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J. Lyman v. State (1/17/92), 824 P 2d 703
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
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THE SUPREME COURT OF THE STATE OF ALASKA
JAMES S. LYMAN, )
) Supreme Court File No. S-3969
Appellant, ) Superior Court File
) 4FA-87-2224 Civil
STATE OF ALASKA, et al., ) O P I N I O N
Appellees. ) [No. 3797 - January 17, 1992]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Mary E. Greene, Judge.
Appearances: James S. Lyman, pro se.
Gary Foster, Call, Barrett & Burbank,
Fairbanks, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
This is an appeal of the superior court's order
dismissing with prejudice James S. Lyman's wrongful
termination action against his former employer. Lyman
also appeals the court's award of costs and attorney's
fees pursuant to Alaska Civil Rules 79 and 82.
I. FACTUAL AND PROCEDURAL BACKGROUND
James S. Lyman was terminated from his employment with
the State of Alaska for "gross insubordination." His
discharge stemmed from a dispute over his allowed time
away from work to travel to federal grand jury duty in
Anchorage. Lyman filed suits concurrently in federal
district and state superior court alleging two
violations of 28 U.S.C. 1875,1 one violation of 42
U.S.C. 1983, one violation of 42 U.S.C. 1985 and
one state law cause of action for "Breach of Good Faith
and Fair Dealings." In May 1989 the superior court
dismissed the "fair dealings"cause of action. In
March 1990 the federal district court granted the
state's motion for summary judgment on the federal
issues and dismissed the state law claim without
The state then moved the superior court for summary
judgment dismissing Lyman's federal causes of action on
grounds of res judicata. Lyman filed only limited
opposition to this motion, requesting that the
dismissal be "without prejudice." Thus, the state
court relief2 could be pursued if the federal court
judgment were reversed on reconsideration3 or after
appeal to the United States Court of Appeals for the
Ninth Circuit. The superior court granted the state's
motion and dismissed the case with prejudice.
Following dismissal, the superior court awarded the
state costs and attorney's fees of $6,656.484 pursuant
to Civil Rules 79 and 82. In so doing, the superior
court noted that Lyman's lawsuit "bordered on the
Lyman now seeks reversal of the superior court's
dismissal with prejudice and requests a remand to the
superior court for retrial or a dismissal without
prejudice to allow the case to be refiled in state
court. Also, Lyman seeks reversal of the award of
costs and attorney's fees.
A. THE SUPERIOR COURT DID NOT ERR IN DISMISSING
LYMAN'S COMPLAINT WITH PREJUDICE.
Lyman argues that the superior court erred in
dismissing his claims with prejudice on res judicata
grounds because the federal claim was still being
reconsidered by the federal district court and an
appeal to the federal circuit court was still possible.
Also, Lyman contends erroneously5 that the federal
district court dismissal was wholly "without prejudice
against filing in State Court."
The state argues that it is irrelevant whether the
dismissal is with or without prejudice. Civil Rule
60(b)(5) permits a judgment, with or without prejudice,
to be set aside if the judgment rests on the preclusive
effect of an earlier judgment which is later reversed.
The state contends that this is especially true since
Lyman's Motion for Reconsideration in the federal
district court has been denied.
Collateral estoppel may be applied only if the issue in
the first action is resolved by a final judgment on the
merits. McKean v. Municipality of Anchorage, 783 P.2d
1169, 1171 (Alaska 1989). Lyman contests the finality
of the dismissal, citing the motion for reconsideration
and the possibility of appeal.
The motion for reconsideration was later denied and
thus any effect such reconsideration may have on
finality need not be explored.
As to the effect of an appeal, we have often stated the
principle that a pending appeal is irrelevant for the
purposes of collateral estoppel. Rapoport v. Tesoro
Alaska Petroleum Co., 794 P.2d 949, 952 (Alaska 1990).
The initial order will cease to be "final" if the
appellate court reverses the judgment. Pletnikoff v.
Johnson, 765 P.2d 973, 976 (Alaska 1988); Pennington v.
Snow, 471 P.2d 370, 374 (Alaska 1970).
In Holmberg v. State, Div. of Risk Mgt., 796 P.2d 823,
829 (Alaska 1990), this court addressed the difficulty
with the rule that a judgment has preclusive effect
pending appeal. The rule allows for the possibility of
a second judgment standing on the preclusive effect of
a first judgment which is later reversed. Id. at 829.
The solution in Holmberg was to either stay or dismiss
the second action without prejudice when, as here,
resolution of an appeal will completely dispose of the
issues in the second action. Id.
