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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Schmidt (06/24/2005) sp-5914

In Re Schmidt (06/24/2005) sp-5914

     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


In the Matter of KRISTINE A.      	)
SCHMIDT,                      		)    Supreme Court No. S-11427
                              			)
                              			)    Superior Court No.
Regarding Sanctions Imposed        		)    3KN-99-00260 CI
in Koivisto v. Koivisto, Superior  		)
Court No. 3KN-99-00260 Civil.      	)    O P I N I O N
                              			)
                              			)    [No. 5914 - June 24, 2005]




          Appeal  from the Superior Court of the  State
          of Alaska, Third Judicial District, Kenai, M.
          Francis Neville, Judge pro tem.

          Appearances:   Robert J. Molloy,  Kenai,  for
          Appellant.

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

          FABE, Justice.


I.   INTRODUCTION

          Kristine  A.  Schmidt  is  an  attorney  who  requested

permission  to file a late brief after the superior court  master

had set a firm date for concurrent briefing and announced that no

extensions would be granted.  The superior court master  accepted

Schmidts  late  brief but allowed the opposing party  to  file  a

reply  brief  to  alleviate the potential  for  unfair  advantage

created  by  the  late  filing.  The  superior  court  instructed

Schmidt to pay attorneys fees associated with the opposing partys

reply  brief  pursuant to Alaska Civil Rule  95(a).   Later,  the

superior  court, in an apparent oversight, signed  a  conflicting

order,  denying  the  motion to accept the late-filed  brief  and

ordering Schmidt to pay attorneys fees covering the cost  of  the

opposing  partys original brief.  Because the superior court  did

not  abuse  its  discretion  when it instructed  Schmidt  to  pay

attorneys  fees associated with the reply brief, we  affirm  that

order.   But because it was error to enter the conflicting  order

rejecting Schmidts late-filed brief and assessing attorneys  fees

for the opposing partys original brief, we vacate that order.

II.  FACTS AND PROCEEDINGS

          Kristine  A.  Schmidt  is an attorney  who  represented

Hopeful  Lucy  Koivisto, now Hopeful Lucy Standefer,  in  divorce

proceedings   against  Clifford  Daniel  Koivisto.  The   divorce

proceedings were bifurcated and the issues of property  division,

spousal  support, and attorneys fees were tried  before  Superior

Court  Master  Anne M. Preston on March 1, 2000 and March  29-30,

2000.

          At  the  end  of the trial on March 30, Master  Preston

asked  the  parties to file post-trial briefs in lieu of  closing

argument  to  address matters that remained in  dispute.1  Master

Preston asked Schmidt whether she objected to filing a post-trial

brief  on  behalf of Standefer regarding the outstanding  issues.

Schmidt  responded that she did not object.  Master Preston  then

asked  Schmidt  whether  the post-trial briefs  should  be  filed

simultaneously, and Schmidt responded, That would be fine.   When

the  superior court master asked Schmidt how long she would  need

to  file the brief, Schmidt responded that her work schedule  was

busy  through April 15 and that she would be on vacation for  two

weeks  after  that.   She requested that  the  deadline  for  the

closing  briefs  be sometime after the first of  May.   Allan  D.

Beiswenger, the attorney for Koivisto, then requested an hour for

oral  argument in the next few days in lieu of written post-trial

briefs  because the matter was fresh in everyones mind.   Schmidt

objected,  stating that she did not have time for oral  argument,

but  suggested  that  Beiswenger could file Koivistos  post-trial

          brief under seal right away so that she would not see it before

the  filing  deadline.  In an attempt to address  both  attorneys

concerns, the superior court master directed the parties to  file

simultaneous briefs on May 10 and stated that she was  not  going

to   allow  any  continuations.   The  court  master  also   told

Beiswenger  that he could file Koivistos brief under seal  at  an

earlier  date  if  he wished to do so while the  case  was  still

fresh.

          On  May  9, 2000, Beiswenger filed Koivistos post-trial

brief.   He  did not file it under seal.  Schmidt  did  not  file

Standefers  post-trial brief by the May 10  deadline.   Almost  a

week  later,  on  May 16, a superior court clerk phoned  Schmidts

office and told Schmidts paralegal that Master Preston wished  to

know  if  Schmidt  was  planning  to  file  a  post-trial  brief.

According to the paralegal, Master Preston wanted Ms. Schmidt  to

know  that  it  was  not  necessary to do [a  post-trial  brief;]

however  if  she  chose to file one [Master Preston]  wanted  Ms.

Schmidt  to be reminded to file a Motion for the Court to  Accept

Late  Filed  Papers because the Post Trial Brief was due  on  May

10th,  2000.  The paralegal stated in her affidavit that she  put

the clerk on hold and asked Schmidt to affirm that she would file

a  post-trial brief the next day, on May 17.  The paralegal  then

informed  the  clerk  that Schmidt would be filing  a  post-trial

brief.  According to the paralegals affidavit, the clerk did  not

inform  her that Schmidt could be subject to sanctions for filing

the brief late.

          Schmidt  filed Standefers post-trial brief on  May  17,

2000.   She  also  filed a motion to accept the late-filed  brief

pursuant  to Alaska Civil Rule 6(b)(2),2 along with an  affidavit

explaining  that  she had filed the brief late due  to  her  busy

schedule.  In the motion to accept the late-filed brief and  also

in  the  supporting affidavit, Schmidt asserted  that  the  trial

court  had set a May 10 due date for the briefs despite  Schmidts

request that the due date be set for the third week of May.  Yet,

          as noted above, the transcript reflects that Schmidt actually

asked  that the due date be set sometime after the first of  May.

When the master scheduled the May 10 due date, she indicated that

she  had  chosen  the  due  date out  of  deference  to  Schmidts

schedule.

          On  May  23 Beiswenger filed both an opposition to  the

motion  to accept the late-filed brief and a motion for sanctions

or  attorneys fees incurred as a result of the late filing.   The

motion  stated  that  Beiswenger spent  4.6  hours  drafting  his

clients  post-trial brief, resulting in $851 in  attorneys  fees.

Beiswengers  motion  requested  that  the  superior  court   deny

Schmidts motion to accept Standefers late-filed brief.   It  also

requested  that the superior court impose sanctions or  attorneys

fees in the amount of $851.  The motion asserted that failure  to

meet  deadlines  has become more the rule than the  exception  in

this  case,  and that Schmidt had also failed to file  Standefers

witness list, trial brief, and exhibits on time.

          On  June 20 Superior Court Judge pro tempore M. Frances

Neville  granted Schmidts motion to accept the late-filed  brief.

The  superior  court  stated  that  it  agreed  with  Beiswengers

argument  that post-trial briefs were to be filed simultaneously,

and  that  [Standefers] delay gave her the  unfair  advantage  of

being  able  to read and respond to points raised in  [Koivistos]

brief.  Therefore, the superior court authorized Koivisto to file

a  reply  to  Standefers  post-trial  brief.   In  addition,  the

superior  court  awarded Koivisto reasonable attorneys  fees  and

costs  associated with the reply brief pursuant to  Alaska  Civil

Rule  95(a).3  The superior court instructed Schmidt, rather than

Standefer, to pay the fees and costs because the delay appear[ed]

to have been occasioned solely by [Standefers] counsel.

          On   June  27  Beiswenger  filed  Koivistos  reply   to

Standefers post-trial brief. Beiswenger also filed an itemization

of  costs  and fees claiming $656.40 as the charge for  preparing

the  reply  brief.   On  June  29  Schmidt  filed  a  motion  for

          reconsideration of the superior courts June 20 order, alleging

that the order was an abuse of discretion and violated Standefers

constitutional  rights.4  On July 21 the  superior  court  denied

Schmidts motion for reconsideration.

          The superior court issued two additional orders on July

21.  One was Koivistos original proposed order denying Standefers

first   motion  to  accept  the  late-filed  brief.   This  order

contradicted  the  superior courts June  20  order  granting  the

motion  to accept the late-filed brief.  This order also  granted

Koivisto the $851 in attorneys fees that he had incurred for  the

preparation  of his initial post-trial brief and did not  specify

whether  Schmidt or Standefer should pay these fees.  The  second

order  granted Koivisto the $656.40 that he had incurred for  the

preparation  of  his reply brief in response to Standefers  late-

filed  brief.  This order was consistent with the superior courts

earlier  order  that  Schmidt, rather than Standefer,  should  be

responsible for the fees, stating that the money was to  be  paid

within  ten  (10) days of the date of this Order by  counsel  for

Plaintiff, Kristine A. Schmidt, to Allan Beiswenger, attorney for

Defendant.

          On  February 23, 2001, the superior court master issued

a   masters  report  regarding  the  property  division,  spousal

support,  and attorneys fees.  The report recommended  that  each

party  pay  its own attorneys fees and costs.  Due  to  Koivistos

subsequent  bankruptcy,  the  superior  court  did  not  issue  a

decision  regarding  the masters recommendations  until  May  10,

2002.  When the superior court did issue a decision, the superior

court adopted all but three of the masters recommendations.

          On  September 12, 2003, Koivisto wrote a letter to  the

superior  court inquiring about enforcement of the July 21,  2000

orders  awarding him attorneys fees for his post-trial brief  and

his   reply  to  Standefers  late-filed  post-trial  brief.    In

response, the trial court issued an order considering the  letter

a motion to enforce the July 21, 2000 orders and inviting Schmidt

          to respond to the motion.  Schmidt filed a response, arguing that

the  July 21, 2000 orders were superseded by the courts  May  10,

2002  decision  adopting  the  masters  recommendation  that  the

parties pay their own attorneys fees.  On December 18, 2003,  the

superior  court  issued  an order granting  Koivistos  motion  to

enforce  the  July 21, 2000 orders.  The superior court  observed

that  the  July  21,  2000 orders required  Schmidt  to  pay  the

attorneys  fees  within  ten days of the  orders,  and  that  the

masters report was not issued until February 23, 2001, well after

the  money was due.  On March 1, 2004, the superior court entered

a judgment against Schmidt in the amount of $1,778.53.  The award

represented  $1,507.40  in  attorneys  fees  plus  five   percent

interest beginning on August 1, 2000.  Schmidt appeals the  March

1, 2004 judgment.

III. DISCUSSION

     A.   Standard of Review

          We  review  awards of attorneys fees and sanctions  for

abuse  of discretion.5  We review questions of law de novo.6   We

apply  our independent judgment when determining whether a partys

procedural  due  process  rights have been  violated.7   We  also

exercise our independent judgment when interpreting a civil rule.8

The trial courts factual findings are reviewed for clear error.9

     B.   The Superior Court Did Not Abuse Its Discretion when It
          Awarded  Koivisto Reasonable Attorneys Fees  and  Costs
          Associated with the Reply Brief Pursuant to Civil  Rule
          95(a).
          
          The  first order from which Schmidt appeals is the June

20,  2000 order regarding Schmidts late-filed brief, in which the

superior  court  authorized Koivisto to file a  reply  brief  and

instructed  Schmidt to pay reasonable attorneys  fees  and  costs

associated  with Koivistos reply brief.  Because this  order  was

not an abuse of the superior courts discretion, we affirm.

          1.   Schmidt violated these rules as that term is  used
               in Civil Rule 95(a).
               
          Schmidt first argues that Civil Rule 95(a) only applies

when  there  has been a violation of one of the Alaska  Rules  of

Civil Procedure.  Civil Rule 95(a) states:  For any infraction of

these  rules, the court may withhold or assess costs or attorneys

fees . . . .10  The phrase these rules is not defined,11 but Alaska

Civil Rule 1 also uses the phrase, stating: The procedure in  the

superior  court  . . . shall be governed by these  rules  in  all

actions  or proceedings of a civil nature . . . .12  In addition,

Rule  95 is located in Part XIII of the Rules of Civil Procedure.

Part XIII is entitled General Provisions, and the other rules  in

this part examine the construction and applicability of the rules

of  civil procedure.13  Thus, Schmidt is correct that the  phrase

these  rules, as used in Civil Rule 95(a), refers to  the  Alaska

Rules of Civil Procedure.

          In  a  related  argument,  Schmidt  contends  that  the

superior  court was required to specify which civil rule  Schmidt

had  violated  when it assessed attorneys fees and costs  against

her  under Civil Rule 95(a).  The superior courts June  20  order

directed  Schmidt  to  pay reasonable attorneys  fees  and  costs

associated with Koivistos reply brief [p]ursuant to Alaska  Civil

Rule 95(a), but did not indicate which of the civil rules Schmidt

had violated.

          Schmidt  contends  that  our  decision  in  Wilson   v.

Municipality of Anchorage14 is directly on point.  In  Wilson,  a

firefighter  sued the Municipality of Anchorage, alleging  breach

of contract and racial discrimination claims related to the citys

hiring and promotional decisions.15  The superior court concluded

that  the firefighters suit was without merit and that filing  it

constituted  vexatious and bad faith conduct, which counsel,  not

the client should have recognized.16  The superior court assessed

attorneys fees against the firefighters attorneys without  citing

any  authority for the award.17  On appeal, we reversed the award

of attorneys fees, noting:

          Alaska  Civil Rule 95(a) allows trial  courts
          to  award  fees  against counsel.   Fees  and
          costs may be imposed upon attorneys [f]or any
          infraction  of  these rules  .  .  .  as  the
          circumstances  of the case and discouragement
          of  like  conduct in the future may  require.
          But  assessment under Rule 95(a)  requires  a
          showing  that  counsel  has  violated   these
          rules.  The order awarding fees here did  not
          identify  what  rules  counsel  violated,  if
          any.[18]
          
Based  on this language, Schmidt argues that the superior  courts

order in this case was improper because it did not identify which

of the civil rules Schmidt violated by filing her brief late.

          But  Wilson is distinguishable from this case.   First,

the  superior court in Wilson failed to mention Civil Rule  95(a)

when  it  assessed  attorneys  fees  against  Wilsons  attorneys,

despite  the  fact  that the municipality had only  requested  an

award of attorneys fees pursuant to Alaska Civil Rule 82.19  Civil

Rule  82  does  not  authorize an assessment  of  awards  against

counsel,  so  we were left to speculate about whether  the  award

might have been authorized under Civil Rule 95(a).20  In contrast,

the  superior courts assessment of attorneys fees against Schmidt

in this case specifically cited Civil Rule 95(a).

          Second,  the  superior  court in Wilson  assessed  fees

against  Wilsons  attorneys because  the  filing  of  the  action

constituted vexatious and bad faith conduct.21  For public policy

reasons,  it is especially important to require a trial court  to

make  specific  findings before assessing fees against  attorneys

for  filing  vexatious actions   otherwise,  attorneys  might  be

deterred  from  filing  legitimate  claims  on  behalf  of  their

clients.   Here, Schmidt filed a late brief, despite the superior

court  masters clear admonition that she was not going  to  allow

any  continuations.   The  consequences of  the  superior  courts

decision to require Schmidt to pay attorneys fees associated with

Koivistos  reply brief were foreseeable in that they  compensated

Koivisto for extra expenses incurred as a result of Schmidts late

filing  and  deterred  Schmidt from filing  late  briefs  in  the

future.22  And the superior courts order explained the basis  for

          the sanction: the court agrees with Mr. Koivistos [counsels]

argument  that post-trial briefs were to be filed simultaneously,

and  that  Ms.  Koivistos delay gave her the unfair advantage  of

being  able  to read and respond to points raised in  his  brief.

Thus,  while  the superior court failed to identify the  specific

rule that Schmidt violated, the basis for the sanction order  was

clear.

          Moreover,  Schmidt is incorrect in her contention  that

her  conduct did not violate any Alaska Rule of Civil  Procedure.

