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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Capolicchio v. Levy (10/16/2008) sp-6318
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
| MARIO CAPOLICCHIO, | ) |
| ) Supreme Court No. S- 12475 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1KE-04-0276 CI |
| ) | |
| KEN LEVY, KETCHIKAN POLICE | ) |
| DEPARTMENT, CITY OF | ) |
| KETCHIKAN, | ) O P I N I O N |
| ) | |
| Appellees. | ) No. 6318 - October 16, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Fred W. Triem, Petersburg, for
Appellant. Carmen E. Clark, Ingaldson
Maassen & Fitzgerald, P.C., Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. A pro se litigant filed a lawsuit against the manager
of a homeless shelter, alleging that the manager discriminated
against him when the manager excluded him from the shelter. The
litigant also filed a lawsuit against the city and local police
department for misconduct and harassment; the two lawsuits were
consolidated. The superior court granted the city and police
departments motion to dismiss and later granted the shelter
managers motion for summary judgment. The plaintiff appeals,
arguing that the superior court erred by granting summary
judgment in favor of the shelter manager, by accepting a late-
filed motion for attorneys fees, and by granting attorneys fees
to the shelter manager without requiring an itemized billing
statement or description of the work performed. Because the
decision to grant summary judgment was not in error, the motion
for attorneys fees was not late, and the failure to require
itemized billing was at most harmless error, we affirm the order
granting summary judgment and the award of attorneys fees.
II. FACTS AND PROCEEDINGS
A. Facts
Mario Capolicchio arrived at the Ketchikan homeless
shelter, Park Avenue Temporary Home (PATH), on July 20, 2003.
The manager of the shelter, Ken Levy, informed him of the
prohibitions against alcohol consumption and misconduct.
Capolicchio signed an agreement to abide by shelter rules while
he stayed there. The agreement included a warning that any
infringement of shelter rules would result in removal from the
shelter; it stated that [a]nyone under the influence of alcohol
or drugs may be refused entry to the shelter.
Capolicchio stayed at the shelter from July 20 to July
23 without incident. However, according to Levys affidavit, when
he came to check in on July 24, 2003, it was clear that he had
been drinking alcohol. That in itself was a problem, but the
real problem was his behavior. Levy stated that Capolicchio
became angry and violent and was ranting about a communist take-
over. Capolicchio began screaming and yelling obscenities and
threatening remarks. After Levy warned Capolicchio that he could
not act that way at the shelter, Capolicchios behavior continued.
Levy felt threatened, so he called the police. When the police
arrived, Capolicchios behavior continued to escalate, and,
according to Levy, he became physically combative. The officers
arrested him.
B. Proceedings
Capolicchio, acting pro se, filed two documents with
the Ketchikan Superior Court in early June 2004. One, entitled
Motion for Injunction, sought relief for discrimination/prejudism
[sic] by employees - manager Ken Levy, or clients at P.A.T.H.
The other, entitled Motion for Injunction Relief requested that
the court restrain the Ketchikan City Police Dept. from
misconduct and/or harrassment [sic] of an honest, naturalized
citizen, said plaintiff: Mario Capolicchio. The clerks office
treated the two documents as complaints and consolidated them
into one case. The case was assigned to Superior Court Judge
Michael A. Thompson. While the complaints were consolidated,
subsequent filings tended to address the claims against the city
and the police department, on the one hand, and claims against
Levy, on the other, distinctly. Accordingly, the procedural
history of the case against the police department and the city is
distinguished in this section from the procedural history of the
case against Levy.
1. Case against the police department and the city
In his complaint, Capolicchio did not identify the
specific police conduct that he considered misconduct. He also
did not allege any basis for his claim of discrimination, such
as race, disability or membership in another protected class, nor
did he state that he is a member of a protected class. The
Ketchikan Police Department and the City of Ketchikan (Ketchikan)
did not answer the complaints, but filed an Alaska Civil Rule
12(b) and 12(c) motion to dismiss. Capolicchio responded to
Ketchikans motion by filing a document requesting an extension of
time and a hearing to determine merit for this case. This
document did not fully explain the basis for his claim, but it
did state that the last time Capolicchio was in the police
station, officers told him that they were to[o] busy and . . .
have things to do. After a series of extensions, Capolicchio
eventually responded to Ketchikans motion to dismiss.
