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. State v. Jacob (08/28/2009) sp-6402

State v. Jacob (08/28/2009) sp-6402

     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

STATE OF ALASKA; MARCIA )
KENNAI, in her official capacity ) Supreme Court No. S-13226
as Deputy Commissioner of the Office )
of Childrens Services of the ) Superior Court No. 3AN-04- 04957 CI
Alaska Department of Health and)
Social Services; and the OFFICE OF ) O P I N I O N
CHILDRENS SERVICES of the )
Alaska Department of Health and ) No. 6402 - August 28, 2009
Social Services, )
)
Appellants,)
)
v. )
)
DAVID and JOYCE JACOB,)
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

          Appearances:   Joanne  M.  Grace,   Assistant
          Attorney   General,   Anchorage,   Talis   J.
          Colberg,  Attorney General,  and  Richard  A.
          Svobodny,  Acting  Attorney General,  Juneau,
          for   the  Appellants.   Daniel  G.  Rodgers,
          Alaska     Immigration    Justice    Project,
          Anchorage, for the Appellees.

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

          CHRISTEN, Justice.

I.   INTRODUCTION
          David  and Joyce Jacob sued the State of Alaska, Office
of  Childrens  Services (OCS) in March 2004 for  declaratory  and
injunctive  relief regarding OCSs failure to provide them  notice
of  their  grandchildrens CINA and permanency  proceedings.   The
superior  court dismissed the suit, but this court  reversed  and
remanded  for entry of declaratory judgment on one of the  Jacobs
claims.   After the declaratory judgment was entered, the  Jacobs
filed a motion for full attorneys fees under AS 09.60.010(c)  for
prevailing on a constitutional claim, or, in the alternative, for
enhanced  fees  under Alaska Civil Rule 82.  The  superior  court
awarded the Jacobs full fees or, as an alternative, half of their
total  fees  under Rule 82(b)(3).  OCS appeals.   We  affirm  the
prevailing  party determination, reverse the award of full  fees,
and affirm the alternative award of enhanced Rule 82 fees.
II.  FACTS AND PROCEEDINGS
          We described the facts underlying this case in Jacob v.
State,  Department  of  Health and  Social  Services,  Office  of
Childrens Services (Jacob I)1:
               Minors A.K., D.L., and E.H. are the
          grandchildren of David and Joyce  Jacob.
          The   mother   of  the  three   children
          struggled with drug dependency and as  a
          result the Jacobs often assumed care  of
          their    grandchildren.   In   1997    a
          Washington   state  court  granted   the
          Jacobs  joint  custody of  the  children
          with  their mother.  In 1999 the  Jacobs
          agreed  that the children could move  to
          Alaska with their mother because she had
          been sober for quite some time.  But  in
          2000 the mother relapsed, and in October
          2000   the  children  were  taken   into
          custody   by  the  Office  of  Childrens
          Services (OCS).
          
               When  the  Jacobs learned from  the
          childrens  mother in December 2000  that
          OCS  had  custody of the children,  they
          immediately sent a letter to OCS stating
          that    they    were    the    childrens
          grandparents,  had  joint  custody,  and
          wanted  OCS  to  place the  children  in
          their care.  OCS did not respond to  the
          letter  and  the  children  remained  in
          foster care.  Between December 2000  and
          March  2004  the Jacobs made  dozens  of
          attempts   to  communicate   with   OCS,
          including  leaving  messages   for   the
          caseworker     and    the    caseworkers
          supervisor,  Tim Fox. On  one  occasion,
          Fox  allegedly told the Jacobs that they
          were too old to care for the children.
          
               Over  the  next three and  one-half
               years OCS never sent the Jacobs notice
          of  any  court hearings regarding  their
          grandchildrens     CINA     proceedings,
          including those that occurred after  the
          September   2001   effective   date   of
          amendments   to   the   CINA    statutes
          requiring  grandparent  notice.   During
          that  time period the Jacobs never filed
          a  motion to formally intervene in their
          grandchildrens  CINA  cases  and   never
          filed  a  petition requesting  that  the
          children be placed in their care.[2]
          
