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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Capolicchio v. Levy (10/16/2008) sp-6318

Capolicchio v. Levy (10/16/2008) sp-6318, 194 P3d 373

     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

MARIO CAPOLICCHIO, )
) Supreme Court No. S- 12475
Appellant, )
) Superior Court No.
v. ) 1KE-04-0276 CI
)
KEN LEVY, KETCHIKAN POLICE )
DEPARTMENT, CITY OF )
KETCHIKAN, ) O P I N I O N
)
Appellees. ) No. 6318 - October 16, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Michael A. Thompson, Judge.

          Appearances:  Fred W. Triem, Petersburg,  for
          Appellant.    Carmen  E.   Clark,   Ingaldson
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          Appellees.

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

          CARPENETI, Justice.

I.   INTRODUCTION
     
          I.   A pro se litigant filed a lawsuit against the manager
of  a  homeless  shelter, alleging that the manager discriminated
against him when the manager excluded him from the shelter.   The
litigant  also filed a lawsuit against the city and local  police
department  for misconduct and harassment; the two lawsuits  were
consolidated.   The superior court granted the  city  and  police
departments  motion  to  dismiss and later  granted  the  shelter
managers  motion  for summary judgment.  The  plaintiff  appeals,
arguing  that  the  superior  court  erred  by  granting  summary
judgment  in favor of the shelter manager, by accepting  a  late-
filed  motion for attorneys fees, and by granting attorneys  fees
to  the  shelter  manager without requiring an  itemized  billing
statement  or  description of the work  performed.   Because  the
decision  to grant summary judgment was not in error, the  motion
for  attorneys  fees  was not late, and the  failure  to  require
itemized billing was at most harmless error, we affirm the  order
granting summary judgment and the award of attorneys fees.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          
          Mario  Capolicchio  arrived at the  Ketchikan  homeless
shelter,  Park  Avenue Temporary Home (PATH), on July  20,  2003.
The  manager  of  the  shelter, Ken Levy,  informed  him  of  the
prohibitions   against   alcohol  consumption   and   misconduct.
Capolicchio  signed an agreement to abide by shelter rules  while
he  stayed  there.   The agreement included a  warning  that  any
infringement  of shelter rules would result in removal  from  the
shelter;  it stated that [a]nyone under the influence of  alcohol
or drugs may be refused entry to the shelter.
          Capolicchio stayed at the shelter from July 20 to  July
23 without incident.  However, according to Levys affidavit, when
he  came to check in on July 24, 2003, it was clear that  he  had
been  drinking  alcohol.  That in itself was a problem,  but  the
real  problem  was  his behavior.  Levy stated  that  Capolicchio
became angry and violent and was ranting about a communist  take-
over.   Capolicchio began screaming and yelling  obscenities  and
threatening remarks.  After Levy warned Capolicchio that he could
not act that way at the shelter, Capolicchios behavior continued.
Levy  felt threatened, so he called the police.  When the  police
arrived,  Capolicchios  behavior  continued  to  escalate,   and,
according to Levy, he became physically combative.  The  officers
arrested him.
     B.   Proceedings
          Capolicchio,  acting pro se, filed two  documents  with
the  Ketchikan Superior Court in early June 2004.  One,  entitled
Motion for Injunction, sought relief for discrimination/prejudism
[sic]  by  employees - manager Ken Levy, or clients  at  P.A.T.H.
The  other, entitled Motion for Injunction Relief requested  that
the   court  restrain  the  Ketchikan  City  Police  Dept.   from
misconduct  and/or  harrassment [sic] of an  honest,  naturalized
citizen,  said  plaintiff: Mario Capolicchio.  The clerks  office
treated  the  two  documents as complaints and consolidated  them
into  one  case.  The case was assigned to Superior  Court  Judge
Michael  A.  Thompson.  While the complaints  were  consolidated,
subsequent filings tended to address the claims against the  city
and  the  police department, on the one hand, and claims  against
Levy,  on  the  other, distinctly.  Accordingly,  the  procedural
history of the case against the police department and the city is
distinguished in this section from the procedural history of  the
case against Levy.
          1.   Case against the police department and the city
          In  his  complaint, Capolicchio did  not  identify  the
specific police conduct that he considered misconduct.   He  also
did  not allege any basis for his claim of  discrimination,  such
as race, disability or membership in another protected class, nor
did  he  state  that  he  is a member of a protected  class.  The
Ketchikan Police Department and the City of Ketchikan (Ketchikan)
did  not  answer the complaints, but filed an Alaska  Civil  Rule
12(b)  and  12(c)  motion to dismiss.  Capolicchio  responded  to
Ketchikans motion by filing a document requesting an extension of
time  and  a  hearing  to determine merit for  this  case.   This
document  did not fully explain the basis for his claim,  but  it
did  state  that  the last time Capolicchio  was  in  the  police
station, officers told him that they were to[o] busy and  .  .  .
have  things  to  do.  After a series of extensions,  Capolicchio
eventually   responded   to   Ketchikans   motion   to   dismiss.
Capolicchios  response reiterated that the last time  Capolicchio
was in the police station he was told that officers were too busy
to  assist him.  The superior court granted Ketchikans motion and
dismissed  Capolicchios  case against the  city  and  the  police
department.  Capolicchio then filed a document entitled Reply  to
Dismissal.   Noting that the certificate of service  accompanying
this document included the Apellate [sic] Court for the state  of
AK,  Judge  Thompson  issued an order  inquiring  of  Capolicchio
whether  he  wished  to stay proceeding against  Levy  while  the
dismissal of the case was appealed.  Capolicchio replied  in  the
affirmative.
          2.   Case against Levy
          Capolicchios complaint against Levy, like his complaint
against  the  city, did not allege any basis  for  his  claim  of
discrimination,  such  as  race,  disability,  or  membership  in
another  protected class.  Again, he did not state that he  is  a
member  of  a protected class. In June 2004 Ken Levy, acting  pro
se,  filed  a  letter with the court in response to  Capolicchios
allegations  in his Motion for Injunction.  Levys letter  stated,
Mr.  Capolicchio  was under the influ[e]nce  of  alcohol  when  I
refused  him entry into our shelter.  It had nothing to  do  with
race,  or  religion.  In July  Capolicchio filed a document  with
the  court  requesting a formal hearing be granted  to  determine
merit for this case and to explic[i]tly instruct the shelter Mng.
Mr.  Ken  Levy to give a reasonable explanation why I  have  been
refused  accommodation  to  the  public  shelter.   In  September
Capolicchio filed another document with the court describing  his
claim against Levy:
          Regarding   discrimination:   Mng.   Mr.
          Kenneth  Levy.   Ac[t]ually,  absolutely
          and  effectively  accused  me  of  being
          under  the influence of alcohol, when  I
          was  not  nor intoxicated, as a  pretext
          for  barring  me from the  PATH,  public
          facility.   Previously  when  the  local
          city  government acted  as  mediator  to
          enter  the PATH, Mr. Ken Levy as typical
          claimed he has no space, the[n] when  my
          name  was  given  he say absolutely  no:
          Reason,  it seemed a paradox,  I  called
          someone   a   communist.   Next   to   a
          religious  leader he said:  Thing  didnt
          work!  Then to a local reporter he said:
          Im an alcoholic. This is injustice.
          
