Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Haeg v. Cole (01/30/2009) sp-6334

Haeg v. Cole (01/30/2009) sp-6334, 200 P3d 317

     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

DAVID S. HAEG, )
) Supreme Court No. S- 12771
Appellant,)
) Superior Court No. 3KN-06- 844 CI
v. )
) O P I N I O N
BRENT R. COLE, )
) No. 6334 January 30, 2009
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:    David  S.   Haeg,   pro   se,
          Soldotna.  Brent R. Cole, pro se, Anchorage.

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

          PER CURIAM

          David  Haeg appeals the decision of the superior  court
that  affirmed  an arbitration award regarding  fees  charged  by
Haegs  former attorney, Brent Cole.  Haeg hired Cole to represent
him in a criminal case and paid for most of Coles services.  When
plea negotiations broke down, Haeg fired Cole and refused to  pay
the  outstanding  balance  of  Coles  fee.   Haeg  hired  another
attorney,  went  to  trial, and lost.   Haeg  then  filed  a  fee
arbitration  proceeding with the Alaska Bar Association,  arguing
that  Coles  services were defective and that Cole should  return
the  fees Haeg had paid.  The arbitration panel decided in  Coles
favor and awarded Cole the fees still outstanding.  Haeg appealed
to the superior court.  The superior court modified the amount of
the  award to remedy a clerical error and otherwise affirmed  the
panels  decision.  Haeg now appeals the superior courts  decision
to this court.  With one exception, we affirm the decision of the
superior  court for the reasons expressed in the written decision
of the superior court.1
          The   exception   concerns   the   arbitration   panels
affirmative award to Cole of fees still due him.  This amount, as
corrected  by  the  superior court,  was  $1,689.19.   Under  the
Revised Uniform Arbitration Act applicable in Alaska, a reviewing
court is required to modify or correct an award if the arbitrator
has  made  the award on a claim not submitted to the arbitrator.2
This  statute  is  applicable to attorney fee arbitration  awards
under  Alaska Bar Rule 40(t).3  Cole did not present a claim  for
unpaid fees to the arbitration panel.  The award to him of unpaid
fees was therefore an award on a claim not submitted.4  On remand
we  direct  that the order of the superior court be  modified  by
deleting the affirmative award of fees in favor of Cole.
          For these reasons the decision of the superior court is
MODIFIED  in  one  respect and as so modified,  the  decision  is
AFFIRMED.  This case is REMANDED with directions to the  superior
court to modify the decision in accordance with this opinion.
         IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

                THIRD JUDICIAL DISTRICT AT KENAI

DAVID S. HAEG,                 )
                               )
               Appellant,      )
                               )
     v.                        )
                               )
BRENT R. COLE,                 )
                               )
               Appellee.       )
                               )   Case No.:  3KN-06-844 CI

