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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moody v. Royal Wolf Lodge (11/14/2014) sp-6966

Moody v. Royal Wolf Lodge (11/14/2014) sp-6966

         Notice:   This opinion is subject to correction before publication in the P      ACIFIC 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  

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



JEFF MOODY,                                            )  

                                                       )        Supreme Court No. S-14864/14883  

                  Appellant and                        )  

                  Cross-Appellee,                      )        Superior Court No. 3AN-08-07621 CI  

                                                       )  

         v.                                            )        O P I N I O N  

                                                       )  

ROYAL WOLF LODGE,                                      )        No. 6966 - November 14, 2014  

LINDA BRANHAM, and                                     )  

CHRIS BRANHAM,                                         )  

                                                       )  

                  Appellees and                        )  

                  Cross-Appellants.                    )  

                                                       )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                   

                  Judicial District, Anchorage, Stephanie E. Joannides, Judge.  

                                                            



                  Appearances:            Kenneth        W.    Legacki,       Anchorage,         for  

                                                                             

                  Appellant and Cross-Appellee.  William M. Bankston and  

                  John R. Crone, Bankston Gronning O'Hara, P.C., Anchorage,  

                  for Appellees and Cross-Appellants.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                    

                  Bolger, Justices.  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  A pilot who worked at a remote fishing lodge filed a claim under the Alaska  

                                                                                          



Wage and Hour Act (AWHA) for unpaid overtime wages.  Applying the four-part test  

                                                           


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

                                                          1  

of Dayhoff v. Temsco Helicopters, Inc.                   ,  the superior court concluded that the pilot was  



a "professional employee" who was exempt from the overtime requirement.  But the  



                                                                                                                               2  

                                                                                      

legislature amended AWHA in 2005 to adopt the federal definition of this exemption. 



                                                                         

The  federal  definition  restricts  the  exemption  to  employees  in  "professions  where  



                                                                                    3  

                                                                                       Applying this definition, we  

specialized academic training is a standard prerequisite." 



conclude that the pilot was not exempt under AWHA and reverse.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Chris and Linda Branham own and operate the Royal Wolf Lodge, a fishing  

                                                                                   



lodge that operates seasonally from June to September.  The lodge is located in Katmai  

                                                                                    



National Park, a remote  location without access to roads.  Employees reside on the  



premises during the season, and all materials must be flown in by airplane.  The lodge  



                                                         

first hired Jeff Moody as a pilot for the 2002 summer season and terminated him after the  



2007 season.  



                    Moody  was  the  only  pilot  who  flew  the  lodge's  de  Havilland  Beaver  



                                          

aircraft. The parties contest the details of Moody's responsibilities at the lodge, but they  



                                                                                                             

agree that Moody was responsible for many tasks involving the airplane.  For example,  



                                                                               

Moody flew clients between the lodge and the fishing destinations, prepared and cleaned  



                                                                                    

the airplane, and monitored it for potential mechanical problems.  He also flew food,  



                                                                      

fuel, and other supplies to the lodge.  When he was not on duty, Moody was allowed to  



engage in personal errands and leisure activities.  



          1         848 P.2d 1367, 1371 (Alaska 1993).  



          2         Ch. 90,  2, SLA 2005.  



          3         29 C.F.R.  541.301(d) (2014).  



                                                              -2-                                                           6966  


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

                                                                                        

                   Although Moody does not have a college degree and did not receive flight  



training in a formal academic setting, he hired flight instructors to teach him, and he  



studied from manuals to take the Federal Aviation Administration's (FAA) oral and  



                               

written tests.  Moody holds a commercial pilot license, an airline transport pilot license,  



a certified flight instructor rating, an instrument rating, a multi-engine rating, a single  



engine land rating, a single engine sea rating, and a second class medical certificate.  His  



experience includes over 14,000 hours of flight time.  