          The  Jacobs filed a complaint in the superior court  in
March  2004, alleging these facts and requesting declaratory  and
injunctive  relief.  They sought a declaration that OCS  violated
their  rights by failing to place their grandchildren  with  them
and  by  failing  to  give  them  notice  of  hearings  in  their
grandchildrens  CINA hearings.   They also sought  an  injunction
compelling   OCS  to  provide  to  the  Jacobs  and   all   other
grandparents  similarly  situated  written  notice  of  and   the
opportunity  to be heard at CINA hearings, as well  as  immediate
placement  of the Jacobs grandchildren with the Jacobs until  and
unless  [OCS]  show[s]  by  clear and  convincing  evidence  that
placement  of  the  children with [the  Jacobs]  will  result  in
physical or mental injury to the children.
          OCS  filed  a  motion  to  dismiss,  arguing  that  the
superior  court  lacked jurisdiction because the court  presiding
over  the  CINA proceedings had exclusive jurisdiction  over  the
claims presented.   OCS also argued for dismissal for failure  to
state a claim for which relief may be granted, reasoning that the
Washington state custody order on which the Jacobs relied was not
entitled  to  full  faith  and credit because  it  had  not  been
registered  in  Alaska.    Finally, OCS argued  that  the  Jacobs
chosen venue was improper.
          The  Jacobs  filed a cross-motion for  partial  summary
judgment.  They contested OCSs arguments for dismissal and  asked
the  superior court to enter judgment on the issue of whether OCS
violated their rights under AS 47.10.030(d), AS 47.10.080(f), and
AS  47.14.100(e).3  The Jacobs argued that there was  no  factual
dispute  regarding  OCSs  failure to comply  with  the  statutory
notice  requirements  and that those rights trigger  due  process
concerns.  They then described the information they contended OCS
needed  to  include  in its written notice  to  comply  with  due
process.
          In  response,  OCS argued that because AS  47.10.030(d)
did  not  go  into  effect until September 23,  2001,  after  the
adjudication   and  disposition  orders  were  entered   in   the
grandchildrens CINA case, prior failures to send  notice  to  the
Jacobs  did  not  violate that statute.   OCS  conceded  that  AS
47.10.080(f) was in effect when the permanency hearings  for  the
Jacobs  grandchildren occurred but argued that the proper  remedy
for  violation of that provision was intervention in the existing
CINA  proceeding. Regarding the Jacobs due process argument,  OCS
          responded that [a]ny due process issues are covered by the
[notice]  statute,  so  there was no basis  for  expand[ing]  the
obligation  of  the  Department beyond what is  mandated  by  the
statute.
          In   August  2004  Superior  Court  Judge  John   Reese
dismissed  the  Jacobs  case.4  Judge  Reese  observed  that  the
departments  failure to give them notice is a serious  oversight,
but  concluded that the Jacobs due process rights have  not  been
violated,  since  . . . they may request placement  in  the  CINA
case.
          The  Jacobs  intervened  in their  grandchildrens  CINA
cases, but they also appealed Judge Reeses ruling to this court.5
We  held  in Jacob I that the Jacobs were entitled to declaratory
relief.6   We  vacated the order dismissing the Jacobs  complaint
and  remanded for entry of a declaration of the Jacobs  statutory
rights,7  holding that [a] declaratory judgment from the superior
court  that acknowledges the failure of OCS to meet its statutory
duty  to  the Jacobs and that specifically recognizes the  Jacobs
rights to receive notice of future OCS hearings relating to their
grandchildren will materially benefit the Jacobs.8  We noted that
the  Jacobs  never  sought a declaration  specifically  regarding
their due process rights and so we decline[d] to comment on  this
issue  extensively, but we nevertheless observed that  notice  of
proceedings  and a meaningful right to be heard are essential  to
due  process.9   We held that three of the Jacobs other  requests
for  injunctive  relief  on their own  behalf  were  moot.10   By
intervening in their grandchildrens CINA proceedings, the  Jacobs
received the first two categories of injunctive relief that  they
sought: notice of CINA proceedings and an opportunity to be heard
at permanency hearings.11  Regarding the third category, placement
of  the  children, the Jacobs decided not to continue  to  pursue
full  custody of two of the children and they were in a  position
to be heard regarding placement of the third.12  We decline[d] to
address  the  Jacobs request for injunctive relief on  behalf  of
similarly situated grandparents because the Jacobs had not  filed
a class action lawsuit and because at oral argument they appeared
to retreat from this position to some degree.13
          After our Jacob I opinion was published, Superior Court
Judge Jack W. Smith entered declaratory judgment on behalf of the
Jacobs.  The declaration read, in its entirety:
               Plaintiff[s]  right  to  notice  of
          Child  in Need of Aid (CINA) proceedings
          concerning   their   grandchildren   was
          violated  by  the  Office  of  Childrens
          Services   (OCS).   In  September   2001
          amendments  to AS 47.10.030(d)  required
          notice to grandparents with Plaintiff[s]
          status.  That notice was not provided to
          Plaintiffs.
          