          That  same  day  Capolicchio  also  filed  a  Reply  to
Dismissal,  in which he stated that he believed the local  police
discriminated  against him as a newcomer .  .  .  only  from  the
continental  U.S.   This is the only assertion  of  a  basis  for
discrimination  against him in any of the  documents  Capolicchio
filed with the court.  In this document he also suggested that he
has some language difficulties, although that is not asserted  to
have  been  a  reason  for the appellees alleged  discrimination.
Capolicchios  final filing in this case, before it was  dismissed
as  to  all  parties for lack of prosecution, was his affirmative
response   noted  above  to  the  superior  courts  request   for
clarification as to whether he intended that proceedings  against
Levy  be  stayed  while  he appealed the dismissal  of  his  suit
against Ketchikan.  In that response, Capolicchio did not  assert
any   basis   for  Levys  alleged  discrimination  against   him.
Capolicchio  took  no  steps to perfect an  appeal.   No  further
action appears in the record on Capolicchios claims against  Levy
until 2006.
          In  January 2006 the court clerks office dismissed  the
case as the result of the passage of one year with no activity in
the  file.   Capolicchio  filed  a motion  for  continuation  and
reopen,  in  which  he sought to undo the clerks  action.   Judge
Thompson ordered the case reinstated to the active list in March.
          Levy  acquired  legal  counsel and  moved  for  summary
judgment  in  July   2006.  Capolicchio did not  respond  to  the
motion  for  summary  judgment, and the superior  court  did  not
inform Capolicchio of his right to respond.  In August the  court
granted  Levys  motion  for  summary  judgment,  there  being  no
opposition  thereto, for reasons stated in  Levys  motion.   Levy
submitted  a  proposed  final judgment approximately  two  months
later.   In  November  the court issued a  preliminary  Unopposed
Final  Judgment  using  the form Levy submitted.   Levy  filed  a
motion  for  attorneys fees, an affidavit of  counsel  concerning
fees  and  costs, and a bill of costs.  Capolicchio  opposed  the
motion  for attorneys fees.  The superior court awarded attorneys
fees in the amount of $488.20 and costs in the amount of $198.35,
for a total judgment of $686.55.
          After  the  superior court granted summary judgment  in
favor  of  Levy,  but before final judgment was  entered  by  the
court,  Capolicchio prematurely filed a notice  of  appeal.1   On
appeal, Capolicchio is represented by counsel.
III. STANDARD OF REVIEW
          I.   We review an award of summary judgment de novo.2  We will
affirm  only if there are no genuine issues of material fact  and
the  moving  party is entitled to judgment as a matter  of  law.3
When  making this determination we draw all reasonable inferences
in favor of the non-moving party.4
          We  review  a  superior courts Civil Rule 82  award  of
attorneys fees under the abuse of discretion standard,  and  will
          disturb the award only if it is manifestly unreasonable.5
IV.  DISCUSSION
     A.   The Superior Court Had No Duty To Advise Capolicchio To File
          an Opposition to Levys Motion for Summary Judgment.
          