                 MEMORANDUM DECISION AND ORDER
     David  S. Haeg appeals the August 25, 2006 decision  of  the
Alaska  Bar  Association Fee Arbitration Panel  (panel)  awarding
Brent  Cole  $2,689.19.   The Appellant  alleges  ten  points  on
appeal,  arguing that the award was procured by fraud, there  was
corruption among the arbitrators, there was partiality among  the
arbitrators,   the   arbitrators  exceeded  their   powers,   the
arbitrators  decision  did not address the issues  the  appellant
presented,  the arbitrators did not make a referral to discipline
the   appellants  counsel,  the  decision  did  not  reflect  the
evidence,  the decision did not comply with the Alaska  Rules  of
Professional  Conduct or Alaska Bar Rule 40, a large  portion  of
the  official record of the proceedings has been lost,  and  that
the  decision and award are in violation of the U.S.  and  Alaska
Constitutions.
     For  the  reasons  set forth below, the court  modifies  the
judgment  of  the  panel  to  reflect  the  correct  judgment  of
$1,689.19.
                          CASE HISTORY
     Both  parties  offer  their own versions  of  what  occurred
during  the  course  of  proceedings of the  Appellants  criminal
trial.   However, the factual history of the Appellants  criminal
case  is  a  matter reserved for his criminal appeal.   The  only
issue before this court on appeal is whether there is a basis  to
vacate or modify the panels decision.  Therefore, the court  only
offers  an  abbreviated case history to  the  point  that  it  is
relevant to the current appeal.
     The  Appellant,  David Haeg, retained  the  Appellee,  Brent
Cole, as his counsel on April 9, 2004 after learning that he  was
the   subject  of  an  investigation  concerning  Fish  and  Game
violations.   The  Appellant signed  a  fee  agreement  with  the
Appellee,  agreeing  to pay $200.00 per hour  for  the  Appellees
services.   The  Appellee sent the Appellant  monthly  bills  and
represented  the Appellant through the summer and fall  of  2004.
Both  parties  offer  differing versions of  events  of  how  the
criminal  case progressed, but it appears that the panel accepted
the  version presented by the Appellee.  The only facts that  are
relevant on this appeal are that the Appellant fired the Appellee
during  these  criminal proceedings prior  to  the  time  a  plea
agreement could be entered, that the Appellant proceeded to  take
his case to trial with a new attorney, and that the Appellant was
convicted  at trial.  The conviction led to the judge  suspending
the   Appellants  hunting  guide  license  for  five  years   and
forfeiting his PA-12 aircraft.
     The  Appellant  still had an amount left owing  on  his  fee
agreement  when he fired the Appellee, which he refused  to  pay.
The  Appellee did not pursue the Appellant for this unpaid amount
and appeared willing to write the losses off.  The Appellant then
filed  grievances against the Appellee with the Bar and requested
that  the  Appellee  be referred for discipline.   The  Appellant
subsequently filed for fee arbitration in an amount that exceeded
$5,000.00.   Pursuant  to  Bar Rules, an  arbitration  panel  was
convened.   After oral argument, the panel issued a  decision  on
August  25, 2006 that awarded the Appellee the unpaid portion  of
his fee agreement.  This appeal followed.
                       STANDARD OF REVIEW
     Alaska employs mandatory fee arbitration between clients and
attorneys if a client commences such an action.1  The court is to
give great deference to the arbitrators findings of fact and law,
and  is  loathe  to vacate an award made by an  arbitrator.2   In
reviewing  the  award of a fee arbitration committee,  the  court
cannot  review the panels findings of fact, even if the  findings
were  in  gross  error.3  Further, the court  cannot  review  the
decision  on its merits.4  The court can only review the decision
based  on  the  reasons  set forth in  AS  09.43.120  through  AS
09.43.180.5  Therefore, in reviewing this appeal, the court  will
only  vacate the award if it finds the Appellant has  proven  the
factors  under AS 09.43.120(a) and will only modify the award  if
the Appellant has proven the factors under AS 09.43.130(a).
                           DISCUSSION
     The  Appellant  uses his brief to argue the  merits  of  his
criminal  case.   However, the issue before  this  court  is  not
whether  the Appellants conviction should stand.  That  issue  is
reserved  solely for the Appellants criminal appeal.   The  court
further  cannot reassess the evidence presented before the  panel
or  the  credibility of the witnesses.  The court is  limited  to
finding whether the award made by the arbitrators may be modified
or vacated pursuant to AS 09.43.120 and AS 09.43.130.
     The  Appellant  argues that the panels  decision  should  be
vacated  because the Appellee perjured himself at the panel.   He
also  argues that the evidence he presented against the  Appellee
was  numerous  and  of significant weight.  He  claims  that  the
panels  acceptance of the Appellees testimony over  his  evidence
shows  corruption and partiality on the part of the  arbitrators.
However, the fact that the arbitrators weighed the evidence in  a
manner   unfavorable  to  the  Appellant  is  not   evidence   of
corruption.   There is no doubt that the Appellant  believes  his
evidence was more credible than that of the Appellee, but  again,
this  court  is without the authority to reassess the credibility
of  the witnesses or the weight of the evidence presented to  the
panel.   Therefore,  the court does not find the  fact  that  the
panel accepted the Appellees testimony as more credible than  the
Appellants evidence as an indication of corruption and  will  not
     vacate the award on this point.
     The  Appellant argues that the fact the panel  consisted  of
two   attorneys   and  one  full-time  court  employee   suggests
partiality  among  the arbitrators for the Appellee.   The  court
finds  no  merit to the Appellants argument.  Pursuant to  Alaska
Bar  Rule  37(c), an arbitration panel consists of two  attorneys
and  one member of the public.  The fact that the panel consisted
of attorneys and a court employee is not evidence of bias.
     The  Appellant argues that there is clear indication of bias
and  corruption among the arbitrators because their decision  and
award  does not reflect the testimony and evidence the  Appellant
presented  before  the  panel.  The Appellant  contends  that  he
overwhelmingly proved that the Appellee perjured himself  to  the
panel  and  that the panel ignored this evidence and  helped  the
Appellee  in  his case.  Again, this court does not reassess  the
