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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Fagnani (3/5/2010) sp-6459

Williams v. Fagnani (3/5/2010) sp-6459, 228 P3d 71

     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

LEE WILLIAMS, )
) Supreme Court No. S- 13294
Appellant,)
) Superior Court No. 3AN-02- 12541 CI
v. )
) O P I N I O N
LARRY FAGNANI, )
) No. 6459 March 5, 2010
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Hal P. Gazaway, Anchorage,  for
          Appellant.    Randall   G.   Simpson,    Greg
          Dorrington,  Jermain Dunnagan & Owens,  P.C.,
          Anchorage, for Appellee.

          Before:   Carpeneti, Chief  Justice,  Winfree
          and  Christen, Justices, and Matthews, Senior
          Justice   pro  tem.*  [Eastaugh   and   Fabe,
          Justices, not participating.]

          MATTHEWS, Senior Justice pro tem.

          This case is before us for a second time.  In our first
decision  we  held that Lee Williams was entitled to  an  implied
roadway  easement  over  property owned by  Larry  Fagnani.1   On
remand  the  superior court ruled that Fagnani  was  entitled  to
maintain  a  locked gate across the roadway, so long as  Williams
was advised of the combination.
          Williamss  challenge to this ruling is the  main  issue
now before us.  We vacate the ruling and remand with instructions
that  the  superior  court determine the facts  relevant  to  the
inconvenience that the gate will cause Williams and  to  Fagnanis
justification for the gate.  When these facts are determined  the
          court should decide whether the gate unreasonably interferes with
Williamss use of the roadway easement.
          Williams  also  argues that the superior  court  should
have  awarded  him enhanced attorneys fees and  that  the  amount
actually  awarded was miscalculated.  We conclude that the  court
did not abuse its discretion in declining to award enhanced fees,
but  that  a  minor  calculation error was made  that  should  be
addressed on remand.
I.   THE GATE ISSUE
          On   remand  the  superior  court  entered   an   order
addressing  the  particulars of the  roadway  easement.   At  the
outset  the  court noted that the scope of the  easement  was  in
dispute  and  had  to  be  determined because  it  had  not  been
considered during the trial.  The court then ruled as follows:
               All  parties  seem  to  agree  that  the
          existing road is a 30 foot gravel road.   The
          widening and graveling of the road benefitted
          all  of the users of the road including  both
          the dominant and servient estates.  The Court
          finds that the improvement of the road was  a
          part   of  the  normal  development  of   the
          dominant   estate.   Although   widened   and
          improved, the road continued to be a  private
          road and was never a public road.
          
               Based  on these facts, this Court  finds
          that  Williams  is  entitled  to  an  implied
          easement   over  the  disputed   road.    The
          easement is limited to 30 feet in width.  The
          easement  shall be maintained in its  current
          nature, i.e. a gravel road.  Williams is  not
          entitled  to more intensive use than  he  now
          has.   Both Williams and Fagnani have a joint
          obligation to contribute jointly to the costs
          reasonably    incurred   for    repair    and
          maintenance of the road.  Because the road is
          a  private road Fagnani is entitled  to  post
          signs  and to maintain a gated entrance  with
          locks  with combinations that allows Williams
          access but prevents use by the general public
          to create a right of way.
          
          Williams  moved for reconsideration of this order.   He
argued  that when he purchased the landlocked property there  was
no  gate on the roadway.  He argued further that no justification
for  a  gate  existed because Fagnanis house is  reached  from  a
different  driveway, the property crossed by the roadway  is  not
fenced,  and  no  buildings or personal  property  of  value  are
accessible  from the roadway.  Williams also argued that  he  and
his  wife  are seriously inconvenienced by the gate, noting  that
they  are in their late fifties and Mrs. Williams has a bad knee.
He  described  problems regarding the location  of  the  gate  as
follows:
          The approach of the subject road to Hollywood
          Road  is up a steep embankment slope.   After
          their entry onto Hollywood Road, the Williams
          must  cross  two lanes before they  would  be
          able  to  stop.  There is no pull out  and  a
          very limited shoulder on which they may stop.
          One  must exercise great care traveling  down
          Hollywood Road.  Frequently people travel the
          road at speeds of over 50 miles per hour.
          