          Capolicchio  argues that the superior  court  erred  by
failing to advise him of the need to file an opposition to  Levys
motion for summary judgment.  He argues that under Breck v. Ulmer6
courts  hold pro se litigants to a more lenient pleading standard
and  that the superior court has a duty to warn a pro se litigant
before  dismissing  a  case without a  trial.   He  contends  the
superior  court  breached  that  duty  when  it  failed  to  warn
Capolicchio  before  dismissing his claim  on  summary  judgment.
Levy  responds  that the superior court had  no  duty  to  advise
Capolicchio of the proper procedures for perfecting an opposition
because Capolicchio failed to file any response to the motion for
summary judgment.  Levy argues that Bauman v. State, Division  of
Family & Youth Services,7 rather than Breck, controls this case.
          Breck  involved  a lawsuit by a pro se litigant,  Betty
Breck, against Juneau Assembly members concerning the bid process
for  construction  of  Juneaus municipal  parking  garage.8   The
assembly  members filed a motion for summary judgment, and  Breck
responded with an opposition and her individual affidavit.9   The
superior court did not inform Breck of any curable deficiency  in
her  response,  and  granted summary judgment  in  favor  of  the
assembly  members on the basis of legislative immunity.10   Breck
appealed.11  We held that pleadings of pro se litigants should be
held to less stringent standards than those of lawyers12 and that
the  trial  judge should inform a pro se litigant of  the  proper
procedure  for  the action he or she is obviously  attempting  to
accomplish,  Breck should have been advised of the  necessity  of
submitting competent affidavits to preclude summary judgment.13
          Two  years  later, we decided Bauman, which involved  a
pro  se  lawsuit  by parents and their child concerning  a  state
investigation of alleged sexual abuse.14  In the superior  court,
the  state  filed  a  motion  for  summary  judgment,  which  the
plaintiffs  did  not oppose.15  The superior  court  granted  the
states  motion,  providing  no written  reasons  other  than  the
comment  unopposed which [was] handwritten on the order  granting
summary  judgment.16  On appeal, the plaintiffs argued  that  the
superior court erred in granting an unopposed motion for  summary
judgment against them as pro se litigants without first notifying
them  of  the  requirements of the summary judgment rules.17   We
decline[d]  to  extend Breck to require judges  to  warn  pro  se
litigants  on  aspects of procedure when the pro se litigant  has
failed  to at least file a defective pleading, and held that  the
superior court was under no duty to warn the [plaintiffs] of  the
necessity of opposing the defendants motion for summary judgment.18
We  focused on the pro se litigants duty rather than the duty  of
the superior court judge:
          It  strikes us as common knowledge  that
          initiating and pursuing a civil  lawsuit
          can   be   a   difficult   and   complex
          procedure.   The Alaska Rules  of  Civil
          Procedure have been promulgated for  the
          specific  purpose  of  giving  fair  and
          reasonable notice to all parties of  the
          appropriate  procedural  standards  that
          should  be  uniformly applied  when  any
          party,  including  a  pro  se  litigant,
          seeks  relief in the pending action.   A
          pro  se  litigant who wants to  initiate
          such   an   action  should   familiarize
          himself  or  herself with the  rules  of
          procedure . . . . To require a judge  to
          instruct  a pro se litigant as  to  each
          step   in   litigating  a  claim   would
          compromise  the  courts impartiality  in
          deciding  the case by forcing the  judge
          to act as an advocate for one side.[19]
          The  present  case clearly falls under the Bauman  rule
that  the  superior  court is not required to  notify  a  pro  se
litigant  of  his  right to file an opposition to  a  motion  for
summary judgment where the litigant has filed nothing.  Here,  as
in  Bauman,  the superior court focused partly on the  fact  that
Capolicchio filed no opposition to Levys summary judgment motion.
Had  Capolicchio  filed a defective opposition,  the  Breck  rule
would  have imposed a requirement on the superior court to notify
him  of  the defect and the means to cure it.20  However, because
Capolicchio  filed no opposition at all, he was not  entitled  to
notification  of  the  proper procedure  to  defend  against  the
summary judgment motion.
          In sum, under Bauman, the superior court did not err in
failing to warn Capolicchio of the need to file an opposition  to
Levys summary judgment motion.21



     B.   The Superior Court Did Not Grant Summary Judgment in Favor
          of Levy on the Sole Basis that Levys Motion Was Unopposed.
          
          Capolicchio  argues  that  the  superior  court   acted
improperly  when  it  granted Levys motion for  summary  judgment
solely  because  it was unopposed.  However, the superior  courts
order   granting  summary  judgment  states:   Having  considered
defendant Ken Levys motion for summary judgment, and there  being
no  opposition  thereto, for reasons stated in Levys  motion  the
Court  grants summary judgment in favor of Levy and against Mario
Capolicchio. (Emphasis added.)
          According to Civil Rule 56(e), if an adverse party does
not respond to a summary judgment motion, summary judgment should
be  granted  against  the adverse party if appropriate.   Summary
judgment is appropriate if the movant first establishes  a  prima
facia  case showing that there is an absence of a factual dispute
on a material fact and that this absence of a dispute constitutes
a  failure  of  proof on an essential element.22 In  Rockstad  v.
Erikson, we stated that a movant does not have a right to summary
judgment  merely because the non-moving party fails  to  respond,
and  the  superior  court retains some degree  of  discretion  in
          deciding whether to grant summary judgment in cases where there
is  no  response to the filing of the summary judgment  motion.23
Thus,  while  a  superior  court is  not  required  to  grant  an
unopposed motion for summary judgment, it has discretion to grant
such a motion if it determines that the movant has established  a
prima facie case for summary judgment.
          The  language  of  the  superior courts  written  order
indicates  that  the court did not grant summary judgment  simply
because  the  motion was unopposed.  Rather,  the  court  granted
summary  judgment  for  reasons stated  in  Levys  motion.   Levy
showed,  in  his  motion for summary judgment, that  Capolicchios
various  filings  failed to present a genuine issue  of  material
fact  as to the existence of a valid discrimination claim.   Levy
pointed  out in his motion that Capolicchio has not alleged,  nor
are  there  any [] facts to support a finding[,]  that  he  is  a
member  of  a  protected  class and that discrimination  occurred
because  of  his status in that class.  Capolicchio presented  no
evidence  in  the  form  of a sworn statement,  and  beyond  that
deficiency,  there is no allegation in his various  filings  that
creates    a   genuine   issue   of   material   fact   regarding
discrimination.
          A  summary  judgment movant is obligated  to  point  to
undisputed  facts  or  admissible evidence establishing  a  prima
facie  case entitling the movant to judgment as a matter of  law.
If  the  movant  does not meet that burden,  the  movant  is  not
entitled  to  summary  judgment even if the opposing  party  does
nothing.24   Here,  Levys  motion for summary  judgment  and  the
accompanying affidavit  coupled with Capolicchios failure to deny
Levys  allegations  established a lack of dispute as  to  whether
Capolicchio violated the conduct rules of the shelter, and as  to
whether  Levy  evicted  Capolicchio because  of  that  violation.
Levys   sworn   affidavit  affirms  that   Capolicchios   conduct
violations  went  far  beyond allegedly  being  intoxicated,  and
included  threatening and disruptive behavior and foul  language.
Those  facts entitle Levy to judgment as a matter of law, because
Capolicchio  did  not deny this behavior in any of  his  filings.
Further, he did not assert membership in any protected class that
would  raise an inquiry into the disparate impact of the  conduct
rules,  such as disability.25  Because Capolicchios claim is  for
injunctive relief, he had the burden of making a clear showing of
probable  success on the merits in the absence of  a  showing  of
irreparable harm to him.26  Having not specifically alleged in his
filings with the court that he did not violate a conduct rule  or
that  he is a member of a protected class, Capolicchio could  not
succeed  on  the merits.  Levys motion for summary  judgment  was
properly granted because Levy established a prima facie case that
he  did not discriminate against Capolicchio.  Thus, the superior
court did not err in granting Levys motion for summary judgment.
     C.   The  Superior Courts Award of Summary Judgment Did  Not
          Deprive Capolicchio of His Right to Due Process and Trial by
          Jury.
          