               Plaintiffs  have a  right  and  are
          entitled to notice under AS 47.10.030(b)
          and  (d) of any current and future  CINA
          proceedings       involving        their
               grandchildren.
          
          In  April  2008 the Jacobs filed a motion for attorneys
fees.14   The  Jacobs  argued they were  the  prevailing  parties
because  they  had won and obtained a judgment  in  their  favor.
They  asserted  that  they were entitled to full  fees  under  AS
09.60.010(c), which they contended provides for an award of  full
fees  in  cases concerning a constitutional right.  They  claimed
that  this  case  was  in  that  category,  quoting  this  courts
statements  in Jacob I about due process, as well as other  cases
discussing  grandparents due process rights.  In the alternative,
they  argued  that they were entitled to enhanced Civil  Rule  82
fees because
          this   case  was  very  complex  (Civil  Rule
          82(b)(3)(A));  the amount of  attorney  time,
          the  number  of attorney[s] used, and  Alaska
          Legal   Services  minimizing  of   fees   was
          remarkable  (Civil Rule 82(b)(3)(C)   (E)[)];
          plaintiffs claims were reasonable (Civil Rule
          82(b)(3)(F)[)];  the matters  at  stake  were
          significant (Civil Rule 82(b)(3)(H));  a  fee
          award  will  not  be onerous to  [the]  State
          (Civil Rule 82(b)(3)(I)); and equity suggests
          a  fee enhancement is appropriate (since  the
          plaintiffs pursued this claim, despite  their
          age  and infirmities, on behalf of all future
          grandparents   so   that   they   would   not
          experience  what the Jacobs had to  endure[)]
          (Civil Rule 82(b)(3)(K)[)].