                                       

         B.        Proceedings  



                   Moody filed a complaint against Chris Branham, Linda Branham, and the  



Royal Wolf Lodge (together "Royal Wolf Lodge") for unpaid overtime wages from the  



                                                                                   

2006 and 2007 seasons. Moody had a written employment agreement for those seasons,  



                                                                

and he was paid $9,500 per month in 2006 and $9,750 per month in 2007.  Moody  



                                                                

claimed that he had worked more than eight hours per day and more than 40 hours per  



week and that he was therefore entitled to overtime pay under AWHA.  Royal Wolf  



Lodge contended that Moody was a professional employee and was thus exempt from  



AWHA's protections.  



                                                                                                             

                   At trial, Royal Wolf Lodge presented evidence that Moody was paid a set  



                                                                                                       

monthly salary equivalent to 40 hours regular pay and 32 hours overtime pay per week.  



But some of Royal Wolf Lodge's evidence was inconsistent.  Chris Branham testified  



                                                                                                              

that Moody's salary was for a 30-day period, but he also testified that Moody was paid  



by calendar month.  Moody's employment contract specified that his salary was based  



on  30  days  per  month,  but  it  listed  hourly  rates  inconsistent  with  Chris  Branham's  



testimony.  The parties also disagreed about whether Moody worked overtime hours.  



                                                           -3-                                                    6966
  


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

                                                                                                                      4 

                                         

                   Applying the four-part test of Dayhoff v. Temsco Helicopters, Inc. ,  the  



superior court ruled that Moody was an exempt professional employee who was not  



             

entitled to overtime pay under AWHA, regardless of the number of hours he worked.  



But the court determined that, by the terms of his employment contract, Moody was  



                                                                                             

entitled to extra pay if he worked more than 30 days per calendar month or more than six  



                                                                                                         

days per week.  The court found that Moody worked every day during the 2006 and 2007  



                                                                                      

seasons and awarded him unpaid wages for the 31st days of July and August for both  



seasons as well as for the extra day per week he worked.  



                                                                                            

                   Both sides moved to adjust the award. Royal Wolf Lodge sought attorney's  



                                                                                                        

fees under Alaska Civil Rules 68 and 82.  Moody opposed this motion, arguing  that he  



                                                                                                              

was the prevailing party and that, under AS 23.10.110(f), a defendant cannot be awarded  



                                                                                                   

attorney's fees when a plaintiff litigates his AWHA claim in good faith.  Moody also  



                                    

reiterated his claim that Royal Wolf Lodge had violated AWHA and argued that he was  



entitled to mandatory liquidated damages and attorney's fees under AS 23.10.110(a)  



                  

and (c).  He further claimed that he was entitled to receive an additional penalty payment  

from Royal Wolf Lodge under AS 23.10.140.5  



                   The superior court determined that Moody was the prevailing party and that  



Royal Wolf Lodge was not entitled to an award of attorney's fees.  But the court, noting  



its previous conclusion that Moody was exempt from AWHA, also rejected Moody's  



argument for a larger award under AS 23.10.110.   And the court rejected Moody's  



argument for a penalty payment under AS 23.05.140 based on its findings that Moody's  



                                                                                       

right to overtime compensation was unsettled when he left Royal Wolf Lodge and that  



          4        848 P.2d at 1371.  



          5        It   appears  Moody  intended  to  cite  AS  23.05.140,  which  provides  the  



penalty award he claimed. AS 23.10.140 penalizes employers for AWHA violations but  

does not benefit employees.  



                                                            -4-                                                          6966  


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

                                                                                                       

Royal Wolf Lodge had not intentionally withheld compensation from him.  The superior  



                                              

court issued a final judgment for Moody in the principal amount of $12,833.40.  Moody  



subsequently moved for attorney's fees under Civil Rule 82, which the superior court  



granted.  



                   Moody appeals the decision denying his AWHA claim.  Royal Wolf Lodge  



cross-appeals the contract damages and attorney's fees awards.  



III.     STANDARD OF REVIEW  



                   Whether an employee is an exempt professional under AWHA is a question  

          6   "We review factual findings for clear error, and will uphold the superior court's  

of fact.                      



findings unless we are left with a definite and firm conviction on the entire record that  

                                                

                                           7  However, the interpretation of the controlling statutes  

a mistake has been made . . . ."  