This  essentially  amounts to an argument that litigants  do  not

need  to  comply with deadlines set by the superior  court.   Yet

Alaska Civil Rule 53(b) authorizes court masters to exercise  the

power  to  regulate all proceedings in every hearing  before  the

master  and  to  do all acts and take all measures  necessary  or

proper  for  the  efficient performance of the masters  duties.23

This  rule  allows  a superior court master to impose  reasonable

deadlines  for litigants.  Civil Rule 6, which governs  deadlines

and  permits  the  trial  court to authorize  extensions  at  its

discretion, is also predicated upon the superior courts authority

to  set  enforceable deadlines.24  Civil Rule  16(f)  allows  the

superior court to impose sanctions when an attorney fails to obey

a  scheduling order,25 and Rule 46(h) allows the court to fix the

time for closing argument.26  Implicit in each of these rules  is

the  understanding that if the court may set deadlines, litigants

must  follow  them.   In  Sheehan v.  University  of  Alaska,  we

observed  that  adherence to filing deadlines  assures  the  most

orderly  handling  of  the Alaska courts  ever-growing  caseload.

Judicial  efficiency and expeditiousness are two pragmatic  goals

whose  observance  ensures justice, and we intend  to  see  those

goals  honored.27   Thus,  our case law  recognizes  that  filing

deadlines   for   briefs   are   essential   to   the   efficient

administration of the judicial system.28

          Indeed, we have explicitly held that failure to  comply

with  a briefing schedule is reason for imposing sanctions  under

          Civil Rule 95.  In Esch v. Superior Court, we considered a

challenge to a $500 fine that the superior court assessed against

an attorney after the attorney filed a late brief.29  Although we

concluded  that the superior court had not fulfilled Rule  95(b)s

express   language  requiring  advance  notice  of  the  proposed

sanctions and an opportunity to respond,30 we stated that the late

filing  of  a brief is a legitimate reason for imposing sanctions

under  Rule 95: We consider the failure to comply with .  .  .  a

briefing schedule to be a violation of a rule promulgated by this

court,  sufficient  to  authorize the imposition  of  Rule  95(b)

sanctions.31   Our basis for this statement was former  Appellate

Rule  45(f),  which, like the current version of Civil  Rule  16,

granted   the   superior  court  discretion  to  set   scheduling

deadlines.32

          In  Stephenson  v. Superior Court, we  upheld  punitive

sanctions  imposed  under  Civil Rule  95(b)33  even  though  the

superior  court  did not specify which rule the offending  lawyer

had violated.34  Here, the superior court did make a finding that

the delay gave [Standefer] the unfair advantage of being able  to

read and respond to points raised in [Koivistos] brief.  Although

the  best  practice  is  to specify which rule  an  attorney  has

violated,  we conclude that if the violation can be gleaned  from

the  text  of  the  order, the order imposing  sanctions  may  be

upheld.

          Schmidt next contests the superior courts finding  that

the  delay  created  an unfair advantage for Standefer.   Schmidt

complains  that  the  superior court did not  make  any  findings

identifying facts showing that Ms. Schmidt had read Mr. Koivistos

brief,  that  Ms. Schmidt had responded to points raised  in  Mr.

Koivistos  brief, or that Ms. Schmidt had violated any identified

Alaska Rule of Civil Procedure (or other rule).  But the superior

courts factual finding that Schmidt could have read the brief and

obtained  a tactical advantage as a result of the delay  was  not

clearly  erroneous,  and  Schmidt does not  point  to  any  legal

          authority supporting the proposition that the superior court

needed  to find that Schmidt actually did read Koivistos brief.35

Schmidt  argues  that  Koivisto impliedly waived  his  claim  for

attorneys fees because he did not file his post-trial brief under

seal,  thus  negating any unfair advantage Standefer  might  have

gained  by  filing  her brief late.  While it is  true  that  the

superior  court master instructed Beiswenger that he  could  file

Koivistos brief under seal, the understanding was that Beiswenger

would do so in the event that he filed Koivistos brief early.  As

it turned out, Beiswenger filed Koivistos post-trial brief on May

9,  one  day  before  the  May 10 deadline.   Had  Schmidt  filed

Standefers brief on time, she would have had one day at the  most

to gain an unfair advantage by reading Koivistos brief.  Instead,

she  filed the brief on May 17, more than a week late, giving her

ample  time  to read and respond to the brief if she wished.   We

conclude that Koivisto did not waive his claim to attorneys  fees

by failing to file the brief under seal.