The   Jacobs  asserted  that  the  requested  hourly  rates  were
reasonable  and  calculated that a full award  would  be  in  the
amount of $96,940.  Attached to the motion were time records  for
each of the Jacobs attorneys.
          OCS  opposed the Jacobs motion arguing that the  Jacobs
were  not  the prevailing parties because they only prevailed  on
the  question of whether they were entitled to a declaration that
they  should  have  received notice of the  CINA  proceedings,  a
statutory  right that was never in dispute and that was  not  the
main  issue  in  the case. OCS argued that the  Jacobs  were  not
entitled to fees under AS 09.60.010(c) because they did not bring
an  action  to  establish, protect, or enforce  a  constitutional
right  and had not raised or established a due process violation.
OCS  also  contended  that some of the Jacobs  attorneys  billing
entries were inappropriately included, making the $96,940  figure
too  high.15   OCS further argued that because merely restat[ing]
nearly every enhancement factor constitutes failure to adequately
brief the issue of enhanced fees, the Jacobs waived their request
for  an award under Rule 82(b)(3) and so were entitled to at most
twenty percent of their actual reasonable fees.
          The   Jacobs  replied,  reasserting  their  substantive
arguments  but conceding that some of the billing entries  should
not have been included.  They recalculated their recoverable fees
and reduced their request to $27,334.
          In  June  2008  Judge  Smith  granted  the  motion  for
attorneys  fees  and awarded full fees in the revised  amount  of
$27,334.   In  the  alternative, even if there  were  no  special
statutory  fee  provision for constitutional cases,  Judge  Smith
wrote  that he would award the Jacobs enhanced fees in the amount
of  $13,667fifty percent of the fees requestedbecause of  various
factors  supporting enhancement, such as the  complexity  of  the
case, the amount of time the attorneys spent on it, the number of
attorneys  used,  the  extent  to  which  Alaska  Legal  Services
minimized its fees, the reasonableness of plaintiffs claims,  the
significance  of the matters at stake, and the fact  that  a  fee
award will not be onerous to [the] State.
          OCS appeals the award of attorneys fees.
III. STANDARD OF REVIEW
          We  exercise  our  independent  judgment  in  reviewing
whether  a trial court has applied the appropriate legal standard
in  making its prevailing party determination.16 But we review  a
superior  courts  determination of prevailing  party  status  and
attorneys  fees for abuse of discretion17 and will overturn  such
determinations  only if they are manifestly unreasonable.18   The
decision  to  award enhanced fees is also reviewed for  abuse  of
discretion.19
          As  to  reviewing an award under AS 09.60.010(c), [t]he
independent  standard  of  review . . .  applies  to  considering
whether  the  trial court properly applied the law when  awarding
attorneys fees.20
          We use independent judgment when determining whether an
issue has been waived below due to inadequate briefing.21
IV.  DISCUSSION
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Ruling that the Jacobs Prevailed in this Case.
          For  the  Jacobs to have been eligible for an award  of
attorneys fees under either AS 09.60.010(c) or Alaska Civil  Rule
82,  the superior court must have appropriately declared them  to
be the prevailing party in this case.22
          OCS  argues  that  the Jacobs were not  the  prevailing
parties because the ground on which the Jacobs prevailedthe right
to  notice  of  CINA proceedingswas something that was  never  in
dispute.   OCS also contends that it prevailed on the main  issue
because  the  Jacobs  were unable to obtain  a  declaration  that
applied to all grandparents.  OCS reasons that such a declaration
must  have been central to the Jacobs case or they would not have
(1)   filed  a  suit  separate  from  their  grandchildrens  CINA
proceedings,  or  (2) emphasized in their briefing  the  systemic
nature of OCSs failure to provide notice to grandparents.
          But  the  Jacobs argue that they prevailed on the  main
issue,  which  was  the opportunity to be  heard,  and  cite  our
holding  in Jacob I that they were entitled to declarations  that
OCS had violated their statutory notice right and that they had a
right  to notice in future CINA proceedings.  The Jacobs  concede
that  no  order was issued compelling OCS to follow the law  with
respect  to  other grandparents but reassert that  they  obtained
their   first  objective,  an  order  pertaining  to  their   own
          grandchildren.23 And they point out that this court has already
held  that  a  declaratory judgment would materially benefit  the
Jacobs.
          The superior court did not make any statement regarding
prevailing party status in its attorneys fees order,  but  it  is
implicit in the courts award that the court considered the Jacobs
to be the prevailing parties.24  As noted above, [d]esignation of
the  prevailing party is committed to the broad discretion of the
trial court 25 and so will be overturned only if . . . manifestly
unreasonable.26
          It is firmly established that [t]he prevailing party is
the  one who has successfully prosecuted or defended against  the
action, the one who is successful on the main issue of the action
and  in  whose favor the decision or verdict is rendered and  the
judgment entered. 27  Furthermore, [a] plaintiff may prevail even
if he or she fails to recover all the relief prayed for.28
       OCS disregarded its statutory obligation to provide notice
to  the  Jacobs,  and  we held in Jacob I that  the  Jacobs  were
entitled  to  redress for that violation.29  It is reasonable  to
conclude  that  the  failure  to provide  notice  to  the  Jacobs
regarding  their  grandchildrens CINA proceedings  was  the  main
issue  in  the  case.  As noted above, the Jacobs need  not  have
prevailed  on all of their claims to be the prevailing parties.30
Though  OCS  now argues that this issue was never in dispute,  it
chose to litigate this case for years.  OCS did not concede until
oral  argument  preceding  our  2008  opinion  in  Jacob  I  that
declaratory   relief  based  on  the  2001  notice  statute   was
appropriate.31   That argument took place at  least  seven  years
after OCS initiated CINA proceedings, almost four years after the
Jacobs filed their complaint, and at least three years after  the
superior  court  called the failure to provide notice  a  serious
oversight.  It is not an abuse of discretion to conclude that the
Jacobs prevailed in this matter.
     B.   The   Jacobs  Are  Not  Entitled  to  Fees   Under   AS
          09.60.010(c).
          Because  we  affirm the determination that  the  Jacobs
were  entitled to fees as the prevailing parties, we next  review
the  superior courts award, beginning with its grant of full fees
under AS 09.60.010(c).32  That statute reads, in relevant part:
               In   a   civil  action  or   appeal
          concerning       the      establishment,
          protection, or enforcement  of  a  right
          under the United States Constitution  or
          the Constitution of the State of Alaska,
          the court
     
                    (1)  shall  award, subject  to
               (d)  and (e) of this section,  full
               reasonable attorney fees and  costs
               to  a  claimant, who, as plaintiff,
               counterclaimant, cross claimant, or
               third-party plaintiff in the action
               or  on  appeal,  has  prevailed  in
               asserting the right.
          