                                                                                          

and regulations is a legal question which we review de novo.8   "Whether the superior  

                                                                                         



court violated a party's due process rights is [also] a question of law, which we review  

de novo."9  



         6         See Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 50-51 (Alaska 2000).  



         7         Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (quoting                               John v.  



Baker , 30 P.3d 68, 71 (Alaska 2001)) (internal quotation marks omitted).  



         8        Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety , 91 P.3d  



240, 244 (2004) (citing  Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska  

2003)).  



         9  

                                   

                  McCarrey v. Kaylor , 301 P.3d 559, 563 (Alaska 2013) (citing A.M. v. State ,  

945 P.2d 296, 302 (Alaska 1997)).  



                                                          -5-                                                    6966
  


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

IV.	       DISCUSSION  



           A.	       Federal  Law  Now  Governs  AWHA's  Definition  Of  "Professional  

                     Employee."  



                                                                                              

                     AWHA requires an employer to pay overtime compensation "at the rate of  



                            

one and one-half times the regular rate of pay" for hours worked in excess of eight hours  



                                               10  

per day or 40 hours per week.                      But this requirement does not apply to the employer of  



"an individual . . . employed in a bona fide executive, administrative, or professional  

capacity."11  



                                         

                     In  Dayhoff  v.  Temsco  Helicopters,  Inc.  we  adopted  a  four-part  test  to  



                                                                                                       12  

                                                                                                                       

determine whether an employee was a "professional employee."                                               Under Dayhoff , an  



                                               

employee was considered an exempt professional if "1) the employee's primary duty is  



                                                                                                    

to perform work requiring knowledge of advanced type, 2) the work requires consistent  



                   

exercise of discretion, 3) the work [is] predominantly intellectual and varied, and 4) the  

                                                             13   These factors were based on the definition of  

                                                                                         

work [is] compensated on a fee basis."  

"professional employee" then found in the Alaska Administrative Code.14  



                     In 2005, however, the Alaska Legislature amended AWHA to adopt the  



                                                                          15  

federal definition of "professional employee."                                The federal definition itself had been  



           10        AS 23.10.060(b).
  



           11        AS 23.10.055(a)(9)(A).  
 



           12        848 P.2d 1367, 1371 (Alaska 1993).
  



           13        Id .
  



           14        Id . (citing 8 Alaska Administrative Code (AAC) 15.910(a)(11) (1993)).  



           15        Ch.   90,     2,   SLA   2005  (adding  subsection  (c)   to  AS  23.10.055  and  



explaining that " 'bona fide executive, administrative, or professional capacity' has the   

meaning and shall be interpreted in accordance with 29 U.S.C. 201-219 (Fair Labor           

                                                                                                                    (continued...)  



                                                                  -6-	                                                           6966
  


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

amended in 2004, and the 2004 amendments provide additional interpretive guidance,  

even for the parts of the definition that appear facially similar to the Dayhoff factors.16  



                                               

However, the amended federal regulation differs significantly from the first Dayhoff  



factor.  While the regulation defines a professional employee as one whose "primary  



                                                                                            

duty is the performance of work . . . [r]equiring knowledge of an advanced type in a field  



                                                                                          

of science or learning," it clarifies that this knowledge must be "customarily acquired by  

a prolonged course of specialized intellectual instruction."17  



                   Most importantly for this case, the federal regulation provides a detailed  



                                                                        

explanation of the phrase "customarily acquired by a prolonged course of specialized  



intellectual instruction":  



                   The phrase "customarily acquired by a prolonged course of  

                                                                                        

                   specialized intellectual instruction" restricts the exemption to  

                   professions   where   specialized   academic   training   is   a  

                   standard prerequisite for entrance into the profession .  The  

                   best  prima  facie  evidence  that  an  employee  meets  this  

                   requirement is possession of the appropriate academic degree.  