               To  open and close the gate, it will  be
          necessary  to stop some fifty feet  from  the
          gate, walk up the steep slope, open the gate,
          walk  back  down the road, drive through  the
          gate, stop on an arterial road and walk  back
          across  the road to shut and lock  the  gate.
          This  creates  a  significant safety  hazard.
          The   gate  provides  no  security  for   any
          property  owned  by  Mr.  Fagnani.   It  only
          serves to inconvenience the Williams.[2]
          
          Fagnani  opposed  Williamss motion for reconsideration.
He argued that any burden imposed on Williamss use of the roadway
by  the  gate  was  justified  by the  need  to  prevent  others,
primarily  owners  of  neighboring  homesteads,  from  using  the
roadway: the Kutils, Boyd Connolly and even Williams have not yet
internalized the distinction that this [road] is a private  place
.  .  . .  A padlocked gate on Fagnanis private road is the  only
way to convey to the Kutils, Boyd Connolly and the general public
this  simple  fact.   (First alteration in  original.)  (Citation
omitted.)  In addition, Fagnani minimized the inconvenience  that
the   gate  would  cause  Williams:   With  full  access  to  the
combination on the lock of the gate, the sole burden he faces  is
getting  out of his vehicle, remembering the combination  of  the
lock,  opening  the  gate  and driving through.   Williams  makes
unsupported claims that stopping and opening the gate will expose
him  to  danger.   Fagnani also observed that Williams  uses  the
property  primarily as a recreational home and lives in Anchorage
full time.3
          The   superior  court  denied  Williamss   motion   for
reconsideration  in  an  order  that  provided:    The   easement
established is not a general public easement.  Testimony at trial
established  that  members of the public did and  would  use  the
easement although it is private.  A gate as currently established
does  not impose an unreasonable burden on the Williams right  of
passage.   In  accordance with this ruling, the court  entered  a
final  judgment  granting Williams a thirty-foot easement  across
Fagnanis  property,  requiring Williams and Fagnani  to  mutually
share  the cost of maintaining the easement, and allowing Fagnani
to maintain a locked gate.
          On appeal the parties largely repeat the arguments they
presented to the superior court.  Williams contends that the gate
unreasonably restricts his use of the easement while providing no
significant benefit to Fagnani.4  Fagnani argues that the gate is
a  minor  burden  on Williamss use and is justified  by  Fagnanis
          interest in preventing trespassers from using the easement.
          The  purpose  of  the implied roadway easement  was  to
provide normal vehicular access to Williamss property.5  Fagnani,
as  the owner of the servient estate, is entitled to make any use
of  the  easement that does not unreasonably interfere with  this
purpose.6   The  Restatement  (Third)  of  Property:  Servitudes,
section  4.9,  provides:  Except as limited by the terms  of  the
servitude  . . . , the holder of the servient estate is  entitled
to make any use of the servient estate that does not unreasonably
interfere with enjoyment of the servitude.
          The  commentary to section 4.9 of the Restatement makes
clear that section 4.9 serves as an aid to determining the intent
or  expectations  of the parties in creating a  servitude.7   The
commentary goes on to explain:
          Actions that make it more difficult to use an
          easement, that interfere with the ability  to
          maintain  and repair improvements  built  for
          its  enjoyment,  or that increase  the  risks
          attendant  on exercise of rights  created  by
          the  easement  are prohibited .  .  .  unless
          justified  by  needs of the servient  estate.
          In  determining  whether the  holder  of  the
          servient  estate has unreasonably  interfered
          with  exercise of an easement, the  interests
          of  the parties must be balanced to strike  a
          reasonable   accommodation   that   maximizes
          overall utility to the extent consistent with
          effectuating  the  purpose  of  the  easement
          . . . .[8]
          