          Capolicchio argues that the summary judgment  procedure
is  unconstitutional  as applied to pro se litigants  because  it
          deprives them of their day in court and of their right to trial
by  jury.   However, he cites no cases for the  proposition  that
summary judgment is unconstitutional, nor does he explain how  it
deprived  him of his rights under the due process clause  of  the
fourteenth amendment and the guarantee of the right to jury trial
of  the  seventh amendment of the United States Constitution,  or
article I, sections 7 (due process) and 16 (trial by jury) of the
Alaska Constitution.  Thus, Capolicchio has waived this argument.27
          Even  if Capolicchio had adequately briefed his  claim,
it  would  still be without merit.  In light of its  history  and
use,  it  is clear that summary judgment is not unconstitutional.
The  United  States Supreme Court has flatly stated that  summary
judgment  does not violate the Seventh Amendment.28  Capolicchios
argument  that  the summary judgment procedure violated  his  due
process  rights  is  equally  unpersuasive.   We  have  routinely
affirmed  use  of the summary judgment procedure by the  superior
courts,  and  have limited the procedure to cases  in  which  the
pleadings and evidence show that there is no genuine issue as  to
any  material fact and that [the moving] party is entitled  to  a
judgment  as  a  matter of law.29  This standard is  adequate  to
prevent the violation of a partys due process right or right to a
jury  trial.  Thus, the superior courts award of summary judgment
did not deprive Capolicchio of his constitutional rights.
     D.   The  Superior Court Did Not Commit Reversible Error  in
          Awarding Civil Rule 82(b)(2) Attorneys Fees to Levy Without
          Requiring Itemization of the Work Performed.
          The  superior  court awarded Levy Civil  Rule  82(b)(2)
attorneys  fees  in  the amount of $488.20, which  equals  twenty
percent   of  Levys  counsels  stated  actual  fees  ($2,441.00).
Capolicchio  argues that the fee award should be vacated  because
Levys motion was not accompanied by an itemized billing statement
or  a  statement to otherwise establish that the fees sought were
reasonable  and  necessarily incurred.  Levy  responds  that  the
superior  court  did not err when it applied the  twenty  percent
schedule set forth in Rule 82(b)(2) to actual attorneys fees.
          Rule 82(b)(2) provides:
          In   cases  in  which  the  prevailing  party
          recovers  no money judgment, the court  shall
          award  the  prevailing party in a case  which
          goes  to  trial 30 percent of the  prevailing
          partys reasonable actual attorneys fees which
          were  necessarily incurred, and  shall  award
          the  prevailing  party  in  a  case  resolved
          without  trial  20  percent  of  its   actual
          attorneys   fees   which   were   necessarily
          incurred.
We  have  explained that we will interfere with the trial  courts
exercise of discretion under Rule 82 only when there is an  abuse
of   that  discretion,  which  is  established  only  where   the
determination  was  manifestly unreasonable.30   Nonetheless,  in
Hayes  v. Xerox Corp., we stated, when counsel requests attorneys
fees, other than based on the schedule in Rule 82(a)(1), accurate
records  of  the  hours expended and a brief description  of  the
services reflected by those hours should be submitted.31  And, in
Marron  v.  Stromstad,  we held that where  the  rule  authorizes
reasonable actual fees, a court may not award attorneys fees to a
party  who has not itemized his or her requested fees,  when  the
opposing party has requested such itemization.32
          Rule  82(b)(2)  requires that  the  fees  requested  be
reasonable actual attorneys fees which were necessarily incurred.
Levys counsel submitted an affidavit, in which he summarized  the
basis  of the request for attorneys fees: Our firm spent a  total
of 14.9 hours defending Ken Levy.  3.8 hours were spent by me, at
the  rate of $175 per hour, for a cost of $665.00.  An additional
11.1 hours was spent by another attorney in our office who billed
at  the rate of $160 per hour for a cost of $1,776.00.  The total
actual   attorneys   fees   incurred   were,   thus,   $2,441.00.
Capolicchio  opposed the motion for attorneys fees, arguing  that
without  itemized time records and billing statements,  he  could