          OCS argues that the Jacobs did not prevail in asserting
a  constitutional right because they did not make a  due  process
claim  in  their  complaint.  Though OCS  acknowledges  that  the
Jacobs  raised the suggestion of due process concerns in  seeking
partial  summary judgment, OCS argues that the contents  of  that
suggestion  were  not  sufficient to establish  a  constitutional
right.  OCS asserts that this court did not reach the due process
issue in Jacob I and that our comment on the constitutional issue
is  not  sufficient  for an AS 09.60.010(c)  award.   The  Jacobs
believe  that  [f]ull reasonable fees under AS  09.60.010(c)  are
.  .  .  appropriate  because they made arguments  regarding  due
process  in their summary judgment motion, to which OCS responded
and  on  which the superior court ruled.  The Jacobs characterize
our  opinion  in  Jacob I as taking the due process  issues  into
account  when  ruling  in favor of the Jacobs  on  the  statutory
declaratory judgment issue.
          We  agree  with OCS.  Jacob I made clear that  we  took
seriously the due process concerns implicated by OCSs failure  to
provide notice to the Jacobs,33 but we declined to rule on  those
issues because the Jacobs had not raised them.34  Where no  party
has  properly  raised a constitutional claim, an  award  of  fees
under AS 09.60.010(c) is not appropriate.
     C.   The  Jacobs  Are Entitled to the Alternative  Award  of
          Enhanced Rule 82 Fees.
          In  cases  in  which the prevailing party  recovers  no
money  judgment,  Alaska  Civil Rule 82(b)(2)  provides  for  the
recovery  of  thirty percent of the prevailing partys  reasonable
actual attorneys fees which were necessarily incurred if the case
was resolved at trial, and twenty percent if the case did not  go
to  trial.   As  an alternative to its award of  full  fees,  the
superior court granted fifty percent of the Jacobs requested fees
based  on  the enhancement factors in Alaska Civil Rule 82(b)(3).
That rule reads:
               (3) The court may vary an attorneys
          fee  award calculated under subparagraph
          (b)(1)  or  (2)  of this rule  if,  upon
          consideration  of  the  factors   listed
          below,  the court determines a variation
          is warranted:
          
                    (A)  the complexity of the litigation;
                    (B)  the length of trial;
                    (C)   the  reasonableness
               of  the attorneys hourly rates
               and   the   number  of   hours
               expended;
                    (D)   the  reasonableness
               of  the  number  of  attorneys
               used;
                    (E)      the    attorneys
               efforts to minimize fees;
                    (F)   the  reasonableness
               of  the  claims  and  defenses
                    pursued by each side;
                    (G)    vexatious  or  bad
               faith conduct;
                    (H)       t
                              h
                              e
                              r
                              e
                              l
                              a
                              t
                              i
                              o
                              n
                              s
                              h
                              i
                              p
                              b
                              e
                              t
                              w
                              e
                              e
                              n
                              t
                              h
                              e
                              a
                              m
                              o
                              u
                              n
                              t
                              o
                              f
                              w
                              o
                              r
                              k
                              p
                              e
                              r
                              f
                              o
                              r
                              m
                              e
                              d
                              a
                              n
                              d
                              t
                              h
                              e
                              s
                              i
                              g
                              n
                              i
                              f
                              i
                              c
                              a
                              n
                              c
                              e
                              o
                              f
                              t
                              h
                              e
                              m
                              a
                              t
                              t
                              e
                              r
                              s
                              a
                              t
                              s
                              t
                              a
                              k
                              e
                              ;
                    (I)   the extent to which
               a  given fee award may  be  so
               onerous  to the non-prevailing
               party   that  it  would  deter
               similarly  situated  litigants
               from the voluntary use of  the
               courts;
                    (J)   the extent to which
               the   fees  incurred  by   the
               prevailing party suggest  that
               they  had  been influenced  by
               considerations apart from  the
               case  at bar, such as a desire
               to discourage claims by others
               against  the prevailing  party
               or its insurer; and
                    (K)     other   equitable
               factors deemed relevant.
               
          If  the court varies an award, the court
          shall   explain  the  reasons  for   the
          variation.
          