                   However, the word "customarily" means that the exemption  

                                                                                

                   is also available to employees in such professions who have  

                   substantially        the    same      knowledge          level     and     perform  

                   substantially the same work as the degreed employees, but  

                                                              



          15(...continued)  



Standards Act of 1938), as amended, or the regulations adopted under those sections.").  

                                                      



          16       See Defining and Delimiting the Exemptions for Executive, Administrative,  



Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,265-66  

                     

(Apr. 23, 2004).  Like the second Dayhoff factor, the work must include tasks "requiring  

          

the consistent exercise of discretion and judgment."  29 C.F.R.  541.301(b) (2014).  

Like  the  third  Dayhoff              factor,  the  work  must  be  "predominantly  intellectual  in  

                                                                                                        

character."     Id.      And   like   the   fourth   Dayhoff   factor,   the   employee   must   be  

                                                                                        

"[c]ompensated on a salary or fee basis."  29 C.F.R.  541.300 (2014).  



          17       29 C.F.R.  541.300(a)(2).  



                                                            -7-                                                      6966
  


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

                   who attained the advanced knowledge through a combination  

                                                                          

                    of work experience and intellectual instruction.  Thus, for  

                    example, the learned professional exemption is available to  

                   the occasional lawyer who has not gone to law school, or the  

                                                                 

                                                                       

                    occasional chemist who is not the possessor of a degree in  

                    chemistry.  However, the learned professional exemption is  

                                                     

                   not  available  for  occupations  that  customarily  may  be  

                          

                   performed with only the general knowledge acquired by an  

                    academic  degree  in  any  field,  with  knowledge  acquired  

                   through        an     apprenticeship,          or    with      training      in    the  

                                 

                   performance   of   routine   mental,   manual,   mechanical   or  

                                             

                   physical processes.  The learned professional exemption also  

                    does not apply to occupations in which most employees have  

                                                                

                    acquired their skill by experience rather than by advanced  

                                                                      [18] 

                    specialized intellectual instruction.  



                                                                                                     

                   This definition of "work . . . [r]equiring knowledge of an advanced type  



                                                                            

. . . customarily acquired by a prolonged course of specialized intellectual instruction"  



is narrower than the definition  we used in Era Aviation, Inc. v. Lindfors , where we  



                                                                              

upheld a jury's finding that a commercial airline pilot was an exempt professional based  



                                                                                      19  

on  her  "hundreds  of  hours  of  training"  and  flying  time.                            As  the  2004  regulatory  



                             

amendment makes clear, the professional exemption is "restrict[ed] . . . to professions  



where  specialized  academic  training  is  a  standard  prerequisite  for  entrance  into  the  

profession."20  



          18       29 C.F.R.  541.301(d).  



          19        17 P.3d 40, 50-51 (Alaska 2000).  



          20       29  C.F.R.    541.301(d)  (emphasis  added).    In   contrast,  the  pre-2004  



regulation was  less definite,  stating t  hat  "the word 'customarily' implies that in the vast  

majority of cases   .   .   .   specific   academic  training  is   a  prerequisite   for   entrance  into the  

field."  29 C.F.R.  541.301(d) (2003) (emphasis added).  



                                                             -8-                                                       6966
  


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

                                      

                   Because the federal definition of "professional employee" differs from the  



state regulation that informed our Dayhoff analysis, the four-part Dayhoff test no longer  



controls whether an employee is an exempt professional under AWHA.  Instead, trial  



                                                                         

courts should look to 29 C.F.R.  541.300  and  .301 in making this determination.  



Specifically, they should apply the "primary duty test" of  541.300 and .301, paying  



special attention to the clarifications provided by  541.301(b) through (f).  