          We  have  previously observed that monetary  sanctions,

such  as  the  assessment of attorneys fees  and  costs,  are  an

appropriate  remedy  for late-filed briefs.   In  fact,  we  have

expressed  a  preference for monetary sanctions over  litigation-

ending  sanctions.   For  example, in Sheehan,  we  reviewed  the

superior  courts decision to deny a motion to extend the deadline

for filing an opening brief in an administrative appeal.36  As  a

result, the appeal was dismissed.  We reversed, calling dismissal

of  the case an extreme sanction.37  We observed that it may have

been  appropriate  for the trial court to  impose  some  sort  of

monetary  sanction according to Appellate Rule 510.38   Appellate

Rule 510 contains language identical to that in Civil Rule 95.39

          Schmidt  also argues that the superior court  erred  by

assessing  attorneys fees against her after the clerk  called  to

inquire about the late brief and suggested that a late filing  be

accompanied  by a Civil Rule 6(b)(2) motion to accept  the  late-

filed brief. Schmidt argues that by gaining permission to file  a

          late brief, she implicitly cleared herself of any violations of

other civil procedure rules, thus protecting herself from Rule 95

sanctions.  But as we recognized in Sheehan, Metcalf, and  Brown,

the  superior court may both accept a late-filed brief and assess

monetary  sanctions for the lateness.40  In fact,  in  Brown,  we

vacated  the superior courts decision to reject a late brief  and

then  ordered the attorney to pay fees and costs as  well  as  an

additional fine.41  Civil Rule 95(a) specifically states that the

superior  court  may assess attorneys fees against  attorneys  in

order to discourage similar conduct in the future.42

          Finally,  Schmidt argues that the post-trial brief  was

voluntary.  The implication is that Schmidt would not  have  been

assessed with attorneys fees had she simply not filed a brief  at

all.  Schmidt argued this explicitly in her memorandum supporting

her  motion  for  reconsideration, stating:   Obviously,  if  Ms.

Koivisto  had  been notified in advance that if she  did  file  a

brief, she or her attorney would be fined, it is likely that  she

would not have filed a brief.  But the transcript indicates  that

the superior court master requested the briefs in lieu of closing

argument  to  address  a number of matters  that  were  still  in

dispute,  including  the  date of separation,  identification  of

property  that  had been inherited, and the request  for  spousal

support.   We are confident that if Schmidt felt that it  was  in

her clients best interests to file the brief, she would have done

so as was her duty under Alaska Rule of Professional Conduct 1.3.43

          Because we could discern from the superior courts order

the  basis for its imposition of sanctions under Rule 95(a),  and

because  the  superior  court did not abuse  its  discretion,  we

affirm  the  June 20 order instructing Schmidt to  pay  attorneys

fees  for  Koivistos reply brief, as well as the  July  21  order

specifying that the fees amounted to $656.40.

          2.   Schmidt received adequate notice that she could be
               assessed fines under Civil Rule 95(a) for filing a
               late brief.
               
          Schmidt  next  argues that this court should  interpret

          Civil Rule 95(a) as requiring the superior court to provide

advance  notice  and an opportunity to be heard before  assessing

attorneys  fees and costs under the rule.  In contrast  to  Civil

Rule  95(a), Civil Rule 95(b) allows the superior court to assess

punitive fines against attorneys only after reasonable notice and

an  opportunity to show cause to the contrary, and after  hearing

by  the  court,  if  requested.44  We have construed  the  notice

requirement in Rule 95(b) to mean that counsel must be given some

opportunity to explain his conduct, before he can be sanctioned.45

          In  Wilson,  we declined to decide whether  Rule  95(a)

also  requires  advance  notice before fees  may  be  assessed.46

Schmidt  argues  that the due process clauses of the  Alaska  and

United States Constitutions require notice and an opportunity  to

be  heard  before the court may assess attorneys fees under  Rule

95(a).   In  Roadway  Express, Inc. v. Piper, the  United  States

Supreme Court considered a case in which a federal district court

assessed  fees  against an attorney who failed  to  meet  various

court  deadlines.   The  Supreme Court  confirmed  that  the  due

process clause is implicated by such sanctions, reasoning:   Like

other  sanctions, attorneys fees certainly should not be assessed

lightly or without fair notice of an opportunity for a hearing on

the record.47  But the Supreme Court also observed that [t]he due

process  concerns  posed  by an outright  dismissal  are  plainly

greater  than  those presented by assessing counsel fees  against

lawyers.48  Under the Alaska Constitution, notice and opportunity

for hearing must be appropriate to the nature of the case.49

          In  this  case,  any notice deficiency  that  may  have

occurred  was cured by Schmidts opportunity to file a motion  for

reconsideration.  Koivisto moved for sanctions and attorneys fees

on  May  23,  2000.  The superior court did not issue  its  order

assessing attorneys fees until June 20, giving Schmidt  nearly  a

full  month  to  respond to Koivistos motion.  But Schmidt  never

opposed   the   request  for  sanctions,   instead   moving   for

reconsideration  on  June 29, after the order  had  been  issued.

          While it certainly would have been a better practice for the

superior court to order Schmidt to show cause why she should  not

be assessed with attorneys fees before sanctioning her under Rule

95(a),  Schmidt  could  have responded to  Koivistos  motion  for

sanctions.   Moreover,  the  lack of  notice  was  cured  because

Schmidt   had   an   opportunity   to   file   her   motion   for

reconsideration.50  In fact, the superior court granted Schmidt an

extension   to  file  a  memorandum  of  points  and  authorities

supporting  her motion for reconsideration, and Schmidt  filed  a

four-page  memorandum  on  July 7.  In  her  memorandum,  Schmidt

raised  precisely  the same arguments that  she  raises  in  this

appeal.   Because  Schmidt had an opportunity  to  challenge  the

sanction  after  it  was  imposed, we  conclude  that  any  error

resulting from lack of notice was harmless.

     C.   The  Superior  Court  Abused  Its  Discretion  when  It
          Changed  Course Without Explanation, Issuing  the  July
          21,  2000  Order Denying Schmidts Motion To Accept  the
          Late-Filed  Brief  and  Instructing  Schmidt   To   Pay
          Attorneys Fees for Koivistos Initial Post-Trial Brief.
          
          The  superior  court issued three orders  on  July  21,

2000.  The first order denied Schmidts motion for reconsideration

of  the  June 20 order instructing Schmidt to pay attorneys  fees

incurred  by Koivisto in filing his reply to Schmidts  late-filed

brief.  The second order awarded attorneys fees in the amount  of

$656.40  to compensate Koivisto for the cost of the reply  brief,

as required by the June 20 order.  The superior court also signed

the  original  proposed  order  submitted  by  Koivisto  opposing

Schmidts  motion  to accept the late-filed brief  and  requesting

sanctions in the amount of $851, representing the attorneys  time

to prepare Koivistos initial post-trial brief.  Because the third

order  directly contradicted the June 20 order accepting Schmidts

late-filed  brief and awarded attorneys fees that Koivisto  would

have  incurred regardless of Schmidts lateness, we conclude  that

the  order was probably signed in error.  Moreover, the order  is

not  supported  by  any  findings and the trial  courts  apparent

change  of  course  in denying the previously granted  motion  to

          accept a late-filed brief cannot be sustained.

          Koivistos original memorandum in opposition to Schmidts

motion  to accept the late-filed brief and his attached  proposed

order  requested  that the superior court reject Standefers  late

brief  and compensate Koivisto for the preparation of his initial

post-trial  brief.   Koivistos  memorandum  asserted   that   the

attorneys  fees  he  incurred for preparation of  his  post-trial

brief  were unnecessary in light of Schmidts failure  to  file  a

brief for Standefer, implying that the superior court should  not

consider  Koivistos  post-trial  brief  if  it  chose  to  reject

Standefers  late  brief.  Although declining to  consider  either

brief and awarding the cost of Koivistos initial post-trial brief

as  a  sanction  was one approach the superior court  could  have

taken,  the  superior court instead elected to accept  Standefers

late  brief and allow Koivisto to file an additional reply  brief

so  that  he  would have an opportunity to respond to  Standefers

late  brief  in light of her opportunity to review his arguments.

The  superior courts June 20 order then compensated Koivisto  for

the  fees  he  incurred to file the reply brief.  It is  apparent

from  the superior courts final divorce decision, issued  on  May

10,  2002, that the superior court considered both parties  post-

trial  briefs:  [T]he court has reviewed the Masters Report,  the

tapes  of the entire trial, the exhibits admitted at trial, [and]

the  parties post-trial briefs.  Yet the superior courts June 21,

2000  order  purported  to  reject Standefers  post-trial  brief,

despite  the fact that the superior court had previously accepted

the  brief,  allowed Koivisto to file a reply  brief,  and  would

later  consider all of the briefs in making the property division

decision.

          And  the  superior  court did not explain  why  it  had

decided to reject Schmidts late-filed brief after accepting it on

June  20;  nor  did the superior court explain  its  reasons  for

assessing  attorneys fees for the costs incurred by  Koivisto  in

preparing his initial post-trial brief.  The superior court  also

failed  to  cite  Civil  Rule 95(a), 95(b),  or  any  other  rule

authorizing the assessment of attorneys fees for the initial post-

trial brief.  In this respect the order resembles the order  that

we  reversed  in Wilson, as it causes us to speculate  about  the

superior courts reasoning and basis for the sanction.51  If  Rule

95(a) was the authority for the award, the court did not indicate

its  reasons  for  invoking the rule.  As discussed  above,  when

assessing  attorneys fees under Rule 95(a),  the  superior  court

must  provide  an  explanation of its reasons for  assessing  the

fees, and the preferred practice is to cite a specific rule  that

has  been violated.  Because the order disallowing the late brief

was incompatible with the original order, we reverse the superior

courts  July  21, 2000 order rejecting the late-filed  brief  and

assessing attorneys fees in the amount of $851.

     D.   Koivistos  Claim for Attorneys Fees Was Not  Superseded
          by  the Superior Courts May 10, 2002 Order Adopting the
          Superior  Court Masters Recommendation that Each  Party
          Pay Its Own Attorneys Fees.
          
          Schmidt argues that Koivistos claim for attorneys  fees

was  superseded  by  the superior courts May  10,  2002  decision

adopting  the  superior  court masters recommendation  that  each

party pay its own attorneys fees.  The masters recommendation was

issued  in  a  February  23, 2001 report  that  addressed  issues

concerning the marital status of various properties, valuation of

marital  assets  and  debts,  how  to  divide  marital  property,

Koivistos disability payments, spousal support, and the childrens

investment accounts.  The recommendation regarding attorneys fees

presumably pertained to fees for the entire case.

          Schmidts  argument overlooks the fact that  she  should

have paid Koivistos attorneys fees well before the superior court

issued  its May 10, 2002 decision.  The superior courts June  20,

2000  order instructed Koivisto to file an itemized list of costs

and  fees  associated with the reply brief at the  same  time  he

filed  the brief.  Koivisto did so on June 27.  Schmidt moved  to

reconsider  on June 29, and Koivisto opposed the motion  on  July

          17.  The superior courts July 21, 2000 orders instructed Schmidt

to pay the attorneys fees within ten days.  Aside from a July 24,

2000  request  to  file a reply to Koivistos  opposition  to  the

motion  for  reconsideration, there is nothing in the  record  to

suggest that Schmidt responded to the July 21 orders or attempted

to  pay the attorneys fees.  In fact, the attorneys fees were not

mentioned again until Koivisto wrote a September 12, 2003  letter

to  the  court  (without counsel) inquiring about  the  attorneys

fees.   In her reply to Koivistos inquiry, Schmidt asserted  that

Koivisto  could have raised the issue during a continued  portion

of  the trial that was held on March 28, 2002.  But Schmidt  does

not  explain  why she did not pay the attorneys fees  within  ten

days of the July 21, 2000 order, as instructed by the court.   As

the  superior  court  observed in its final order  regarding  the

matter,  the  Masters  Report was issued on  February  23,  2001,

nearly  seven months after the date that the money was due  under

the July 21, 2000 orders. (Emphasis omitted.)  The superior court

added that Schmidt never requested relief from the July 21,  2000

orders:

          There is nothing in the file to indicate that
          the  court was aware that plaintiffs  counsel
          had  not  complied  with the  July  21,  2000
          orders.   Nor is there anything in  the  file
          demonstrating  that  the plaintiff  requested
          relief   from  the  July  21,  2000   orders.
          Finally,  the  defendant did  not  waive  his
          right  to  recover these fees by not  raising
          the  issue  at  trial.  The  issue  of  these
          sanctions was not pending before the court at
          the time of trial.
          
Because  the  superior court was correct in  reasoning  that  the

order  to  pay attorneys fees was not superseded by the  superior

courts later decision just because Schmidt delinquently neglected

to  pay  the fees, we conclude that Koivistos claim for attorneys

fees is still valid.

IV.  CONCLUSION

          For the reasons discussed above, we AFFIRM the superior

courts June 20, 2000 order granting Schmidts motion to accept the

late-filed brief, authorizing Koivisto to file a reply brief, and

awarding  Koivisto reasonable attorneys fees associated with  the

reply  brief.   We also AFFIRM the July 21, 2000  orders  denying

reconsideration  of  the  June 20,  2000  order  and  instructing

Schmidt  to pay $656.40 within ten days.  We VACATE the  superior

courts July 21, 2000 order denying Schmidts motion to accept  the

late-filed  brief and granting Koivisto attorneys fees associated

with  the preparation of his initial post-trial brief.  We REMAND

for  entry  of judgment against Schmidt in the amount of  $656.40

plus prejudgment interest from August 4, 2000.52

_______________________________
     1    These matters included the date of separation, property
that had been inherited, and spousal support.

     2     Alaska  Rule of Civil Procedure 6(b)(2)  gives  judges
discretion to extend deadlines set by court order.

     3     Alaska Rule of Civil Procedure 95(a) states:  For  any
infraction of these rules, the court may withhold or assess costs
or   attorneys  fees  as  the  circumstances  of  the  case   and
discouragement  of like conduct in the future  may  require;  and
such  costs  and  attorneys fees may be  imposed  upon  offending
attorneys or parties.

     4    Schmidt filed a memorandum in support of her motion for
reconsideration on July 7.

     5     McNett  v. Alyeska Pipeline Serv. Co., 856 P.2d  1165,
1167 (Alaska 1993) (attorneys fees); Keen v. Ruddy, 784 P.2d 653,
658 (Alaska 1989) (sanctions).

     6     Doe  v.  State, Dept of Pub. Safety, 92 P.3d 398,  402
(Alaska 2004).

     7    Paxton v. Gavlak, 100 P.3d 7, 10 (Alaska 2004).

     8     S.S.M. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000).

     9     State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 858 (Alaska 2003).

     10    Alaska R. Civ. P. 95(a).

     11    We defined the phrase these rules as used in then-Civil
Rule  72(a) in State v. 1.163 Acres, More or Less, Chuckwm, Inc.,
449 P.2d 776, 778 (Alaska 1969), stating:  The phrase these rules
refers  to  all of the other rules of the Alaska Rules  of  Court
Procedure  and  Administration.   Other  language  in  the   case
indicates  that  by  this  we meant the  Alaska  Rules  of  Civil
Procedure.  Id.

     12      Alaska  R.  Civ.  P.  1  (titled  Scope   of   Rules
Construction).

     13    See Alaska R. Civ. P. 91, 92.

     14    977 P.2d 713 (Alaska 1999).

     15    Id. at 718.

     16    Id. at 726 (quoting superior courts decision).

     17    Id. at 726-27.

     18    Id. at 727 (quoting Alaska R. Civ. P. 95(a)) (reversing
award   of  fees  against  counsel  and  remanding  for   further
proceedings relating to citys motion for award of fees).

     19    Id.

     20    Id.

     21    Id. at 726.

     22     See  Alaska  R. Civ. P. 95(a), which  authorizes  the
assessment of attorneys fees as the circumstances of the case and
discouragement of like conduct in the future may require.

     23    Alaska R. Civ. P. 53(b).

     24     Alaska Rule of Civil Procedure 6(b) states:  When  by
these  rules or by a notice given thereunder or by order  of  the
court  an  act is required or allowed to be done at or  within  a
specified time . . . .

     25    Alaska Rule of Civil Procedure 16(f) states:

          If a party or partys attorney fails to obey a
          scheduling order . . . the judge .  .  .  may
          make  such orders with regard thereto as  are
          just  .  . . .  In lieu of or in addition  to
          any  other sanction, the judge shall  require
          the  party  or the attorney representing  the
          party  or both to pay the reasonable expenses
          incurred  because  of any noncompliance  with
          this rule, including attorneys fees . . . .
          