          There  are  numerous  cases  from  other  jurisdictions
involving  questions  of whether a servient  easement  owner  can
erect  and  maintain  a closed or locked gate  across  a  roadway
easement.9  A treatise has summarized the general rules that  can
be derived from the case law concerning gating an easement:
               Absent  an  express arrangement  for  an
          open way, courts generally permit a landowner
          to   maintain  an  unlocked  gate   if   such
          structure  is necessary for the enjoyment  of
          the servient estate.  For example, use of the
          burdened  land to raise cattle or  for  other
          agricultural  purposes might be significantly
          hindered without appropriate gates to prevent
          passage  of animals or trespassers.   On  the
          other hand, courts are likely to find that  a
          gate  that  serves no purpose concerning  the
          use  of  the burdened land is an unreasonable
          obstruction of an easement.[10]
          
               The  right of a servient owner to  erect
          locked  gates  presents an additional  issue.
          Generally,  courts hold that  a  locked  gate
          constitutes an unreasonable interference with
          the  use  of  the easement, even  though  the
               dominant owner is furnished a key.  A locked
          gate, notwithstanding the presentation  of  a
          key,  curtails  the dominant  owners  use  by
          restricting     deliveries     and     social
          visits. . . .
          
               Each situation, however, is governed  by
          its  particular set of facts, and courts have
          permitted  locked gates when such gates  were
          necessary  for  the servient  owner  to  make
          reasonable use of the servient land.[11]
          
          As  indicated  by this summary, courts have  recognized
that  gates,  especially locked gates, amount  to  a  significant
burden  on  a rural homeowners right of access.12  Every  time  a
homeowner  drives  from or to his home he  must  stop,  exit  his
vehicle  and  open  the  gate, get back  in  his  vehicle,  drive
through, stop and exit again to close the gate, and then get back
in  his  vehicle and drive on.13  In the ice and darkness  of  an
Alaska winter these multiple operations can be especially trying.
Further,  a gate may bar or deter guests, visitors, delivery  and
service  providers, and emergency vehicles from reaching  a  home
served by a roadway easement.14
           For  these  reasons,  gates must serve  a  substantial
benefit to the  servient land if they are to be maintained across
a  roadway  to  a  home.15  Typical examples  of  benefits  found
sufficient  are  to prevent livestock from straying,  to  prevent
valuable  property  from being stolen or vandalized  (usually  in
light  of  a  history  of such conduct), or to  protect  personal
safety.16
          Even  where reasons of substance justify maintaining  a
gate, they may be outweighed by the inconvenience suffered by the
owner of the dominant estate.17  In cases where there are reasons
of substance on both sides, trial courts must weigh the  benefits
of  a  gate  to  the  owner of the servient  estate  against  the
detriments to the owner of the dominant estate.18  And  sometimes
a weighing process results in allowing gating only during periods
when the need is most strongly justified.19
          The  record  on  appeal  is  insufficient  for  us   to
determine  whether  the  superior  court  struck  an  appropriate
balance  in  permitting Fagnani to maintain a closed  and  locked
gate  across  the  roadway easement.  At oral argument  Williamss
counsel  stated  that  the house served by the  easement  is  the
Williamses  regular  residence.    Although  this  was  not  then
contradicted  by Fagnanis counsel, an unverified assertion  filed
by  Fagnani in opposition to Williamss motion for reconsideration
is  contradictory.20  Likewise, absent from the record on  appeal
is factual support for the particular burdens said to result from
the physical circumstances regarding the location of the gate and
the Williamses infirmities.  Williamss assertion that no property
of  value  on  the servient estate is protected by  the  gate  is
similarly  not  supported  by  record  citations.   Further,  the
superior  court made no findings concerning any of these  factual
allegations.
          Accordingly this case must be remanded to the  superior
court.   The court should make findings as to the facts that  are
relevant to the balance that must be struck to determine  whether
the  gate constitutes an unreasonable interference with Williamss
use  of  the roadway easement.  When the court finds the relevant
facts   it  should  then  determine  whether  the  gate   is   an
unreasonable  interference  in  light  of  the  facts   and   the
principles of law expressed in this opinion.
II.  ATTORNEYS FEES ISSUES
     A.   Enhancements
          Williams  argues  that  the  superior  court  erred  by
failing  to enhance the fees it awarded him under Alaska Rule  of
Civil  Procedure 82(b)(3).  Williams requested fifty  percent  of
all  his fees ($55,855.00), including the $2,000 he paid to prior
counsel.  The superior court denied his request, stating that  it
found no reason to order enhanced fees.  Instead, it awarded  him
thirty  percent of calculated fees under Rule 82,  excluding  the
$2,000  Williams  paid prior counsel.  The  final  award  totaled
$15,333.30.
          Rule  82(b)(2) states that the prevailing  party  in  a
case  that  goes  to  trial will receive, at  a  minimum,  thirty
percent   of   reasonable  actual  attorneys  fees   which   were
necessarily  incurred.21  Rule 82(b)(3) gives the superior  court
the discretion to vary the fee award based on a consideration  of
various  factors.22  The court must base its decision to  enhance
fees  on  one  or  more  of the factors  listed.23   Awards  made
pursuant  to  the schedule of Civil Rule 82(b) are  presumptively
correct.24   In this case, the superior court found no reason  to
order enhanced fees under Rule 82(b)(3).
          Williams  argues that the complexity of the  litigation
in  this  case warrants fee enhancement because the case involved
factual  disputes  regarding a forty-year-old  road  and  complex
legal theories.  Williams also argues that (1) the reasonableness
of  his  attorneys hourly rates;25 (2) the reasonableness of  the
number  of attorneys he used;26 and (3) his attorneys efforts  to
minimize  fees27  justify fee enhancement.  Williams  essentially
argues  that, because the superior court found Fagnanis attorneys
fees to be reasonable, he should receive enhanced fees because he
was  charged less by his attorney.  Williams also argues that the
[un]reasonableness of the claims and defenses pursued by  Fagnani
and  his vexatious or bad faith conduct warranted fee enhancement
because  Fagnani  provided false testimony to  the  court  during
trial.   His accusations are based primarily on affidavits  filed
with  a  post-trial motion that allegedly refute much of Fagnanis
trial  testimony.  Williams finally argues that the  relationship
between the amount of work performed and the significance of  the
