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Municipality of Anchorage v. Dairy Queen (2/7/92), 823 P 2d 1248
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
ANCHORAGE, an Alaskan )
municipal corporation, )
Appellant, ) File No. S-4404
v. ) 3AN 86 13132 CI
DOROTHY BABINEC, as Executrix ) O P I N I O N
of the Estate of Edward M. )
Babinec, RICHARD IRELAND, )
RANDY KIRKEBY, STEVE PEARSON, )
d/b/a DAIRY QUEEN, )
[No. 3811 - February 7,
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Brian C. Shortell, Judge.
Appearances: Ronald L. Baird, Bradbury,
Bliss & Riordan, Anchorage, for Appellant.
Neil T. O'Donnell, Atkinson, Conway & Gagnon,
Anchorage, for Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
The award for attorneys' fees incurred by the appellees
prior to the formal commencement of the present action was not
an abuse of the court's discretion.
The record does not support the allocation of 69% of the
attorneys' fees incurred prior to July 1, 1988, for work done
by attorneys Vandiver and Guetschow, to the condemnation
proceeding. The methodology used to make the allocation was
speculative and wholly arbitrary. The allocation must,
therefore, be set aside.
Although Anchorage argues that the fees awarded for the
months of July, 1988, through May, 1990, were excessive, it
does not complain that any particular charges were for work
that was unnecessary, unreasonable, or unrelated to the
condemnation proceeding. Since full attorneys' fees are the
norm under Alaska Civil Rule 72(k), Triangle, Inc. v. State,
632 P.2d 965, 970 (Alaska 1981), we are unable to say that the
court abused its discretion in awarding the full amount of the
attorneys' fees incurred during this time period.
The superior court erred in basing part of its award for
attorneys' fees upon the contingent fee agreement between the
property owners and their lawyer. Attorneys' fees awarded
under Civil Rule 72(k) "shall be commensurate with the time
committed by the attorney to the case." Rule 72(k), Alaska R.
Civ. P. (emphasis added). We remand on this issue with
instructions: after determining the actual amount of time
spent on the case, the court is to adjust its award using the
attorney's standard hourly rate, provided that the amount of
the award, thus calculated, does not exceed that which is
reasonable in light of the work done.
Each party will bear its own costs and attorney's fees in
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.