
Notice to Quit and Termination of Rental Agreement was prepared
by Dawsons attorney and informed Temanson and Garrison that
Dawson had elected to terminate the month-to-month tenancy and
that the tenants were required to quit and surrender possession
on or before November 5, 2001. Temanson and Garrison denied ever
receiving the notice. The postal service marked the certified
envelope as unclaimed. Dawson alleged that, in addition to
sending the notice by certified mail, she delivered a handwritten
notice of termination of tenancy (advising the tenants that they
had until November 4, 2001 to vacate the premises) to Garrison on
October 5, 2001. Garrison denied that Dawson delivered that
notice. The tenants did not move out.
On November 8, 2001 Dawson filed a complaint for
possession and damages against the tenants. This was Case No.
1JU-01-1567 CI. Temanson and Garrison answered through counsel,
denying that Dawson was entitled to possession, raising
affirmative defenses alleging retaliation and breach of good
faith, and asserting counterclaims alleging retaliation, unlawful
ouster, unlawful diminution of services, abuse of access, and
violation of the Alaska Human Rights Act. The forcible entry and
detainer (FED) hearing took place November 16 before Magistrate
J.W. Sivertsen, Jr. Both sides had counsel.
Magistrate Sivertsen concluded that eviction could not
proceed at this time because neither the unclaimed certified
envelope nor the hand-delivered, handwritten notice satisfied the
notice requirements of AS 34.03.290 and AS 09.45.100. He
nonetheless retained jurisdiction to decide the eviction and
damages claims at a future date.1 Dawson commenced an appeal in
the superior court from the magistrates ruling on possession and
at about the same time sent the tenants another notice of
termination of tenancy and notice to quit.2 Her appeal was Case
No. 1JU-01-1619 CI. Dawson also filed motions seeking expedited
consideration of her appeal and consideration of new evidence
regarding service of the notice.
On January 7, 2002 Dawson commenced a new proceeding,
Case No. 1JU-02-0008 CI, by filing another complaint for
possession and damages. A trial for possession in this case took
place on January 18, 2002. Following trial, Superior Court Judge
Patricia A. Collins entered partial judgment for Dawson, awarding
her sole possession of the property, requiring appellees to
vacate the apartment, and reserving damages and attorneys fees
issues for the future. The superior court also entered an order
dismissing the interlocutory appeal of the possession issue in
Case No. 1JU-01-1567 CI as moot. The court later held that given
the chain of proceedings and notices between the first FED action
and the January hearing, any alleged defects in the notice to the
tenants had been cured.
On May 24, 2002 the superior court conducted the
damages trial. The tenants had withdrawn their counterclaims
before trial.3 Following trial, the superior court awarded
Dawson damages of $1,112.45. Dawson moved for an award of
attorneys fees totaling $15,417. Her attorneys supporting
affidavit and billing statements described the fees she had
incurred. On August 11, 2002, the superior court awarded Dawson
attorneys fees of $750. The judgment for Dawson incorporated
that award.
Dawson appeals the attorneys fees award, arguing that
the superior court improperly limited the award to only $750.
III. DISCUSSION
A. Standard of Review
We ordinarily review awards of attorneys fees for an
abuse of discretion,4 but we review underlying legal
determinations using our independent judgment.5 We review
factual findings for clear error.6 We apply our independent
judgment to issues of statutory construction and will adopt the
rule of law most persuasive in light of precedent, reason, and
policy.7
B. Number of Cases
As a preliminary matter, Dawson argues that the
superior court erred in construing her action as three separate
and independent cases instead of only one. She describes the
facts and proceedings below as inexorably intertwined. Temanson
and Garrison argue that the superior court was correct to
characterize the litigation as three separate proceedings. They
argue that Dawson filed a complaint for possession and damages on
November 8, 2001; that she commenced an appeal in November from
the decision in that matter; that she commenced a third
proceeding after serving a second notice of termination of
tenancy and a second notice to quit;8 and that the first appeal
and second action were ultimately both in front of the same
superior court judge. The tenants and the superior court appear
to have counted the proceedings commenced by each complaint and
the appeal as separate cases.
Whether there were two cases or three would seem to be
irrelevant, were it not for some question about how the fees
award was calculated, and how it might be calculated on remand.
Because the award was meant to exclude services performed before
commencement of the new proceeding on January 7, the issue is
immaterial if the court on remand adheres to that exclusion. But
if the award on remand covers any services performed before
January 7, the issue might matter. We therefore briefly address
the question.
In our view, the first complaint and the November
appeal relating to it should be considered one case, and the
second complaint, filed January 7, should be considered to have
commenced a second case. Dawsons first complaint for possession
and damages involved the legal and factual issues relating to her
September 27, 2001 notice sent by certified mail and the October
5, 2001 notice. Her November appeal (or petition for review)
from the November order also related to those efforts to
terminate.