weight  of  the  evidence or review the facts  presented  to  the
panel.  The fact that the panel accepted the Appellees version of
events   does   not  indicate  bias  or  corruption   among   the
arbitrators.
     The  Appellant further contends that the panel  was  corrupt
and  bias  because it stated that the Appellant  only  identified
three  failures  of  the Appellee when the  Appellant  argued  he
should be excused from paying the fee.  The Appellant claims that
he  argued  numerous other issues to the panel, reiterating  that
the  Appellee  perjured  himself  numerous  times  and  that  the
Appellee intentionally lied to the Appellant during the course of
his  representation.  Again, the fact that  the  panel  chose  to
reject  the  Appellants  arguments is not  evidence  of  bias  or
corruption.   The panel expressly stated that it could  not  find
evidence   to  support  the  Appellants  arguments   during   the
arbitration.   While  the  court  again  acknowledges  that   the
Appellant believes he met this burden, it is without authority to
reassess  the  panels factual determination  and  does  not  find
evident bias among the arbitrators in choosing to exclude some of
the Appellants arguments in its decision.
     The  Appellant offers other argument regarding  evidence  of
bias  and  corruption  among the arbitrators,  but  it  is  again
repetitive  of  what  has already been stated.   Pursuant  to  AS
09.43.120(a), a court may only vacate the panels award  if:   (1)
the  award was procured by fraud or other undue means; (2)  there
was evident partiality by an arbitrator appointed as a neutral or
corruption  in  any of the arbitrators or misconduct  prejudicing
the rights of a party; (3) the arbitrators exceeded their powers;
(4)   the  arbitrators  refused  to  postpone  the  hearing  upon
sufficient cause being shown for postponement or refused to  hear
evidence  material to the controversy or otherwise  so  conducted
the  hearing, contrary to the provisions of AS 09.43.050,  as  to
prejudice  substantially the rights of a party; or (5) there  was
no   arbitration  agreement  and  the  issue  was  not  adversely
determined  in proceedings under AS 09.43.020 and the  party  did
not  participate in the arbitration hearing without  raising  the
objection.  This court cannot find that the Appellant has met his
burden  in  proving  evident partiality or corruption  among  the
arbitrators.   While  the court acknowledges that  the  Appellant
believes  he presented sufficient evidence to support a different
award,  this  court cannot reassess the facts  presented  to  the
panel.   The  court  can only look to see if  there  was  evident
partiality and corruption among the arbitrators.  Upon  reviewing
the  record,  the court is unable to make this determination  and
finds  that  the panel acted within their powers when making  the
award.   Even if the Appellant presented a magnitude of  evidence
to  the  panel that supported his claim, this would not be enough
for  the  court  to  vacate the award.   This  court  is  without
authority  to vacate an award due to fraud or other  undue  means
even if the panel made gross errors in their decision.6  The only
argument  the Appellant offers repeatedly to prove his contention
of   fraud,   evident  partiality,  and  corruption   among   the
arbitrators is that the panel issued a decision in favor  of  the
Appellee  despite of what he claims is overwhelming  evidence  in
support  of  his  position.   This is  not  evidence  of  evident
partiality.  For the court to find bias among the arbitrators  on
this basis would require the court to inquire into the merits  of
the  panels  decision.  As stated multiple times, this  court  is
without  authority to do so.  Therefore, the court must defer  to
the  panel and upholds the panels decision to award the  Appellee
his fees.
     Finally, the Appellant contends that the panel exceeded  its
powers  by  awarding the Appellee funds that he never  requested.
He further argues that the arbitration panel awarded the Appellee
a  $1,000.00  more  than the Appellee was  owed.   The  Appellant
suggests  that this also demonstrated corruption on the  part  of
the arbitrators, as the Appellee had never requested these fees.
     The  court  disagrees that the panel exceeded its  power  to
make this award.  When the Appellant pursued fee arbitration, his
fee  agreement  with  the Appellee became  a  proper  matter  for
consideration.   The fact that the Appellee had  elected  not  to
pursue the Appellant for the remainder of his undue balance prior
to  the Appellants commencement of this action did not constitute
a  waiver  that  would  prevent the panel from  considering  this
issue.   At  the panel, the arbitrators were presented  with  the
parties  fee  agreement.  The Appellant did not dispute  that  he
entered into a fee agreement for $200 per hour with the Appellee.
The  Appellant did not dispute the time sheets presented  by  the
Appellee that demonstrated the time spent by the Appellee working
on  the  Appellants case.  The Appellant only challenged a charge
reflecting  air travel to McGrath, and the Appellee  agreed  that
this was an improper charge.  The Appellant acknowledged that  he
had  not  paid  the  remainder left  owing  on  the  parties  fee
agreement, which reflected an amount of $2,059.19.  The Appellant
only challenged the quality of the Appellees services.  The panel
concluded  that  the  Appellee  had effectively  represented  the
Appellant and awarded the Appellee the amount left owing  on  the
parties fee agreement.
     The  Appellant  made his fee agreement with the  Appellee  a
proper  issue  for consideration when he decided  to  pursue  fee
arbitration and cannot argue waiver now.  Therefore, pursuant  to
AS  09.43.120(a)(3),  the  court does not  find  that  the  panel
exceeded  their  powers and will not vacate the award.   However,
     pursuant to AS 09.43.130(a)(1), the court does find that the
award should be modified due to an evident miscalculation on  the
part  of the arbitrators.  The panels decision acknowledges  that
the  Appellant  had  paid  $11,329.81 to  the  Appellee  for  his
services.   The  panel also acknowledges that  the  Appellee  had
charged   the   Appellant  $13,389.00  for  his  services.    The
difference between these two amounts equal $2,059.19.  The  panel
further  credited the Appellant $370.00 for the Appellees  travel
expenses.   Therefore, the correct amount that should be  awarded
is  $1,689.19.  However, the court finds that this miscalculation
in  the  panels  award  was due to clerical  error,  and  is  not
evidence of corruption or bias among the arbitrators.
     DATED in Kenai, Alaska, this 15th day of June, 2007.