not  fairly  evaluate whether the fees requested were  reasonable
actual   attorneys   fees   which  were   necessarily   incurred.
Capolicchio  is correct that Marron requires an itemized  billing
statement and that Levys counsel did not provide one.  But  here,
because  the  amount of attorneys fees was so low and  the  hours
Levys counsel expended on defending the case were so minimal, any
error  in failing to order itemization was harmless: The superior
court  could consider the fee request to be reasonable per  se.33
Under such circumstance, we will not find reversible error in the
failure to require itemization.
     E.   The Superior Court Did Not Err by Entering Judgment and
          Awarding Attorneys Fees to Levy Even Though his Request for
          Judgment Did Not Follow the Timeline Established in Civil Rule
          56(c).
          Capolicchio  argues  that  Levys  two-month  delay   in
submitting his proposed judgment should be construed as a  waiver
of  his  right to recover attorneys fees, which must be requested
within  ten days of entry of final judgment.  Levy responds  that
the motion for attorneys fees was timely because he submitted  it
within ten days of the actual final judgment.
          Rule 82(c) states that a motion for attorneys fees must
be  filed  within  10  days after the date shown  in  the  clerks
certificate of distribution on the judgment . . . .   Failure  to
move  for attorneys fees within 10 days, or such additional  time
as  the  court may allow, shall be construed as a waiver  of  the
partys right to recover attorneys fees.  Rule 56(c) states:  When
the decision adjudicates all unresolved claims as to all parties,
the  judge shall direct the appropriate party to file a  proposed
final  judgment.  The proposed judgment must be filed  within  20
days of service of the decision . . . .
          The superior court granted summary judgment in favor of
Levy  on August 20, 2006, but the court did not direct any  party
to  prepare  a  final judgment form.  Levy submitted  a  proposed
final  judgment  on  October  24.  The  court  issued  the  final
judgment  in favor of Levy on November 13.  Levy then  filed  for
attorneys  fees  on November 22, within the ten-day  deadline  of
Rule 82(c).
          Capolicchios argument that Levys proposed judgment  was
not  filed  within  twenty  days of the  summary  judgment  order
          overlooks the fact that the court never requested that Levy file
a  proposed judgment as well as the fact that the superior  court
has  wide  discretion  in  awarding attorneys  fees.   The  court
accepted  the proposed judgment and distributed the  judgment  on
November  13.  Thus, it was well within the courts discretion  to
grant  attorneys fees pursuant to the motion filed less than  ten
days after November 13.
V.   CONCLUSION
          Because  (1) the superior court was under  no  duty  to
inform  Capolicchio  of the need to file  an  opposition  to  the
summary  judgment motion, (2) the superior court  did  not  grant
summary judgment merely because the motion was unopposed, and (3)
summary  judgment did not unconstitutionally deprive  Capolicchio
of  his  rights  to  due process and jury trial,  we  AFFIRM  the
superior courts order granting summary judgment in favor of Levy.
Because the motion for attorneys fees was timely and the superior
courts decision not to require an itemized billing statement  was
at most harmless error, we AFFIRM the award of attorneys fees.
_______________________________
     1      After   Capolicchios  case  against   Ketchikan   was
dismissed,  Capolicchio filed two additional documents  with  the
superior  court, and apparently mailed the documents to  Apellate
[sic]  Court for the State of AK.  However, Capolicchio  did  not
mail  the  documents  to  the city or the police  department,  or
otherwise  notify  them  of any appeal.  On  appeal,  the  record
reveals that Capolicchio has mailed materials only to counsel for
Levy.  Ketchikan was  not notified of the appeal, so Capolicchios
claims against Ketchikan are waived. See Alaska R. App. P. 204(h)
(Papers  filed  or  served in the appeal must be  served  on  all
parties, except appellees who have elected not to participate  in
the  action.);  see  also Vincent v. State, Commercial  Fisheries
Entry  Commn, 717 P.2d 391, 394 (Alaska 1986) (explaining that  a
showing  of prejudice due to improper filing can prevent  hearing
of a case on the merits).

