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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.