     26     The  post-trial briefs were to be filed  in  lieu  of
closing  arguments,  and  Alaska Rule of  Civil  Procedure  46(h)
states  in  part:  The court may fix the time allowed each  party
for opening statements and final argument.

     27    Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1298 (Alaska
1985).

     28     Schmidt  argues that a reading of  Civil  Rule  95(a)
allowing sanctions for conduct that does not violate any rule  of
civil  procedure would render Civil Rule 95(a) unconstitutionally
vague  for  lack of notice of what conduct violates these  rules.
But because the civil rules clearly allow a trial court to impose
deadlines,  attorneys and non-attorneys alike could discern  that
Rule   95(a)  permits  the  assessment  of  attorneys  fees   for
disregarding a court deadline.

     29    Esch v. Superior Court, Third Judicial Dist., 577 P.2d
1039, 1041 (Alaska 1978).

     30    Id. at 1043.

     31    Id. at 1041 n.1.

     32     Id.   In  Schmidts case, the superior  court  imposed
sanctions  under Rule 95(a), but our conclusion that a late-filed
brief  is ground for sanctions applies equally to attorneys  fees
assessed  under  Rule  95(a) and sanctions  assessed  under  Rule
95(b).

     33     Alaska  Rule  of  Civil Procedure  95(b)  allows  the
superior court to fine attorneys for failure to comply with these
rules or any rules promulgated by the supreme court.

     34     Stephenson v. Superior Court, Fourth Judicial  Dist.,
697  P.2d  653, 656 n.7 (Alaska 1985) (noting that the applicable
rules  should  have  been cited as a matter  of  sound  practice)
(internal citations omitted).

     35     We have indicated in previous cases that a showing of
prejudice  would bolster the case for imposing punishment  for  a
late-filed brief, but those cases involved dismissal of the  case
as a result of the late filing.  See Metcalf v. Felec Servs., 938
P.2d  1023,1025 (Alaska 1997) (Given that the brief  had  already
been  lodged  and that appellees demonstrated no  prejudice,  the
harsh  remedy of dismissal could be justified only if  there  had
been  some  controlling principle, such as a need to  punish  the
wrongdoer, deter like conduct, preserve the integrity of the fact
finding  process, or protect the dignity of the court.); Sheehan,
700  P.2d at 1297 (If the record indicated in any meaningful  way
that one of the parties or the trial court suffered prejudice . .
.  we  would  readily affirm the superior courts  denial  of  the
plaintiffs motion for a second extension and the courts dismissal
of her case.).

     36    Sheehan, 700 P.2d at 1295-96.

     37    Id. at 1298.

     38    Id.

     39    Alaska R. App. P. 510(b) and (c); see also Metcalf, 938
P.2d   at  1025  (suggesting  that  superior  court  might   have
considered  less extreme sanction than dismissal  for  late-filed
brief); Brown v. Brown, 854 P.2d 732, 732 (Alaska 1993) (vacating
superior  courts decision to dismiss case where brief  was  filed
late  and instead ordering attorney to pay fees, costs, and  $500
fine under Appellate Rule 510).

     40     Metcalf,  938 P.2d at 1025; Brown, 854 P.2d  at  732;
Sheehan, 700 P.2d at 1298.

     41    Brown, 854 P.2d at 732.

     42    Alaska R. Civ. P. 95(a).

     43     Alaska  Rule of Professional Conduct 1.3  states:   A
lawyer  shall  act  with reasonable diligence and  promptness  in
representing a client.  The comment to the rule states  that  [a]
lawyer  should  pursue a matter on behalf  of  a  client  despite
opposition, obstruction or personal inconvenience to the lawyer.

     44    Alaska R. Civ. P. 95(b).

     45    Stephenson, 697 P.2d at 655; see also Tobey v. Superior
Court,  Third  Judicial Dist., 680 P.2d 782,  787  (Alaska  1984)
(holding  that  the language of Rule 95(b) requires  a  judge  to
explicitly notify an attorney when sanctions are being considered
and  to  afford him a reasonable time in which to show cause  why
the sanctions are not warranted); Esch, 577 P.2d at 1043 (same).

     46    Wilson, 977 P.2d at 727.  Because we conclude that any
lack of notice was cured in Schmidts case, we need not decide the
extent  to  which  notice  and  an opportunity  for  hearing  are
required under Civil Rule 95(a).  However, we are requesting  our
Standing  Advisory  Committee on Civil  Rules  to  consider  this
question.

     47     Roadway  Express, Inc. v. Piper, 447  U.S.  752,  767
(1980) (concluding that federal courts possess inherent power  to
assess  contempt  sanctions).  After the  Supreme  Court  decided
Roadway, Congress amended 28 U.S.C.  1927 to provide that a court
may  assess attorneys fees against an attorney.  28 U.S.C.   1927
(2000); see Morris v. Adams-Mills Corp., 758 F.2d 1352, 1357  n.7
(10th Cir. 1985).

     48    Id. at 767 n.14.

     49     Lashbrook  v.  Lashbrook, 957 P.2d 326,  328  (Alaska
1998).

     50     Cf.  Brady v. Firemans Fund Ins. Cos., 484  A.2d  566
(D.C. 1984) (holding that trial court erred by imposing sanctions
against attorney without notice and hearing, but error was  cured
by attorneys subsequent challenge to sanctions).

     51    Wilson, 977 P.2d at 727.

     52    This date is ten business days after July 21, 2000.