                                                               

                   In this case, the superior court correctly recognized that Alaska now relies  



on 29 C.F.R.  541.300 and .301 to determine whether the professional exemption  



applies to an AWHA claim.   But the court incorrectly paraphrased  541.301(d) as  



follows:  



                                                  

                   The requirement that the knowledge be customarily acquired  

                                                                               

                   through prolonged specialized instruction generally restricts  

                                                               

                   the exemption to fields where specialized academic training  

                   is a prerequisite.  However, the word "customarily" broadens  

                   the exemption such that it may also apply to professions that  

                   have "substantially the same knowledge level and perform  

                   substantially the same work as the degreed employees, but  

                   who attained the advanced knowledge through a combination  

                                                                                       [21] 

                   of work experience and intellectual instruction."  



Using this formulation and continuing to apply the Dayhoff  factors, the superior court  



                            

concluded that the required credentials of a lodge pilot like Moody were similar to the  

credentials of pilots in cases where those pilots have been found to be exempt.22  



                                                                                                            

                   But all of these cases preceded the amendment to 29 C.F.R.  541.301 in  



                                                                                       

2004. And contrary to the superior court's determination, the word "customarily" in the  



          21       Emphasis added and citations omitted.  



         22        See   Era   Aviation,  Inc.  v.  Lindfors,  17  P.3d  40  (Alaska  2000); Paul  v.  



Petroleum Equip. Tools Co. , 708 F.2d 168 (5th Cir. 1983);                          Kitty Hawk Air Cargo, Inc.  

v. Chao, 304 F. Supp. 2d 897 (N.D. Tex. 2004).  



                                                           -9-                                                        6966  


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

                                                                                                      

primary duty test does not broaden the exemption to include entire professions  where  



                                                                                                    

advanced training - but not academic or intellectual instruction - is required.  Instead,  



"customarily" broadens the exemption only to individual employees who lack specialized  



academic training but nevertheless work in professions where such training is "a standard  

prerequisite for entrance into the profession."23  The regulation provides as examples "the  



                                                                 

occasional lawyer who has not gone to law school, or the occasional chemist who is not  



                                                           24  

                                                                                       

the possessor of a degree in chemistry."                       Both examples involve professions in which  



specialized  academic  instruction  is  generally  required.    Incorrectly  paraphrasing    



541.301(d) led to the application of the wrong legal standard.  



                                                                                                     

                    Since the 2004 amendment of 29 C.F.R.  541.301(d), every federal court  



considering whether pilots fall within the professional exemption has concluded that they  



do not, because commercial piloting does not require specialized academic training as  



                                    25  

                                        In Pignataro v. Port Authority , the Third Circuit Court of  

a standard prerequisite. 



                                                                                                            

Appeals upheld a trial court's determination that helicopter pilots did not qualify for the  



                                                                                             26  

professional  exemption  under  the  Fair  Labor  Standards  Act.                                  The  appellate  court  



          23        29 C.F.R.  541.301(d) (2014).  



          24        Id.  



          25        Pignataro v. Port Auth. , 593 F.3d 265, 269-71 (3d Cir. 2010);                            McCoy v. N.  



Slope Borough, Docket No. 3:13-CV-00064-SLG, 2013 WL 4510780, at *1, 6-8 (D.  

Alaska Aug. 26, 2013); Howard v. Port Auth. , 684 F. Supp. 2d 409, 415 (S.D.N.Y.  

            

2010).    The  Second  Circuit  recently  commented  in  dicta  that  "even  experienced  

professionals,  from  airline  pilots  to  surgeons,  utilize  checklists  and  standardized  

protocols."  Pippins v. KPMG, LLP , 759 F.3d 235, 247 n.4 (2d Cir. 2014).  But the issue  

                                                                                                   

of whether pilots were professional employees under  541.300 and .301 was not before  

                                                     

the appellate court.  



          26  

                           

                    593  F.3d  at  269-71  (alteration  in  original)  (citations  omitted)  (internal  

quotation marks omitted).  



                                                             -10-                                                        6966
  


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

acknowledged the significant credentials required to become a Port Authority helicopter  



                                                                                                       

pilot:  2,000 hours of flying time, a commercial helicopter pilot certificate, a second class  



medical certificate, knowledge of the FAA's rules and regulations, and a high school  



                        27  

                                                                                     

diploma or GED.             But critically, none of those credentials involved the attainment of  



an advanced academic degree - the "pilots' knowledge and skills were acquired through  

experience and supervised training as opposed to intellectual, academic instruction."28  



                                                         

For this reason, the court concluded that the pilots were "not 'learned professionals' and  

. . . not exempt from the provisions of the [Fair Labor Standards Act]."29  



                                    

                   In Howard v. Port Authority , which also involved Port Authority helicopter  



pilots, the federal district court adopted  Pignataro 's reasoning and found that "Port  



                                                      

Authority helicopter pilots obtain the required advanced knowledge primarily through  

experience rather than academic study."30  



                   And in McCoy v. North Slope Borough , the federal district court determined  



                                                                                                              31 

                                                                                                                  Much  

that North Slope Borough search and rescue pilots are not exempt professionals. 



like  the  helicopter  pilots  in  Pignataro ,  the  pilots  in  McCoy  were  required  to  have  



extensive  credentials,  including  an  airline  transport  license,  a  first  class  medical  



certificate,  and  3,000  hours  of  flight  time  (including  500  hours  in  remote  or  arctic  



         27        Id. at 269.
  



         28        Id. at 270.
  



         29        Id.
  



         30        684 F. Supp. 2d at 415.  



         31        Docket No. 3:13-CV-00064-SLG, 2013 WL 4510780, at *1, 6-8 (D. Alaska  



Aug. 26, 2013).  



                                                          -11-                                                    6966
  


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

           32  

areas).        But while the pilots' training was both specialized and prolonged, it was "not  

                                                 

a course of specialized intellectual instruction akin to an academic degree."33  



                                                                                       

                     The United States Department of Labor, which promulgated 29 C.F.R.   



                                                                  

541.300 and .301, also takes the position that pilots are not professional employees.  As  



                                                                         

early as 1975, the Department concluded that aviation is not "work requiring knowledge  



                                                    

of an advanced type in a field of science or learning customarily acquired by a prolonged  



                                                                                         34  

                                                                                             The Department maintained  

course of specialized intellectual instruction and study." 

this position in its comments accompanying the amendment to  541.301 in 2004.35  And  

                                                                                               



it reiterated this view in a 2009 Wage and Hour Opinion Letter sent to an employer of  

                                           

pilots holding airline transport and commercial licenses.36  



                     We agree with the analysis in Pignataro , Howard , and McCoy .  Under the  

                                                                                                                          



primary duty test of 29 C.F.R.  541.300 and .301, Moody is not eligible for AWHA's  

                                                                                                         



professional exemption.  We acknowledge the superior court's findings that Royal Wolf  



Lodge  requires  its  pilots  to  have  commercial  pilot  licenses,  to  comply  with  the  



requirements  of  14  C.F.R.    135.61-.129,  and  to  pass  written  and  oral  tests  



demonstrating their knowledge of FAA rules.  And we note Chris Branham's assertion  

                                 



           32        Id. at *1.  



           33        Id. at *8 (emphasis in original).  



           34        Dep't of Labor Wage and Hour Opinion Letter WH-303 (Jan. 20, 1975)                                    



(internal quotation marks omitted).  



           35        Defining and Delimiting the Exemptions for Executive, Administrative,  

                                                               

Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,156 (Apr. 23,  

2004) (noting also that pilots employed by commercial airlines are exempt from overtime  

under a different section of the Fair Labor Standards Act).  



           36        Dep't of Labor Wage and Hour Opinion Letter FLSA 2009-6 (Jan. 14,  

                                                                                          

2009).  



                                                                  -12-                                                            6966
  


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

                                                                                                   

that he would only consider hiring pilots with at least 1,500 hours of total flying time.  



But none of these requirements involves "specialized intellectual instruction" as required  



by the federal regulations.  