Capolicchios response reiterated that the last time Capolicchio
was in the police station he was told that officers were too busy
to assist him. The superior court granted Ketchikans motion and
dismissed Capolicchios case against the city and the police
department. Capolicchio then filed a document entitled Reply to
Dismissal. Noting that the certificate of service accompanying
this document included the Apellate [sic] Court for the state of
AK, Judge Thompson issued an order inquiring of Capolicchio
whether he wished to stay proceeding against Levy while the
dismissal of the case was appealed. Capolicchio replied in the
affirmative.
2. Case against Levy
Capolicchios complaint against Levy, like his complaint
against the city, did not allege any basis for his claim of
discrimination, such as race, disability, or membership in
another protected class. Again, he did not state that he is a
member of a protected class. In June 2004 Ken Levy, acting pro
se, filed a letter with the court in response to Capolicchios
allegations in his Motion for Injunction. Levys letter stated,
Mr. Capolicchio was under the influ[e]nce of alcohol when I
refused him entry into our shelter. It had nothing to do with
race, or religion. In July Capolicchio filed a document with
the court requesting a formal hearing be granted to determine
merit for this case and to explic[i]tly instruct the shelter Mng.
Mr. Ken Levy to give a reasonable explanation why I have been
refused accommodation to the public shelter. In September
Capolicchio filed another document with the court describing his
claim against Levy:
Regarding discrimination: Mng. Mr.
Kenneth Levy. Ac[t]ually, absolutely
and effectively accused me of being
under the influence of alcohol, when I
was not nor intoxicated, as a pretext
for barring me from the PATH, public
facility. Previously when the local
city government acted as mediator to
enter the PATH, Mr. Ken Levy as typical
claimed he has no space, the[n] when my
name was given he say absolutely no:
Reason, it seemed a paradox, I called
someone a communist. Next to a
religious leader he said: Thing didnt
work! Then to a local reporter he said:
Im an alcoholic. This is injustice.
That same day Capolicchio also filed a Reply to
Dismissal, in which he stated that he believed the local police
discriminated against him as a newcomer . . . only from the
continental U.S. This is the only assertion of a basis for
discrimination against him in any of the documents Capolicchio
filed with the court. In this document he also suggested that he
has some language difficulties, although that is not asserted to
have been a reason for the appellees alleged discrimination.
Capolicchios final filing in this case, before it was dismissed
as to all parties for lack of prosecution, was his affirmative
response noted above to the superior courts request for
clarification as to whether he intended that proceedings against
Levy be stayed while he appealed the dismissal of his suit
against Ketchikan. In that response, Capolicchio did not assert
any basis for Levys alleged discrimination against him.
Capolicchio took no steps to perfect an appeal. No further
action appears in the record on Capolicchios claims against Levy
until 2006.
In January 2006 the court clerks office dismissed the
case as the result of the passage of one year with no activity in
the file. Capolicchio filed a motion for continuation and
reopen, in which he sought to undo the clerks action. Judge
Thompson ordered the case reinstated to the active list in March.
Levy acquired legal counsel and moved for summary
judgment in July 2006. Capolicchio did not respond to the
motion for summary judgment, and the superior court did not
inform Capolicchio of his right to respond. In August the court
granted Levys motion for summary judgment, there being no
opposition thereto, for reasons stated in Levys motion. Levy
submitted a proposed final judgment approximately two months
later. In November the court issued a preliminary Unopposed
Final Judgment using the form Levy submitted. Levy filed a
motion for attorneys fees, an affidavit of counsel concerning
fees and costs, and a bill of costs. Capolicchio opposed the
motion for attorneys fees. The superior court awarded attorneys
fees in the amount of $488.20 and costs in the amount of $198.35,
for a total judgment of $686.55.
After the superior court granted summary judgment in
favor of Levy, but before final judgment was entered by the
court, Capolicchio prematurely filed a notice of appeal.1 On
appeal, Capolicchio is represented by counsel.
III. STANDARD OF REVIEW
I. We review an award of summary judgment de novo.2 We will
affirm only if there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.3
When making this determination we draw all reasonable inferences
in favor of the non-moving party.4
We review a superior courts Civil Rule 82 award of
attorneys fees under the abuse of discretion standard, and will
disturb the award only if it is manifestly unreasonable.5
IV. DISCUSSION
A. The Superior Court Had No Duty To Advise Capolicchio To File
an Opposition to Levys Motion for Summary Judgment.