Any dismissal, regardless of the form, does not leave
the appellant without recourse should an appeal of the
underlying judgment be successful:
If the prior decision is reversed on
appeal, a party always may institute a direct
action under Civil Rule 60(b)(5) to vacate
the judgment that rested on the preclusive
effect of the earlier reversed judgment.7/
7. Civil Rule 60(b)(5)
provides that a court may relieve a
party from a final judgment when "a
prior judgment upon which [the
judgment] is based has been
reversed . . . ." This rule itself
assumes that a judgment does not
lose its preclusive effects merely
because it is appealed. Otherwise
there would be no occasion to apply
Id. at 829-30. Thus, Lyman's primary contention that a dismissal
with prejudice would leave him with no route to seek
damages should the federal district court judgment be
reversed is not correct.
We have found no indication that Rule 60(b)(5) would be
applied differently to a dismissal with prejudice
compared to a dismissal without prejudice. Thus, we
agree with the state's contention that the nature of
dismissal is irrelevant so far as the first issue on
appeal is concerned.6
B. THE SUPERIOR COURT ERRED IN AWARDING
COSTS AND ATTORNEY'S FEES TO THE STATE.
Lyman argues that the award of attorney's fees and
costs against him is unjust and unduly harsh. His
argument is based on fairness. He argues that it
would be unjust to make him pay the state costs when he
is unemployed and financially distressed.
The state counters on procedural grounds, contending
that the issue is not presented in the form required by
Alaska Appellate Rule 212. Specifically, Lyman's brief
lacks a table of authorities, proper argument and
references to the record. See Alaska R. App. P.
212(c)(1)[b],[c][i],(8) (1991-92). Moreover, the
taxing of costs and attorney's fees awards is within
the broad discretion of the superior court and can only
be reversed by a showing of clear abuse of discretion.
Lyman did not attempt to make such a showing in his
We will overturn an award of attorney's fees and costs
only if such an award was "manifestly unreasonable."
Blackford v. Taggart, 672 P.2d 888, 891 (Alaska 1983).
A trial court's award will be affirmed unless there has
been a clear abuse of discretion. Kaps Transport, Inc.
v. Henry, 572 P.2d 72, 77 (Alaska 1977).
In his opening brief, Lyman argues this issue only on
fairness grounds, without any substantive legal
argument or cited authority. However, before the
state's brief was filed, Lyman was granted a Motion to
Supplement the Statement of Points on Appeal. In his
memorandum in support of this motion, he sets forth a
cogent substantive argument that the superior court
improperly applied the state standard for assessing
costs and fees instead of the federal statutory
The state noted Lyman's argument in an affidavit
attached to its Motion for Filing Late Appellee Brief
but did not brief this argument. Instead, the state
noted that because of the new arguments additional
briefing by each side would probably be requested.
However, Lyman never supplemented his opening brief and
the parties were not requested to submit additional
Generally, points on appeal not briefed are considered
abandoned. Miller v. City of Fairbanks, 509 P.2d 826,
829 (Alaska 1973). Further, the court may affirm the
trial court on issues it considers inadequately
briefed. Wren v. State, 577 P.2d 235, 237 n.2 (Alaska
However, the court has discretion to relax the formal
requirements of the appellate rules if doing so would
not unfairly prejudice the opponent. Miller, 509 P.2d
at 829. This relaxation is especially appropriate for
propria persona representation. Id. at 829 n.8.
Moreover, the court may reverse plain error which is
obviously prejudicial even if it was not properly
raised by the parties. Matter of L.A.M., 727 P.2d
1057, 1059 (Alaska 1986). In the alternative, the
court may request briefing on this point after oral
argument. See Vest v. First Nat'l Bank of Fairbanks,
659 P.2d 1233, 1234 n.2 (Alaska 1983), reh'g granted,
670 P.2d 707 (Alaska 1983); Appellate Rule
We believe that the superior court's application of the
standards of Rules 79 and 82 constituted plain error.
Four of the five causes of action filed by Lyman were
based on federal statutes 28 U.S.C. 1875 and 43
U.S.C. 1983 and 1985. When a federal claim is
brought in state court, the court must use the
standards set forth in the federal statute rather than
those in the Alaska Rules of Court. See DeNardo v.