matters  at stake warrant fee enhancement because [t]he potential
loss  of  ingress  and  egress for Mr.  Williams  property  would
destroy it[]s value.
          In  response, Fagnani argues that complexity is a  poor
reason  to justify enhancement in cases where fees are calculated
on  an hourly basis.  Fagnani also argues that the reasonableness
of the number of attorneys, hourly rates, and efforts to minimize
fees  are more properly used to decrease fees in cases where  the
          prevailing party has expended an unreasonable amount of resources
on the case.  He argues that there was no finding of bad faith by
the  superior  court  that would warrant fee enhancement  because
Williams submitted the affidavits after the trial, when they were
not  subject to cross-examination.  Finally, he argues  that  the
significance of the matter at stake only warrants fee enhancement
where  the winning party litigates a case with unusual efficiency
for  important  stakes, or the losing party does so inefficiently
for insignificant issues.
          Our review of the record does not show the existence of
compelling  reasons  to overcome the presumption  of  correctness
that  is  afforded to attorneys fees awards under  Rule  82(b).28
Williams  presents no reason why the complexity of this  case  is
such  that  it  was an abuse of discretion not to award  enhanced
fees.   The  fact  that  Williams employed  fewer  attorneys  who
charged  less  per hour and minimized fees does not,  by  itself,
warrant  enhancement.  Williams has already benefitted  from  his
frugal  use  of  legal resources because his total  bill  on  the
remaining seventy percent of fees was reduced.  Furthermore,  the
superior  court did not find that Fagnanis behavior  was  in  bad
faith  or  excessively litigious.  The superior court is  in  the
best  position to determine such questions.29  Finally,  although
this  court  has  previously affirmed an award of  enhanced  fees
based  purely  on the importance of the subject  matter  and  not
because  of  any  efficiency  in the litigation  of  the  case,30
whether  the loss of value in Williamss land was so important  as
to  justify  enhanced  fees  was  a  question  committed  to  the
discretion of the superior court.31
          None  of  Williamss  arguments  persuade  us  that  the
superior  courts refusal to award enhanced fees was an  abuse  of
discretion.
     B.   Calculations
          Williams  argues that the superior courts deduction  of
$2,744  from  his   baseline fees because it was attributable  to
work  on  appeal  was erroneous.32  He argues that  the  superior
court  did not specify how it calculated the deduction;  instead,
the   court  adopted  Fagnanis  proposed  deductions  that   were
unsupported by the billing statements.33
          Fagnani  argues that the invoices show that  there  was
work  attributable  to the appeal.  However,  he  does  not  show
exactly  how he arrived at the $2,744.31 amount for fees incurred
from  December  2007  to May 2008.  He identifies  some  specific
charges for work billed in November 2007 and April 2008, but  the
listed charges do not add up to $2,744.31.  Williams argues  that
the  charges listed by Fagnani were for work before the  superior
court on remand, and not part of work done for the appeal.
          Our  review of the bills for December 2007 to May  2008
shows  that support in the record for the deduction of  the  full
$2,744  is doubtful.  While Fagnani points out some items in  the
bill  that  arguably could be for work done on the appeal,  there
are several items on these bills that are most likely related  to
the  case  on  remand.   For instance, there  are  four  itemized
billings  for  work  at  least partially done  on  a  motion  for
attorney fees.  No such motion was made on appeal.  These charges
          total $1,054.5034 out of total charges of $3,350.95.  Thus, even
if we assume that all the other charges from December 2007 to May
2008 were attributable to the appeal, the excludable amount would
only be $2,296.45.
          It  was  an  abuse of discretion to deduct $2,744  from
calculated attorneys fees.  On remand, the superior court  should
examine the relevant bills and determine which charges should  be
properly  excluded from attorneys fees incurred in  the  superior
court.
III. CONCLUSION
          For the reasons expressed in this opinion, the judgment
of  the  superior court is vacated insofar as it permits appellee
to maintain a closed and locked gate across the roadway easement.
On  remand the superior court should determine the facts relevant
to  the question whether the gate is an unreasonable interference
with  appellants use of the easement and decide that question  in
light  of  the  facts and the law.  The judgment is also  vacated
with respect to the award of attorneys fees.  On remand, based on
the  evidence, the superior court should determine the amount  of
the  fees  that should be deducted from appellants baseline  fees
under  Civil Rule 82(b).  The court should then revise the  award
of  fees  in  accordance with this determination.  The  court  is
authorized to conduct a supplementary evidentiary hearing  as  to
either  issue if the court believes that such a hearing  will  be
necessary or useful.
_______________________________
     *     Sitting by assignment under article IV, section 11  of
the Alaska Constitution and Administrative Rule 23(a).