Capolicchio argues that the superior court erred by
failing to advise him of the need to file an opposition to Levys
motion for summary judgment. He argues that under Breck v. Ulmer6
courts hold pro se litigants to a more lenient pleading standard
and that the superior court has a duty to warn a pro se litigant
before dismissing a case without a trial. He contends the
superior court breached that duty when it failed to warn
Capolicchio before dismissing his claim on summary judgment.
Levy responds that the superior court had no duty to advise
Capolicchio of the proper procedures for perfecting an opposition
because Capolicchio failed to file any response to the motion for
summary judgment. Levy argues that Bauman v. State, Division of
Family & Youth Services,7 rather than Breck, controls this case.
Breck involved a lawsuit by a pro se litigant, Betty
Breck, against Juneau Assembly members concerning the bid process
for construction of Juneaus municipal parking garage.8 The
assembly members filed a motion for summary judgment, and Breck
responded with an opposition and her individual affidavit.9 The
superior court did not inform Breck of any curable deficiency in
her response, and granted summary judgment in favor of the
assembly members on the basis of legislative immunity.10 Breck
appealed.11 We held that pleadings of pro se litigants should be
held to less stringent standards than those of lawyers12 and that
the trial judge should inform a pro se litigant of the proper
procedure for the action he or she is obviously attempting to
accomplish, Breck should have been advised of the necessity of
submitting competent affidavits to preclude summary judgment.13
Two years later, we decided Bauman, which involved a
pro se lawsuit by parents and their child concerning a state
investigation of alleged sexual abuse.14 In the superior court,
the state filed a motion for summary judgment, which the
plaintiffs did not oppose.15 The superior court granted the
states motion, providing no written reasons other than the
comment unopposed which [was] handwritten on the order granting
summary judgment.16 On appeal, the plaintiffs argued that the
superior court erred in granting an unopposed motion for summary
judgment against them as pro se litigants without first notifying
them of the requirements of the summary judgment rules.17 We
decline[d] to extend Breck to require judges to warn pro se
litigants on aspects of procedure when the pro se litigant has
failed to at least file a defective pleading, and held that the
superior court was under no duty to warn the [plaintiffs] of the
necessity of opposing the defendants motion for summary judgment.18
We focused on the pro se litigants duty rather than the duty of
the superior court judge:
It strikes us as common knowledge that
initiating and pursuing a civil lawsuit
can be a difficult and complex
procedure. The Alaska Rules of Civil
Procedure have been promulgated for the
specific purpose of giving fair and
reasonable notice to all parties of the
appropriate procedural standards that
should be uniformly applied when any
party, including a pro se litigant,
seeks relief in the pending action. A
pro se litigant who wants to initiate
such an action should familiarize
himself or herself with the rules of
procedure . . . . To require a judge to
instruct a pro se litigant as to each
step in litigating a claim would
compromise the courts impartiality in
deciding the case by forcing the judge
to act as an advocate for one side.[19]
The present case clearly falls under the Bauman rule
that the superior court is not required to notify a pro se
litigant of his right to file an opposition to a motion for
summary judgment where the litigant has filed nothing. Here, as
in Bauman, the superior court focused partly on the fact that
Capolicchio filed no opposition to Levys summary judgment motion.
Had Capolicchio filed a defective opposition, the Breck rule
would have imposed a requirement on the superior court to notify
him of the defect and the means to cure it.20 However, because
Capolicchio filed no opposition at all, he was not entitled to
notification of the proper procedure to defend against the
summary judgment motion.
In sum, under Bauman, the superior court did not err in
failing to warn Capolicchio of the need to file an opposition to
Levys summary judgment motion.21
B. The Superior Court Did Not Grant Summary Judgment in Favor
of Levy on the Sole Basis that Levys Motion Was Unopposed.
Capolicchio argues that the superior court acted
improperly when it granted Levys motion for summary judgment
solely because it was unopposed. However, the superior courts
order granting summary judgment states: Having considered
defendant Ken Levys motion for summary judgment, and there being
no opposition thereto, for reasons stated in Levys motion the
Court grants summary judgment in favor of Levy and against Mario
Capolicchio. (Emphasis added.)
According to Civil Rule 56(e), if an adverse party does
not respond to a summary judgment motion, summary judgment should
be granted against the adverse party if appropriate. Summary
judgment is appropriate if the movant first establishes a prima
facia case showing that there is an absence of a factual dispute
on a material fact and that this absence of a dispute constitutes
a failure of proof on an essential element.22 In Rockstad v.
