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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.
