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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kelly A. Dickson, Trustee of the Kelly A. Dickson 2008 Trust, and Donna C. Defusco v. State of Alaska, Department of Natural Resources (5/28/2021) sp-7534

Kelly A. Dickson, Trustee of the Kelly A. Dickson 2008 Trust, and Donna C. Defusco v. State of Alaska, Department of Natural Resources (5/28/2021) sp-7534

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                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



KELLY  A.  DICKSON,  TRUSTEE  OF  )
  

THE  KELLY  A.  DICKSON  2008                                 )    Supreme Court No. S-17620  

                                                                                                    

TRUST,  and  DONNA  C.  DEFUSCO,                              )  

                                                              )    Superior Court No. 3AN-12-07260 CI  

                                                                                                                            

                               Appellants,                    )  

                                                                                       

                                                              )    O P I N I O N  

          v.                                                  )  

                                                                                                     

                                                              )    No. 7534 - May 28, 2021  

                    

STATE OF ALASKA,                                              )  

                                  

DEPARTMENT OF NATURAL                                         )  

                                            

RESOURCES, and also all other                                 )  

                                                           

persons or parties unknown claiming a  )
  

                                                         

right, title, estate, lien, or interest in the  )
  

                                            

real estate described in this action,                         )
  

                                                              )
  

                               Appellees.                     )
  

                                                              )
  



                                                                                                          

                                          

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

                                                                                                    

                     Judicial District, Anchorage, Catherine M. Easter, Judge.  



                                                                                                       

                     Appearances:  Adolf V. Zeman and Leslie R. Need, Landye  

                                                                                                                   

                     Bennett        Blumstein          LLP,       Anchorage,            for     Appellants.  

                                                                                                 

                     Cheryl R. Brooking, Assistant Attorney General, Anchorage,  

                                                                                                             

                     and  Kevin  G.  Clarkson,  Attorney  General,  Juneau,  for  

                                                 

                     Appellee State of Alaska.  



                                                                                                           

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

                                                                                        

                     Carney, Justices.  [Borghesan, Justice, not participating.]  



                                          

                     MAASSEN, Justice.  


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

I.        INTRODUCTION
  



                    The  State  prevailed  in  a  quiet  title  action  brought  against  it  by  two  

                                                                                                                            



landowners and was awarded approximately $205,000 in attorney's fees pursuant to the  

                                                                                                                              



Alaska Civil Rule 82(b)(2) schedule.   In an earlier appeal we affirmed the superior  

                                                                                                                      



court's decision on the merits but determined that the court's findings on attorney's fees  

                                                                                                                             



were  inadequate  for  our  review.                    We  remanded  the  case  for  the  court's  express  

                                                                                                                      



consideration of two factors relevant to whether a scheduled award should be reduced:  

                                                                                                                                    



Rule 82(b)(3)(I) (whether an award is "so onerous . . . that it would deter similarly  

                                                                                                 



situated litigants from the voluntary use of the courts") and Rule 82(b)(3)(J) ("the extent  

                                                                                                                          



to which the fees incurred by the prevailing party suggest that they had been influenced  

                                                                                                                   



by considerations apart from the case at bar").  

                                                              



                    The superior court expressly considered these factors on remand, made  

                                                                                                                          



additional  findings  to  explain  its  reasoning,  and  affirmed  its  earlier  award.                                     The  

                                                                                                                            



landowners again appeal.  

                                         



                    We conclude that the superior court did not err in its interpretation of  

                                                                                                         



factors (I) and (J), that it did not abuse its discretion by declining to rely on them to  

                                                                                                                                



reduce the award, and that the award did not violate the landowners' constitutional rights  

                                                                                                                          



of due process and access to the courts.  We further conclude that the superior court did  

                                                                                                                              



not abuse its discretion when it declined to hold proceedings on remand in abeyance  

                                                                                                                     



while the landowners evaluated the significance of an anonymous letter accusing the  

                                                                                                                              



State and its attorneys of litigation misconduct. We therefore affirm the judgment of the  

                                                                                                                              



superior court.  

              



II.       FACTS AND PROCEEDINGS  

                                 



                    Kelly Dickson is trustee of the Kelly A. Dickson 2008 Trust (Dickson), and  

                                                                                                                              



Donna DeFusco is her sister.  Dickson and DeFusco own property near Big Lake, first  

                                                                                                                             



                                                               -2-                                                        7534
  


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

                                                              1  

homesteaded by their father in 1958.                             For decades other members of the public used or                                 



attempted touseseveralroutesacross Dickson                                    andDeFusco'sproperty                    fortransportation   

                         2   The State claimed two public rights of way: the Historic Iditarod Trail,  

and recreation.                                                                                                                            

                                                                                    3  and Homestead Road, a prescriptive  

crossing the property via an RS 2477 right of way;                                                                              

                                                                             

easement.4          Dickson and DeFusco filed a quiet title action in 2012 seeking to invalidate  

                                                                                                                                    

these claims.5  

                         



                       The State vigorously contested the suit, and the litigation was hard-fought  

                                                                                                                                



and complex.  The superior court held a 27-day bench trial in 2016 at which the parties  

                                                                                                                                         

called 20 witnesses, five of them experts.6  After trial the court ruled in favor of the State,  

                                                                                                                                           



finding that it had proven the existence of both the RS 2477 right of way for the Historic  

                                                                                                                                       

Iditarod Trail and the prescriptive easement for Homestead Road.7                                                  The court awarded  

                                                                                                                                      



           1           Dickson  v.  State,  Dep't  of  Nat.  Res.,  433  P.3d   1075,   1078  (Alaska  2018).  



           2           Id.  at   1079-81.  



           3           An  RS  2477  right  of  way  is  a  type  of public  easement  created  by  federal  



law  and  based  on  historic  use.   See  id.  at   1082-83.  



           4           Id.   at   1078-81.  A  prescriptive   easement  depends   on  proof  that  "(1)  the  



[claimant's]  use  was  continuous  and uninterrupted  for   [a] ten-year  period  .  .  .  ;  (2)  the  

claimant   acted   as   an   owner   and  not  merely   as   a  person  having  the  permission of  the  

owner;   and   (3)  the   use   was   reasonably   visible   to   the   record   owner."     Id.   at   1085  

(alteration  in  original)  (quoting  Interior  Trails  Pres.  Coal.  v.  Swope,  115  P.3d  527,  530  

(Alaska  2005)).  



           5           Id. at 1081.  

                                 



           6           Id.  



           7           Id. at 1081-82.  

                                 



                                                                       -3-                                                                 7534
  


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

                                                                                                                              8  

the State, as prevailing party, approximately $205,000 in attorney's fees.                                                       



                                                                                 9  

                                                                                                                                                  

                       Dickson  and  DeFusco  appealed.                               In  Dickson  v.  State,  Department  of  



                                                                                                                                                 

Natural Resources, we affirmed the superior court's decision on the merits, but we  

                                                                                                     10  Citingboth "the sheer size  

                                                                                                                                                

                                                                              

remanded the attorney's fee award for furtherconsideration. 



of the award" and "the unusual evidence that the State selected and devoted resources  

                                                                                      



to RS 2477 cases like this one that it hoped would be precedential," we directed the  

                                                                                                                                                 

superior court on remand to make specific findings under Rule 82(b)(3)(I)11  and (J)12 to  

                                                                                                                                                   



determine  whether  equitable  factors  justified  a  downward  "variance  of  an  award  

                                                                                                                                           

calculated pursuant to the formula of Rule 82(b)(2)."13  

                                                                           



                       In April 2019 the superior court heard oral argument on the remanded  

                                                                                                                                     



attorney's fees issues.  In June, before the court had issued any decision, it received an  

                                                                                                                                                  



anonymous letter purporting to be from a State employee with inside knowledge about  

                                                                                                                                             



the Dickson and DeFusco case - specifically that the State and its attorneys put on a  

                                                                                                                                                    



fraudulent defense to the quiet title action, knowing that the Historic Iditarod Trail "did  

                                                                                                                                               



            8          Id.  at   1082.  



            9          Id.  



            10         Id.  at   1089-90.  



            11         Rule  82(b)(3)(I)  states  that  the  court  may  vary  an  attorney's  fee  award  upon  



consideration   of   "the   extent   to   which   a   given   fee   award   may   be   so   onerous   to   the  

non-prevailing  party  that it  would  deter  similarly  situated  litigants  from the  voluntary  use  

of  the  courts."   



            12         Rule 82(b)(3)(J) states that the court may vary an attorney's fee award upon  

                                                                                                                                              

consideration of "the extent to which the fees incurred by the prevailing party suggest  

                                                                                                             

that they had been influenced by considerations apart from the case at bar,  such as a  

                                                                                                                                                    

desire to discourage claims by others against the prevailing party or its insurer."  

                                                                                                                                            



            13         Dickson, 433 P.3d at 1089-90.  

                                                             



                                                                        -4-                                                                  7534
  


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

                                                                                                                                

not come close to the sisters['] land."  The court shared the letter with the parties.  The  



                                                                                                         

State responded by calling the letter a "hoax" and raising a number of questions about  



                                                                                                                     

its authenticity based on the writer's apparent unfamiliarity with the agency procedures  



                                                                                                                          

and personnel the letter purported to address.   Dickson and DeFusco filed a motion  



                                                                                                                              

asking the court to "hold [the attorney's fees] matter in abeyance and not issue any order  



                                                                                                                         

or decision . . . for a period of 60 days . . . to allow for Plaintiffs to review and evaluate  



                                                                                                                                 

the statement and  determine whether further action related to the statement and its  



                                                                                                                           

content are necessary or appropriate." The court denied Dickson and DeFusco's motion  



                                 

to stay proceedings.  



                                                                                                                    

                     In late September the court issued its findings and conclusions specifically  



                                                                                                                         

addressing Rule 82(b)(3)(I) and (J).  It found that there were unique aspects of Dickson  



                                                                                                                      

and DeFusco's case that made it more complex than the norm, meaning that other  



                                                                                                                              

Alaskans considering quiet title actions against the State were unlikely to view the large  



                                                                                                                        

attorney's fees award as a deterrent to filing suit.  It also found that the State's response  



                                                                                                                              

to the suit was "proportionate and relevant" and that the case resolved no factual or legal  



                                                                                                                          

issues other than those specific to Dickson and DeFusco's property.  The court rejected  



                                                                                                                              

the contention that the State had selected this case "as a test case for any factual or legal  



                                                                                                                                  

precedent."  Ultimately, it declined "to exercise its discretion to downward-adjust or  



                                                                                                                       

eliminate the prevailing party's attorney's fees awarded pursuant to Civil Rule 82(b)(2)"  



                                                                                                                     

and affirmed its earlier award "calculated pursuant to Civil Rule 82(b)(2)."  



                                                                                                                               

                     Dickson and DeFusco again appeal.  They challenge the attorney's fees  



                                                                                                                                 

award on grounds that (1) the court erred in its interpretation of factors (I) and (J); (2) the  



                                                                                                                                    

court abused its discretion by failing to conclude that factors (I) and (J) warranted a  



                                                                                                                                 

downward adjustment; (3) the fees award violated their constitutional rights; and (4) the  



                                                                                                                                  

court  abused  its  discretion  by  denying  Dickson  and  DeFusco  the  opportunity  to  



                                                     

investigate the anonymous letter.  



                                                                -5-                                                          7534
  


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

III.	          STANDARD OF REVIEW                         



                              "We review awards of attorney's fees for abuse of discretion. Such abuse                                                                                 



exists if the award is 'arbitrary, capricious, manifestly unreasonable, or improperly                                                                                    



motivated.'   We interpret our civil rules and address constitutionality de novo, adopting                                                                                      



                                                                                                                                                                            14  

the rule of law most persuasive in light of precedent, policy, and reason."                                                                                                       "Legal  



                                                                                                                                                                                

questions involved in exceptions to an award of attorney's fees are reviewed de novo,  



                                                                                                                                                                         15  

                                                                                                                                                                               

while exceptions that rely on factual findings are reviewed for clear error." 



                                                                                                                                                                           

                              "We review a denial of a motion to continue for 'abuse of discretion,  



                                                                                                                                                         

determining  whether  a  party  has  been  deprived  of  a  substantial  right  or  seriously  



                                                                                             16  

                                                                                           

prejudiced by the lower court's ruling.' " 



IV.	           DISCUSSION  



                                                                                                                                                                                            

               A.	            The  Superior  Court  Did  Not  Err  Or  Abuse  Its  Discretion  In  Its  

                                                                                                                                          

                              Consideration Of Civil Rule 82(b)(3)(I) And (J).  



                                                                                                                                                                                            

                              Our discussion of the attorney's fees issue in Dickson recognized that the  



                                                                                                                                                                               

superior  court's  original  award  of  attorney's  fees  -  based  on  the  Rule  82(b)(2)  



               14             Rhodes v. Erion                      , 189 P.3d 1051, 1053 (Alaska 2008) (quoting                                                                Kellis v.   



Crites, 20 P.3d 1112, 1113 (Alaska 2001)).                                        



               15             Cizek v. Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 848- 

                                                                                                                                                                                         

49 (Alaska 2003).  

                           



               16             Rowan B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                    

Servs., 361 P.3d 910, 912 (Alaska 2015) (quoting Hannah B. v. State, Dep't of Health  

                                                                                                                                                                                    

& Soc. Servs., Office of Children's Servs., 289 P.3d 924, 930 (Alaska 2012)).  

                                                                                                                                                              



                                                                                              -6-	                                                                                      7534
  


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

                 17                                                            18  

schedule             - was presumptively correct.                                   We also noted, however, that Dickson and         



DeFusco's opposition to the attorney's fees award had relied in part on two factors listed                                                                  



in Rule 82(b)(3) - factors that may justify a downward adjustment of an award - that                                                                           

                                                                                           19  The first factor -factor (I) -allows  

the superior court had not specifically addressed.                                                                                                        



a variance if the award would otherwise be "so onerous to the non-prevailing party that  

                                                                                                                                                               

it would deter similarly situated litigants from the voluntary use of the courts."20                                                                          The  

                                                                                                                                                              



second factor - factor (J) - allows a variance to "the extent to which the fees incurred  

                                                                                                                                                      



by the prevailing party suggest that they had been influenced by considerations apart  

                                                                                                                                                            



from  the  case  at  bar,  such  as  a  desire  to  discourage  claims  by  others  against  the  

                                                                                                                                                               

prevailing party."21  

                                        

                          "Application of Rule 82(b)(3) factors is discretionary, not mandatory."22  

                                                                                                                                                                       



But we noted in Dickson "[t]wo unique circumstances of this case [that] persuade us that  

                                                                                                                                                               



there may be compelling reasons to overcome the award's presumption of correctness":  

                                                                                                                                             



                          The  first  is  the  sheer  size  of  the  award;  for  most  private  

                                                                                                                               

                         parties an award of over $200,000 would have the deterrent  

                                                                                                                           



             17           Rule   82(b)(2)   provides   that   "[i]n   cases   in   which   the   prevailing   party  



recovers  no  money  judgment,  the  court  shall  award  the  prevailing  party  in  a  case  which  

goes  to  trial  30  percent  of  the  prevailing  party's  reasonable  actual  attorney's  fees  which  

were  necessarily  incurred."   



             18          Dickson, 433 P.3d at 1089.  

                                                                   



             19          Id. at 1089-90. Rule 82(b)(3) reads:  "The court may vary an attorney's fee  

                                                                                                                                                                

award calculated under subparagraph (b)(1) or (2) of this rule if, upon consideration of  

                                                                                                                                                                  

the factors listed below, the court determines a variation is warranted . . . ."  A list of  

                                                                                                                                                                  

eleven factors, lettered (A)-(K), follows.  

                                                               



             20          Alaska R. Civ. P. 82(b)(3)(I).  

                                                             



             21          Alaska R. Civ. P. 82(b)(3)(J).  

                                                             



             22          Rhodes v. Erion, 189 P.3d 1051, 1055 (Alaska 2008).  

                                                                                                                                   



                                                                                -7-                                                                         7534
  


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

                                effect  addressed   by   Rule   82(b)(3)(I).     The   second   is   the  

                                unusual    evidence    that    the    State    selected    and    devoted  

                                resources to RS 2477 cases like this one that it hoped would                                                                      

                                                                      [23]   That is a perfectly reasonable strategy for  

                                be precedential.                                                                                                                          

                                any potential litigant facing a number of similar claims, but  

                                                                                                                                                                         

                                Rule  82(b)(3)(J)  recognizes  the  potential  unfairness  of  

                                                                                                                                                                          

                                imposing the strategy's entire burden on the non-prevailing  

                                                                                   [24]  

                                                                       

                                party in the test case. 



We  directed  the  court  on  remand  to  give  "express  consideration  [to]  whether  

                                                                                                                                                                                           



Rule 82(b)(3)(I) and (J) justify variance of an award calculated pursuant to the formula  

                                                                                                                                                                                              

of Rule 82(b)(2)."25                                  The superior court having reaffirmed its prior award, we now  

                                                                                                                                                                                                      



address Dickson and DeFusco's challenges to the court's expanded explanation of its  

                                                                                                                                                                                                           



reasoning.  

                            



                                 1.	            The superior court  did not require Dickson and DeFusco to  

                                                                                                                                                                                                           

                                                propose a "reasonable" award.  

                                                                                                               



                                Dickson and DeFusco argued in the superior court that an attorney's fees  

                                                                                                                                                                                                       



award  of  any  size  would  unfairly  burden  them with  the  costs  of  the  State's  broad  

                                                                                                                                                                                                  



RS 2477 litigation strategy and deter other, similarly situated litigants.  The superior  

                                                                                                                                                                                             



court made note of this argument in its attorney's fees order, remarking that Dickson and  

                                                                                                                                                                                                        



DeFusco  "suggest  no  alternative  amount  that  would  assist  the  court  in  striking  an  

                                                                                                                                                                                                          



                23              This evidence consisted primarily of legislative testimony by an assistant                                                                                  



attorney general                           that the State was "carefully pick[ing] strong R.S. 2477 claims to                                                                                              

initially prosecute" in order to further its overall strategy of securing title to RS 2477                                                                                                          

rights of way across the state. The presentation identified the Dickson and DeFusco case                                                                                                               

as one that was then being "actively litigated."                                                                     Minutes, Joint House & Senate State                                             

Affairs Standing Comm., Hearing on Fed. Overreach:  Activities of Dep't of Law and                                                                                    

Nat. Res., 28th Leg., 1st Sess., 8:55-9:04 (Feb. 26, 2013) (testimony of Kent Sullivan,                                                                                                    

Assistant Att'y Gen.).                



                24              Dickson, 433 P.3d at 1089-90.  

                                                                                    



                25              Id. at 1090.  

                                               



                                                                                                     -8-	                                                                                            7534
  


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

appropriate balance" between Rule 82's compensatory purpose and factor (I)'s purpose                                                                                                                    



of precluding awards that are likely to chill access to the courts.                                                                                                Dickson and DeFusco                



interpret the superior court's observation as imposing a duty on them to propose a                                                                                                                                      



"reasonable" amount other than zero, and they contend that the court "punish[ed] them                                                                                                                           



for not suggesting an alternative."                                                      



                                  We see no support for this argument in the attorney's fees order. The court                                                                                                   



began   its analysis at $205,506.91,                                                        the amount it had earlier                                            awarded   based  on  the  



Rule   82(b)(2)   schedule.     The   court   went   on   to   expressly   consider   whether   this  



presumptively correct award should be modified because of the application of factors (I)                                                                                                                              

                                                                                          26  While clearly finding Dickson and DeFusco's no- 

and (J), as we had instructed it to do.                                                                                                                                                                             



award position unhelpful because of its failure to engage with Rule 82's compensatory  

                                                                                                                                                                                         



purpose, the superior court conducted the analysis required by Rule 82 and our remand  

                                                                                                                                                                                                         



instructions.   We reject the argument that it imposed a novel duty on Dickson and  

                                                                                                                                                                                                                  



DeFusco and that it punished them for failing to perform that duty.  

                                                                                                                                                              



                                  2.	              The   superior   court   did   not   err   in   its   interpretation   of  

                                                                                                                                                                                                                    

                                                   Rule 82(b)(3)(I).  

                                                                  



                                  The superior court's consideration of factor (I) required it to weigh "the  

                                                                                                                                                                                                                 



extent to which a given fee award may be so onerous to the non-prevailing party that it  

                                                                                                                                                                                                                         

would deter similarly situated litigants from the voluntary use of the courts."27   Dickson  

                                                                                                                                                                                                                               



and DeFusco argue that the superior court erred by adding "additional requirements" to  

                                                                                                                                                                                                                        



factor (I).  They contend first that the court added a requirement that the non-prevailing  

                                                                                                                                                                                       



party "prove the issues alleged impacted other Alaskans" and that the court concluded,  

                                                                                                                                                                                                



mistakenly, that the issues had no such impact.  

                                                                                                                          



                 26               Id.  at   1089-90.  



                 27               Alaska  R.  Civ.  P.  82(b)(3)(I).  



                                                                                                           -9-                                                                                                           7534  


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

                                                                                                                               

                    We  read  the  court's  analysis  of  factor  (I)  as  concluding  simply that  



                                                                                                                               

"similarly situated litigants" - other Alaskans considering whether to bring quiet title  



                                                                                      

actions against the State - would not be deterred from the voluntary use of the courts  



                                                                                                                                  

because they could not reasonably expect their cases to be as complex and expensive as  



                                                                                                                            

Dickson and DeFusco's proved to be.   Identifying its first task as determining "who  



                                                                                                                

similarly situated litigants are," the court noted a number of facts that differentiated  



                                                                                                                         

Dickson and DeFusco's suit from the norm: their property "was used during the summer  



                                                                                                                         

by one of the Plaintiffs, and [it] was potentially encumbered by two roads[,] the Historic  



                                                                                                                           

Iditarod  Trail  and  the  Homestead  Road."                             The  court  further  noted  that  "[t]he  



                                                                                                                               

characteristics of the claims and counterclaims . . . impacted only the Plaintiffs," and that  



"[a]lthough the Plaintiffs sought non-monetary relief, their claim held economic value  



                                                               

based on its impact [on] their property."  



                                                                                                                                      

                    The resulting litigation was also, in the court's experience, extraordinary.  



                                                                                                                      

"The issues litigated were fact-intensive, and the manner in which they were contested  



                                                                                                                             

required extensive historical and expert testimony."  Pretrial preparation included "tens  



                                                                                                                              

of thousands of pages of discovery and days of depositions."  Trial itself was 27 days  



                                                                                                                               

long, "the longest trial [the court had] conducted."  The resulting findings of fact and  



                                                                                                                                      

conclusions of law were 57 pages long and "subject to a motion for reconsideration."  



                                                                                                                                 

The complexity of the case "required substantial time and resources" as recognized by  



                                                                                                                                 

both  sides:         Dickson  and  DeFusco  themselves  "spent  approximately  $800,000  in  



                                                                                                                       

litigating the case."   Considering all these facts,  the court concluded that similarly  



                                                                                                             

situated litigants - that is, other "landowner[s] seeking to file a quiet title suit against  



                                                                                                                                

the State" - would not "expect themselves or their opposing party to incur fees in the  



                                                                                                                                  

amount incurred in this case" and thus would not be deterred "from the voluntary use of  



                                                               -10-                                                         7534
  


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

                                                                    28  

 the courts."                                                                  This analysis follows the express language of factor (I) and does not rely                                                                                                                                                                                                                                                                                                                                     



  on an extra-textual "impact" requirement as Dickson and DeFusco contend.                                                                                                                                                                                                                                                                                                                           



                                                                               Second, Dickson and DeFusco argue that the superior court impermissibly                                                                                                                                                                                                                                                                            



 relied on the case's complexity to "offset" factor (I)'s application.                                                                                                                                                                                                                                                                                                                                          They argue that                                                              



 because   "the complexity of the litigation" is identified                                                                                                                                                                                                                                                                                  as a separate Rule 82(b)(3)                                                                                         



  factor - factor (A) - it was error to consider it in the context of factor (I) when                                                                                                                                                                                                                                                                                                                                                                                              



  deciding whether an award would deter similarly situated litigants.                                                                                                                                                                                                                                                                                                                                    But we decline to                                                                              



 read the Rule 82(b)(3) factors as so rigidly siloed. The nature of the claims; the number,                                                                                                                                                                                                                                                                                                                                                                          



 novelty, and significance of the issues; the extent of discovery; the need for expert                                                                                                                                                                                                                                                                                                                                                                                         



 testimony; and the money, time, and other resources necessary to pursue or defend the                                                                                                                                                                                                                                                                                                                                                                                                             



  case - logically, all these elements that contribute to a case's complexity are also                                                                                                                                                                                                                                                                                                                                                                                                     



 relevant when the court is considering whether litigants with similar claims are likely to                                                                                                                                                                                                                                                                                                                                                                                                               



 be similarly burdened. We see no error in the superior court's consideration of the case's                                                                                                                                                                                                                                                                                                                                                                                       



  complexity in the context of factor (I).                                                                                                                                                                  



                                                                               3.	                                   The   court   did   not   abuse   its  discretion   in   its   application   of  

                                                                                                                     Rule 82(b)(3)(I).   



                                                                               Dickson and DeFusco argue that the superior court not only erred in its                                                                                                                                                                                                                                                                                                                                                



  interpretation of factor (I), it also abused its discretion in deciding that the factor did not                                                                                                                                                                                                                                                                                                                                                                                                 



justify a downward departure fromthe                                                                                                                                                                                        scheduled award. They                                                                                                                    argue that the court failed  



 to explain why it concluded that the award would not deter similarly situated litigants;                                                                                                                                                                                                                                                                 



 that the court overlooked guiding precedent regarding the deterrent effect of attorney's                                                                                                                                                                                                                                                                                                                                                                 



  fee awards; and that the court "dismissed the evidence presented in support of [the                                                                                                                                                                                                                                                                                                                                                                                                       



  factor's application]."                                                                                                          None of these arguments convince us that the court abused its                                                                                                                                                                                                                                                                                                      



  discretion.   



                                        28                                    Alaska R. Civ. P. 82(b)(3)(I).  

                                                                                                                                                                                     



                                                                                                                                                                                                                                                -11-                                                                                                                                                                                                                                      7534  


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

                                         Dickson and DeFusco's first assertion - that the court failed to explain                                                                                                                                



why the award would not deter similarly situated litigants - is mistaken.                                                                                                                                                      As described   



above, the court did explain why, in its view, it was the case's unique aspects that                                                                                                                                                                       



resulted in the high attorney's fee award, meaning that the award was unlikely to act as                                                                                                                                                                         



a deterrent to other litigants who might be considering whether to bring quiet title actions                                                                                                                                                       



against the State.                                     



                                         Second, none of the cases Dickson and DeFusco cite as guiding precedent                                                                                                                          



mandate a different exercise of the superior court's discretion in this case. In                                                                                                                                                    McGlothlin  



v.  Municipality of Anchorage                                                             , we concluded that a scheduled award of $4,242 - 20%                                                                                                          



of the reasonable fees incurred - was "not so onerous as to deter those who come                                                                                                                                                                      

                                                                                                                         29   In Boiko v. Kapolchok, we held that the court  

forward in good faith with a complaint."                                                                                                                                                                                                                



did not abuse its discretion by awarding 15% of the fees incurred - less than the  

                                                                                                                                                                                                                                                             



scheduled amount - as the award of $17,887 was "hardly an insignificant sum" and the  

                                                                                                                                                                                                                                                               



court could reasonably have concluded that a larger award would have a "chilling effect"  

                                                                                                                                                                                                                                                   

                                                                                        30  In neither McGlothlin nor Boiko did we imply that larger  

on similarly situated litigants.                                                                                                                                                                                                                      

                                                               

fee awards made under completely different circumstances were necessarily suspect.31  

                                                                                                                                                                                                                                          



                    29                   991  P.2d   1273,   1280  (Alaska   1999).  



                    30                   426  P.3d  868,  878  (Alaska  2018).  



                    31                   In  State  v.  Jacob,  214  P.3d  353  (Alaska  2009),  also  cited  by  Dickson  and  



DeFusco,  we  affirmed  the  court's  award  of  enhanced  fees  by  reference  to  factors  (H)  and  

(F);  we  did  not  address  factor  (I),  although  the  trial  court  had  relied  on  it  in  part.   Id.  at  

358-62.   We  also  affirmed  an  award  of  enhanced  fees  in   Ware  v.   Ware,   161  P.3d   1188,  

 1198-1200  (Alaska  2007);  Dickson  and  DeFusco  cite  only  the  dissent.   The  Ware  dissent  

argued  that  the  superior  court  should  revisit  the  issue  of  whether  the  award,  based  in  part  

on  the  litigation's  complexity,  would  deter  other  self-represented litigants;  the  dissent  

questioned  whether  complications  due  to  unrepresented  litigants'  lack  of  legal  training  

and  experience  could  fairly  be  used  to  justify  an  enhanced  award.   Id.  at  1204  (Fabe,  J.,  

                                                                                                                                                                                                                               (continued...)  



                                                                                                                              -12-                                                                                                                       7534
  


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

                                             Finally, Dickson and DeFusco contend that the superior court "abused its                                                                                                                                                                     



discretion when it dismissed the evidence presented in support of [the] application of"                                                                                                                                       



factor (I). They do not point to any particular evidence the court overlooked; in fact, the                                                                                                                                                                                             



only   evidence   submitted   with   their  fees   memorandum on                                                                                                                                            remand,   other   than   their  



attorney's   affidavit   attesting   to   the   amount   of   their   own   fees   and   costs,   related   to  



factor (J) and the argument that the State litigated the case vigorously as a test case.                                                                                                                                                                                                             



Their vague reference to evidence appears to simply restate their argument that the court                                                                                                                                                                                        



should have found from the award's size alone that it was so onerous as to deter other                                                                          



good faith litigants.                                               But as described above, the court placed the award's size in the                                                                                                                                                   



factual context of the case's significance and complexity.                                                                                                                                       We cannot conclude that the                                                            



court abused its discretion by failing to consider relevant evidence.                                                                                                                            



                                             4.	                   The   superior   court   did   not   err   in   its   interpretation   of   Rule  

                                                                   82(b)(3)(J).  



                                             The superior court's consideration of factor (J) on remand required it to  

                                                                                                                                                                                                                                                                                           



weigh "the extent to which the fees incurred by the prevailing party suggest that they had                                                                                                                                                                                            



been   influenced   by   considerations   apart   from   the   case   at   bar,   such   as   a   desire   to  

                                                                                                                                                                                                                                                                 32           When  

discourage   claims   by   others   against  the   prevailing   party   or   its   insurers."                                                                                                                                                                             



remanding for the court's express consideration of this factor, we noted "the unusual  

                                                                                                                                                                                                                                                                       



evidence that the State selected and devoted resources to RS 2477 cases like this one that  

                                                                                                                                                                                                                                                                                      

it  hoped  would  be  precedential."33                                                                                          The  superior  court  on  remand  recognized  this  

                                                                                                                                                                                                                                                                                    



evidence, noting "that the State was/is interested in settling R.S. 2477 disputes, that the  

                                                                                                                                                                                                                                                                                       



                      31                     (...continued)  



                                                                                                                                                                                      

dissenting).  These concerns are not implicated here.  



                      32                     Alaska R. Civ. P. 82(b)(3)(I).                              



                      33                    Dickson v. State, Dep't of Nat. Res.                                                                                    , 433 P.3d 1075, 1089 (Alaska 2018).                                                                    



                                                                                                                                          -13-	                                                                                                                                   7534
  


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

                                                                                                                          

State considered this case to fall within that category of cases, and that the State wanted  



                                                                                                                                  

to litigate this case thoroughly and competently to avoid losing its claim to what it  



                                                                                                                         

believed to be a true R.S. 2477 [right of way]."  But the court identified several reasons  



                                                                                                                             

why it would "decline to exercise its discretion to downward adjust the prevailing party  



                                                              

attorney's fee award under" factor (J).  



                                                                                                                                  

                    First, the court stated that Dickson and DeFusco's "case did not answer, or  



                                                                                                                             

purport to answer, any factual or legal questions applicable to overarching R.S. 2477  



                                                                                                                              

issues" but rather only "the presence of an R.S. 2477 [right of way] on the plot of land  



                                                                                                                  

in question."   Second, the court stated that although it was possible its voluminous  



                                                                                                                    

findings of fact and conclusions of law "could . . . be used to give the State bargaining  



                                                                                                                             

power against neighboring landowners in or outside of court," there was nothing in those  



                                                                                                                                 

57 pages of findings that "obviously addresses the location of the R.S. 2477 [right of  



                                                                                                                              

way] as it relates to any neighboring properties." Third, the court observed that the case  



                                                                                                                                

did not set any legal precedents, requiring only "an application of existing law to the  



                                                                                                                             

facts of this case."   Fourth, the court was not convinced that "the State would have  



                                                                                                                               

litigated this case" if Dickson and DeFusco had not "initiated it"; it further found that  



                                                                                                                        

"[t]he  State's  response  [to  the  quiet  title  action]  was  a  proportionate  and  relevant  



                                                                                                                                

defense," which Dickson  and  DeFusco  could  have reasonably expected  "given  the  



                                                                                                                            

[parties'] history of communication" about "this tract of land."  Finally, the court found  



                                                                                                                     

it "noteworthy that the State's extracurricular discussion of R.S. 2477s only mentioned  



                                                                                                                                 

one of the issues that were contested in this case" - the Historic Iditarod Trail -  



                                                                                                                            

whereas  the  case  also  involved  the  status  of  Homestead  Road.                                      Based  on  these  



                                                                                                                           

considerations, the court concluded that "the extra-record evidence regarding the State's  



                                                                                                                                   

interest in litigating R.S. 2477 claims" did not indicate "that this case was selected as a  



                                                               -14-                                                         7534
  


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

test case for any factual or legal precedent," and a downward adjustment under factor (J)  

                                                                                                                                 



was therefore not appropriate.  

                                                



                    Dickson and DeFusco argue that this analysis impermissibly added four  

                                                                                                                              



requirements to factor (J) that are not articulated in the rule.  They argue that the court  

                                                                                                                             



required them to show the following:  (1) that they "bore the entire burden, or . . . a  

                                                                                                                                  



disproportionate [amount of the] burden, of the State's R.S. 2477 litigation strategy";  

                                                                                                                      



(2) that their case presented "an issue of first impression"; (3) "that the State was using  

                                                                                                                            



the case to 'answer . . . factual or legal questions applicable to overarching R.S. 2477  

                                                                                                                             



issues' "; and (4) "that the State would have litigated this case whether or not [Dickson  

                                                                                                                       



and DeFusco had] initiated it."  

                                                 



                    This argument mischaracterizes the superior court's reasoning.  The court  

                                                                                                                             



identified none of these factors as "requirements" for a downward adjustment under  

                                                                                                                            



factor (J); rather, it identified them as relevant considerations, which, in combination,  

                                                                                                                 



persuaded it that a downward adjustment was not required.  We see no legal error in the  

                                                                                                                                



court's interpretation of factor (J).  

                                                



                    5.	        The superior court did not abuse its discretion in its application  

                                                                                                                   

                               of Rule 82(b)(3)(J).  

                                            



                    As with factor (I), Dickson and DeFusco argue that the superior court not  

                                                                                                                                



only committed legal error by adding additional hurdles to factor (J)'s application but  

                                                                                                                                



also abused its discretion by declining to rely on the factor for a downward adjustment  

                                                                                                                    



of the scheduled award.   The abuse of discretion, they contend, was in the court's  

                                                                                                                          



dismissal of the evidence they submitted to support factor (J)'s application: specifically  

                                                                                                                    



(1) the statements by the State's representative to the Alaska Legislature about its pursuit  

                                                                                                                          



of the Dickson and DeFusco case as part of its overall strategy for securing RS 2477  

                                                                                                                             



rights of way; and (2) the State's representations at trial that it hoped to secure rights of  

                                                                                                                                  



way  for  the  benefit  of  the  dog-mushing  community.                               This  evidence,  Dickson  and  

                                                                                                                              



                                                               -15-	                                                        7534
  


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

DeFusco assert, made it clear that the State's vigorous defense of the quiet title case was                                                                                                                                                                                                                                                                                                    



"influenced   by   considerations   apart   from   the   case   at   bar,"   making  a   downward  



adjustment under factor (J) appropriate.                                                                                                                                                     



                                                              The superior court directly addressed the evidence relevant to factor (J), as                                                                                                                                                                                                                                                             



we had                                  instructed it to do.                                                                          As described above, the court found it significant that                                                                                                                                                                                                 



Dickson and DeFusco's case resolved RS 2477 issues only with regard to their property,                                                                                                                                                                                                                                                                                 



without deciding any "issues of first impression or law-changing questions."                                                                                                                                                                                                                                                                                      The court   



also noted the lack of "evidence in the record that the State would have litigated this case                                                                                                                                                                                                                                                                                                  



whether or not the Plaintiffs initiated it," finding further that "[t]he State's response was                                                                                                                                                                                                                                                                                                   



a proportionate and relevant defense to the action the Plaintiffs filed based on the burden                                                                                                                                                                                                                                                                                      



it carried."                                        In sum, in the superior court's view, the State did not pick a test case but                                                                                                                                                                                                                                                                  



rather had litigation thrust upon it, whereupon it acted appropriately and proportionately                                                                                                                                                                                                                                                



in defense of the State's interests.                                                                                                                          



                                                              We thus reject Dickson and DeFusco's argument that the superior court                                                                                                                                                                                                                                                      



abused its discretion by "disregard[ing]" the evidence relevant to factor (J). The court's                                                                                                                                                                                                                                                                                       



view of the evidence is supported by the record and not clearly erroneous.                                                                                                                                                                                                                                                                                      And even   



assuming   that   the   vigor   of   the State's                                                                                                                                           defense   was   to   some   degree   "influenced   by  



considerations apart from the case at bar" does not end the inquiry, as whether to apply                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                    34   We cannot  

a downward adjustment is still a matter for the superior court's discretion.                                                                                                                                                                                                                                                                                                      



 say that that discretion was abused.  

                                                                                                                                                                       



                               B.	                            The Attorney's Fee Award Did Not Violate Dickson's And DeFusco's  

                                                                                                                                                                                                                                                                                                                                                              

                                                              Constitutional  Rights  Of  Due  Process  And  Equal  Access  To  The  

                                                                                                                                                                                                                                                                                                                                                                                           

                                                              Courts.  



                                                              Dickson and DeFusco also make a constitutional argument.  They argue  

                                                                                                                                                                                                                                                                                                                                                                                       



that because Rules 82(b)(3)(I) and (J) are specifically intended to ensure that litigants are  

                                                                                                                                                                                                                                                                                                                                                                                                   



                               34                             Rhodes v. Erion, 189 P.3d 1051, 1053 (Alaska 2008).  

                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                -16-                                                                                                                                                                                                            7534  


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

not deterred from voluntary use of the courts, a court's failure to properly apply those   



subsections of the rule necessarily results in a violation of the rights of due process and                                                                                                 



equal access to the courts.                                 They argue that the "sheer size" of the attorney's fees award                                                             



in this case served to "chill access to the [c]ourts" and "discourage claims."                                                                                               

                                                                                                                                                                           35  Dickson  

                              We apply our independent judgment to this constitutional issue.                                                                                     



and DeFusco's argument that factors (I) and (J) are intended to address concerns about  

                                                                                                                                                                                        

due process and access to the courts is  correct.36                                                                     We recognize that " 'financially  

                                                                                                                                                                         

ruinous' fee awards against good faith civil litigants could deter access to the courts."37  

                                                                                                                                                                                                      



And Rule 82 addresses this concern "by allowing courts to consider 'the extent to which  

                                                                                                                                                                                       



a given fee award may be so onerous to the non-prevailing party that it would deter  

                                                                                                                                                                                        

similarly situated litigants from the voluntary use of the courts.' "38                                                                                   However, because  

                                                                                                                                                                                  



we conclude that the superior court expressly considered these issues in the proper  

                                                                                                                                                                                     



framework of factors (I) and (J), we must also conclude that Dickson's and DeFusco's  

                                                                                                                                                                            



                                                                                                                                                                    39  

rights of due process and access to the courts were adequately protected.                                                                                                   

                                                                                                                                               



               35             Id.  



               36             Id.  at 1054-55;                   see also             Susanne Di Pietro & Teresa W. Carns,                                                     Alaska's  



English Rule: Attorney's Fee Shifting in Civil Cases                                                                  , 13 A       LASKA  L. R               EV. 33, 45 (1996)       

(describing adoption of Rule 82 departure factors).                                              



               37             Reid v. Williams, 964 P.2d 453, 462 (Alaska 1998). We note in this regard  

                                                                                                                                                                                      

that Dickson and DeFusco do not rely on their own financial circumstances to argue that  

                                                                                                                                                                                            

an award may be so onerous as to be unconstitutional.  