                   It  is  true  that  Moody  had  additional  credentials  and  experience  that  



exceeded Royal Wolf Lodge's hiring requirements.  But the relevant determination is not  



whether Moody personally acquired specialized intellectual instruction, but whether that  



                  

instruction  is a standard prerequisite for entrance into the aviation profession.   The  



                     

record in this case shows that piloting - even commercial piloting - does not generally  



require academic training.  Therefore we cannot say that the "primary duty" of a pilot  



such as Moody requires "knowledge of an advanced type . . . customarily acquired by  

a prolonged course of specialized intellectual instruction."37  



                                                                         

                   Because Moody was not an exempt employee under AWHA, we remand  



                                                                    

for  further  proceedings  on  whether  Moody  in  fact  worked  overtime  as  defined  by  



                                                                                                                            38  

                                                                                                

AS 23.10.060 and whether he is entitled to recover compensation for unpaid overtime. 



                                                                                                   

          B.	       The Superior Court's Determination That Moody Took No Days Off  

                                                      

                   And Was Entitled To Contract Damages Was Not Clearly Erroneous.  



                   Although the superior court rejected Moody's AWHA claim, it nevertheless  



awarded him contract damages.  After reviewing extensive oral testimony from witnesses  



and documentary evidence from both sides, the superior court found:  



                                                                

                    The 2006 and 2007 contracts, when considered together and  

                        

                   in relation to the 2005 contract, provide guidance as to the  

                                                                                     

                   intent of the parties. The intent of the parties was that Moody  



          37       29 C.F.R.  541.300(a)(2) (2014).  



          38       Royal  Wolf  Lodge  claims  the  superior  court  found  that  Moody  never  



worked more than 40 hours per week. But the superior court merely disclaimed a factual  

                                                                                        

finding on the issue, stating, "I did not find that Moody actually worked over 40 hours  

                                                                       

a week."  We conclude that this issue remains unresolved.  



                                                            -13-	                                                      6966
  


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

                                                                                           

                    would be paid an agreed upon sum per month for a 30 day  

                                                             

                    period and that his contract did not contemplate any overtime  

                    for any work done in that 30 day period. . . .  



But the court also noted that the 2006 and 2007 contracts stated that "[o]ne day off a  



                                                                                                   

week is provided, or accumulated for time off" and that Moody's salary was "based on  



                                                               

30 days per month; or pro rated per day."  Relying on Moody's work records, which the  



                                                                         

court found to be more credible than Royal Wolf Lodge's documents, the superior court  



                                                                             

determined that Moody took no days off during the 2006 and 2007 seasons.  As a result,  



it  awarded  him  contract  damages  for  his  unpaid  work  on  the  31st  days  of  July  and  



August and on the seventh day of each week of both seasons.  



                    Royal Wolf Lodge does not challenge the court's interpretation of Moody's  



employment  contracts,  but  it  argues  that  the  superior  court  clearly  erred  in  finding  

Moody took no days off during the 2006 and 2007 seasons.39  



                                                                 

                    First, Royal Wolf Lodge cites its employees' testimony that Moody did not  



                                                                                                      

work over 40 hours per week and that he did not contribute to tasks other than piloting  



                                                                        

and maintaining his aircraft.  But this testimony concerns only the total number of hours  



                                                                                              

Moody worked each week and whether he engaged in general maintenance work at the  



lodge.  It provides no insight into which days Moody worked.  



                                                              

                    Second, Royal Wolf Lodge argues that the superior court gave insufficient  



                                                                                                                   

consideration to Chris Branham's  post-decision affidavit, which attested that there were  



                                                           

"days [Moody] did not fly at all."  But this untimely affidavit was submitted more than  



five months after the superior court's decision.  Because Royal Wolf Lodge did not  



          39  

                                                                         

                    While Royal Wolf Lodge argues in its briefing that Moody took "days" off  

                                                                                          

in 2006 and 2007, it conceded at oral argument that, with the exception of June 26, 2006,  

Moody worked every disputed day.  



                                                             -14-                                                            6966  


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

                                                                                                                 40 

                                 

submit this affidavit in conjunction with an Alaska Civil Rule 60(b) claim,                                         the superior  



                                                                  

court was under no obligation to consider this new evidence after it issued its decision.  