     2     Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001) (citations omitted).

     3    Id.

     4    Id.

     5     Walton v. Ramos Aasand & Co., 963 P.2d 1042, 1046  n.3
(Alaska 1998)  (citations omitted).

     6    745 P.2d 66 (Alaska 1987).

     7    768 P.2d 1097 (Alaska 1989).

     8     745 P.2d at 67-68.

     9    Id. at 69, 74-75.

     10    Id.

     11    Id. at 69.

     12    Id. at 75.

     13     Id.  Nevertheless, we then determined that the  lower
courts  failure  to  advise  Breck  was  harmless  because  [t]he
evidence which she considers necessary was before the trial court
by reference in her opposition to the summary judgment motion and
that evidence was not sufficient to raise a genuine issue of fact
that would preclude summary judgment.  Id.

     14     Bauman  v. State, Div. of Family & Youth Servs.,  768
P.2d 1097, 1097-98 (Alaska 1989).

     15    Id. at 1098.

     16    Id.

     17    Id.

     18    Id. at 1099.

     19     Id.  We also recently affirmed a superior court grant
of  summary  judgment in a similar case involving the failure  to
file  an  opposition, although our decision rested on the  ground
that judgment against [the appellant] should be affirmed based on
his  failure  to  appear for trial. Snyder v. Am. Legion  Spenard
Post No. 28, 119 P.3d 996, 1002 (Alaska 2005).

     20    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     21    In Breck, we concluded that the superior courts failure
to  advise the pro se litigant was harmless because the  evidence
sought  to be included by the litigant was insufficient to create
a  genuine  issue  of  material fact.  Id.   Here,  even  if  the
superior  court had erred, such error would similarly be harmless
because  Capolicchio  failed to assert  that  Levy  discriminated
against  him  based  on race, disability, or membership  in  some
other   protected   class.    See   AS   18.80.210   (prohibiting
discrimination based on membership in a protected class).   Thus,
any error by the superior court in failing to warn Capolicchio of
the need to file an opposition would have been harmless.

     22     Bradley  v.  Klaes, 181 P.3d 169, 175  (Alaska  2008)
(quoting Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007)).

     23     113 P.3d 1215, 1220 (Alaska 2005) (internal citations
and quotations omitted).

     24    B.R. v. State, Dept. of Corrections, 144 P.3d 431, 433
(Alaska 2006) (citations omitted).

     25     See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 54
n.7  (2003) (Both disparate-treatment and disparate-impact claims
are cognizable under the ADA.).

     26      State, Div. of Elections v. Metcalfe, 110 P.3d  976,
978 (Alaska 2005) (citations omitted).

     27     See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska  1991)   (where a point is given only a cursory statement
in  the  argument  portion of a brief,  the  point  will  not  be
considered  on appeal); A.H. v. W.P., 896 P.2d 240,  243  (Alaska
1995) (extending Adamson rule to case involving pro se litigant).

     28    Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979)
(citing  Fidelity & Deposit Co. v. United States, 187  U.S.  315,
319-21 (1902)).

     29     Alaska R. Civ. P. 56(c); Moffatt v. Brown,  751  P.2d
939, 943 (Alaska 1988).

     30    Norris v. Gatts, 738 P.2d 344, 356 (Alaska 1987).

     31    718 P.2d 929, 939 (Alaska 1986) (citations omitted).

     32    123 P.3d 992, 1014 (Alaska 2005).

     33    Indeed, requiring a remand to require Levys counsel to
provide itemization would only create more unnecessary costs  for
all parties.

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