                                                                                     



               38              Thomas v. State, 377 P.3d 939, 951 (Alaska 2016) (quoting Alaska R. Civ.  

                                                                                                                                                                                           

P. 82(b)(3)(I)).  

       



               39             See State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 406 (Alaska 2007)  

                                                                                                                                                                                       

(holding that Rule 82 does not violate due process by denying access to the courts  

                                                                                                                                                                                      

because Rule 82(b)(3)(I) allows trial courts to consider "reduc[ing] awards that would  

                                                                                                                                                                                      

                                                                                                                                                                      (continued...)  



                                                                                             -17-                                                                                        7534
  


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

                 C.	             The Superior Court Did Not Abuse Its Discretion When It Denied                                                                                                     

                                 Dickson And DeFusco's Motion To Hold The Case In Abeyance.                                                                                      



                                 Dickson and DeFusco argue that the court violated their due process rights                                                                                               



by  denying   their   motion   to   hold   the   case   in   abeyance   while   they   investigated  the  



anonymous letter accusing the State of misconduct in the litigation of the case; they                                                                                                                       



argue in the alternative that the court abused its discretion when it failed to consider the                                                                                                                    



letter's contents when ruling on attorney's fees.                                                                       They assert that the letter's allegations                            



are clearly relevant both                                        to   the   application   of Rules 82(b)(3)(I)                                                          and   (J)   and   to   the  



underlying substantive issues of property law.                                                                       



                                 "We review a denial of a motion to continue for 'abuse of discretion,                                                                                      



determining   whether   a   party   has   been   deprived   of   a   substantial   right   or   seriously  



                                                                                                    40  

prejudiced by the lower court's ruling.' "                                                                                                                                                          

                                                                                                          We see no abuse of discretion in the superior  



                                                                                                                                                                                                          

court refusal to hold the case in abeyance based on the anonymous letter.  First, being  



                                                                                                                                                                                                        

both  anonymous and  largely  hearsay,  the letter  had  no  apparent evidentiary  value;  



                                                                                                                                                                                                                  

Dickson and DeFusco had no substantial right to have this one questionable piece of  



                                                                                                                                                                                                               

evidence shape the superior court's decision.   Second, Dickson and DeFusco do not  



                                                                                                                                                                                                    

explain how they were prejudiced by the court's denial of their motion.  Their specific  



                                                                                                                                                                                                               

request was  for  a 60-day  continuance "to allow [them] to review and  evaluate the  



                                                                                                                                                                                                     

statement and determine whether further action related to the statement and its content  



                                                                                                                                                                                                        

 [is] necessary or appropriate." Although the court denied their motion about two weeks  



                                                                                                                                                                                                                  

later, it did not issue its written attorney's fees decision for months - ultimately over 90  



                 39              (...continued)  



                                                                                                                                                                                     

otherwise be so onerous to the losing party as to deter similarly situated litigants").  



                 40  

                                                                                                                                                                                     

                                 Rowan B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                                       

Servs., 361 P.3d 910, 912 (Alaska 2015) (quoting Hannah B. v. State, Dep't of Health  

                                                                                                                                                                               

& Soc. Servs., Office of Children's Servs., 289 P.3d 924, 930 (Alaska 2012)).  



                                                                                                       -18-	                                                                                               7534
  


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

 days from the date Dickson and DeFusco asked for a 60-day continuance. They had not                                                                                                                                                                                



 requested any formal discovery in their motion, nor do they now suggest any informal                                                                                                        



 avenues of inquiry that were foreclosed to them by the court's order. If their "review and                                                                                                                                                                       



 evaluat[ion]" of the anonymous letter led them to conclude that it had evidentiary value,                                                                                                                                                                 



 they could have used it as the basis of an Alaska Civil Rule 60(b) motion to set aside the                                                                                                                                                                         



                                                                                                                                                                                    41  

judgment because of newly discovered evidence or fraud.                                                                                                                                     



                                          In short, the court's order did not foreclose the only action Dickson and  

                                                                                                                                                                                                                                                                  



 DeFusco contemplated - "review and evaluat[ion]" - and did not preclude their use  

                                                                                                                                                                                                                                                                   



 of the letter as newly discovered evidence in the event that their review and evaluation  

                                                                                                                                                                                                                                             



 suggested that course.  Because the court's denial of their request to hold the case in  

                                                                                                                                                                                                                                                                       



 abeyance did not deprive them of a substantial right or seriously prejudice them, it was  

                                                                                                                                                                                                                                                                 



 not an abuse of discretion.  

                                                                                      



 V.                   CONCLUSION  



                                          The superior court's attorney's fee award and its order denying the motion  

                                                                                                                                                                                                                                                        



 to hold the case in abeyance are AFFIRMED.  

                                                                                                      



                     41                   See  Alaska R. Civ. P. 60(b)(2) (allowing relief from judgment based on                                                                                                                                



 "newly discovered evidence which by due diligence could not have been discovered in                                                                                                                                                                                    

 time to move for a new trial under Rule 59(b)"); Rule 60(b)(3) (allowing relief from                                                                                                                                                                         

judgment based on "fraud . . . , misrepresentation, or other misconduct of an adverse                                                                                                                                                                

 party").  



                                                                                                                                 -19-                                                                                                                         7534
  

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