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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robert C. Keeton III v. State of Alaska, Department of Transportation and Public Facilities; Matanuska-Susitna Borough; City of Wasilla; Matanuska Electric Association, Inc.; Mat-Su Title Insurance Agency, Inc.; and Matanuska Federal Credit Union (5/24/2019) sp-7366

Robert C. Keeton III v. State of Alaska, Department of Transportation and Public Facilities; Matanuska-Susitna Borough; City of Wasilla; Matanuska Electric Association, Inc.; Mat-Su Title Insurance Agency, Inc.; and Matanuska Federal Credit Union (5/24/2019) sp-7366

          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  

                                                                                                                     

          corrections@akcourts.us.  



                      THE SUPREME COURT OF THE STATE OF ALASKA                                   



ROBERT  C.  KEETON  III,                                      )  

                                                              )                                    

                                                                   Supreme Court No. S-16803  

                               Appellant,                     )  

                                                              )                                                            

                                                                   Superior Court No. 3AN-14-06557 CI  

          v.                                                  )  

                                                              )                        

                                                                   O P I N I O N  

STATE OF ALASKA,  

                                                              )  

DEPARTMENT OF                                                                                       

                                                              )    No. 7366 - May 24, 2019  

TRANSPORTATION AND PUBLIC  

                                                              )  

FACILITIES; MATANUSKA- 

                                                              )  

SUSITNA BOROUGH; CITY OF  

                                                              )  

WASILLA; MATANUSKA  

                                                              )  

ELECTRIC ASSOCIATION, INC.;  

                                                              )  

MAT-SU TITLE INSURANCE  

                                                              )  

AGENCY, INC.; and MATANUSKA  

                                                              )  

VALLEY FEDERAL CREDIT  

                                                              )  

UNION,                                                        )  

                                                              )  

                               Appellees.                     )  

                                                              )  



                                                                                                         

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

                                                                                             

                     Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                                  

                    Appearances:             Jeffrey  J.  Jarvi,  Anchorage,  for Appellant.  

                                                                                               

                    Dario Borghesan, Assistant Attorney General, Anchorage,  

                                                                                                           

                     and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                                                                                            

                    Appellee State of Alaska, Department of Transportation and  

                                                                                                            

                    Public  Facilities.             Notices  of  nonparticipation  filed  by  

                                                                                                    

                     Thomas  F.  Klinkner,  Birch  Horton  Bittner  &  Cherot,  

                                                                                                       

                    Anchorage,  for  Appellee  City  of  Wasilla;  David  Pease,  

                                                                                                   

                    Matanuska Electric Association, Inc., Palmer, for Appellee  


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

                                                                                              

                    Matanuska Electric Association, Inc.; Dana Lyn Dalrymple,  

                                                                                                       

                    Dalrymple  Law,  P.C.,  Palmer,  for  Appellee  Mat-Su  Title  

                                                                                                        

                    Insurance Agency, Inc.; and Jed L. Van Loan, Jed L. Van  

                                                                                                   

                    Loan,  PC,  Anchorage,  for  Appellee  Matanuska  Valley  

                                                                                         

                    Federal   Credit   Union.                 No   appearance   by   Appellee  

                                                   

                    Matanuska-Susitna Borough.  



                                                                                                                

                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                        

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.  



I.        INTRODUCTION  



                                                                                                                          

                    The Department of Transportation and Public Facilities (DOT or the State)  



                                                                                                                               

condemned a strip of property along the Parks Highway.  DOT filed a declaration of  



                                                                                                                                

taking, allowing it to take title immediately, and deposited approximately $15,000 in  



                                                                                                                        

court as estimated compensation for the taking.   The landowner challenged DOT's  



                                                                                                                             

estimate and was eventually awarded approximately $24,000, as well as attorney's fees  



                                                                                                                        

and costs.  Pursuant to AS 09.55.440, the superior court awarded prejudgment interest  



                                                                                                        

to the landowner at the rate of 10.5% on the difference between the amount of DOT's  



                                                                                                                   

initial deposit and the amount the property was ultimately determined to be worth.  



                                                                                                                            

                    The landowner appeals, arguing that the prejudgment interest should have  



                                                                                                                     

been calculated on the difference between the deposit and his entire judgment, including  



                                                                                                                             

significant amounts for attorney's fees and appraisal costs. We conclude, however, that  



                                                                                                                        

the landowner's argument is not supported by the statutory language, legislative history,  



                                                                                                                              

or policy.  We also reject the landowner's arguments that the superior court applied the  



                                                                                                                              

wrong postjudgment interest rate and abused its discretion by denying discovery of the  



                                                                                                                            

State's attorneys' billing records. Finally, we conclude that the superior court must state  



                                                                                                                              

its reasons for excluding  any  attorney time from its attorney's fees award, and we  



                                                               -2-                                                        7366
  


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

                                                                                                                         

therefore vacate the attorney's fees award and remand for reconsideration on this limited  



            

issue.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                             

                    The property at the center of this case is approximately 6.727 acres near  



                                                                                                                               

Wasilla, owned by Robert Keeton III.  Bounded by Jacobsen Lake on the south, the  



                                                                                                                                     

property rises to the Parks Highway to the north.  The area nearest the lake is wetlands.  



                                                                                                                   

Between the wetlands and the property's upland portion is an area filled with woodchips,  



                                                                                      

where there used to be a mill.  The property includes a cabin that has been turned into  



                                                                                                                       

a duplex, an automobile repair shop, and a used car dealership operating out of a modular  



                

building.  



                                                                                                                     

                    In 2014 DOT began a project to widen the Parks Highway from Mileposts  



                                                                                                                      

44.5 to 48.3. As part of the project it sought to condemn a portion of Keeton's property,  



                                                                                                                         

referred to by DOT as "Parcel 77" and described as "a narrow strip along the current  



                                                                                                                                

Parks  Highway  [],  approximately  15  feet  wide  and  420  feet  long,  for  a  total  of  



                                                                                                                               

approximately 6,301 square feet." According to DOT, Parcel 77 was "necessary for this  



                                                                                           

project in  order  to relocate utilities and  to  accommodate right-of-way  maintenance  



                                                                                                                            

needs."  The condemnation reduced Keeton's property from approximately 6.727 acres  



                        

to 6.582 acres.  



                                                                                                                             

                    Toassist withitsright-of-wayacquisitions,DOTretained aconsulting firm,  



                                                                                                                                

which in turn subcontracted with an appraisal firm.  The appraiser who did the work on  



                                                                                                                               

Parcel 77 was Steve Carlson.  Before starting the appraisal, Carlson estimated that the  



                                                                                                                     

value of Parcel 77 would be less than $25,000, and he thus prepared a waiver valuation,  



                                                                                                                                

an  "abbreviated  form"  of  an  appraisal.                      The  waiver  valuation  valued  Parcel  77  at  



                                                                                                                    

$14,800. Carlson also found that the condemnation caused no damage to the remaining  



                

property.  



                                                               -3-                                                         7366
  


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

          B.        Proceedings  



                                                                                                                              

                    The parties were unable to agree on the amount of compensation due  



                                                                                                                              

Keeton for the taking.  On April 30, 2014, DOT filed a complaint for condemnation and  



                                                                                       

a declaration of taking.   DOT offered $14,800 in just compensation  and  deposited  



                                                                                        

$14,905.98 with the superior court, including $105.98 as estimated pro-rated property  



                                                                                                                              

taxes.   In his answer Keeton disputed DOT's valuation, sought "[a]n award of just  



                                                                                                                               

compensation for [DOT's] taking of and damage to his private property, including but  



                                                                                                                       

not limited to, a fair valuation of and payment for the private property taken by [DOT],"  



                                                                                            

and asked that he be awarded his costs and attorney's fees.  



                                                                                                                                

                    The superior court appointed a master to hear the matter. In preparation for  



                                                                                                                   

the hearing, Carlson did a full narrative appraisal of Keeton's property and determined  



                                                                                                       

that  the  value  of  Parcel  77  was  $18,300.                        In  compliance  with  Carlson's  revised  



                                                                                                    

estimation, DOT added an additional $3,500 to the court deposit.  



                                                                                                                                

                    Keeton also retained a commercial appraiser, Per Bjorn-Roli, to performan  



                                                                                                                             

appraisal on his behalf.  Bjorn-Roli's estimates of value were significantly higher than  



                                                                                                                               

those proposed by DOT:  $35,956 for the value of the property taken and $15,580 for  



                                                                                                                            

damage to the remainder of Keeton's property. Keeton also argued that the taking made  



                                                                                                                              

it more costly for him to install a septic tank on his property, and he valued his total loss  



     

at $102,456.  



                                                                                                                          

                    The master's hearing was held in August and September 2016. The master  



                                                                                                                              

found that the condemned property was worth $24,740, and neither party appealed this  



                                                                                                                       

determination.  The amount exceeded DOT's initial deposit by approximately $10,000  



                                                                                                                         

and its supplemented deposit, following Carlson's second appraisal, by $6,440. Keeton  



                                                                                                                       

moved for entry of final judgment and an award of attorney's fees and costs. In addition  



                                                                                                                      

to the property's value he sought $44,553.12 in attorney's fees, $30,444 in appraiser  



                                                                                                                         

fees,  $1,823.35  in  other  costs,  and  $25,825.64  in  prejudgment  interest.                                    A  statute  



                                                               -4-                                                         7366
  


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

provides for prejudgment interest at the rate of 10.5% "on the amount finally awarded   



                                                                                                                      1  

that exceeds the amount paid into court under the declaration of taking";                                                             

                                                                                                                        Keeton argued  



                                                                                                                                 

that his fees and costs should be added to the property's ascertained value to determine  



                                                                                                                                

"the amount finally awarded" for purposes of contrast with DOT's deposit.  



                                                                                                                                       

                      DOT partially opposed the request, asking to see Keeton's lawyer's billing  



                                                                                                                                        

records to determine their reasonableness and arguing that prejudgment interest could  



                                                                                                                                            

not be applied to an award of attorney's fees and costs.  Keeton, in turn, sought the  



                                                                                                                                    

billing records of DOT's attorneys, but DOT successfully moved to quash the request.  



                                                                                                                                 

After inspecting Keeton's attorney's records, DOT decided not to object to his attorney's  



                                                                                                                                     

fees and costs incurred through the May 2017 oral argument on the prejudgment interest  



           

issue.  



                                                                                                                                            

                      The superior court awarded a final judgment of just compensation for  



                                                                                                                                             

$24,740 based on the master's recommendation and calculated prejudgment interest on  



                                                                                                                                     

the amount by which it exceeded DOT's deposits.   The court also awarded Keeton  



                                                                                                                                            

$47,453.12 in attorney's fees and $32,276.50 in costs, with postjudgment interest at the  



                          

rate of 4.25%.  



                                                                                                                                 

                      Keeton appeals from the superior court's refusal to include his attorney's  



                                                                                                                             

fees and costs in "the amount finally awarded" for purposes of the award of prejudgment  



                                                                                                                          

interest under AS 09.55.440(a).   He also appeals the court's award of postjudgment  



                                                                                                                                      

interest  at  4.25%;  its  decision  to  quash  his  subpoena  for  DOT's  attorneys'  billing  



                                                                                                                                           

records; and the court's decision to exclude certain activities from the attorney's fees  



              

award.  



                                           

III.       STANDARD OF REVIEW  



                                                                                                                                              

                      Whether prejudgment interest as defined in AS 09.05.440(a) applies to an  



           1  

                              

                      AS 09.55.440(a).  



                                                                      -5-                                                                    7366  


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

award of attorney's fees and costs in a condemnation action presents a legal question,                                                



                                                2  

which we review de novo.                                                                                                                         

                                                     "We  apply our independent judgment to questions of  



                                                                                                                                                 

'statutory interpretation requiring the application and analysis of various canons of  

                                          3  We review for abuse of discretion a superior court's decisions  

                                                                                                                                      

                                          

statutory construction.' " 

to quash a subpoena4  and to deny certain requested attorney's fees and costs.5  

                                                                                                                           



IV.	       DISCUSSION  



                                                                                                                                                

           A.	         The Superior Court DidNot Err By Denying Prejudgment Interest On  

                                                                                             

                       Attorney's Fees And Costs Under AS 09.55.440.  



                                                                                                                                                 

                       Alaska Statute 09.55.440(a) provides for prejudgment interest at 10.5% on  



                                                                                                                           

only a portion of a condemnation award:   the amount by which "the amount finally  



                                                                                                                                                       

awarded  .  . . exceeds  the amount  paid  into court under  the declaration  of taking."  



                                                                                                                                         

Keeton's primary  argument on  appeal is that "the amount finally awarded" should  



                                                                                                                                                

include his awards of attorney's fees and costs, not just the compensation reflecting the  



                                                                                                                                        

value of the condemned property; under this argument the gap between the amount  

                                                                                  6 rather than $6,440. Keeton argues that  

                                                                                                                                               

deposited and the amount awarded is $61,429.12 



           2	          Moody v. Royal Wolf Lodge                       , 339 P.3d 636, 638 (Alaska 2014).                



           3  

                                                                                                                                          

                       Alaska  Airlines,  Inc.  v.  Darrow,  403  P.3d  1116,  1121  (Alaska  2017)  

                                                                                                                     

(quoting ARCTEC Servs. v. Cummings , 295 P.3d 916, 920 (Alaska 2013)).  



           4           Gibson v. GEICO Gen. Ins. Co., 153 P.3d 312, 316 (Alaska 2007) ("This  

                                                                                                                                          

court reviews a trial court's discovery rulings for abuse of discretion.").  

                                                                                                      



           5           State v. Doyle, 735 P.2d 733, 743 (Alaska1987) ("Thetrial court's decision  

                                                                                                                                       

to award less than a party's actual fees will not be disturbed unless that decision appears  

                                                                                                                                        

to constitute an abuse of discretion.").  

                                            



           6           We note that the superior court's final judgment appears to contain a minor  

                                                                                                                                           

arithmetic error.  It states a total judgment of $79,729.12 after adding $47,453.12 in  

                                                                                                                                                  

attorney's fees and $32,276.50 in costs, when that sum should be $79,729.62.   The  

                                                                                                                                              

                                                                                                                              (continued...)  



                                                                        -6-	                                                                7366
  


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

his   interpretation   of   the   statute   is   plausible   and   that   the   statute   must   therefore   be  



interpreted in his favor under the principle that "a grant of power of eminent domain is                                                     



to   be strictly        construed against the condemning party                                and   in   favor  of   the property   



             7  

owner."   



                                                                                                                                  8  

                      We have strictly construed against the State its power to condemn,  which  

                                                                                                                                      



is not at issue in this case.  In any event, the plain language of AS 09.55.440(a) is not  

                                                                                                               



ambiguous, and therefore strict construction of it would not help Keeton's position. "We  

                                                                                                                                         



construe statutes according to reason, practicality, and common sense, considering the  

                                                                                                                                          

meaning of the statute's language, its legislative history, and its purpose."9                                                 Applying  

                                                                                                                                



these usual rules of statutory construction, we conclude that the superior court did not  

                                                                                                            



           6          (...continued)  



                                                                 

superior court also did not include the outstanding $7.44 in prejudgment interest in its  

                                                                                                                                   

total judgment, which would have increased the total judgment to $79,737.06.  Neither  

                                                                                                                                           

party addresses this discrepancy, but the superior court should correct any error in its  

                                                                                                                             

calculations on remand.  See Alaska R. Civ. P. 60(a) ("Clerical mistakes in judgments,  

                                                                                                                                 

orders, or other parts of the record and errors therein arising from oversight or omission  

                                                              

may be corrected by the court at any time of its own initiative or on the motion of any  

              

party . . .").  



           7          City of Anchorage v. Lot 1 in Block 68, 409 P.2d 609, 613 (Alaska 1966)  

                                                                                                                                      

(quoting Bridges v. Alaska Hous. Auth., 349 P.2d 149, 154 (Alaska 1959)).  

                                                                                                                 



           8          See id. (holding that strict construction of eminent domain statute did not  

                                                                                                                                          

authorize city to use declaration of taking to condemn property for off-street parking  

                                                                                                                                   

facilities); Bridges, 349 P.2d at 154 (ruling that Alaska Housing Authority could not use  

                                                                                                                                          

declaration of taking);  Williams v. City of Valdez, 603 P.2d 483, 491 (Alaska 1979)  

                                                                                                                                     

(finding that statute did not authorize fee simple taking because "an examination of other  

                                                                                                                                       

eminent domain provisions and the principle of strict construction do not allow such an  

                                                                                                                                            

expansive reading").  

                   



           9          Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017).  

                                                                                                                              



                                                                     -7-                                                              7366
  


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

err by excluding attorney's fees and costs from its award of prejudgment interest under                                                                                                          



AS 09.55.440(a).                              



                                1.	             The plain language of the eminent domain statutes does not                                                                                            

                                                contemplate   that   "compensation"   as   used   in   those   statutes  

                                                includes attorney's fees and costs.                                     



                                When the State seeks to exercise its power of eminent domain over private                                                                                      



property, "it may file a declaration of taking with the complaint or at any time after the                                                                                                              



                                                                                                            10  

filing of the complaint, but before judgment."                                                                                                                                                          

                                                                                                                  The declaration of taking must state the  



                                                                                                                                                                                                       

authority under which the power is being exercised, the public use intended for the  



                                                                                                                                                                                                       

property, a description of the property and the interests in it, a statement of necessity, and  



                                                                                                                                                                                                       

-  as most relevant here - "a statement of the amount of money estimated by the  



                                                                                                                                                                            11  

                                                                                                                                                                                                       

plaintiff to be just compensation for the property or the interest in it."                                                                                                         Title to the  



                                                                                                                                                                                                     

property vests in the State once it has filed "the declaration of taking and the deposit with  



                                                                                                                                                                                                           12  

                                                                                                                                                                                                                 

the court of the amount of the estimated compensation stated in the declaration . . . ." 



                                                                                                                                                                                     

The deposit tolls the running of interest on the sum deposited; by use of this procedural  



                                                                                                                                                                                                       

device,  the  State  may  "minimize  the  risk  of  an  interest  assessment  (and  avoid  the  



                                                                                                                                                                                                 

expenses of litigation) by making a reasonable offer which the property owner is likely  



                                                                                                                                 13  

                                                                                                 

to accept prior to the institution of legal proceedings." 



                                                                                                                                                                                                           

                                When the State files the declaration of taking and the deposit, "the right to  



                10              AS 09.55.420(a).   



                11  

                                          

                                AS 09.55.430.  



                12  

                                          

                                AS 09.55.440(a).  



                13  

                                                                                                                                                                                      

                                Stewart & Grindle, Inc. v. State, 524 P.2d 1242, 1248 (Alaska 1974).  



                                                                                                    -8-	                                                                                           7366
  


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

                                                                                                                      14  

just compensation for [the property] vests in the persons entitled to it,"                                               and the court  



                                                                                                                  15  

 may thereafter order that the deposit be distributed "at any time."                                                                      

                                                                                                                       Assuming the  



                                                                                                                                    

 landowner  does  not  accept  the  amount  deposited  as  just  compensation,  "[t]he  



                                                                                                                                           

 compensation shall be ascertained and awarded in the proceeding and established by  

                   16   The next sentence of AS 09.55.440(a) is at the heart of this appeal:  "The  

judgment."                                                                                                                              



judgment must include interest at the rate of 10.5 percent a year on the amount finally  

                                                                                                                                     



 awarded that exceeds the amount paid into court under the declaration of taking.  The  

                                                                                                                                         

 interest runs from the date title vests to the date of payment of the judgment."17  Because  

                                                                                                                                  



 prejudgment interest applies only to theexcess of"theamount finally awarded" over "the  

                                                                                                                                         



 amount paid into court under the declaration of taking," including attorney's fees and  

                                                                                                                                         



 costs in "the amount finally awarded" may - as in this case - significantly increase the  

                                                                                                                                           



 possible excess to which prejudgment interest will apply.  

                                                                                      



                       We  conclude,  however,  that  the  plain  language  of  the  statute,  read  in  

                                                                                                                                            



 context, does not support this interpretation.   "When a statute . . . is part of a larger  

                                                                                                                                     



 framework  or  regulatory  scheme,  even  a  seemingly  unambiguous  statute  must  be  

                                                                                                                                 

 interpreted in light of the other portions of the regulatory whole."18                                               Alaska Statute  

                                                                                                                                    



 09.55.440(a) begins by reference to "the filing of the declaration of taking and the  

                                                                                                                                          



 deposit  with  the  court  of  the  amount  of  the  estimated  compensation  stated  in  the  

                                                                                                                                          



 declaration"; the next sentence of subsection (a) refers again to "the compensation,"  

                                                                                                                      



            14         AS  09.55.440(a).  



            15         Alaska  R.  Civ.  P.  72(j).   



            16         AS  09.55.440(a).  



            17        Id.  (emphasis  added).  



            18        Alaska   Airlines,   Inc.   v.   Darrow,   403   P.3d   1116,   1127   (Alaska   2017)  



 (quoting  Millman  v.  State,  841  P.2d   190,   194  (Alaska  App.   1992)).  



                                                                     -9-                                                               7366
  


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

                                                                                                                                

which  "shall  be  ascertained  and  awarded  in  the  proceeding  and  established  by  



                                                                                                                               

judgment"; and the third sentence of the subsection picks up the term "award" and  



                                                                                                                          

contrasts it with the "estimated compensation" referred to in the first sentence:  interest  



                                                                                                                               

shall be included "on the amount finally awarded that exceeds the amount paid into  



                                                                                                                      

court under the declaration of taking." (Emphasis added.) In this procedural sequence,  



                                                                                                                             

"the  estimated  compensation,"  through  ascertainment  and  award,  becomes  "the  



                                                                                                                            

compensation,"whichis"established by judgment"and contrasted with theState's initial  



                                                         

estimate of what it was likely to be.  



                                                                                                                           

                     "Compensation" is explained in other statutes in the same chapter. Alaska  



                                               

 Statute 09.55.310, addressing the hearing process, provides that "[t]he jury or master"  



                                                                                                                                 

shall "ascertain and assess . . . the value of the property sought to be condemned, and all  



                                                                                                                                 

improvements on it pertaining to the realty, and of each separate estate or interest in it"  



                                                                                                                               

(emphasis  added),  as  well  as  any  collateral  damage  or  benefit  to  portions  of  the  



                                                                                                                          

landowners' property that have not been condemned. Alaska Statute 09.55.330, entitled  



                                                                             

"Compensation and damages," reads in pertinent part:  



                                                                                                          

                               For  the  purpose  of  assessing  compensation  and  

                                                                                                             

                     damages, the right to them accrues at the date of issuance of  

                                                                                                    

                     the summons, and its actual value at that date is the measure  

                                                                                                            

                     of compensation of the property to be actually taken, and the  

                                                                                                          

                     basis   of   damages   to   property   not   actually   taken   but  

                                                                                                           

                     injuriously  affected  in  the  cases  where  the  damages  are  

                                                                                                            

                     allowed. . . .  Improvements put upon the property after the  

                                                                                                            

                     date of the service of summons may not be included in the  

                                                                                     

                     assessment of compensation or damages.  



                                                                                                                      

(Emphasis added.)  And finally, AS 09.55.430, as noted above, describes the necessary  



                                                                                                                          

contents of a declaration of taking to include "a statement of the amount of money  



                                                                                                                                      

estimated by the plaintiff to be just compensation for the property or the interest in it ."  



                  

(Emphasis added.)  



                                                               -10-                                                         7366
  


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

                       Reading these statutes together and harmonizing their terminology leads to                                                    



these conclusions: (1) "compensation" means "the actual value . . . of the property to be                                                           



actually   taken" (and                 damages  for   injury to                 other   property   "where the damages are                         

                   19                                                                                                                   20  and (3)  

                      (2) it is this amount that must be stated in the declaration of taking;                                                      

allowed");                                                                                                                   



it is this amount that is deposited with the court and is later contrasted with the "amount  

                                                                                                                                         

finally awarded" to determine the amount of any excess.21                                                All these statutes defining  

                                                                                                                                         



compensation and directly addressing its deposit and award focus on the value of the  

                                                                                                                                                   



property or damage to other property; none of them mentions attorney's fees and costs.  

                                                                                                                                                          



We conclude that the "amount finally awarded" means "compensation," which in this  

                                                                                                                                                  



statutory context means the value of the property plus incidental damages but does not  

                                                                                                                                                   



include attorney's fees and costs.  

                                                 



                       We  acknowledge  that  "the  just  compensation  principle  of  the  Alaska  

                                                                                                                                           



Constitution requires full indemnification of the owner for property taken or damaged,"  

                                                                                                                                     



which in turn generally "require[s] payment to a condemnee of necessary appraiser's and  

                                                                                                                                                  

                                                                                                                                          22   "Just  

attorney's fees, and of interest from the date of taking to the date of payment."                                                              

                                                                                                                        



compensation" is the constitutional requirement; "compensation" is the statutory term  

                                                                                                                                                

at issue, which in the context of the deposit and award has a narrower definition.23                                                             The  

                                                                                                                                                 



            19         AS  09.55.330.  



            20         AS  09.55.430.  



            21         AS  09.55.440(a).  



            22         State  v.  Hammer,  550  P.2d  820,  826-27  (Alaska   1976).  



            23          Compare  AS  09.55.450(a)  ("Upon  the  filing  of  the  declaration of  taking  



and  the  deposit  of  the  estimated  compensation  .  .  ."),  with  AS  09.55.450(b)  ("The  court  

may direct the payment  of delinquent taxes  and special  assessments out of  the amount  

determined  to  be  just  compensation  .  .  .  .").  



