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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chambers v. Scofield (3/4/2011) sp-6541

Chambers v. Scofield (3/4/2011) sp-6541, 264 P3d 982

        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 

REGGIE I. CHAMBERS,                             ) 
                                                )        Supreme Court No. S-13571 
                        Appellant,              ) 
                                                )        Superior Court No. 3AN-07-08381 CI 
        v.                                      ) 
                                                ) 
DANA SCOFIELD as guardian of                    ) 
CURTIS N. CARLEY,                               )        O P I N I O N 
                                                ) 
                        Appellee.               )       No. 6541  -   March 4, 2011 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Morgan B. Christen, Judge. 

                Appearances:       Daniel    W.   Hickey     and   Anne    M.   Preston, 
                Gruenstein & Hickey, Anchorage, for Appellant.                Bryon E. 
                Collins,   Bryon   E.   Collins   &   Associates,   Anchorage,   for 
                Appellee. 

                Before:      Carpeneti,      Chief   Justice,   Fabe,    Winfree,    and 
                Stowers,   Justices.   [Christen, Justice, not participating.] 

                STOWERS, Justice. 

I.      INTRODUCTION 

                A   buyer   bought   a   triplex   from   a   seller. Two   years   later,   the   seller's 

daughter (who had been appointed to serve as his guardian) entered into a settlement 

agreement with the buyer to rescind the sale and compensate the buyer for the "fair 

market cost" of the improvements he had made to the property.  In ruling on a motion to 

enforce the agreement, the superior court rejected the buyer's argument that the term 

----------------------- Page 2-----------------------

"fair market cost" included compensation over and above the cost of labor and materials. 

The superior court also denied the buyer's motion to be named the prevailing party for 

purposes of Alaska Rules of Civil Procedure 79 and 82.            Because the superior court's 

interpretation of the settlement agreement was not erroneous and the superior court did 

not abuse its discretion in declining to declare the buyer the prevailing party, we affirm. 

II.     FACTS AND PROCEEDINGS 

               Reggie Chambers purchased a triplex from Curtis Carley in 2006.               Dana 

Scofield    and   Noelle   Covington,    Carley's   daughters,    were   appointed   Carley's    co- 

guardians by court order in July 2007 due to Carley's mental condition.  Several months 

later Scofield sued Chambers, alleging in part that Chambers had fraudulently induced 

Carley to sell the triplex for far less than its market value. 

               On October 3, 2008, the parties entered into a settlement agreement.            The 

agreement rescinded the sale and attempted to restore the parties to the positions they 

would have been in had the sale not occurred.  The agreement provided that Chambers 

would quitclaim the triplex to Scofield and credit her with rents he received plus an 

additional $2,000.   It also provided that Scofield would pay Chambers: (1) the $20,000 

Chambers had already paid for the triplex, (2) a property management fee calculated as 

10% of the actual rents collected, (3) forthe utilities, taxes, and insurance actually paid, 

and (4) the "fair market costs" of repairs and improvements Chambers made to the 

interior and exterior of the triplex. 

               In    order   to  determine    the   "fair  market    cost"   of  the  repairs   and 

improvements, the parties agreed to share the cost of a "neutral third party remodel 

appraiser."    Scofield was to nominate the appraiser.        If Chambers accepted Scofield's 

nominee, then that individual would perform the appraisal.  If Chambers did not accept 

Scofield's nominee, then each party's nominations would be provided to the superior 

court and the court would decide. 

                                                -2-                                           6541
 

----------------------- Page 3-----------------------

                On October 14, 2008, Scofield's attorney informed Chambers's counsel of 

Scofield's   two   nominations.      Chambers   accepted   Keith   Halsey,   one   of   Scofield's 

nominations,   because   his   services   were   less   expensive   than   the   other   candidate's. 

Around the same time, Chambers's attorney also indicated to Scofield's attorney that he 

would be out of town for a month on his honeymoon and would prefer not to be disturbed 

with questions relating to the case.        Scofield's attorney apparently asked Chambers's 

attorney if he would like to help instruct Halsey regarding the inspection, but Chambers's 

attorney    declined,    explaining    that  he  was  preparing     to  leave  town    and   that  the 

instructions in the settlement agreement were fairly straightforward. Scofield's attorney 

proceeded on her own to give Halsey instructions regarding the inspection. A week later 

Halsey inspected the triplex.   Pursuant to the settlement agreement, which provided that 

each party had a right to attend the inspection, both Scofield and Chambers attended, 

along with representatives selected by each party. 

                Following the inspection Halsey called  Scofield's attorney with several 

follow-up     questions.    Specifically,     he wanted     to  know    how    to  address    various 

deficiencies he had discovered in the repairs Chambers had made.               Scofield's attorney 

explained that because the parties had not expected these problems she could not offer 

specific guidance, but did ask him to take note of the deficiencies.            Halsey prepared a 

two-page report. Halsey concluded that Chambers was entitled to a credit of $25,525 for 

the work performed on the triplex.          Halsey acknowledged that the triplex had been 

substantially remodeled in recent years.         But he observed that many repairs showed a 

"lack of craftsmanship" and that many of the renovations did not "demonstrate industry 

standards," which Halsey reflected in the estimates.           He also asserted that the lack of 

municipal permits and inspections made any plumbing, electrical, and structural repairs 

obsolete.    Halsey's report listed a number of specific deficiencies in the renovations, 

                                                 -3-                                            6541
 

----------------------- Page 4-----------------------

including a basement bedroom that illegally lacked an egress, a wheelchair ramp that 

lacked proper head-room, and a new roof that was not properly vented. 

                Halsey delivered the report to Scofield's attorney on November 7, 2008. 

Scofield submitted the report as an exhibit attached to her motion for enforcement of the 

settlement   agreement   on   November   18,   2008.       In   response   to   Scofield's   motion   to 

enforce, Chambers moved for an extension of time, arguing that Halsey had neither 

written his report in good faith nor followed the settlement agreement's instructions. 

Superior Court Judge Morgan B. Christen held an evidentiary hearing to review Halsey's 

appraisal. 

                Halsey     testified  that  prior  to  the inspection,    Scofield's    attorney   had 

instructed him to: 

                go into the property, review the property, review the repairs, 
                see if they were done to workmanship standards, see if they 
                were   things   done   that   Mr.   Chambers   said   were   done,   to 
                evaluate them, and . . . write up a report on it. 

He also testified that when he called Scofield's attorney to clarify what she meant by 

"evaluate," she explained that his report should chronicle deficiencies in the property, 

including elements that were not up to code and would require further repairs.  Although 

the settlement agreement clearly stated that the appraiser was to estimate the "fair market 

costs" for the repairs and improvements that Chambers made, Halsey admits that his final 

estimate took both cost and value into account. 

                Apparently as a result of the calculation approach Halsey used, which took 

both cost and value into account, Halsey decided not to give Chambers any credit for a 

number of repairs that were not up to code: electrical repairs, the new roof over the east 

side of the triplex, improvements to the basement bedroom, and repairs to the basement 

stairs.   Halsey gave Chambers only partial credit for a wheelchair ramp, which Halsey 

felt did not have sufficient head-room.  It is not clear, however, that the error in Halsey's 

                                                  -4-                                           6541
 

----------------------- Page 5-----------------------

methodology resulted directly from faulty instructions by Scofield's attorney. Halsey did 

not testify that Scofield's attorney asked him to use a "fair market value" methodology 

                                                                                     1 
rather than the "fair market cost" methodology the settlement specified.               Halsey testified 

that   the   attorney   did   ask   Halsey   to   take   deficiencies   into   account,   but   as   Halsey 

explained, this observation could go to the amount of time Chambers had put into the 

projects - a factor relevant to the cost determination. 

                Halsey also expressed his belief that Chambers had not actually made all 

of the repairs and improvements he claimed. Halsey explained that he "gave [Chambers] 

the benefit of the doubt, but there were numerous instances in which [he] simply did not 

believe what [Chambers] was telling [him] because of what [he] could see with [his] own 

eyes."     Specifically, Halsey testified that Chambers claimed certain doors were new, 

which in Halsey's eyes were "clearly not new."               Halsey also testified that some of the 

receipts Chambers offered did not match the items Chambers alleged they were for. 

Halsey stated in his affidavit that Chambers's workman, whom Chambers had brought 

to the inspection, openly disagreed with Chambers's characterization of what repairs had 

been made.  He described an instance in which Chambers claimed walls had been taken 

down and replaced, but the workman corrected him and said that only the sheetrock had 

been    repaired    and   re-textured.      Halsey    never    implied    that  his  skepticism     about 

Chambers's   claims   was   inspired   by  anything   other   than   what   occurred   during   the 

inspection. 

                Halsey testified that Scofield's attorney had told him that his determinations 

whether Chambers had actually made a given repair or improvement should be "backed 

up with receipts."   Halsey testified that Chambers's inability to produce receipts for the 

        1 
                Halsey stated that Scofield's attorney told him to assess the repairs' "value 
as to time and materials." 

                                                   -5-                                                6541 

----------------------- Page 6-----------------------

dishwasher and refrigerator he claimed to have installed in one of the units led Halsey 

to conclude that it was unnecessary to make note of the appliances in the other units. 

Halsey explained that a lack of receipts and invoices was another reason he had not given 

Chambers full credit for the wheelchair ramp. 

                After Halsey testified at some length, Chambers's attorney moved to strike 

Halsey's report.   He argued that the settlement agreement called for a neutral appraiser, 

and    "it's  unequivocally      the  case   that  [Halsey]   wasn't    neutral"    and   that  Halsey's 

testimony showed that he had a "predisposition to disbelieve" Chambers.  The superior 

court responded that it did not agree that Halsey's testimony had shown that he was not 

neutral, but that it would consider the possibility that Halsey's methodology was flawed. 

Scofield's attorney urged the court to accept Halsey's report, acknowledging that no 

appraisal   is   perfect   but   defending   Halsey's   work   on   the   grounds   that   he   had   the 

additional   and   unanticipated   job   of   assessing   Chambers's   credibility   as   well   as   the 

"challenging task" of appraising so-called improvements that were so deficient that they 

would   require   substantially   more   work   to   render   them   serviceable.   After   hearing 

argument from both sides, the court concluded that there were "unremediable infirmities" 

in Halsey's methodology because he was not given "enough direction about what his job 

was."   The court determined that a new inspection and appraisal would be necessary. 

                Following the hearing, both parties met off the record with the court to draft 

a "set of rules" for the new inspection, and the parties agreed that Judge Christen would 

attend   the   next   inspection.    Following   the  off-record   meeting,   the   court   appointed 

William Roberts as the new appraiser. Roberts conducted an inspection of the triplex on 

February 16, 2009.   After his inspection, Roberts issued a 47-page report and estimated 

that without including the profit and overhead that would normally be included, the total 

                                                   -6-                                             6541
 

----------------------- Page 7-----------------------

"fair market cost" of repairs and improvements made to the triplex was $86,692.29, less 

$14,016.99 for work that he considered done to less-than-workmanlike standards. 

                The   court   held   a   second   evidentiary   hearing   where   both   Roberts   and 

Chambers's expert, Robert Lutje, testified.  Both testified that the "fair market costs" of 

the remodeling project should include an additional factor over and above labor and 

materials as an allowance for profit and overhead, including the time necessary for 

managing, overseeing, and staging the project.  They testified that general contractors 

charge     20%,    but  that  an   unlicensed    owner   should   be   entitled   to   something   less. 

Chambers testified that he acted much like a general contractor in overseeing the project. 

                The court rejected Chambers's claim for profit and overhead, finding that 

the settlement agreement did not "require payment of profit and overhead or any other 

fee for supervising the work done on the triplex."               The court also adopted many of 

Roberts's conclusions as to which costs should be disallowed or reduced due to a lack 

of   workmanship,   finding   that   the   total   "fair   market   cost"   of   the   improvements   was 

$86,872.29 minus $5,693.73.          The court also agreed with Roberts's assessment that at 

least one of the doors Chambers claimed to have installed had actually been installed 

before Chambers took possession of the property. 

                After the court entered its findings of fact and conclusions of law, Chambers 

filed an objection to payment of Halsey's fees. The court rejected Chambers's argument, 

stating: 

                The parties mutually selected Mr. Halsey.             Mr. Halsey was 
                not given proper instructions and his work had to be repeated, 
                but both parties share responsibility for the failure to instruct 
                Mr. Halsey adequately and/or to otherwise agree upon ground 
                rules for his work, including his interaction with the parties 
                and their counsel. 

                                                   -7-                                             6541
 

----------------------- Page 8-----------------------

                Mr. Halsey doubted Mr. Chambers' credibility; that does not 
                equate     to   Mr.    Halsey    being    unfairly    biased    against 
                Mr. Chambers.       Rather, Mr. Halsey testified regarding what 
                he    perceived    to   be  inconsistencies      in  Mr.   Chambers' 
                explanations and descriptions of the work done on the subject 
                premises. 

Chambers also moved to designate him the prevailing party for purposes of Civil Rules 

79 and 82.   The court denied his motion, stating: 

                The bulk of the Court's adjustments to the reimbursement 
                total reflected in Mr. Roberts' report consisted of instances in 
                which   the   Court   allowed   some   of   the   claimed   credits   by 
                Mr.    Chambers      (because    the  repairs  improved     the   rental 
                property)   but   less   than   the   requested   amount   because   the 
                repairs    were    not  performed      to  workmanlike      standards. 
                Considering this, and considering the other orders entered 
                post-settlement [rejecting Chambers's arguments regarding 
                expert fees and security deposits], the Court finds that neither 
                party is fairly deemed the prevailing party in this case.  Both 
                shall bear their own fees and costs. 

                Chambers moved for reconsideration of the order denying him prevailing 

party status, arguing that Scofield bore responsibility for the errors in Halsey's report, 

that Chambers rightly objected to the report's conclusions, and consequently that the 

court's decision not to rely on the Halsey report necessitated a finding that Chambers was 

the prevailing party on the main issue of the case.  The court denied the motion, finding 

that Chambers bore some of the responsibility for Halsey's flawed methodology because 

he did not choose to exercise his right to "have input in the direction given to Mr. 

Halsey."     The court also noted that Chambers was present for the inspection, and if he 

objected to the way Halsey had conducted the inspection, he could have made these 

objections known informally via counsel or formally to the court.               His failure to do so 

rendered him partially responsible for the irreparable flaws in Halsey's report. The court 

also rejected Chambers's assertion that Halsey was biased against him, finding that 

                                                  -8-                                            6541
 

----------------------- Page 9-----------------------

Halsey adequately explained his reasons for doubting some of Chambers's claims. 

                The court entered its final judgment. 

                Chambers raises two points on appeal.  First, he argues that the court erred 

in ruling that the settlement agreement did not require that Chambers receive credit for 

profit and overhead.      Second, he argues that the court abused its discretion in deciding 

that he was not the prevailing party for purposes of Rules 79 and 82. 

III.    STANDARD OF REVIEW 

                                                                                      2 
                We review a trial court's findings of fact for clear error.              We apply our 

                                                                           3 
independent judgment to questions of contract interpretation. 

                We   review   a   trial   court's   prevailing   party   determinations   for   abuse   of 

discretion,   which   exists   if   the   determination   was   arbitrary,   capricious,   manifestly 

                                                4 
unreasonable, or improperly motivated.            A trial court's discretion under Rule 82 is broad 

enough to warrant denial of attorney's fees altogether, so long as the trial court's reasons 

                                                                                  5 
for departing from the Rule's schedule of fees appear in the record.                We have held that 

a trial court does not abuse its discretion in refusing to award either party fees where 

                                                                 6 
neither party is characterized as the prevailing party. 

        2 
                Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008). 

        3 
                Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005). 

        4 
                Fernandes v. Portwine, 56 P.3d 1, 4-5, 7-8 (Alaska 2002) (affirming trial 
court's decision that neither litigant was the prevailing party for Rule 82 purposes). 

        5 
                Id. at 8 (quoting Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976)). 

        6 
                Id. (quoting City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 (Alaska 
1974)). 

                                                   -9-                                              6541
 

----------------------- Page 10-----------------------

IV.	    DISCUSSION 

        A.	     The Settlement Agreement Did Not Entitle Chambers To Credit For 
                Profit And Overhead. 

                Chambers argues that the settlement agreement entitles him to a credit for 

the time he spent supervising the repairs and remodel, and that this time falls into the 

category of "profit and overhead" typically charged by general contractors.               He argues 

that compensation for this time is included in the "plain and fair meaning" of "fair market 

cost," and that both Roberts's and Lutje's testimony support his position. 

                The central question is whether the "fair market costs" of the repairs and 

improvements   that   Chambers   is   entitled   to   under   the   settlement   agreement   include 

compensation for profit and overhead.  A settlement agreement forms a binding contract 

when     the  agreement     satisfies  the  four  elements     of  contract   formation:    an   offer 

encompassing all essential terms, unequivocal acceptance by the offeree, consideration, 

                               7 
and an intent to be bound.        Because the parties' settlement agreement satisfies these 

requirements, it is a binding contract, and we interpret it according to the rules of contract 

                 8 
interpretation.      We     apply    our  independent      judgment    to   questions    of  contract 

                 9 
interpretation.      Our    goal   in  interpreting   contracts   is  to  enforce   the   reasonable 

        7 
               Kazan v. Dough Boys, Inc., 201 P.3d 508, 513 (Alaska 2009) (quoting 
Wyatt v. Wyatt, 65 P.3d 825, 828 (Alaska 2003)). 

        8 
                See   Gaston   v.   Gaston,   954   P.2d   572,   574   (Alaska   1998)   ("Settlement 
agreements      should   be   interpreted   as  contracts   provided     that  they  meet    minimal 
contractual   requirements.")   (citing Davis   v.   Dykman,   938   P.2d   1002,   1006   (Alaska 
1997)). 

        9 
                Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005). 

                                                -10-	                                           6541
 

----------------------- Page 11-----------------------

                                 10 
expectations of the parties.         We analyze the parties' expectations by examining the 

language   used   in   the   contract,   case   law  interpreting   similar   language,   and   relevant 

                                                                                11 
extrinsic evidence, including the subsequent conduct of the parties.               We have held that 

the terms of a contract are to be interpreted according to "the general and accepted usage 

                                          12 
of the trade or business involved." 

                                                                                         13 
                We have never before interpreted the phrase "fair market cost"              and neither 

party   introduced   extensive   evidence   on   this   point.    Roberts   and   Lutje   agreed   that 

contractors typically charge an additional percentage over and above the cost of labor and 

materials   as   compensation   for   time   spent   managing,   organizing,   and   supervising   a 

         14 
project.     Both testified that a contractor would typically receive an additional 20% for 

this   profit  and   overhead.     Lutje    testified  that  even    though   Chambers      was    not  a 

professional, and therefore not entitled to the full 20%, Chambers did spend a good deal 

of time supervising the project and deserved to be compensated.  He recommended that 

Chambers receive an additional 10% credit for profit and overhead; however, he went on 

        10 
                Smith v. Cleary, 24 P.3d 1245, 1249 (Alaska 2001) (quoting Municipality 
of Anchorage v. Gentile, 922 P.2d 248, 255-56 (Alaska 1996)). 

        11 
                Id. 

        12 
                Dominic   Wenzell,   D.M.D.   P.C.   v.   Ingrim,   D.M.D.,   228   P.3d   103,   108 
(Alaska 2010) (quoting Stock & Grove, Inc. v. City of Juneau, 403 P.2d 171, 176 (Alaska 
1965)   (holding   that   contractual   term   "practice   of   dentistry"   should   be   interpreted 
according to common industry definition)). 

        13 
                Black's Law Dictionary defines "fair market value," but it does not define 
"fair market cost" or "market cost."  BLACK'S LAW DICTIONARY 634 (8th ed. 1999). 

        14 
                See also State ex rel. Allstate Ins. Co. v. Gaughan, 640 S.E.2d 176, 180 n.2 
(W. Va. 2006) (stating that "fair market cost" includes compensation for a contractor's 
profit and overhead). 

                                                  -11-                                            6541
 

----------------------- Page 12-----------------------

to state that this 10% figure was based on Chambers's proposal, and he did not testify 

that it represented any sort of industry standard. 

                Roberts's testimony on the matter is not entirely clear. He stated that where 

a property owner did the work himself, "overhead and profit probably would not be 

necessary or available."   But looking at his words in context, he appeared to mean that 

where a property owner does the work himself for his own benefit, he would neither 

receive compensation for profit and overhead (because no one was paying him to do the 

work) nor pay anyone profit and overhead (because he was not paying anyone else to do 

the work).   Roberts did not appear to be speaking to the peculiar situation here, where a 

property owner did the work himself expecting it to be for his own benefit, but later 

contracted to transfer the property and expected to be retroactively compensated for the 

repairs and improvements he made.  Roberts specifically declined to offer an opinion as 

to what would be appropriate compensation for time spent supervising the project in this 

context.      On   the  whole,    Roberts's   testimony     suggests    that,  given   these  unique 

circumstances, there is no industry standard defining "fair market cost" in this context. 

                In the absence of an industry standard clearly indicating that "fair market 

cost" includes an additional credit for profit and overhead in cases like this one, we hold 

that Chambers is not entitled to additional compensation under the settlement agreement. 

As   the   superior   court   emphasized,   the   settlement   conference   was   conducted  after 

Chambers   had   completed   work   on   the   triplex.     Therefore,   by   the   time   the   parties 

negotiated and agreed upon the terms of their settlement agreement, Chambers had full 

knowledge of all that had gone into making the repairs and improvements - labor, 

materials, and time spent overseeing the project.  Yet Chambers did not make the issue 

of profit and overhead explicit in the settlement agreement, and there is no evidence in 

the record that he asked to be compensated for profit and overhead.  Instead, he agreed 

                                                -12-                                            6541
 

----------------------- Page 13-----------------------

to   be   compensated   for   "fair   market   costs"   -   a   term   that,   as   discussed   above,   is 

ambiguous in this context - and consented to a settlement agreement that made no 

provision   for   profit,   overhead,   time   spent   overseeing   the   project,   or   an   additional 

percentage over and above labor and materials to represent Chambers's work supervising 

the project.    If Chambers had contemplated a credit for profit and overhead, he should 

                                                          15 
have made the agreement explicit to that effect. 

        B.	     The   Superior   Court   Did   Not   Abuse   Its   Discretion  In   Declining   To 
                Designate Chambers The Prevailing Party For Purposes Of Rules 79 
                and 82. 

                Alaska Rules of Civil Procedure 79 and 82 allow for the award of costs and 

                                                                   16 
fees, respectively, to the prevailing party in a civil case.           The superior court noted that 

the final amount credited to Chambers for repairs and improvements made to the triplex 

was less than the amount Chambers requested. It also found that Chambers was partially 

responsible for the flaws in Halsey's report, and rejected Chambers's assertion that 

Scofield had biased Halsey against him. 

                Chambers argues that the superior court erred in declining to designate him 

the prevailing party.      Echoing his arguments in the superior court, Chambers points to 

a number of facts that he asserts collectively compel the conclusion that he was the 

prevailing party. 

        15 
                We also note Roberts's testimony that where a property owner does the 
work himself, as Chambers did here, time spent "lining up the materials is part of the 
labor involved."   This implies that Roberts may have included the time Chambers spent 
supervising the project when he calculated the total cost of Chambers's labor - a cost 
that is included in the "fair market cost" estimate here.  Whether Roberts did or did not 
include some supervisory work cost as an element in his calculation of labor costs is not 
material   to   our   holding   that   the   settlement   agreement   did   not   entitle   Chambers   to 
compensation for profit and overhead. 

        16 
                Alaska R. Civ. P. 79(a); Alaska R. Civ. P. 82(a). 

                                                  -13-	                                            6541
 

----------------------- Page 14-----------------------

                 As   we   previously   explained,   we   review   a   trial   court's   prevailing   party 

determinations for abuse of discretion, which exists if an award is arbitrary, capricious, 

                                                                17 
manifestly unreasonable, or improperly motivated.                    A trial court's discretion under 

Rule 82 is broad enough to warrant denial of attorney's fees altogether, so long as the 

trial   court's   reasons   for   departing   from   the  Rule's   schedule   of   fees   are   clear   in   the 

         18 
record.     We have held that a trial court does not abuse its discretion in refusing to award 

                                                                                      19 
fees where neither party can be characterized as the prevailing party. 

                 In this case, the superior court's conclusion that Chambers was not the 

prevailing party is supported by the record.  Taking the litigation as a whole, including 

the parties' written pleadings and both evidentiary hearings, it was not an abuse of 

discretion for the superior court to deny Chambers's motion to be named the prevailing 

party for purposes of Rules 79 and 82. 

                 At the first evidentiary hearing Scofield urged the court to rely on Halsey's 

report   despite   its   faults,   while   Chambers  argued   the   report   was   irreparably   flawed. 

Because      the   superior    court    agreed    with   Chambers,       concluding     that   there   were 

"unremediable infirmities" in Halsey's methodology, and ordering a new report on that 

basis, Chambers prevailed on that discrete issue.  But the superior court also found that 

Chambers was partially at fault for not participating in giving Halsey proper direction. 

This finding cuts against Chambers's argument that he was a prevailing party overall. 

        17 
                 Fernandes v. Portwine, 56 P.3d 1, 4-5, 7-8 (Alaska 2002) (affirming trial 
court's decision that neither litigant was the prevailing party for Rule 82 purposes). 

        18 
                 Id. at 8 (quoting Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976)). 

        19 
                 Id. (quoting City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184 (Alaska 
1974)). 

                                                    -14-                                              6541
 

----------------------- Page 15-----------------------

                At the second evidentiary hearing, each party prevailed to some extent. 

Chambers argues that he was the prevailing party because the superior court rejected 

Scofield's challenges to Roberts's appraisal.            Although the court did reject most of 

Scofield's challenges, it also rejected a number of Chambers's challenges to the same 

report.   First, Chambers argued that the "fair market" cost should include a percentage 

for profit and overhead.  The superior court disagreed with Chambers, holding that the 

contract did not require payment of a percentage for profit and overhead - a holding that 

we affirm in this opinion.      Second, Chambers had his own expert, Robert Lutje, testify 

at   the   second   evidentiary   hearing   as   to   the  "fair   market   cost"   of   the   repairs   and 

improvements. Lutje testified that Chambers should be credited approximately $115,000 

for the repairs and improvements he made to the triplex.               Although the superior court 

found   Lutje's   testimony   helpful,   it   adopted   a  final   value   much   closer   to   Roberts's 

                                                                                     20 
estimate, crediting Chambers some $35,000 less than Lutje proposed.                      The superior 

court gave clear reasons for its decision not to declare Chambers the prevailing party. 