Erikson, we stated that a movant does not have a right to summary
judgment merely because the non-moving party fails to respond,
and the superior court retains some degree of discretion in
deciding whether to grant summary judgment in cases where there
is no response to the filing of the summary judgment motion.23
Thus, while a superior court is not required to grant an
unopposed motion for summary judgment, it has discretion to grant
such a motion if it determines that the movant has established a
prima facie case for summary judgment.
The language of the superior courts written order
indicates that the court did not grant summary judgment simply
because the motion was unopposed. Rather, the court granted
summary judgment for reasons stated in Levys motion. Levy
showed, in his motion for summary judgment, that Capolicchios
various filings failed to present a genuine issue of material
fact as to the existence of a valid discrimination claim. Levy
pointed out in his motion that Capolicchio has not alleged, nor
are there any [] facts to support a finding[,] that he is a
member of a protected class and that discrimination occurred
because of his status in that class. Capolicchio presented no
evidence in the form of a sworn statement, and beyond that
deficiency, there is no allegation in his various filings that
creates a genuine issue of material fact regarding
discrimination.
A summary judgment movant is obligated to point to
undisputed facts or admissible evidence establishing a prima
facie case entitling the movant to judgment as a matter of law.
If the movant does not meet that burden, the movant is not
entitled to summary judgment even if the opposing party does
nothing.24 Here, Levys motion for summary judgment and the
accompanying affidavit coupled with Capolicchios failure to deny
Levys allegations established a lack of dispute as to whether
Capolicchio violated the conduct rules of the shelter, and as to
whether Levy evicted Capolicchio because of that violation.
Levys sworn affidavit affirms that Capolicchios conduct
violations went far beyond allegedly being intoxicated, and
included threatening and disruptive behavior and foul language.
Those facts entitle Levy to judgment as a matter of law, because
Capolicchio did not deny this behavior in any of his filings.
Further, he did not assert membership in any protected class that
would raise an inquiry into the disparate impact of the conduct
rules, such as disability.25 Because Capolicchios claim is for
injunctive relief, he had the burden of making a clear showing of
probable success on the merits in the absence of a showing of
irreparable harm to him.26 Having not specifically alleged in his
filings with the court that he did not violate a conduct rule or
that he is a member of a protected class, Capolicchio could not
succeed on the merits. Levys motion for summary judgment was
properly granted because Levy established a prima facie case that
he did not discriminate against Capolicchio. Thus, the superior
court did not err in granting Levys motion for summary judgment.
C. The Superior Courts Award of Summary Judgment Did Not
Deprive Capolicchio of His Right to Due Process and Trial by
Jury.
Capolicchio argues that the summary judgment procedure
is unconstitutional as applied to pro se litigants because it
deprives them of their day in court and of their right to trial
by jury. However, he cites no cases for the proposition that
summary judgment is unconstitutional, nor does he explain how it
deprived him of his rights under the due process clause of the
fourteenth amendment and the guarantee of the right to jury trial
of the seventh amendment of the United States Constitution, or
article I, sections 7 (due process) and 16 (trial by jury) of the
Alaska Constitution. Thus, Capolicchio has waived this argument.27
Even if Capolicchio had adequately briefed his claim,
it would still be without merit. In light of its history and
use, it is clear that summary judgment is not unconstitutional.
The United States Supreme Court has flatly stated that summary
judgment does not violate the Seventh Amendment.28 Capolicchios
argument that the summary judgment procedure violated his due
process rights is equally unpersuasive. We have routinely
affirmed use of the summary judgment procedure by the superior
courts, and have limited the procedure to cases in which the
pleadings and evidence show that there is no genuine issue as to
any material fact and that [the moving] party is entitled to a
judgment as a matter of law.29 This standard is adequate to
prevent the violation of a partys due process right or right to a
jury trial. Thus, the superior courts award of summary judgment
did not deprive Capolicchio of his constitutional rights.
D. The Superior Court Did Not Commit Reversible Error in
Awarding Civil Rule 82(b)(2) Attorneys Fees to Levy Without
Requiring Itemization of the Work Performed.
The superior court awarded Levy Civil Rule 82(b)(2)
attorneys fees in the amount of $488.20, which equals twenty
percent of Levys counsels stated actual fees ($2,441.00).
Capolicchio argues that the fee award should be vacated because
Levys motion was not accompanied by an itemized billing statement
or a statement to otherwise establish that the fees sought were
reasonable and necessarily incurred. Levy responds that the
superior court did not err when it applied the twenty percent
schedule set forth in Rule 82(b)(2) to actual attorneys fees.
Rule 82(b)(2) provides:
In cases in which the prevailing party
recovers no money judgment, the court shall
award the prevailing party in a case which
goes to trial 30 percent of the prevailing
partys reasonable actual attorneys fees which
were necessarily incurred, and shall award
the prevailing party in a case resolved
without trial 20 percent of its actual
attorneys fees which were necessarily
incurred.
We have explained that we will interfere with the trial courts
exercise of discretion under Rule 82 only when there is an abuse
of that discretion, which is established only where the
determination was manifestly unreasonable.30 Nonetheless, in
Hayes v. Xerox Corp., we stated, when counsel requests attorneys
fees, other than based on the schedule in Rule 82(a)(1), accurate
records of the hours expended and a brief description of the
services reflected by those hours should be submitted.31 And, in
Marron v. Stromstad, we held that where the rule authorizes
reasonable actual fees, a court may not award attorneys fees to a
party who has not itemized his or her requested fees, when the
opposing party has requested such itemization.32
Rule 82(b)(2) requires that the fees requested be
reasonable actual attorneys fees which were necessarily incurred.
Levys counsel submitted an affidavit, in which he summarized the
basis of the request for attorneys fees: Our firm spent a total
of 14.9 hours defending Ken Levy. 3.8 hours were spent by me, at
the rate of $175 per hour, for a cost of $665.00. An additional
11.1 hours was spent by another attorney in our office who billed
at the rate of $160 per hour for a cost of $1,776.00. The total
actual attorneys fees incurred were, thus, $2,441.00.
Capolicchio opposed the motion for attorneys fees, arguing that
without itemized time records and billing statements, he could
not fairly evaluate whether the fees requested were reasonable
actual attorneys fees which were necessarily incurred.
Capolicchio is correct that Marron requires an itemized billing
statement and that Levys counsel did not provide one. But here,
because the amount of attorneys fees was so low and the hours
Levys counsel expended on defending the case were so minimal, any
error in failing to order itemization was harmless: The superior
court could consider the fee request to be reasonable per se.33
Under such circumstance, we will not find reversible error in the
failure to require itemization.
E. The Superior Court Did Not Err by Entering Judgment and
Awarding Attorneys Fees to Levy Even Though his Request for
Judgment Did Not Follow the Timeline Established in Civil Rule
56(c).
Capolicchio argues that Levys two-month delay in
submitting his proposed judgment should be construed as a waiver
of his right to recover attorneys fees, which must be requested
within ten days of entry of final judgment. Levy responds that
the motion for attorneys fees was timely because he submitted it
within ten days of the actual final judgment.
Rule 82(c) states that a motion for attorneys fees must
be filed within 10 days after the date shown in the clerks
certificate of distribution on the judgment . . . . Failure to
move for attorneys fees within 10 days, or such additional time
as the court may allow, shall be construed as a waiver of the
partys right to recover attorneys fees. Rule 56(c) states: When
the decision adjudicates all unresolved claims as to all parties,
the judge shall direct the appropriate party to file a proposed
final judgment. The proposed judgment must be filed within 20
days of service of the decision . . . .
The superior court granted summary judgment in favor of
Levy on August 20, 2006, but the court did not direct any party
to prepare a final judgment form. Levy submitted a proposed
final judgment on October 24. The court issued the final
judgment in favor of Levy on November 13. Levy then filed for
attorneys fees on November 22, within the ten-day deadline of
Rule 82(c).
Capolicchios argument that Levys proposed judgment was
not filed within twenty days of the summary judgment order
overlooks the fact that the court never requested that Levy file
a proposed judgment as well as the fact that the superior court
has wide discretion in awarding attorneys fees. The court
accepted the proposed judgment and distributed the judgment on
November 13. Thus, it was well within the courts discretion to
grant attorneys fees pursuant to the motion filed less than ten
days after November 13.
V. CONCLUSION
Because (1) the superior court was under no duty to
inform Capolicchio of the need to file an opposition to the
summary judgment motion, (2) the superior court did not grant
summary judgment merely because the motion was unopposed, and (3)
summary judgment did not unconstitutionally deprive Capolicchio
of his rights to due process and jury trial, we AFFIRM the
superior courts order granting summary judgment in favor of Levy.
Because the motion for attorneys fees was timely and the superior
courts decision not to require an itemized billing statement was
at most harmless error, we AFFIRM the award of attorneys fees.
_______________________________
1 After Capolicchios case against Ketchikan was
dismissed, Capolicchio filed two additional documents with the
superior court, and apparently mailed the documents to Apellate
[sic] Court for the State of AK. However, Capolicchio did not
mail the documents to the city or the police department, or
otherwise notify them of any appeal. On appeal, the record
reveals that Capolicchio has mailed materials only to counsel for
Levy. Ketchikan was not notified of the appeal, so Capolicchios
claims against Ketchikan are waived. See Alaska R. App. P. 204(h)
(Papers filed or served in the appeal must be served on all
parties, except appellees who have elected not to participate in
the action.); see also Vincent v. State, Commercial Fisheries
Entry Commn, 717 P.2d 391, 394 (Alaska 1986) (explaining that a
showing of prejudice due to improper filing can prevent hearing
of a case on the merits).
2 Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001) (citations omitted).
3 Id.
4 Id.
5 Walton v. Ramos Aasand & Co., 963 P.2d 1042, 1046 n.3
(Alaska 1998) (citations omitted).
6 745 P.2d 66 (Alaska 1987).
7 768 P.2d 1097 (Alaska 1989).
8 745 P.2d at 67-68.
9 Id. at 69, 74-75.
10 Id.
11 Id. at 69.
12 Id. at 75.
13 Id. Nevertheless, we then determined that the lower
courts failure to advise Breck was harmless because [t]he
evidence which she considers necessary was before the trial court
by reference in her opposition to the summary judgment motion and
that evidence was not sufficient to raise a genuine issue of fact
that would preclude summary judgment. Id.
14 Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1097-98 (Alaska 1989).
15 Id. at 1098.
16 Id.
17 Id.
18 Id. at 1099.
19 Id. We also recently affirmed a superior court grant
of summary judgment in a similar case involving the failure to
file an opposition, although our decision rested on the ground
that judgment against [the appellant] should be affirmed based on
his failure to appear for trial. Snyder v. Am. Legion Spenard
Post No. 28, 119 P.3d 996, 1002 (Alaska 2005).
20 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
21 In Breck, we concluded that the superior courts failure
to advise the pro se litigant was harmless because the evidence
sought to be included by the litigant was insufficient to create
a genuine issue of material fact. Id. Here, even if the
superior court had erred, such error would similarly be harmless
because Capolicchio failed to assert that Levy discriminated
against him based on race, disability, or membership in some
other protected class. See AS 18.80.210 (prohibiting
discrimination based on membership in a protected class). Thus,
any error by the superior court in failing to warn Capolicchio of
the need to file an opposition would have been harmless.
22 Bradley v. Klaes, 181 P.3d 169, 175 (Alaska 2008)
(quoting Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007)).
23 113 P.3d 1215, 1220 (Alaska 2005) (internal citations
and quotations omitted).
24 B.R. v. State, Dept. of Corrections, 144 P.3d 431, 433
(Alaska 2006) (citations omitted).
25 See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 54
n.7 (2003) (Both disparate-treatment and disparate-impact claims
are cognizable under the ADA.).
26 State, Div. of Elections v. Metcalfe, 110 P.3d 976,
978 (Alaska 2005) (citations omitted).
27 See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (where a point is given only a cursory statement
in the argument portion of a brief, the point will not be
considered on appeal); A.H. v. W.P., 896 P.2d 240, 243 (Alaska
1995) (extending Adamson rule to case involving pro se litigant).
28 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979)
(citing Fidelity & Deposit Co. v. United States, 187 U.S. 315,
319-21 (1902)).
29 Alaska R. Civ. P. 56(c); Moffatt v. Brown, 751 P.2d
939, 943 (Alaska 1988).
30 Norris v. Gatts, 738 P.2d 344, 356 (Alaska 1987).
31 718 P.2d 929, 939 (Alaska 1986) (citations omitted).
32 123 P.3d 992, 1014 (Alaska 2005).
33 Indeed, requiring a remand to require Levys counsel to
provide itemization would only create more unnecessary costs for
all parties.
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