                                                                        -11-                                                                   7366
  


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

 statutes, and Alaska Civil Rule 72 (discussed below), ensure that a landowner is awarded                                                                                                                                                                                                                                                                                                                                                  



the attorney's fees, costs, and interest necessary to satisfy the constitutional requirement                                                                                                                                                                                                                                                                                                                           



 of just compensation.               



                                                                         2.	                                  Alaska  Civil   Rule   72   reflects   the   understanding   that   the  

                                                                                                              condemnor's deposit of the amount of estimated compensation                                                                                                                                                                                                                               

                                                                                                              does not include attorney's fees and costs.                                                                                                                                                                       



                                                                         Our   civil   rules   reflect   the   same   understanding   of   the   eminent   domain  



 statutes: The condemnor is not required to include attorney's fees and costs in its deposit                                                                                                                                                                                                                                                                                                                                                     



 of the amount of estimated compensation.                                                                                                                                                                                              Alaska Civil Rule 72(j) provides that "[t]he                                                                                                                                                                     



plaintiff shall deposit with the court any money required by law as a condition to the                                                                                                                                                                                                                                                                                                                                                                                 



 exercise of the power of eminent domain, and may make such deposit even when not                                                                                                                                                                                                                                                                                                                                                                                     



required to do so by law."                                                                                                                       Rule 72(k) addresses costs and attorney's fees.   It provides   



in part:                                 "Costs and attorney's fees incurred by a defendant must be assessed against the                                                                                                                                                                                                                                                                                                                                                



plaintiff if . . . the award of the court was at least ten (10) percent larger than the amount                                                                                                                                                                                                                                                                                                                                                 



 deposited by the condemning authority . . . ." The rule's requirement that attorney's fees                                                                                                                                                                                                                                                                                                                                                                        



 and costs be assessed                                                                                              if  there is a 10% excess of amount awarded over amount deposited                                                                                                                                                                                                                                               



plainly assumes that these two amounts do not already include attorney's fees and costs.                                                                                                                                                                                                                                                                                                                                                                                                    



 Other provisions of Rule 72(k), identifying additional circumstances in which the court                                                                                                                                                                                                                                                                                                                                                                    



is required to award costs and attorney's fees, likewise assume that these items are not                                                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                                                                                                              24  

 already included in the condemnor's deposit of estimated compensation.                                                                                                                                                                                                                                                                                                                                                   



                                                                         Keeton argues that Rule 72(j) supports his interpretation of the eminent  

                                                                                                                                                                                                                                                                                                                                                                                                                                           



 domain statutes because it provides, in part, that "[t]he notice of deposit must disclose  

                                                                                                                                                                                                                                                                                                                                                                  



                                     24                                  These additional circumstances include:                                                                                                                                                                                             "the taking of the property is                                                                                                                                   



 denied"; "the plaintiff appeals from the master's award and the defendant does not                                                                                                                                                                                                                                                                                                                                                                                  

 appeal"; "the action was dismissed under the provisions of paragraph (i) of this rule";                                                                                                                                                                                                                                                                                                                                                                 

 and "allowance of costs and attorney's fees appears necessary to achieve a just and                                                                                                                                                                                                                                                                                                                                                                               

 adequate compensation of the defendant."                                                                                                                                                                                               Alaska R. Civ. P. 72(k)(1), (2), (4) & (5).                                                                                                                                                                         



                                                                                                                                                                                                                                  -12-	                                                                                                                                                                                                                        7366
  


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

the extent to which the deposit represents principal, interest, costs and fees, if any."                                                                                                                                                                                    We  



agree with DOT, however, that the meager history of this sentence in the rule, added in                                                                                                                                                                                            



 1968, shows only an intent to address "secondary deposits," that is, situations when the                                                                                                                                                                                      



condemnor increases the deposit after the landowner has withdrawn some or all of the                                                                                                                                                                                           



amount originally deposited, and the court has to determine whether the "10 percent rule                                                                                                                                                                                     



set forth in Rule 72(k)(3)" has been satisfied by comparing the estimated compensation                                                                                                                                                      



                                          25  

to the award.                                    



                                           3.	                   The   legislative   history   of   AS   09.55.440   does   not   support  

                                                                 including   attorney's   fees  and   costs   in   the   "amount   finally  

                                                                 awarded" for purposes of prejudgment interest.                                                                                             

                                            The Alaska territorial predecessor of AS 09.55.440, enacted in 1953,26  

                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                                                               

followed  nearly  word-for-word  an  existing  federal  law  governing  eminent  domain  



                                          27  

proceedings.                                                                                                                                                                                                                                                            

                                                  Federal decisions construing federal laws are persuasive authority when  



                      25                    The   committee   considering   later   amendments   gave   this   example:     A  



condemnor deposits $1 million with the court initially and later adds another $300,000.                                                                                                                                                                                                      

The landowner accepts the amount as just compensation and moves for an award of                                                                                                                                                                                                   

additional interest under Rule 72(k) because the $1.3 million is over ten percent greater                                                                                                                                                                          

than   the   original   deposit.     The   condemnor  resists   on   the   ground   that   some   of   the  

additional amount was intended                                                                                 to  cover accrued interest or costs.                                                                                   "The new rule                        

requires this information to be set forth in the notice of deposit" in order to prevent such                                                                                                                                                                              

disputes.    Condemnation Committee, New Civil Rule 72 with Annotations, 1995,                                                                                                                                                                                                    in  

court file for                            Alaska Supreme Court Order No. 1216 (Jan. 1, 1996).                                                                                                                                  



                      26	                   Ch. 90,  3, SLA 1953.  

                                                                                                     



                      27                    Compare Act of Feb. 26, 1931, ch. 307,  1, 46 Stat. 1421, with ch. 90,  3,  

                                                                                                                                                                                                                                                                                 

 SLA 1953 ("[T]he judgment shall include, as part of the just compensation awarded,  

                                                                                                                                                                                                                                                           

interest at the rate of 6 per centum per annum on the amount finally awarded as the value  

                                                                                                                                                                                                                                                                        

of the property as of the date title vests in the Territory of Alaska to the date of payment;  

                                                                                                                                                                                                                                                           

but interest shall not be allowed on so much thereof as shall have been paid to the clerk  

                                                                                                                                                                                                                                                                         

of the court.").  

                     



                                                                                                                                      -13-	                                                                                                                              7366
  


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

                                                                                 28  

we interpret their state law counterparts.                                            



                                                                                                                                                                      

                           Federal law allowed the government to file a declaration of taking with "[a]  



                                                                                                                                                                     

 statement  of  the  sum  of  money  estimated  by  said  acquiring  authority  to  be  just  

                                                                   29   It also allowed for 6% prejudgment interest on any  

                                                                                                                                                                      

                                                      

 compensation for the land taken." 

 amount awarded above what the condemning authority had deposited.30   But until 1970,  

                                                                                                                                                                   



 federal law did not authorize awards of attorney's fees or costs in eminent domain  

                                                                                                                                                              

proceedings.31                    Prejudgment  interest  on  such  awards  thus  could  not  have  been  

                                                                                                                                                                   



 contemplated when the territorial predecessor of AS 09.55.440 went into effect in 1953.  

                                                                                                                                                                   



              28           State, Dep't of Corr. v. Heisey                             , 271 P.3d 1082, 1087 (Alaska 2012) ("The                                  



United States Supreme Court's holding that the federal certification statute is subject to                                                                                

judicial review is persuasive authority.");                                       Arco Pipeline Co. v. 3.60 Acres, More or Less                                             ,  

 539   P.2d   64,   68   (Alaska   1975)   ("Decisions  interpreting   this   federal   statute   may  

 consequently   be   considered   persuasive   for   purposes   of   construing   the   analogous  

provisions of our own statutes.").             



              29           Act of Feb. 26, 1931, ch. 307,  1, 46 Stat. 1421.  

                                                                                                                  



              30           See id. ("[T]he said judgment shall include, as part of the just compensation  

                                                                                                                                                  

 awarded, interest at the rate of 6 per centum per annum on the amount finally awarded  

                                                                                                                                                             

 as the value of the property as of the date of taking, from said date to the date of  

                                                                                                                                                                         

payment; but interest shall not be allowed on so much thereof as shall have been paid  

                                                                                                                                                                     

 into the court.").  

                  



              31           See Dohany v. Rogers, 281 U.S. 362, 368 (1930) ("Attorneys' fees and  

                                                                                                                                                                      

 expenses  are  not  embraced  within  just  compensation  for  land  taken  by  eminent  

                                                                                                                                                            

 domain.").  Attorney's fees awards were authorized in limited circumstances by a 1970  

                                                                                                                                                                   

 amendment to the federal eminent domain procedure.  See United States v. 4.18 Acres  

                                                                                                              

 of Land, More or Less,  542 F.2d 786, 788-89 (9th Cir. 1976) ("The constitutional  

                                                                                                                                                  

requirement of just compensation for the taking of land by eminent domain does not  

                                                                                                                                                                       

 include attorneys' fees and expenses. . . . Congress intended by [the amendment] to  

                                                                                                                                                                         

 create a narrow exception to the general rule of nonrecovery of litigation expenses.").  

                                                                                                                                                    



                                                                                   -14-                                                                            7366
  


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

                                                                                                                                                                                                           32  

                                TheAlaskaLegislatureamended AS09.55.440in                                                                           1962 and again in                         1997.             



                                                                                                                                                                                          

The 1962 amendment revised the reference to prejudgment interest: instead of applying  



                                                                                                                                                                                                

to the "value of the property," it now applied to the "amount finally awarded which  

                                                                                           33      DOT contends that this change, while "less  

                                                                                                                                                                                                  

                                                                           

exceeds the amount paid into court." 



precise in specifying the amount to which prejudgment interest applies, . . . was not  

                                                                                                                                                                                                       

meant to be substantive," and the legislative history supports this contention.34  

                                                                                                                                                                                             



                                In 1997 AS 09.55.440 was amended to increase the amount of prejudgment  

                                                                                                                                                                                 

interest from 6% to 10.5%.35                                             This change followed our decision in City of Valdez v.  

                                                                                                                                                                                                          



18.99 Acres,  More  or  Less ,  that  using  a  6%  interest  rate  for  proceedings  under  a  

                                                                                                                                                                                                           

declaration of taking violated the Alaska Constitution's equal protection clause.36   We  

                                                                                                                                                                                                     



concluded that there was no rational basis for different interest rates in such proceedings  

                                                                                                                                                                                  



                32              The statute was also amended in 1959 and 1985, but no material changes                                                                                      



to the language of the statute were made.                                                          See  ch. 146,  3, SLA 1959; ch. 21,  3, SLA                                                    

 1985 (amending to include interest at the rate "set out in AS 09.30.070").                                                                      



                33              Compare ch. 90,  3, SLA 1953 ("[T]he judgment shall include, as part of  

                                                                                                                                                                                                          

the just compensation awarded, interest at the rate of 6 per centum per annum on the  

                                                                                                                                                                                               

amount finally awarded as the value of the property as of the date title vests in the  

                                                                                                                                                                                                       

Territory of Alaska to the date of payment; but interest shall not be allowed on so much  

                                                                                                                                                                                                  

thereof as shall have been paid to the clerk of the court."); with ch. 101,  13.21, SLA  

                                                                                                                                                                  

 1962 ("The judgment shall include interest at the rate of six percent per year on the  

                                                                                                                                                                                                       

amount finally awarded which exceeds the amount paid into court under the declaration  

                                                                                                                                                                                     

of taking.").  

       



                34              See ALASKA  LEGIS. C                               OUNCIL, R                EP.  ON  EMINENT  DOMAIN IN                                       ALASKA  at 13   

                                          

(Dec. 1962) ("No change was made in the substantive eminent domain law retained in                                                                                                                        

the Code of Civil Procedure, except in the elimination of a commissioner's hearing on                                                                                                                    

the issue of just compensation and substituting a master's hearing.").                                                                                                 



                35              Ch. 26,  21, SLA 1997.  

                                                                              



                36              686 P.2d 682, 691-92 (Alaska 1984).  

                                                                                                          



                                                                                                   -15-                                                                                            7366
  


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

and those resolved by a judgment of condemnation, which were subject to the 10.5%                                                          



                                                   37  

interest rate of AS 09.30.070.                                                                                                             

                                                       Again, the legislative history of the 1997 change makes  



                                                                     38  

                                                                           

                                                            

no mention of attorney's fees and costs. 



                                                                                                             

                       We conclude that the legislative history does not support Keeton's broad  



                                                                                                                                     

reading of "the amount finally awarded,"and in fact the history of the statute's derivation  



                                                                                                              

from federal and territorial statutes militates directly against it.  



                                                                                                                                                

                       4.	         The  purpose  of  AS  09.55.440  would  not  be  furthered  by  

                                                                                                                                         

                                   including  attorney's  fees  and  costs  in  the  "amount  finally  

                                                                                                             

                                   awarded" for purposes of prejudgment interest.  