     1    Williams v. Fagnani, 175 P.3d 38 (Alaska 2008).

2      Williamss   allegations  concerning  the   easement,   its
relationship  to  Fagnanis  property,  and  the  details  of  the
inconvenience  it  caused the Williamses  were  presented  in  an
unverified memorandum without record citations.

     3    Fagnanis assertion on this point was unverified and not
accompanied by record citations.

     4     Williams also argues that the superior court erred  in
defining  the  scope of use of the easement on the  grounds  that
doing so violated the mandate of this court and violated the  law
of the case doctrine.  Neither contention has merit.  Our opinion
left  open the scope of the implied easement.  Williams, 175 P.3d
at  42  (We  will therefore not address the scope of the  implied
easement here.).  Although Fagnani filed a petition for rehearing
in  this court asking that issues as to the scope of the easement
be  considered,  this petition was denied without  comment.   The
denial of a petition for rehearing establishes no law binding  on
the trial court after remand.  Ruggles ex rel. Estate of Mayer v.
Grow,  984 P.2d 509, 513 (Alaska 1999).  Thus the denial  of  the
petition for rehearing did not establish the law of the case, and
the  superior court did not violate the law of the case  doctrine
by addressing the easements scope.

5    Williams, 175 P.3d at 40-41.

     6     Labrenz  v. Burnett, 218 P.3d 993, 1002 (Alaska  2009)
([T]he owner of the servient estate may utilize the easement area
in  any  manner  and for any purpose that does  not  unreasonably
interfere  with the rights of the easement holder.) (quoting  Jon
W.  Bruce  & James W. Ely, Jr., The Law of Easements and Licenses
in Land  8.20, at 8-60 (2009)).

     7     Restatement (Third) of Property:  Servitudes  4.9 cmt.
a (2000).

     8    Id. cmt. c.

     9     See  cases collected in the Reporters note to  4.9  of
the Restatement, pp. 588-91.

     10     James  W.  Ely,  Jr. and Jon W.  Bruce,  The  Law  of
Easements & Licenses in Land  8:26 (2009).

     11   Id.  8:28.

     12    See,  e.g., Crawford v. Butler, 924 So.  2d  569,  575
(Miss. App. 2005); Van Klompenburg v. Berghold, 23 Cal. Rptr.  3d
799, 801 (Cal. App. 2005).

     13    See,  e.g., Van Klompenburg, 23 Cal. Rptr. 3d  at  802
(noting difficulty in using gate).

     14    See, e.g., id. (noting problems that locked gates  can
cause dominant owners, guests, and agents).

     15    An example in the Restatement illustrates the need for
demonstrating  a tangible detriment to a servient  estate  before
gates  may be maintained across an easement that provides  access
to a home:

               After  repeated problems with vandalism,
          O, the owner of Blackacre, installed a locked
          gate  at  the entrance to the drive  crossing
          Blackacre that leads from the public  highway
          to   Whiteacre.   The  drive  is   maintained
          pursuant   to  an  easement  appurtenant   to
          Whiteacre.   O  furnished  A,  the  owner  of
          Whiteacre,   with  a  key   for   the   gate.
          Whiteacre is undeveloped property that A uses
          infrequently  for recreational purposes.   In
          the  absence of other facts or circumstances,
          O  is  entitled to maintain the  locked  gate
          because  the gate is needed for the  security
          of Blackacre, and the lessened convenience to
          Whiteacre is not unreasonable.
          
Restatement  (Third)  of  Property:   Servitudes   4.9  illus.  4
(2000).

     16    See,  e.g., Watson v. Banducci, 973 P.2d  395,  401-02
(Or.  App.  1999)  (gate  necessary for livestock);  Ericsson  v.
Braukman,  824  P.2d 1174, 1178 (Or. App. 1992)  (gate  necessary
where trespassers stole trees from Christmas tree farm).  We have
uncovered  no  case in which the risk of unauthorized  use  of  a
roadway  easement  in a rural area unaccompanied  by  substantial
personal  property or personal safety concerns has been  held  to
justify gating a roadway easement that leads to a residence.

     17    See,  e.g., Strahan v. Bush, 773 P.2d 718, 721  (Mont.
1989)  (gate  to  prevent  cattle from straying  and  to  prevent
vandalism  was  an  unreasonable burden on residents  because  it
presented snow removal and maintenance difficulties, one  of  the
residents  could  not  open the gate without  assistance,  and  a
cattle guard could be installed to prevent cattle from straying).