          1.   The  Jacobs did not waive their right to  enhanced
               fees.
          OCS cites Sidney v. Allstate Insurance Co.35 and argues
that  the  Jacobs  waived  the  argument  for  enhanced  fees  by
fail[ing]  to make any argument [for enhanced fees]  until  their
reply  brief  to  the  superior court.   OCS  is  concerned  that
accepting  the  Jacobs initial argument for enhanced  fees  would
allow any party who merely cited those factors to inappropriately
shift the burden to the nonmoving party to argue against enhanced
fees  even  though  no presumption for fees  should  exist.   The
Jacobs  concede  that their argument in their  opening  brief  is
short,  but  they  contend that it sufficiently  raised  the  fee
enhancement issue, in contrast to the situation in Sidney.
          The  superior  court  granted enhanced  fees  and  thus
necessarily  concluded the Jacobs had not inadequately  requested
them.  Waiver is a legal issue that this court reviews de novo,36
so  we  need not have the superior courts reasoning before us  to
rule on this question.
          We  conclude that the Jacobs did not so thoroughly fail
to argue for enhanced fees that they waived the claim.  Sidney is
distinguishable.   In that case, we rejected a partys  contention
that  she should receive full fees because the party had provided
no  justification for varying the presumptive fee award,  offered
no  authority  in  support of her argument,  and  pointed  to  no
authority  in support of her request.37  Here, though we  believe
the Jacobs could and probably should have more thoroughly briefed
their  arguments  for  enhanced fees, the  Jacobs  did  point  to
specific  Rule  82(b)(3)  factors they contended  apply  and  OCS
responded.   On this record, we do not conclude that  the  Jacobs
waived  their claim for enhanced fees.  Thus, we reach the merits
of the enhanced fee award.
          2.   The superior court did not abuse its discretion in
               awarding enhanced fees to the Jacobs.
               
          OCS contends that none of the Rule 82(b)(3) enhancement
factors  applies here.  The Jacobs argue that the superior  court
was  correct  to find that several factors support  an  award  of
enhanced  fees.  We will overturn an award of enhanced fees  only
where  the  trial court has abused its discretion.38  We  do  not
believe   the   superior  courts  alternative  award   here   was
unreasonable  because two enhancement factors weigh  strongly  in
favor of the courts ruling.
          First,  we believe factor (H), the relationship between
the  amount of work performed and the significance of the matters
at  stake,  applies.  The superior court relied on  this  factor,
writing  that  the matters at stake were significant.   We  agree
that  the  notice  issue  the Jacobs raised  is  important.   The
placement  of  children and the involvement  of  grandparents  in
their  grandchildrens lives are not matters to be taken  lightly.
Neither  is  a state agencys failure to comply with a legislative
mandate.   The  $27,334 in fees that the Jacobs  requested  after
years  of  pursuing  litigation  against  OCS  to  enforce  their
          statutory right is reasonable in light of the significance of the
case.
          Second,  factor (F), the reasonableness of  the  claims
and defenses pursued by each side, is relevant here.  Reliance on
this factor is appropriate where the nonprevailing party has made
unreasonable  arguments.39  The defenses on which OCS  relied  in
responding  to the Jacobs complaintincluding that the  Washington
state custody order should not receive full faith and credit  and
that the Jacobs had chosen improper venuewere unreasonable.   OCS
clearly failed to comply with a statutory requirement in a manner
that  impacted  the  Jacobs involvement in  their  grandchildrens
lives.   It  is uncontested that the Jacobs called this  fact  to
OCSs  attention  dozens of times.40  Rather than  correcting  its
error,  OCS  took  seven years to concede that  the  Jacobs  were
entitled  to  the notice the legislature mandated in  2001.   The
superior  court did not articulate this rationale for relying  on
factor  (F), but we believe it is clear that the record  supports
reliance on this factor.41
          Because  we hold that the superior court did not  abuse
its   discretion  in  awarding  enhanced  fees,  we  affirm   its
alternative award of fifty percent of the Jacobs attorneys fees.
V.   CONCLUSION
          For the reasons explained above, we AFFIRM the superior
courts  finding  that  the  Jacobs were the  prevailing  parties,
VACATE  the  portion  of  its  order  granting  full  fees  under
AS 09.60.010(c), and AFFIRM the award of enhanced Rule 82 fees.
_______________________________
     1    177 P.3d 1181 (Alaska 2008).

     2     Id.  at  1183 (footnotes omitted).  We noted that  the
facts  as  recited were taken largely from the Jacobs  complaint.
Id. at 1183 n.1.  These facts are not contested here.

     3     AS  47.10.030(d), which went into effect on  September
23, 2001, ch. 43,  1-6, SLA 2001, requires notice to grandparents
of  CINA proceedings if they request it or if OCS knows the child
has   a  grandparent  and  has  the  grandparents  address.    AS
47.10.080(f) states that grandparents entitled to notice under AS
47.10.030(d) are also entitled to notice of permanency  hearings.
The  version  of  AS  47.14.100(e)  in  place  while  the  Jacobs
grandchildrens  CINA  cases were proceeding prohibited  OCS  from
placing  a  child  in  a  foster home  if  a  relative  requested
placement of the child unless there was sufficient evidence  that
such  a  placement  would  be unsafe or otherwise  inappropriate.
Former AS 47.14.100(e) (2004).