                                                                                                                                      

                       Reasons of policy and legislative purpose also militate against Keeton's  



                                                                                                                                                   

proposed  interpretation  of  AS  09.55.440.                                  Most  obviously,  prejudgment  interest  is  



                                                                                                                                                 

intended to be compensatory; it "is necessary to compensate plaintiff for the loss of the  



                                                                                                                      39  

                                                                                                                                                  

use of the money from the date of injury until the date of judgment."                                                      Landowners do  



                                                                                                                                                

not lose the use of the money they spend on attorney's fees until it is spent; as in this  



                                                                                                                                                 

case, the bulk of that money is likely to be spent long after the date of taking, during the  



                                                                                                                                                 

course of the litigation. Applying prejudgment interest to costs not yet incurred does not  



                                                                                                                    

make landowners whole but rather gives them a windfall at public expense.  



            37	        Id.  at 692 n.20.           



            38  

                                                                                                                                                  

                       See Minutes, House Jud. Comm. Hearing on House Bill 157, 14th Leg., 1st  

                                                                                                                        

Sess.  (Feb.  18,  1985)  (question  from  Representative  Gruenberg)  ("Representative  

                                                                                                                                                   

Gruenberg asked about the interest rate set out in section 4.  He wondered if this was in  

                                                                                                            

conformance to the Valdez decision.  Mr. Dierdorff[] stated it did.").  



            39         Am. Nat'l Watermattress Corp. v. Manville , 642 P.2d 1330, 1343 (Alaska  

                                                                                                                                         

 1982); see also Ehredt v. DeHavilland Aircraft Co. of Can., 705 P.2d 446, 452 (Alaska  

                                                                                                                                         

 1985) ("In Alaska, prejudgment interest is part of compensatory damages."); Beech  

                                                                                                                                           

Aircraft Corp. v. Harvey , 558 P.2d 879, 888 (Alaska 1976) ("[P]rejudgment interest is  

                                                                                                                                                   

in the nature of compensatory damages for the use of the money by defendants, not a  

                                                                                                                                                    

penalty.").  

                    



                                                                       -16-	                                                                 7366
  


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

                                                     Keeton argues, however, that encouraging the State to include attorney's                                                                                                                                                                                  



fees and costs in the estimated compensation deposited with the court will help level the                                                                                                                                                                                                                                                   



playing   field.     He asserts                                                                              that  he had "great difficulty                                                                                        trying   to find                                            a commercial   



appraiser to work with him because they did not want to get crosswise with the State and                                                                                                                                                                                                                                                  



lose out on this lucrative work for the State," and the State thus has a "monopoly on the                                                                                                                                                                                                                                                  



 'handful' of . . . commercial appraisers in Alaska's 'small industry' qualified to do                                                                                                                                                                                                                                                      



valuation work in eminent domain cases."                                                                                                                                         He argues that this "monopoly" can be                                                                                                                       



broken only if the State is required to include the landowner's costs in the estimated                                                                                                                                                                                                                           



compensation, making it easier for individuals to hire appraisers and attorneys.                                                                                                                                                                                                                                            



                                                     We see nothing in the statute's language or history to indicate that the                                                                                                                                                                                                              



legislature shared Keeton's concern and intended to ameliorate it.                                                                                                                                                                                                           Our rules already   



ensure that the landowner                                                                                    in   most cases will recover                                                                                      the   attorney's  fees and                                                                         costs  

                                                                                                                                                                                                                                                                   40  A change in the law  

reasonably expended in contesting an eminent domain proceeding.                                                                                                                                                                                                                                                                           



to  require  not  simply  compensation  after  the  fact,  but  guaranteed  equal  access  to  

                                                                                                                                                                                                                                                                                                                                              



attorneys and appraisers at the outset of condemnation proceedings, is for the legislature  

                                                                                                                                                                                                                                                                                                               



to consider, not the courts.  

                                                                               



                                                     In sum, considering the statutory language and context, the legislative  

                                                                                                                                                                                                                                                                                                             



history, and the policy arguments advanced by Keeton and the State, we conclude that,  

                                                                                                                                                                                                                                                                                                                                      



for purposes of awards of prejudgment interest under AS 09.55.440(a), "the amount  

                                                                                                                                                                                                                                                                                                                         



finally awarded" does not include attorney's fees and costs.  

                                                                                                                                                                                                                                               



                           40                        See  Alaska R. Civ. P. 72(k);                                                                                   see also Stewart & Grindle, Inc. v. State                                                                                                                       , 524   



P.2d 1242, 1250 (Alaska 1974) ("We believe that Rule 72(k)(4) . . . does entitle the                                                                                                                                                                                                                                                       

property owner to be made whole for expenses necessarily incurred in connection with                                                                                                                                                                                                                                                  

the condemnation of his property. . . . We think it is apparent that the appraisers' and                                                                                                                                                                                                                                                 

attorney's fees were 'necessarily' incurred . . . .").                                                                                                                           



                                                                                                                                                                    -17-                                                                                                                                                             7366
  


----------------------- Page 18-----------------------

                        B.	                    The Superior Court Did Not Err By Awarding Postjudgment Interest                                                                                                                                                                   

                                               At The Rate of 4.25%.                                    



                                               Keeton   argues    that    the    superior    court    erred    by    failing    to    award  



 postjudgment   interest   at   a   rate   of   10.5%   "despite   the   State's   admission"   that  



 AS 09.55.440 controlled the interest rate.                                                                                                             Keeton's argument rests primarily on the                                                                                                   



 State's proposed formjudgment, on which, below the line "Postjudgment Interest Rate,"                                                                                                                                                                                                   



 it included the words "Per AS 09.55.440."                                                                                                                But AS 09.55.440, by its plain language,                                                                          



 addresses only interest "on the amount finally awarded that exceeds the amount paid into                                                                                                                                                                                                         



                                                                                                                                                                                                                                                                                                          41  

 court under the declaration of taking," not postjudgment interest on the entire award.                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                            

                                               Assuming that theState's citation to AS 09.55.440wasajudicial admission  



                                                                                                                                                                                                                                                                                               

 - as Keeton appears to argue - it was one of law, not fact.  It therefore could not bind  



                                                                42  

                                                                                                                                                                                                                                                                                     

 the superior court.                                                      The court apparently determined the 4.25% postjudgment interest  



                                                                                                                                                                                                                                                                                        

 rate by reference to AS 09.30.070(a), which sets the rate at "three percentage points  



                                                                                                                                                                                                                                                                                               

 above the 12th Federal Reserve District discount rate in effect on January 2 of the year  

                                                                                                                                                                      43   Keeton does not contend that the rate  

                                                                                                                                                                                                                                                                                                  

 in which the judgment or decree is entered . . . ." 



 was incorrectly calculated under this statute, and we see no error in it.  