     18    See,  e.g.,  Tamaka v. Sheehan, 589 A.2d  391,  396-97
(D.C. Cir. 1991).

     19    Howes v. Howes, 499 So. 2d 314, 317-18 (La. App. 1986)
(holding  that  locked gate between 10 p.m.  and  5:30  a.m.  was
reasonable  to  prevent  trespassers at  night;  servient  owners
daughters-in-law  had  personal  safety  concerns   since   their
husbands  worked nights); Ericsson v. Braukman,  824  P.2d  1174,
1178 (Or. App. 1992) (Servient estate, a Christmas tree farm, was
permitted to maintain locked gate from November 1 to December  25
as trees were most apt to be stolen during that period.).

     20   See supra page 4.

21   Alaska R. Civ. P. 82(b)(2).

     22   Alaska R. Civ. P. 82(b)(3).  The listed factors are:

          (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)  the  relationship between the amount  of
          work  performed and the significance  of  the
          matters at stake;
          (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.
          
     23    See  Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 (Alaska
1999).

     24   McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999).

     25   Alaska R. Civ. P. 82(b)(3)(C).

     26   Alaska R. Civ. P. 82(b)(3)(D).

     27   Alaska R. Civ. P. 82(b)(3)(E).

28    We  review  a  superior  courts  award  of  attorneys  fees
under  the abuse of discretion standard and will disturb an award
only  if it is manifestly unreasonable.  Lakloey, Inc. v. Ballek,
211  P.3d  662, 664 (Alaska 2009); Capolicchio v. Levy, 194  P.3d
373,  377  (Alaska 2008).  If we were clearly convinced that  the
presumption  that an award under Rule 82(b) is correct  had  been
overcome, these standards would be satisfied.

     29    See,  e.g.,  Reid v. Williams, 964  P.2d  453,  461-62
(Alaska  1998);   Wickwire v. McFadden, 633  P.2d  278,  281  n.6
(Alaska 1981).

     30    State  v.  Jacob,  214  P.3d 353,  362  (Alaska  2009)
(holding  enhanced  fees were appropriate in part  because  [t]he
placement  of  children and the involvement  of  grandparents  in
their  grandchildrens lives are not matters to be taken  lightly,
and thus fees were reasonable in light of the significance of the
case).

     31    We  note that this court has never vacated a  superior
courts  decision  refusing to enhance fees under  Rule  82(b)(3).
Power  Constructors, Inc. v. Taylor & Hintze,  960  P.2d  20,  45
(Alaska  1998);  see also Wasser & Winters Co. v.  Ritchie  Bros.
Auctioneers  (Am.), Inc., 185 P.3d 73 (Alaska  2008);  Gibson  v.
GEICO Gen. Ins. Co., 153 P.3d 312 (Alaska 2007).

     32    At issue here is $823 (.3 x $2,744) in attorneys  fees
that Williams claims should have been awarded.

     33    Williams  also  argues that the total  attorneys  fees
should  have  included $2,000 that he paid  to  another  attorney
before  retaining  his  current counsel.  But  Williams  did  not
provide the superior court with a receipt for fees paid his first
attorney.   Although  we will not overturn  a  fee  award  solely
because  it was not based on itemized statements, we have  stated
that   trial   courts  should  base  their  awards  on   itemized
statements.   Luedtke v. Nabors Alaska Drilling, Inc.,  768  P.2d
1123,  1138 (Alaska 1989).  The superior court did not abuse  its
discretion  by failing to include the $2,000 fee when  the  court
was not provided a receipt or statement for the charge.

     34    The  charges  are  $74.00 (billed  on  2/18),  $370.00
(billed  on 2/23), $462.50 (billed on 3/14), and $148.00  (billed
on 4/10).

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