     4     The  superior  court  ruled that  the  Jacobs  summary
judgment  motion  was moot because the court  was  granting  OCSs
motion to dismiss.

     5     See  Jacob  I,  177 P.3d at 1184  (noting  the  Jacobs
intervention in the CINA proceedings).

     6    Id. at 1184, 1186.

     7    Id. at 1188.  Our analysis did not name the statutes to
which  we  referred, but our facts section cited  and  quoted  AS
47.10.030(d).  See id. at 1183-86.

     8    Id. at 1186.

     9    Id. at 1185.

     10    Id. at 1186.

     11    Id. at 1187.

     12    Id.

     13     Id.  We also decline[d] to address . . . hypothetical
claims about damages.  Id. at 1187-88.

     14     The  Jacobs  were  represented by  the  Alaska  Legal
Services   Corporation  before  this  motion,  but   the   Alaska
Immigration Justice Project represented them in this request  for
fees.

     15    Some of the entries were related to work done after the
dismissal of the trial court case, work beyond the parameters  of
the  case,  work  that need not have been done by attorneys,  and
work listed without any description.

     16    Halloran v. State, Div. of Elections, 115 P.3d 547, 550
(Alaska 2005) (citing Shepherd v. State, Dept of Fish & Game, 897
P.2d 33, 44 (Alaska 1995)).

     17     Braun  v.  Denali Borough, 193 P.3d 719, 726  (Alaska
2008)  (citing  Bromley v. Mitchell, 902 P.2d  797,  804  (Alaska
1995));  see also Hickel v. Se. Conference, 868 P.2d 919,  927-28
(Alaska 1994) (Both the award of attorneys fees to the prevailing
party and the determination of prevailing party status are within
the  broad  discretion of the trial court.  (citing  Adoption  of
V.M.C., 528 P.2d 788, 795 (Alaska 1974))).

     18     Braun, 193 P.3d at 726 (citing Bromley, 902  P.2d  at
804).

     19    See Ware v. Ware, 161 P.3d 1188, 1198 (Alaska 2007).

     20     Denardo  v.  Cutler, 167 P.3d 674, 677 (Alaska  2007)
(quoting Ellison v. Plumbers & Steam Fitters Union Local 375, 118
P.3d   1070,  1073  (Alaska  2005))  (internal  quotation   marks
omitted).

     21    Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (citing
Wilkerson v. State, Dept of Health & Soc. Servs., Div. of  Family
& Youth Servs., 993 P.2d 1018, 1021 (Alaska 1999)).

     22    See AS 09.60.010(c) ([T]he court (1) shall award . . .
full  reasonable attorney fees and costs to a claimant,  who,  as
plaintiff . . . has prevailed in asserting the [state or  federal
constitutional] right . . . .  (emphasis added)); Alaska R.  Civ.
P.  82(b)(2) (In cases in which the prevailing party recovers  no
money  judgment, the court . . . shall award the prevailing party
in  a  case  resolved  without trial 20  percent  of  its  actual
attorneys   fees  which  were  necessarily  incurred.   (emphasis
added)).

     23    As to their third original objective, the Jacobs reason
that  [t]he fact that the Jacobs successfully intervened in their
grandchildrens  CINA cases and reached agreement with  OCS  [that
included  placement of the children outside of their  home]  does
not mean that they did not prevail in this case.

     24     Trial  courts  should make findings explaining  their
prevailing party determinations when the issue is in dispute.  It
is  difficult  to  effectively review  a  trial  courts  decision
without  understanding its reasoning.  Cf. Curran v.  Hastreiter,
579  P.2d  524, 531 (Alaska 1978) (remanding to the  trial  court
where  it  did  not  make  a prevailing party  determination  and
relying  on  a  prior  case  also  remanding  because  [w]e   are
confronted with the difficulty of not knowing whether  the  court
denied  the  fee in the exercise of its discretion or  under  the
mistaken belief that Cooper was not the prevailing party (quoting
Cooper  v.  Carlson, 511 P.2d 1305, 1311 (Alaska 1973)  (internal
quotation  marks omitted))).  In this  case, we need  not  remand
because  the  reason  Judge Smith found  the  Jacobs  to  be  the
prevailing  parties  is clear:  we directed the  trial  court  to
enter  declaratory relief in their favor.   Jacob v. State,  Dept
of  Health  & Soc. Servs., Office of Childrens Servs.,  177  P.3d
1181, 1184, 1186 (Alaska 2008).