We decline to credit the document now.  



                                                                                             

                     Finally, Royal Wolf Lodge points to Moody's testimony that he flew zero  



                                                                                           

hours on June 26, 2006.  But in his testimony, Moody did not admit taking the day off;  



he merely acknowledged that his work that day did not involve flying.  Moody further  



                          

testified that he worked 11 hours on June 26.  Even Royal Wolf Lodge's log records,  



                                                            

while contradicting Moody's claim as to the number of hours, state that he worked two  



hours that day.  



                                                                   

                     For these reasons, we find no clear error in the superior court's finding that  



                                          

Moody worked every day during the 2006 and 2007 seasons.  We affirm the superior  

court's award of contract damages.41  



          C.	        The Superior Court Did Not Violate Royal Wolf Lodge's Due Process  

                     Rights When It Determined That Moody Was Entitled To Contract  

                     Damages.  



                                          

                     Royal  Wolf  Lodge  argues  it  did  not  receive  adequate  notice  that  the  



superior court could award contract damages because Moody pled his overtime claim  



solely under AWHA.  



                                 

                     A  trial  court  violates  due  process  if  it  does  not  provide  a  party  with  



                                                             

adequate notice and an opportunity to be heard on the claims addressed by the court's  



          40         The affidavit was attached to a post-judgment brief concerning attorney's     



fees.  



          41         If  on  remand  the  superior  court  determines  that  Moody  is  entitled  to  

                                                                 

damages under AWHA, the court may need to reconsider whether contract damages  

remain appropriate given the possibility of a double recovery.  



                                                                -15-	                                                         6966
  


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

              42  

                                                

decision.         "[T]he due process analysis is a flexible and contextual one focusing on the  



                                                                                                  

interest and not the outcome, [but] there must be some actual prejudice . . . and not  



                                                                           43  

                                                                                                        

merely the 'theoretical possibility of prejudice.' "                            Therefore, "[a] the party raising a  



                                                                      

due process objection must show that it has suffered actual prejudice, even in a case  

where the notice is clearly inadequate.44  



                    Although Moody pled no contract claims in his complaint, Royal Wolf  



Lodge put Moody's employment contracts at issue by raising their interpretation and  



                                                                                                               

application as a defense against Moody's AWHA claim.  Moreover, at oral argument  



                                                                            

before this court, Royal Wolf Lodge conceded it would not have litigated the case any  



                                         

differently had it received prior notice that Moody could be awarded contract damages.  



                                                                                

Royal Wolf Lodge thus did not suffer any prejudice from the court's decision to award  



Moody contract damages, and we conclude that the superior court's decision did not  



violate due process.  



V.        CONCLUSION  



                                                                                                 

                    We REVERSE the determination that Moody was an exempt professional  



                                                                

employee under AWHA and REMAND  for further proceedings.  We VACATE the  



          42        Price v. Eastham          , 75 P.3d 1051, 1056 (Alaska 2003);                     Cushing v. Painter,  



666 P.2d 1044, 1046 (Alaska 1983) (reversing a custody decision because the parties  

were not given adequate notice that the court would make a final custody award after an  

                                                                                                  

interim custody hearing).  



          43        Paula E. v. State, Dep't of Health & Soc. Servs ., Office of Children's Servs.,  

                                   

276 P.3d 422, 433 (Alaska 2012) (citations omitted) (quoting D.M. v. State, Div. of  

                                                                                                                         

Family & Youth Servs. , 995 P.2d 205, 212 (Alaska 2000)).  



          44        See id. (applying Mathews v. Eldridge , 424 U.S. 319, 334-35 (1976)).  



                                                              -16-                                                         6966
  


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

superior court's orders declaring Moody to be the prevailing party and awarding him  

                                                                                                               



                        45  

attorney's  fees.           We AFFIRM the superior court's decision on all remaining issues.  



          45  

                                                                     

                    Because the merits of Moody's AWHA claim remain unresolved, we need  

not reach these issues.  



                                                              -17-                                                             6966  

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