Her second complaint for possession and damages, filed
January 7, involved legal and factual issues that largely related
to her November 19, 2001 notice of termination and notice to
quit. Some issues were in common. For example, the tenants
argued in both cases that a separate notice to quit was required.
Because Dawson prevailed on the possession issue in her
second case, the superior court dismissed as moot Dawsons
interlocutory appeal of her first case. We therefore consider
the litigation below to have constituted two cases corresponding
to the first and second complaints.
C. The Merits of Dawsons First Case
In discussing the landlords attorneys fees motion, the
superior court reasoned that Dawson lost and/or would have lost
two of the three separate cases that she filed, and therefore
declined to award fees with respect to the first action and the
associated interlocutory appeal. This conclusion was based in
part on the courts agreement with the magistrate and the tenants
that the unclaimed notice of termination and notice to quit that
Dawson sent by certified mail in September did not satisfy AS
34.03.290(c). The superior court also reasoned that AS
34.03.290(c) requires a separate notice to quit following
termination of the tenancy.
Dawson argues that because the notice issues had been
mooted, the superior court erred when awarding fees by
considering the mooted issues. She also addresses the merits of
the notice issues, and argues that under Alaska law a landlord
can send a notice of termination and a notice to quit together by
certified mail and that the notices satisfy AS 34.03.290 and AS
09.45.100 even though they are sent simultaneously. Alaska
Statute 34.03.290(b) specifies that a landlord may terminate a
month-to-month tenancy by a written notice given to the [tenant]
at least 30 days before the rental due date specified in the
notice. Alaska Statute 34.03.290(c) states that if a tenant
remains in possession after the termination, the landlord may,
after serving a notice to quit, bring an action for possession.
Finally, AS 09.45.100(c)(3) provides for service on the tenant of
a notice to quit sent by registered or certified mail. Both
Dawson and the tenants rely on AS 09.45.100(c) in arguing how
notice to quit must be effected under AS 34.03.290(c).
Dawson argues that the plain meaning of sent in AS
09.45.100(c) and the lack of contrary legislative history
establish that sending notice by certified mail is sufficient.
The tenants respond that the purpose of the statute and basic
fairness require that a landlord must establish the tenants
actual receipt or refusal to accept the notice.
Although the notice issues are potentially important to
other landlords and tenants, we choose not to decide them in this
appeal. The only issues squarely before us concern the attorneys
fees award. The court declined to award Dawson fees with respect
to legal services concerning the first FED action. Whatever the
merits of the notice issues in that case, Dawson was not in fact
the prevailing party in that case as to those issues because the
superior court dismissed her appeal in that case for mootness and
Dawson has not appealed from that dismissal. Nor has she
appealed from the judgment that awarded her unpaid rent for
January 1-19, 2002, but no rent for the period November 5 through
December 31.
We have sometimes chosen to consider the merits of
mooted issues when, to resolve an attorneys fees dispute, it is
necessary to determine who was, or would have been, the
prevailing party.9 But here there is no genuine dispute about
whether Dawson was ultimately the prevailing party in proceedings
that she describes on appeal as inexorably intertwined. The
court treated Dawson as the prevailing party who regained
possession and recovered damages, and consequently awarded fees
to her. The prevailing-party issue is therefore of little or no
importance because the important issue here is whether the award
was too small. For reasons we discuss in Part III.D, the main
question is whether it was an abuse of discretion to award about
fifteen percent of the fees incurred from January 7 forward. We
therefore see little need to address the merits of the mooted
notice issues in this case, and decline to do so.
D. Reasonableness of Attorneys Fees Award
Dawson argued below that AS 34.03.350 entitled her to
an award of full, reasonable attorneys fees from the tenants.
The tenants responded that the statute should not be interpreted
to call for full, reasonable fees. The superior court held that
AS 34.03.350 provides for an award of full, reasonable attorneys
fees to the prevailing party in an action under the Alaska
Uniform Residential Landlord and Tenant Act (AURLTA), but awarded
Dawson fees of $750 although her attorney had asserted that
Dawson had incurred fees exceeding $15,000.
Dawson argues on appeal that it was error to fail to
award her full, reasonable fees. Garrison and Temanson argue
that AS 34.03.350 does not require an award of full, reasonable
fees. They did not cross-appeal this legal issue, but they
permissibly raise it as an alternative basis for affirming the
superior courts fees award.10
We therefore first consider the standard that applies
to Dawsons attorneys fees award. Alaska Statute 34.03.350
provides: Attorney fees shall be allowed to the prevailing party
in any proceeding arising out of this chapter, or a rental
agreement. Although we have not previously construed AS
34.03.350, we have interpreted other provisions calling for an
award of reasonable fees to mean an award of full reasonable
fees.11
Had the legislature intended that a prevailing party in
a landlord-tenant dispute receive only partial fees, there would
have been no reason for the statute to address the topic of
awarding fees, because Civil Rule 82 would have been an adequate
basis for routine recovery of partial fees by prevailing parties.