                                        HAROLD M. BROWN
                                        Superior Court Judge
_______________________________
     1    The superior courts decision is appended.

     2    AS 09.43.510(a)(2).

     3      Alaska  Bar  Rule  40  implies  that  only  questions
submitted  should be decided.  In relevant part, Bar  Rule  40(q)
states:  The decision will be in writing . . .  the decision will
include  .  .  . the findings of the arbitrator or panel  on  all
issues and questions submitted which are necessary to resolve the
dispute.  Alaska Bar R. 40(q)(3).

     4     Haegs petition for arbitration sought only the fees he
had  already  paid  Cole and stated that Cole did  not  seek  any
further  payments from Haeg.  Cole confirmed to  the  arbitration
panel  that he was not seeking unpaid fees.  At one point in  the
proceedings members of the panel told Haeg that the only  subject
here is . . . [t]he fee that youve already paid.  We note that at
oral argument before this court Cole also waived any interest  in
an affirmative recovery.

1 Alaska Bar Rule 34(b).

     2  Butler  v.  Dunlap,  931 P.2d 1036,  1038  (Alaska  1997)
(quoting  Depart. Of Pub. Safety v. Public Safety Employees,  732
P.2d 1090, 1093 (Alaska 1987)).

     3 Breeze v. Sims, 778 P.2d 215, 217-18 (Alaska 1989).

     4 A. Fred Miller v. Purvis, 921 P.2d 610, 618 (Alaska 1996).

     5 Alaska Bar Rule 40(a)(2).

6  Alaska  State  Housing  Authority v. Riley  Pleas,  Inc.,  586
P.2d 1244, 1247 (Alaska 1978).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC