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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Connell v. Will (10/28/2011) sp-6614

O'Connell v. Will (10/28/2011) sp-6614, 263 P3d 41

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

KEVIN O'CONNELL,                                ) 
                                                )       Supreme Court No. S-13540 
                        Appellant,              ) 
                                                )       Superior Court No. 3AN-00-12047 CI 
        v.                                      ) 
                                                )       O P I N I O N 
ANTHONY WILL and PAULETTE                       ) 
WILL,                                           )      No. 6614 - October 28, 2011 
                                                ) 
                        Appellees.              ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third
 
                Judicial District, Anchorage, Sharon Gleason, Judge.
 

                Appearances:   Yale   H.   Metzger,   Law       Offices   of   Yale   H.
 
                Metzger,     Anchorage,      for  Appellant.    No    appearance     by
 
                Appellees.
 

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

                STOWERS, Justice.
 
                FABE, Justice, with whom CHRISTEN, Justice, joins, dissenting.
 

I.      INTRODUCTION 

                In   2002   Kevin   O'Connell was awarded   damages against Anthony   and 

Paulette Will for the Wills' failure to pay a promissory note.            Under the attorney's fee 

provision in the note, O'Connell was also awarded full attorney's fees and costs.  After 

O'Connell's attorney engaged in post-judgment collection efforts, Anthony Will paid the 

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judgment.     In 2009 Anthony Will filed a request for an order that the judgment in the 

case had been satisfied, and the superior court granted the motion.              O'Connell filed a 

motion seeking a further award of attorney's fees, arguing that he incurred attorney's 

fees in collecting the original judgment and that under the terms of the promissory note 

he is entitled to an additional award for those fees.  The superior court denied his motion 

and    O'Connell     appeals.   He    also  argues    that  the  superior   court  should   not   have 

considered   Anthony   Will's   motion   for   entry   of   a   satisfaction   of   judgment   because 

Anthony failed to serve Paulette Will, Anthony's ex-wife, with the motion.  Because the 

promissory note's terms did entitle O'Connell to post-judgment fees, we reverse the 

superior court's order denying O'Connell's motion for attorney's fees.                 The superior 

court did not err in considering Anthony Will's motion, but because O'Connell was 

entitled to post-judgment attorney's fees, we vacate the superior court's entry of an order 

that the judgment was satisfied and remand for further proceedings. 

II.     FACTS AND PROCEEDINGS 

                In October 1999 Anthony and Paulette Will signed a promissory note for 

$7,000 payable to Kevin O'Connell. The note provided that $3,500 was due on or before 

October 30, 2000 and $3,500 was due on or before October 30, 2001.  Further, the note 

provided that "in the event default shall be made in the payment of any installment, then 

the principal sum shall be and become at once due and payable at the option of the 

holder."   By signing the note, Anthony and Paulette Will also "promise[d], in case suit 

is instituted, to collect this note, or any portion thereof, in addition to the costs and 

disbursements of said suit, a reasonable attorney's fee in such suit or action." 

                In November 2000 O'Connell filed this lawsuit to enforce the promissory 

note against the Wills.     The Wills contested the lawsuit.        O'Connell filed a motion for 

summary judgment, and Superior Court Judge Sharon Gleason granted that motion.  On 

September 26, 2002, the superior court entered final judgment against the Wills for 

                                                  -2-                                           6614
 

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

$7,000 plus $6,492.50 in attorney's fees and $219.86 in costs, for a total judgment of 
$13,712.36.1 

                Anthony Will subsequently paid the judgment after O'Connell, through 

counsel, conducted a search for assets and executed a garnishment of earnings. In March 

2009   Anthony   Will   filed   a   motion   for   an   order   that   the   judgment   in   the   case   was 

satisfied.   O'Connell opposed the motion on the grounds that it had not been served on 
Paulette Will2    as required by Alaska Civil Rule 5 and that he had incurred additional 

attorney's fees in the course of collecting on the original judgment.   The superior court 

granted Anthony Will's motion.           O'Connell filed a motion for reconsideration, which 

was denied.  Addressing O'Connell's argument regarding service on Paulette Will, the 

superior court explained that "since the motion sought relief that was of benefit to Ms. 

Will, service of the motion upon her by Mr. Will is unnecessary" and "[r]equiring Mr. 

Will, a pro se litigant, to comply with that rule in these circumstances would elevate form 

far over substance."       As to O'Connell's claim for attorney's fees, the superior court 

explained that "[t]he parties' contract is reasonably interpreted to permit the recovery of 

full   attorney's   fees   during   the   course   of   the   action   -   not   during   collection   on   any 

judgment      -    particularly   where,    as  here,  the   plaintiff  has   already   been    awarded 

$6,492.50 of fees on a principal note due of $7,000."             O'Connell appeals. 

        1       On June 28, 2002, the superior court first entered judgment for $7,219.86. 

On September 26, the court amended the judgment by adding the attorney's fees. 

        2       As O'Connell's opposition stated, "Anthony Will represented . . . that he 

and Paulette Will are divorced and that she was not served with a copy of his request." 
The opposition appears to have been served on both Anthony Will and Paulette Will. 

                                                   -3-                                             6614
 

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III.	   STANDARD OF REVIEW 

                We review trial court orders regarding violations of Civil Rule 5 for abuse 
of discretion.3   We usually review an award of attorney's fees for abuse of discretion.4 

Abuse     of  discretion    exists  only   "if  the  award    is  arbitrary,  capricious,   manifestly 
unreasonable, or the result of an improper motive."5          Here, however, the dispositive issue 

is   whether   the   promissory   note   allowed   recovery   of   attorney's   fees   incurred   during 

collection on the judgment.        This is a question of contract interpretation, and we apply 
our independent judgment to matters of contract interpretation.6 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Err In Considering The Motion For An 
                Order Of Satisfaction Of Judgment Despite The Defect In Service. 

                On March 16, 2009, after payment of the $13,712.36 judgment against the 

Wills   for   both   the   amount   owed   on   the   note   and   attorney's   fees   incurred   until   the 

superior court's grant of summary judgment, Anthony Will requested that the superior 

court   issue   an   order   that   the   judgment   had   been   satisfied. O'Connell   opposed   the 

motion, in part because Anthony Will had failed to serve Paulette Will, his ex-wife and 

co-defendant.      The   superior   court   rejected   O'Connell's   argument,   concluding   in   its 

denial   of   O'Connell's   motion   for   reconsideration   that   service   on   Paulette   Will   was 

unnecessary because the motion would benefit her and that "requiring [Anthony] Will, 

        3       See, e.g., Murat v. F/V Shelikof Strait, 793 P.2d 69, 73-74 (Alaska 1990) 

(applying abuse of discretion standard where plaintiffs served corporate officers, rather 
than the corporation's attorney of record, with motion for default judgment). 

        4       Reid v. Williams, 964 P.2d 453, 460 n.17 (Alaska 1998). 

        5       Id. (quoting Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska 

1997)). 

        6       Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004). 

                                                  -4-	                                            6614
 

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a pro se litigant, to comply with that rule in these circumstances would elevate form far 

over substance."       On appeal, O'Connell argues that the superior court's decision to 

consider the motion without first requiring service on Paulette Will is reversible error. 

                1.	     O'Connell       does   not   have    standing    to  assert   any    argument 
                        Paulette Will might have for failure of service. 

                Although      the  question    whether    a  party  can   object   to  another   party's 

defective service on a third party is a question of first impression in Alaska, the general 
rule   is   that   such   a   party   cannot   object.7 For   example,   the   Montana   Supreme   Court 

explained that "questions of defective service of process may be raised only by the one 
on whom attempted service was made."8            This rule comports with Alaska's principles of 

standing, and we choose to follow it.            We have held that to establish interest-injury 

standing to bring a claim, parties "must demonstrate that they have a sufficient personal 

stake in the outcome of the controversy and an interest which is adversely affected by the 

complained-of conduct.   The degree of the injury need not be great:  an identifiable trifle 

        7       See, e.g., Meadows of Citrus Cnty., Inc. v. Jones, 704 So. 2d 202, 203 (Fla. 

App. 1998) ("[Defendants] lack standing to assert the alleged untimely service of process 
on a co-defendant and this appeal is accordingly dismissed."); In re Estate of Stanford, 
581 N.E.2d 842, 848 (Ill. App. 1991) ("Where a party was given notice, he cannot 
complain that others were not notified."); Superior Outdoor Advert. Co. v. State Highway 
Comm'n of Missouri, 641 S.W.2d 480, 483 (Mo. App. 1982) ("[T]he general rule is that 
the issue of defective service of process may be raised only by the one on whom the 
attempted service was made . . . ."); see  also  72 C.J.S. Process  123 (2011) ("As a 
general rule, the question of defective service may be raised only by the one on whom 
attempted service has been made."). 

        8       Hull v. D. Irvin Transp . Ltd., 690 P.2d 414, 417 (Mont. 1984). 

                                                  -5-	                                            6614
 

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is sufficient to establish standing to fight out a question of principle."9    Where a party 

does not have standing to bring a claim, the claim must be dismissed.10 

               O'Connell does not have standing to argue that Anthony Will's failure to 

serve Paulette Will required the superior court not to consider Anthony Will's motion. 

In his briefing, O'Connell does not identify any possible personal interest that would be 

adversely affected by the superior court's consideration of Anthony Will's motion before 

Paulette Will was properly served.      He argues that proper service was important in this 

case because Paulette Will "might have an indemnity claim against her co-defendant 

which    could   have  potentially   been  negatively   [a]ffected  by  the  relief  sought  by 

[Anthony] Will."     While this may be true, it suggests potential injury to Paulette Will, 

not injury to O'Connell. 

               2.	    The superior court did not abuse its discretion by considering 
                      Anthony Will's motion even though Paulette Will had not been 
                      served. 

               Alaska Rule of Civil Procedure 5(a) provides that "written motion[s] other 

than [those] which may be heard ex parte . . . shall be served upon each of the parties." 

Moreover, notice of a motion "should be served on a co-party whose rights are affected 
by the motion."11 

               Although we have not articulated a specific standard for deciding whether 

to set aside a trial court's order on the basis of lack of complete service of a motion, we 

have used an abuse of discretion standard for deciding whether to set aside a trial court's 

order on the basis of defective service.    In Murat v. F/V Shelikof Strait, we interpreted 

       9       Keller v. French, 205 P.3d 299, 304-05 (Alaska 2009) (internal quotation 

marks and citations omitted)). 

       10      Id. at 305. 

       11      See 60 C.J.S. Motions and Orders  18 (2011). 

                                              -6-	                                        6614
 

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our prior decisions to stand for the rule that "mere service on a party rather than on a 

party's attorney in violation of the civil rules will not render a judgment void, but will 

instead   subject   it   to   possible   reversal   based   on   the   particular   circumstances   of   the 
individual case."12     In Murat, the plaintiffs had served the corporation's officers, rather 

than the corporation's attorney of record.13            We explained that "[i]t appear[ed] highly 

unlikely that [the attorney], even if he had been served, would have taken any action 

whatsoever" and noted that the attorney had already moved to withdraw from the case 
and "had repeatedly failed to take any action on the earlier discovery requests."14                    We 

concluded that the trial court did not abuse its discretion by entering default judgment 

against the corporation for failure to comply with discovery and we declined to set aside 
the default judgment.15 

                 Under the abuse of discretion standard as applied in Murat, the superior 

court in this case did not abuse its discretion in considering Anthony Will's motion 

despite his failure to serve Paulette Will.          As in Murat, it appears highly unlikely that 

Paulette Will would have taken action on Anthony Will's motion even if she had been 

properly   served.     Indeed,   she   did   not   take   any   action   on   the   matter   after   receiving 

O'Connell's opposition or motion for reconsideration and, despite ample notice, she has 

not taken any action on O'Connell's appeal. 

                 Although we conclude that the superior court did not err in considering 

Anthony Will's motion, because we conclude that O'Connell is entitled to post-judgment 

        12       793 P.2d 69, 73 (Alaska 1990). 

        13      Id. at 72-73. 

        14      Id. at 73-74. 

        15      Id. at 71, 74. 

                                                    -7-                                              6614
 

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attorney's fees, as explained in part B below, we vacate the superior court's order that 

the judgment was satisfied, and remand for further proceedings. 

        B.      O'Connell Is Entitled To Post-Judgment Attorney's Fees. 

                In response to Will's motion for an order acknowledging satisfaction of the 

judgment,      O'Connell     sought    $2,397.50     in  attorney's    fees   and   $45.00    in  costs. 

O'Connell's attorney charged $2,397.50 in fees and $45.00 in costs to place liens on the 

Wills' assets and to serve Anthony Will's employer with a writ of garnishment.  The 

superior court held that O'Connell was not entitled to post-judgment attorney's fees 

under the parties' promissory note, which it found was "reasonably interpreted to permit 

the   recovery   of   full   attorney's   fees   during   the   course   of   the   action   -  not   during 

collection on any judgment - particularly where, as here, the plaintiff has already been 

awarded $6,492.50 of fees on a principal note due of $7,000." We disagree and hold that 

O'Connell can recover reasonable post-judgment attorney's fees and costs under his 

contract with the Wills. 

                When interpreting contracts, our duty is to "ascertain and give effect to the 
reasonable   intentions   of   the   contracting   parties."16    We   determine   the   intention   of 

contracting parties by "resort[ing] to the language of the disputed provision and other 
provisions, relevant extrinsic evidence, and case law interpreting similar provisions."17 

We seek to interpret contractual terms harmoniously, "avoiding those interpretations that 
cause conflicts among the provisions."18 

        16      Estate of Polushkin ex rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska 

2007) (quoting  W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 (Alaska 
 1991)). 

        17       W.Pioneer, Inc., 818 P.2d at 656. 

        18      Rockstad v. Global Fin. & Inv. Co., 41 P.3d 583, 586-87 (Alaska 2002). 

                                                   -8-                                            6614
 

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                 The   plain   language   of   the   contract   supports   a   finding   that   the   parties 

intended to provide for reimbursement of all attorney's fees incurred in a "suit or action" 

to collect the note, including those incurred through post-judgment enforcement actions. 

The contract between O'Connell and the Wills provides that the signatories "promise[], 

in case suit is instituted, to collect this note, or any portion thereof, in addition to the 

costs and disbursements of said suit, a reasonable attorney's fee in such suit or action." 

(emphasis added) Black's Law Dictionary defines "suit" as "[a]ny proceeding by a party 
or parties against another in a court of law,"19  "action at law" as "[a] civil suit stating a 

legal cause of action and seeking only a legal remedy,"20  and "action" as "[t]he process 

of   doing    something;      conduct     or  behavior."21     Black's      also  states   that  the   word 

"proceeding" is "used to express the business done in courts," which may include "all 

ancillary   or   provisional   steps,   such   as   arrest,   attachment   of   property,   garnishment, 

injunction, writ of ne exeat . . . [and] the enforcement of the judgment, or a new trial, as 
may be directed by the court of last resort."22              Applying these definitions, the plain 

language of the contract indicates that the parties intended to provide for all reasonable 

attorney's fees incurred by O'Connell for services performed for him by his lawyer in 

engaging in further proceedings to collect the note, including enforcing the judgment 

rendered against the Wills. 

                 This interpretation of the contract's language is also consistent with our 

precedent      regarding    contractual     attorney's    fees   clauses.   In Gamble       v.  Northstore 

Partnership, we held that where a contractual provision has the "evident purpose of 

        19       BLACK 'S LAW DICTIONARY 1572 (9th ed. 2009). 

        20       Id. at 33. 

        21       Id. at 32. 

        22       Id. at 1324 (emphasis added). 

                                                    -9-                                               6614
 

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shifting reasonable [attorney's] fees to the winner in litigation concerning [a] contract," 
the contract must be construed as calling for fee shifting "at all court levels."23            We also 

stated that "the primary concern in setting rules for attorney fee awards must be the 
encouragement of efficient litigation."24        Gamble thus stands for the proposition that we 

construe contractual attorney's fees provisions broadly, and in a way that encourages 

efficient litigation. 

                In Rockstad v. Erikson, we reiterated our holding in Gamble that, where the 

parties intend it, contractual attorney's fees clauses must be construed as calling for fee 
shifting at all levels "and not just in proceedings before the trial court,"25  and concluded 

that an attorney's fees provision in a note and deed of trust included fees incurred in 
"post-judgment appellate proceedings."26             Although we were not presented with the 

question whether the note in Rockstad also provided for attorney's fees incurred during 

post-judgment enforcement actions, our holding in Rockstad supports our conclusion that 

the attorney's fees provision in the note between O'Connell and the Wills provided for 

attorney's fees incurred post-judgment to enforce the judgment.                   To hold otherwise 

would require us to artificially distinguish attorney's fees incurred for post-judgment 

appellate   proceedings   from   attorney's   fees   incurred   for   post-judgment   enforcement 

proceedings, and would in many cases eviscerate the evident purpose of contractual 

attorney's   fees   clauses   like   the   one   at   issue. When   a   contract   between   two   parties 

indicates that the parties intended to shift reasonable attorney's fees to the winner in 

        23      28 P.3d 286, 290 (Alaska 2001).
 

        24
     Id. at 291 (quoting Presley of S. Cal. v. Whelan, 196 Cal.Rptr. 1, 3 (Cal. 

App. 1983)). 

        25       113 P.3d 1215, 1224 (Alaska 2005). 

        26      Id. 

                                                  -10-                                             6614
 

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litigation concerning the contract, interpreting that contract to require the losing party to 

pay all attorney's fees except for fees incurred while attempting to enforce the judgment 

- a cost that is only incurred when the losing party refuses to pay after a judgment has 

been rendered against him - would be entirely contrary to the essential purpose of such 

a clause. 

                 Our   conclusion   is   also   consistent   with   Alaska's   Civil   Rule   82   and   our 

precedent regarding that rule.  Alaska rejects the American rule for attorney's fees, that 
is, the rule that litigants pay their own fees.27   Instead, Alaska's Civil Rule 82 provides 

for partial fee-shifting in most civil cases absent any agreement between contracting 
parties28    for   "services   performed   up   to   the   time   of   the   judgment."29  In  Rockstad, 

however, we concluded that "where a contract between the parties allows for one party 

to recover attorney's fees in the event of litigation, 'the contract provision must prevail 
over   any   limitations   otherwise   imposed   by   Rule   82.'   "30      When   parties   include   a 

provision for attorney's fees in their contract, they draft that provision in the shadow of 

Rule 82,     and it is logical to infer that the intent behind a contractual attorney's fees 

clause is therefore to provide for attorney's fees   that are not otherwise provided by 

Rule 82.    But Rule 82 has two limitations:          it provides generally for reimbursement of 

only partial attorney's fees, and it provides for reimbursement of attorney's fees for 

        27       See, e.g., Hatch v. T & L Assocs., 726 A.2d 308, 309 (N.J. Super. App. Div. 

1999) (discussing the "so-called American rule of litigants paying their own fees");see 
also  Susanne   Di   Pietro   &   Teresa   W.   Carns, Alaska's   English   Rule:   Attorney's   Fee 
Shifting in Civil Cases, 13 ALASKA L. REV . 33-94 (1996). 

        28       Alaska R. Civ. P. 82. 

        29       Torrey v. Hamilton, 872 P.2d 186, 187 (Alaska 1994). 

        30       113 P.3d at 1224 (quoting Ursin Seafoods, Inc. v. Keener Packing Co., 

741 P.2d 1175, 1181 (Alaska 1987)). 

                                                   -11-                                              6614
 

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actions taken only up until the time of judgment.31                 Because there appears to be no 

principled basis for concluding that the contracting parties in this case intended to avoid 

one of Rule 82's limitations but not the other, we must conclude that the attorney's fees 

clause at issue, which provides for recovery of all reasonable attorney's fees incurred 

while   collecting   the   note,   was   written   with   the   intent   of   providing   all   reasonable 

attorney's fees for all actions taken to enforce the note, including collections actions 

taken   after   the   final   judgment   was   entered.    As   discussed   above,   this   conclusion   is 

consistent with and supported by our attorney's fee rules and precedent. 

                 Finally,   we   note   that   construing   contractual   attorney's   fees   clauses   to 

exclude      attorney's     fees   incurred    for   post-judgment       collection     and   enforcement 

proceedings would be inefficient and might stimulate further litigation.  If we construed 

such clauses to exclude attorney's fees incurred while attempting to collect on a note 

through post-judgment enforcement proceedings, the prevailing party could alternatively 

file a separate lawsuit to enforce a judgment and then recover attorney's fees incurred 

for post-judgment enforcement actions in the new litigation. But filing a separate lawsuit 

to enforce a judgment rather than utilizing liens and other post-judgment enforcement 

mechanisms in an existing case results in greater economic costs to the parties and to 

judicial and court resources. 