On balance, we cannot say that the superior court abused its discretion in reaching this 

conclusion. 

                Chambers       also   makes    several   factual   assertions    on   appeal   that   are 

inconsistent with the superior court's findings, implying that the superior court's decision 

not to name him the prevailing party was based on erroneous factual premises.  Because 

Chambers's factual assertions do not find support in the record, we conclude that the 

superior court's factual findings were not clearly erroneous. 

        20 
                Chambers also argues that he was the prevailing party because the final 
value the court chose was closer to Lutje's estimate than Halsey's.                By comparing the 
appraisals in this way, Chambers implies that Halsey was Scofield's expert.                   Because 
Halsey was not Scofield's expert, but rather was jointly selected by both parties, this 
argument is unpersuasive. 

                                                  -15-                                            6541
 

----------------------- Page 16-----------------------

                First, Chambers contends that Scofield's attorney directed Halsey to use 

"fair market value" methodology rather than "fair market cost methodology." The record 

does not support this contention.         Halsey testified that Scofield's attorney told him to 

assess the repairs' "value as to time and materials."  But while Scofield's attorney may 

have used the word "value," the concept she communicated was market cost: she asked 

Halsey to estimate the price of time and materials, as opposed to what the repairs added 

to the value of the triplex.     At most, this evidence shows an imprecise use of language 

on the part of Scofield's attorney - not that Scofield instructed Halsey to use "fair 

market value" methodology, as Chambers claims. 

                Second, Chambers asserts that Scofield biased Halsey against him, but the 

record does not bear this out.        It is true that Halsey questioned whether Chambers had 

actually made some of the repairs he claimed.           But this does not show that Halsey was 

biased against Chambers; Halsey clearly explained his reasons for doubting some of 

Chambers's claims when he testified that "there were numerous instances in which [he] 

simply did not believe what [Chambers] was telling [him] because of what [he] could see 

with [his] own eyes." Halsey testified that some of the receipts Chambers offered did not 

match the items Chambers alleged they were for, and he stated in an affidavit that even 

Chambers's workman openly disagreed with Chambers's characterization of what repairs 

had been made. 

                Although it is true that Roberts did not share the same degree of skepticism 

towards Chambers's claims, this fact does not prove that Halsey was biased.                  This and 

the   other   differences   between   the   two   expert   reports   merely   illustrate   the   fact   that 

individual appraisers will often come to different conclusions about a property they 

appraise; it is for this reason that litigants often seek multiple opinions when trying to 

value   property.     Also,   Roberts   was   not   wholly   credulous   in   evaluating   Chambers's 

                                                 -16-                                            6541
 

----------------------- Page 17-----------------------

claims; he concluded that at least one of the doors Chambers claimed to have installed 

had actually been installed some time before Chambers took possession of the property, 

and the superior court adopted this conclusion, suggesting that at least some of Halsey's 

doubts were well-founded.        For these reasons, we hold that the superior court did not 

clearly   err   in   declining   to   draw   the   inference  that   Scofield   biased   Halsey   against 

Chambers. 

V.      CONCLUSION 

               Because there is no industry standard clearly indicating that "fair market 

cost" includes additional profit and overhead in the context of this case, and because 

Chambers failed to specifically contract for additional compensation over and above the 

cost of labor and materials, we AFFIRM the superior court's decision not to award 

Chambers any profit and overhead. 

               Because the record supports the superior court's findings that neither party 

was the prevailing party, we AFFIRM the superior court's denial of Chambers's motion 

to be named the prevailing party for purposes of Rules 79 and 82. 

                                               -17-                                           6541
 
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