We therefore read AS 34.03.350 as providing for an award of full,
reasonable attorneys fees to the prevailing party. The superior
court did not err in so holding.
We next consider whether, as Dawson contends, it was an
abuse of discretion to award Dawson fees of $750.
It is not clear how the superior court calculated the
$750 award. It apparently reasoned in part that fees Dawson
incurred while litigating possession during the first case were
not recoverable from the tenants in the second case, because
Dawson was not, or would not have been, the prevailing party. We
express no opinion about whether she would have been the
prevailing party if her second case had not mooted the first.
Dawsons procedural difficulties in the first case and her
vigorous efforts to defend those steps apparently also
contributed to the courts decision to base the fee award
exclusively on services performed during the second case. Under
the circumstances, we think that was a permissible choice. After
the failure of the first proceeding, Dawson chose to attempt an
Appellate Rule 204 direct appeal of the interlocutory decision
even though the more direct and immediate route to eviction would
have been to serve a new notice and initiate a new proceeding.12
Indeed, that is what Dawson ultimately did when she re-served the
tenants in November 2001 and filed a new complaint in January
2002. But in the meantime, she continued to litigate the first
case. She asked for expedited appellate review of the FED
ruling, moved for consideration of newly discovered evidence
under Alaska Civil Rule 60(b) relating to notice issues, gathered
and submitted affidavits addressing the notice issues, and
briefed the notice issues for the reviewing court. The appeal
and the associated motion practice contributed to circuitous and
inefficient litigation of the eviction dispute. Dawson thus
proceeded on duplicative paths by vigorously attacking the
November order at the same time she was initiating a new eviction
case. When a party files duplicative cases, one of which renders
the other moot, we cannot say that it is an abuse of discretion
to deny attorneys fees incurred in prosecuting the mooted case.
Having reviewed the time sheets detailing the services performed
by Dawsons attorney, we conclude that the superior court did not
err in concluding that Dawson excessively litigated what should
have been a routine forced eviction.
Nonetheless, the rationale for the $750 award is not
obvious, even if the award was permissibly based on fees incurred
only in the second case.
After the tenants were evicted and she was awarded
damages, Dawson requested $15,417 in attorneys fees. The
supporting affidavit of her attorney, Z. Kent Sullivan, asserted
that fees were billed at the hourly rate of $150 and that Dawsons
attorneys had reasonably expended in excess of 102 hours in
review, document preparation, hearing attendance and trial with
regard to the present action. The affidavit attached billing
statements specifying the services performed and the dates of
service. The statements reflect numerous pre-January 7 entries
that pertain only to the first case and the associated appeal and
motion practice.
The superior court found that Sullivans hourly rate of
$150 was reasonable, but that the hours expended were not
reasonable because remarkable amounts of time were spent on
matters that were not complex. The court also noted the lack of
complex fact or law issues, the lack of significant pre-trial
discovery or motion practice, and the brief length of trial(s).
We cannot say that a substantial reduction was
inappropriate. Nor are we convinced that the courts findings
that the issues were not complex and that the services were
excessive were clearly erroneous. But several circumstances
nonetheless convince us that the $750 award was inadequate.
At the $150 hourly rate approved by the superior court,
the award compensated Dawson for only five hours of work by her
lawyers. But the January 2002 possession trial and the May 2002
damages trial lasted a total of about 4.5 hours, and additional
post-January 7 hearings took about another half an hour of actual
court time. It appears from the billing statements that Dawsons
attorney spent significantly more than five hours just preparing
for and attending the two trials.13 Because the trials and
hearings themselves required nearly five hours of actual court
time, the award failed to compensate Dawson for any necessary
preparation before these appearances.
Further, Sullivans statements describe about thirty-
seven billed hours of attorney time for services between January
7, 2002 (when Sullivan drafted and filed the second complaint)
and May 24, 2002 (when the damages trial took place). At $150
per hour, the billings reflect about $5,550 attributable to the
second case. The $750 award is less than fifteen percent of
$5,550.
In prosecuting the second case, Sullivan also had to
draft and file a number of documents (including the complaint and
proposed orders). The tenants were represented by very able
attorneys who vigorously advocated the tenants position even
though the ultimate outcome on the issue of possession, assuming
the alleged service and procedural deficiencies were cured, was
never in realistic doubt. They raised numerous affirmative
defenses. They asserted counterclaims for damages. It was not
until shortly before the May 24, 2002 damages trial that they
dismissed their counterclaims. Given the need to draft the
complaint and the other documents, litigate significant legal
issues raised by the tenants, prepare to respond to the
counterclaims, prepare for and attend the possession and damages
trials, and communicate with court and opposing counsel, the
findings do not adequately support the award. They do not
demonstrate how, under these circumstances, a reasonable attorney
could have successfully litigated the disputed possession and
damages issues in the second case without billing more than five
hours of attorney time. It is not evident from the findings how
$750 could, under the circumstances of this case, be considered a
full and reasonable amount.