                                                                                                                                                                                                                                              



                        41                     To the extent Keeton relies on                                                                               State v. Alaska Continental Development                                                             



 Corp., 630 P.2d 977, 995-96 (Alaska 1980), for the proposition that the higher rate of                                                                                                                                                                                                                

 interest stated in AS 09.55.440(a) applies to the entire judgment and not just the excess                                                                                                                                                                                              

 of the amount awarded over the estimated compensation, he misreads the case.                                                                                                                                                                                                        See id.   

 at 995 n.31 ("[I]nterest is only assessed on the amount of the award in excess of what                                                                                                                                                                                                      

 was deposited by the state at the time of the declaration of taking.").                                                                                                                                                                         



                        42                       Dixon v. Blackwell, 298 P.3d 185, 189 (Alaska 2013) (quoting Hayes v.  

                                                                                                                                                                                                                                                                                                        

Xerox Corp. , 718 P.2d 929, 931 (Alaska 1986) ("A judicial admission, to be binding,  

                                                                                                                                                                                                                                                                                 

 must be one of fact and not a conclusion of law.")).  

                                                                                                                                                         



                        43                     AS 09.30.070(a).  

                                                            



                                                                                                                                                 -18-	                                                                                                                                        7366
  


----------------------- Page 19-----------------------

                            C.	                       Whether It Was An Abuse of Discretion To Quash Keeton's Subpoena                                                                                                                                                                                              

                                                      For DOT's Billing Records Is Moot.                                                                                                



                                                      Keeton asserts that the superior court abused its discretion when it quashed                                                                                                                                                                                       



his subpoena for the billing records of DOT's attorneys.                                                                                                                                                                             He argues that the records are                                                                               



relevant for three reasons:                                                                                (1) to show that DOT had "ample data to deposit all items of                                                                                                                                                                               



 estimated just compensation, including appraiser fees, attorney's fees and costs"; (2) to                                                                                                                                                                                                                                                             



 show DOT's "economic power to sue innocent individuals who dispute its takings                                                                                                                                                                                                                                                 



valuation in good faith" and overwhelm them with its greater resources; and (3) to show                                                                                                                                                                                                                                                  



the reasonableness of Keeton's own legal fees. But the parties' relative economic power                                                                                                                                                                                                                                              



 and   the   reasonableness   of   Keeton's   own   fees   have   no   bearing   on   our   analysis  of  



AS 09.55.440(a), which involves a legal question.                                                                                                                                                           And the reasonableness of Keeton's                                                                            



 fees is not at issue except to the limited extent addressed below.                                                                                                                                                                                               We therefore consider                                     

this argument moot and decline to address it further.                                                                                                                                                                44  



                                                                                                                                                         

                           D.	                        Because An Award Of Full Attorney's Fees Is The Norm, The Court  

                                                                                                                                                                                                                                                                                                              

                                                       On Remand Must State Its Reasons For Excluding Some Fees.  



                                                                                                                                                                                                                                                                                                                                                 

                                                      Finally, Keeton argues that the superior court  erred by cutting off his  



                                                                                                                                                                                                                                                                                                                                              

 entitlement to attorney's fees and the costs of legal services as of May 16, 2017, the date  



                                                                                                                                                                                                                                                                                                                           

 of oral argument on his motion for prejudgment interest. The proceedings that followed  



                                                                                                                                                                                                                                                                                                                                   

 included Keeton's unsuccessful pursuit of his subpoena for DOT's attorneys' billing  



                                                                                                                                                                                                                                                                                                                                                   

records and  his unsuccessful motion  for  reconsideration of the court's decision  on  



                                                                                                                                                                                                                                                                                                                                                   

prejudgment  interest.                                                                          DOT  concedes  that  "[t]he  superior  court  did  not  explain  its  



                                                                                                                                                                                                                                                                                                                                               

reasoning" for the cut-off date "in words," but it argues that the court's "rationale . . . is  



                           44                         See Martinez-Morales v. Martens                                                                                                              , 367 P.3d 1167, 1170 (Alaska 2016)                                                                                                



 (holding that a claim "is moot if it is no longer a present, live controversy, and the party                                                                                                                                                                                                                                            

bringing the action would not be entitled to relief, even if it prevails" (quoting                                                                                                                                                                                                                                               Alaska  

Fur Gallery v. First Nat'l Bank Alaska                                                                                                                        , 345 P.3d 76, 96-97 (Alaska 2015))).                                                                                  



                                                                                                                                                                        -19-	                                                                                                                                                              7366
  


----------------------- Page 20-----------------------

readily apparent":  in DOT's view,   the excluded fees and costs for these unsuccessful   



endeavors were not "necessarily incurred."                                              



                           "Full attorney's fees are the norm under Civil Rule 72(k), but those fees                                                                 



must   be   both   reasonable   and   necessarily   incurred   to   achieve   just   and   adequate  

                                                            45  The superior court thus has considerable discretion to  

compensation for the owner."                                                                                              

review fees and costs with these standards in mind.46  We have repeatedly held, however,  

                                                                                                                                                            



that because an award of full fees is the norm, "[w]hen a trial court decides not to award  

                                                                                                                                                                  

full attorney's fees and costs it must state its reasons."47  

                                                                                                                    



                           We might be able toinfer thecourt's reasons for excluding certain activities  

                                                                                                                                                            



from its fees award, as DOT contends.  But given our clear precedent, we must vacate  

                                                                                                              



the attorney's fees award and remand for the court to reconsider this aspect of it and to  

                                                                                                                                                                          



state its reasons for excluding any activities from the award.  

                                                                                                            



V.           CONCLUSION  



                           We AFFIRM the judgment of the superior court except with regard to the  

                                                                                                                                                                        



excluded attorney's fees, which we vacate. We REMAND that issue for reconsideration  

                                                                                                                                               



consistent with this opinion.  We do not retain jurisdiction.  

                                                                                               



             45              Vezey v. State              , 798 P.2d 327, 335 (Alaska 1990) (quoting                                                 Res. Invs. v.         



State, Dep't of Transp. & Pub. Facilities                                         , 687 P.2d 280, 283 (Alaska 1984)).                       



             46            See Res. Invs., 687 P.2d at 283.  

                                                                                 



             47            Vezey, 798 P.2d at 335; Res. Invs., 687 P.2d at 283; Triangle, Inc. v. State,  

                                                                                                                                                                   

632 P.2d 965, 970 (Alaska 1981) ("If, upon remand, the superior court determines that  

                                                                                                                                                                      

full attorney's fees and costs are not warranted, it must articulate its reasons for so  

                                                                                                                                                                         

ruling.").  



                                                                                   -20-                                                                            7366
  

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