     25     Hillman  v. Nationwide Mut. Fire Ins. Co.,  855  P.2d
1321,  1326  (Alaska 1993) (quoting Apex Control  Sys.,  Inc.  v.
Alaska Mech., Inc., 776 P.2d 310, 314 (Alaska 1989)).

     26     Progressive  Corp. v. Peter ex rel. Peter,  195  P.3d
1083, 1092 (Alaska 2008) (citing Interior Cabaret, Hotel, Rest. &
Retailers Assn v. Fairbanks N. Star Borough, 135 P.3d 1000,  1002
(Alaska 2006)).

     27     Progressive Corp., 195 P.3d at 1092 (quoting Hillman,
855  P.2d  at 1327); see also Blumenshine v. Baptiste,  869  P.2d
470,  474  (Alaska  1994)  (citing seven  cases  to  support  the
statement  that  [w]e have consistently held that the  prevailing
party is the one who prevailed on the main issues).

     28      Progressive   Corp.,  195  P.3d  at   1092   (citing
Blumenshine, 869 P.2d at 474).

     29    See Jacob I, 177 P.3d at 1186.

     30     Cf. Progressive Corp., 195 P.3d at 1093 (The fact the
Peters only recovered on one claim is not controlling. . . . Even
if  a  party prevails on only one of the main issues, it  is  not
necessarily  ineligible  for  being  considered  the   prevailing
party.)  (footnote omitted); cf. Blumenshine,  869  P.2d  at  474
(Although  Baptiste did not prevail on every issue in this  case,
he succeeded in obtaining the full damages requested for . . .  .
the main issues [and therefore] Baptiste was the prevailing party
for the purpose of awarding attorneys fees.).

     31    See Jacob I, 177 P.3d at 1184.

     32     The  superior court did not include in its  order  an
explanation of the basis on which it awarded full fees,  but  the
parties understanding of the basis for the award is logical;  the
court appears to have applied AS 09.60.010(c).

     33     See Jacob I, 177 P.3d at 1185 (declin[ing] to comment
on  due process extensively but noting that notice of proceedings
and  a  meaningful right to be heard are essential to due process
and  there are situations in which the right to intervene in  the
late  stages  of  a CINA case will be insufficient  to  cure  the
prejudice of the initial due process violation).

     34    See id. at 1185-86 (declaring that [b]ecause the Jacobs
never  sought  a  declaration specifically  regarding  their  due
process  rights, we decline to comment on this issue  extensively
and  discussing the entry of declaratory judgment that OCS failed
to meet its statutory duty).

     35    187 P.3d 443, 456 (Alaska 2008).

     36     Lauth  v. State, 12 P.3d 181, 184 (Alaska  2000)  (We
.  . . apply our independent judgment when determining whether an
issue  has been waived below due to inadequate briefing.  (citing
Wilkerson v. State, Dept of Health & Soc. Servs., Div. of  Family
& Youth Servs., 993 P.2d 1018, 1021 (Alaska 1999))).

     37     Sidney, 187 P.3d at 456 (citing State Farm Auto. Ins.
Co. v. Lawrence, 26 P.3d 1074, 1076 (Alaska 2001)).

     38     See  Ware v. Ware, 161 P.3d 1188, 1199 (Alaska  2007)
(The  superior courts award will not be reversed unless  we  find
that  there has been a clear abuse of discretion, and the  courts
determination is manifestly unreasonable. )

     39     See Reid v. Williams, 964 P.2d 453, 463 (Alaska 1998)
(noting that Rule 82 provides protection for the winning litigant
who is forced to respond to an opponents excessive efforts or bad
faith  litigation tactics and citing factors (F)  and  (G));  see
also Cole, 4 P.3d at 960 (holding that the superior court did not
abuse  its  discretion by enhancing Rule 82 fees in part  on  the
finding that the claims and defenses of the party made to pay the
fees were not reasonable and the record supported that finding).

     40     See  Jacob  v. State, Dept of Health &  Soc.  Servs.,
Office of Childrens Servs., 177 P.3d 1181, 1183 (Alaska 2008).

     41     We  rely here on the settled rule that a trial courts
actions   may  be  affirmed  when  an  alternative  ground,   not
necessarily  relied  upon  by the trial  court,  appears  in  the
record.   N.  Lights Motel, Inc. v. Sweaney, 563  P.2d  256,  257
(Alaska  1977) (citing Firemans Fund Am. Ins. Cos. v. Gomes,  544
P.2d  1013,  1017 n.12 (Alaska 1976); Ransom v. Haner,  362  P.2d
282, 285 (Alaska 1961)).

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