IV. CONCLUSION
We therefore VACATE the award of $750 and REMAND for
determination of the full, reasonable attorneys fees.
_______________________________
1 The remaining aspects of Dawsons original proceeding
(Case No. 1JU-01-1567 CI) were later transferred to the superior
court and consolidated with Dawsons second proceeding (Case No.
1JU-02-0008 CI).
2 Because the November order did not finally resolve all
claims raised in the complaint and answer and because it
apparently did not comply with Alaska Civil Rule 54(b), Dawsons
November 2001 appeal was premature. The superior court treated
the appeal as seeking interlocutory review and gave it expedited
consideration. Dawsons appellate brief to us refers to the
appeal as a petition for review. Had the judgment been final and
disposed of all her claims, Dawson would have been required to
appeal to prevent res judicata from barring subsequent litigation
of her damages claim.
3 The tenants counterclaims had been consolidated with
Case No. 1JU-02-0008 CI for trial. Before the tenants dropped
their claims, Dawsons attorney appears to have spent billable
time preparing to respond to the counterclaims.
4 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004); Sisters of Providence in Washington v. A.A. Pain Clinic,
Inc., 81 P.3d 989, 1007 n.61 (Alaska 2003); Feichtinger v.
Conant, 893 P.2d 1266, 1268 (Alaska 1995).
5 Samaniego, 83 P.3d at 1082; Matanuska Elec. Assn v.
Rewire the Bd., 36 P.3d 685, 689-90 (Alaska 2001).
6 Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000).
7 Coughlin v. Govt Employees Ins. Co. (GEICO), 69 P.3d
986, 988 (Alaska 2003).
8 These were the third notices by Dawsons count.
9 Jerue v. Millett, 66 P.3d 736, 742 (Alaska 2003)
(evaluating success of mooted shareholder derivative suit for
purposes of awarding attorneys fees); State v. Niedermeyer, 14
P.3d 264, 267 (Alaska 2000) ([W]e will review an otherwise moot
issue to determine who the prevailing party is if such a
determination is necessary for purposes of awarding attorneys
fees.) (internal quotation marks and citation omitted).
10 See, e.g., Zaverl v. Hanley, 64 P.3d 809, 819 n.25
(Alaska 2003) (We can affirm on alternative grounds apparent from
the record.); Spindle v. Sisters of Providence in Washington, 61
P.3d 431, 436 (Alaska 2002) (We are not bound by the trial courts
articulated reasoning and can affirm a grant of summary judgment
on alternative grounds, considering any matter appearing in the
record, even if not considered by the trial court.); Cabana v.
Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002) (When
ruling on a motion for summary judgment, we may consider any
argument ascertainable from the record, even if the superior
court did not rule on it. We are not bound by the reasoning
articulated by the superior court and can affirm a grant of
summary judgment on alternative grounds, including grounds not
advanced by the superior court or the parties.) (internal
quotation marks and citations omitted).
11 See Bobich v. Stewart, 843 P.2d 1232, 1237 (Alaska
1992) ([W]hen interpreting a state statute that expressly calls
for an award of reasonable attorneys fees to successful
plaintiffs, we have held that full fees should be awarded to
claimants as long as those fees are reasonable.); Jackson v.
Barbero, 776 P.2d 786, 788 (Alaska 1989) (construing clause in
lease authorizing reasonable attorneys fees to mean full
reasonable fees); Boyd v. Rosson, 713 P.2d 800, 802 (Alaska
1986), modified on rehg, 727 P.2d 765 (Alaska 1986) (interpreting
statute authorizing a reasonable attorney fee for foreclosure of
liens to provide for full reasonable fees).
12 The direct appeal was also arguably premature, because
it appears the November 16 ruling was not a final judgment. We
recognize that Dawson potentially faced a procedural quandary.
If the November order had been final, an appeal would have been
appropriate to preserve her damages claim and to obtain attorneys
fees as the prevailing party, and possibly to avoid prejudicing
her defense to the tenants counterclaims, asserted on November
15. Ultimately her unresolved damages claim was transferred to
the superior court, and consolidated with the second case. The
damages award covered unpaid rent for January 1-19, 2002 and
damage to the apartment.
13 Sullivan apparently billed over eighteen hours for
preparing for and attending these hearings and proceedings; a
small portion of that time was for other legal services, such as
telephone calls.