                 Because the plain language of the promissory note indicates that the parties 

intended to provide for attorney's fees incurred in all actions taken to collect on the note, 

and because our precedent regarding contractual attorney's fees clauses supports the 

conclusion   that   contractual   attorney's   fees   clauses   like   the   one   at   issue   provide   for 

attorney's fees incurred during post-judgment enforcement proceedings, we reverse the 

         31      Alaska Civil Rule 82(b); see, e.g., Torrey, 872 P.2d at 187. 

                                                    -12-                                                 6614 

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superior court's order denying O'Connell's motion for post-judgment attorney's fees, 

and remand for further proceedings. 

V.     CONCLUSION 

             For the foregoing reasons, we   VACATE the superior court's order for 

satisfaction of judgment, REVERSE the court's order denying post-judgment attorney's 

fees, and REMAND for further proceedings. 

                                        -13-                                   6614
 

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FABE, Justice, with whom CHRISTEN, Justice, joins, dissenting. 

                I disagree with the court's conclusion that the contract between O'Connell 

and the Wills authorizes the award of post-judgment collection costs.                  In my view, the 

attorney's fee provision in the contract simply does not contemplate these expenses.  The 

contract provides that the signatories "promise[], in case suit is instituted, to collect this 

note, or any portion thereof, in addition to the costs and disbursements of said suit, a 

reasonable attorney's fee in such suit or action . . . ." (Emphasis added.)               Because the 

phrase "reasonable attorney's fee in such suit or action" cannot be construed to include 

post-judgment collection costs, I respectfully dissent. 

                When interpreting contracts, we have stated that our "duty is to 'ascertain 
and give effect to the reasonable intentions of the contracting parties.' "1            We determine 

the intention of contracting parties by "resort to the language of the disputed provision 

and   other   provisions,   relevant   extrinsic   evidence,   and   case   law   interpreting   similar 
provisions."2 

                I   conclude   that   the  term   "attorney's   fees,"   when   examined   using   the 

traditional tools of contract interpretation, does not include collection costs. The addition 

in this contract of the qualifier "in such suit or action" makes me more certain of this 

conclusion.     By referring to "such suit or action," the contract expressly provides only 

for attorney's fees incurred during the litigation of the action in the trial or appellate 

courts. 

        1       Estate of Polushkin ex rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska 

2007) (quoting Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 (Alaska 
1991)). 

        2        Western Pioneer, 818 P.2d at 656. 

                                                  -14-                                               6614 

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

                 Black's Law Dictionary defines "suit" as "[a]ny proceeding by a party or 
parties against another in a court of law"3  and "action at law" as "[a] civil suit stating a 

legal cause of action and seeking only a legal remedy."4  The court reasons that Black's 

Law Dictionary defines "suit" as being a "proceeding" and that, under some definitions, 

"proceeding"   has   been   defined   to   include   "ancillary   or   provisional   steps"   such   as 

enforcement of a judgment. The court therefore concludes that a "suit" can include post- 

judgment   collection   efforts.      There   are   several   flaws   in   this   argument.    Not   every 

"proceeding"   is   a   "suit."     A   "suit"   does   not   include   all   "proceedings,"   only   those 
"proceedings" that take place "in a court of law."5           And even if post-judgment collection 

efforts can be classified as "proceedings," they are not "proceedings" that take place "in 

a court of law."  The word "suit" is limited to the litigation of an actual lawsuit in the trial 

or appellate courts. 

                 Treating "attorney's fees" as distinct from "costs of collection" is especially 

natural in Alaska.       Alaska, unlike other jurisdictions, has a longstanding practice of 
awarding partial attorney's fees, first by statute and then by Civil Rule 82.6                The phrase 

"attorney's fees" is therefore widely used in Alaska and has come to have a particular 

meaning here. When parties include a provision for attorney's fees in their contract, they 

draft that provision in the shadow of Rule 82. 

         3       BLACK 'S LAW DICTIONARY 1572 (9th ed. 2009). 

         4       Id. at 33. 

         5       Id.  at   1152   (defining   "suit"   as   "[a]ny   proceeding   by   a   party   or   parties 

against another in a court of law") (emphasis added). 

         6       Teresa W. Carns & Susanne DiPietro, Alaska's English Rule: Attorney's 

Fee Shifting in Civil Cases, 13 ALASKA L. REV . 33, 39-40 (1996). 

                                                    -15-                                              6614
 

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

                 In construing Rule 82's provision for "attorney's fees," we have given that 
term a specific and limited meaning, excluding other activities outside of litigation.7 

Civil Rule 82 fees "must relate solely to attorney's services performed in the case in 
which the judgment is entered."8          We have limited fee awards for attorney's services to 

the   "costs   of   the   action"9  and   have   expressly   interpreted   Civil   Rule   82   to   provide 

compensation "only . . . for attorney's services performed up to the time of judgment."10 

And we have only made an exception to our rule that fees may   not be awarded for 

collection      efforts   in   cases    involving     the   "collection     of   judgments      for   child 
support[, which] is a special subject to which special rules apply."11               In Torrey, we also 

clarified that post-judgment attorney's fees may not be collected under the authority of 

Civil Rule 79:     "Rule 79, like Rule 82, only relates to costs expended up to the time of 
judgment." 12 

                 This    understanding      of   "attorney's    fees"   comports      with   the  national 

understanding       that   "attorney's    fees"  and   "costs   of  collections"     are  distinct   terms. 

Accordingly, when parties use the term "attorney's fees" in their contract, they can be 

        7        Marsingill v. O'Malley, 128 P.3d 151, 163 (Alaska 2006) ("[I]t was error 

to award attorney's fees for legislative work and for work related to the first appeal."); 
Alaska   State   Hous.   Auth.   v.   Riley   Pleas,   Inc .,   586   P.2d   1244,   1249   (Alaska   1978) 
(declining to award attorney's fees for fees incurred in arbitration). 

         8       Torrey v. Hamilton, 872 P.2d 186, 187 (Alaska 1994). 

         9       Cameron v. Hughes, 825 P.2d 882, 887 (Alaska 1992) (quoting O'Link v. 

O'Link, 632 P.2d 225, 231 (Alaska 1981)), limited by Torrey, 872 P.2d at 188 n.1. 

         10      Torrey, 872 P.2d at 187. 

         11      Id. at 188 n.1. 

         12      Id. at 188. 

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presumed to use that term as distinct from costs of collection.  If contracting parties wish 

to allocate costs of collection, they can do so - but they must do it expressly. 

                 Examining case law from other jurisdictions interpreting similar provisions 

confirms that attorney's fees are distinct from post-judgment collection costs.                      Many 

judicial decisions discussing the relationship between attorney's fees and post-judgment 

costs of collection have involved contracts that featured express provisions for both 
"attorney's fees" and "costs of collection."13          The practice reflected in these decisions is 

that a separate provision for "costs of collection" needs to be added to a contract if such 

a provision is desired.       The contracting parties in these cases and the courts that have 

reviewed   similar   clauses   have   referred   to   attorney's   fees   and   costs   of   collection   as 
distinct items.14 

                 The court reasons that Gamble v. Northstore Partnership15 counsels that we 

should     construe     contractual    provisions     for  attorney's     fees  broadly    and    therefore 

concludes that the attorney's fee provision in this contract should be construed to include 

post-judgment collection costs.          But while Gamble establishes that we should interpret 

contractual   provisions   for   attorney's   fees   broadly,   collection   costs   are   distinct   from 

attorney's fees.     I would therefore affirm the superior court and respectfully dissent. 

         13      See, e.g., Alabama State Bar v. Hallett, 26 So. 3d 1127, 1130 (Ala. 2009); 

Thomas v. Arkoosh Produce, Inc., 48 P.3d 1241, 1250 (Idaho 2002);  Tulley v. Sheldon, 
982 A.2d 954, 958 (N.H. 2009); Harsch Props., Inc. v. Nicholas, 932 A.2d 1045, 1047 
(Vt. 2007). 

         14      See, e.g.,Int'l Sales-Rentals Leasing Co. v. Nearhoof , 263 So. 2d 569 (Fla. 

 1972);Am. Serv. & Supply Co. v. Raby, 206 N.E.2d 94, 95-96 (Mass. 1965) (referring 
to both attorney's fees and costs of collection); Strenge v. Clarke, 569 P.2d 60 (Wash. 
 1977)   (referring   to   three   categories   of   expenses:   collection   costs,   court   costs,   and 
attorney's fees). 

         15      28 P.3d 286 (Alaska 2001). 

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