Municipality of Anchorage, 775 P.2d 515, 518 (Alaska
1989), cert. denied, 493 U.S. 922, 107 L.Ed.2d 267
(1989) (Civil Rights Act); Hayer v. Nat'l Bank of
Alaska, 663 P.2d 547, 549-50 (Alaska 1983) (federal
Truth-in-Lending Act); Ferdinand v. City of Fairbanks,
599 P.2d 122, 125 (Alaska 1979) (noting, with respect
to the Civil Rights Act, that the trial court's
discretion "is narrowly limited when attorney's fees
are awarded pursuant to the federal act, and will be
reviewed on appeal in light of federal rather than
For claims I and III, filed under 28 U.S.C. 1875,
Lyman relies on 28 U.S.C. 1875 (d)(2) which reads:
The court may award a prevailing
employer a reasonable attorney's fee as part
of the costs only if the court finds that the
action is frivolous, vexatious, or brought in
28 U.S.C.A. 1875(d)(2) (West Supp. 1991).
For claims IV and V, filed under 42 U.S.C. 1983 and
1985 respectively, DeNardo, 775 P.2d at 518, is
controlling "[A] civil rights defendant may recover
attorney's fees from the plaintiff only if the court
finds `that the plaintiff's action was frivolous,
unreasonable or without foundation . . . ._" Id.,
quoting, Hughes v. Rowe, 449 U.S. 5, 15 (1980).
The trial court did not make such a finding but instead
found that the lawsuit only "bordered on the
frivolous."8 Attorney's fees and costs are thus not
authorized for the federal law causes of action.
The taxation of attorney's fees and costs should be
limited to the lone state law cause of action. This
action, for "Breach of Good Faith and Fair Dealings,"
was dismissed on May 1, 1989. The trial court award
included attorney's fees and costs incurred after that
date. Moreover, the trial court noted in its order on
attorney's fees that time spent "in connection with the
case" included the summary judgment on the statute of
limitations. However, the statute of limitations was
argued only with respect to the federal law causes of
action. The order dismissing the sole state law cause
of action originated from a separate issue raised in
the same motion for summary judgment.
The record at present does not include enough
information to determine which costs and attorney's
fees derive from defending the state law claim as
distinguished from the federal law claims in "the state
case."9 A remand on allocation of attorney's fees and
costs to the state law claim and the federal law claims
brought in state court is therefore required.
On remand, the state has the burden of identifying and
segregating the state law claim costs. Rule 79
requires that the party seeking costs submit a bill
which "distinctly set[s] forth each item claimed in
order that the nature of the charge can be readily
understood." Alaska R. Civ. P. 79(a) (1991-92). For
attorney's fees, the superior court can order the
state's counsel to itemize the hours and nature of the
work spent on the case. Hayes v. Xerox Corp., 718 P.2d
929, 939 (Alaska 1986) ("when counsel requests
attorney's fees, other than based on the schedule in
Rule 82(a)(1), accurate records of the hours expended
and a brief description of the services reflected by
those hours should be submitted.").
AFFIRMED in part, REVERSED in part and REMANDED for
further proceedings in accordance with this opinion.
1. 28 U.S.C. 1875 reads in part:
Protection of jurors' employment
(a) No employer shall discharge,
threaten to discharge, intimidate, or coerce
any permanent employee by reason of such
employee's jury service, or the attendance or
scheduled attendance in connection with such
service, in any court of the United States.
(b) Any employer who violates the
provisions of this section --
(1) shall be liable for damages for
any loss of wages or other benefits suffered
by an employee by reason of such violation;
(2) may be enjoined from further
violations of this section and ordered to
provide other appropriate relief, including
but not limited to the reinstatement of any
employee discharged by reason of his jury
(3) shall be subject to a civil
penalty of not more than $1,000 for each
violation as to each employee.
28 U.S.C.A. 1875 (West Supp. 1991).
2. Lyman could seek money damages in state court not
assessable against the state in federal court.
3. The motion for reconsideration was pending when this
appeal was filed, but has since been denied.
4. This figure was 80% of the verified fees for defending
the state court claims.
5. The actual disposition was that the complaint be
dismissed on its merits for the federal statutory
claims and dismissed "without prejudice to refiling in
State court" as to the state law claims. However,
since the state law claim for Breach of Good Faith and
Fair Dealings had already been dismissed by the
superior court the federal district court's ruling was
tantamount to a full decision on the merits. The
propriety of the application of res judicata was not
disputed at the superior court level. In fact, Lyman
conceded in the pleadings that the action should be
collaterally estopped if the motion for reconsideration
6. However, the nature of the dismissal is relevant to the
second issue in this appeal, attorney's fees and costs.
Cases dismissed without prejudice cannot give rise to a
claim for attorney's fees under Civil Rule 82 because
technically there is no prevailing party. Bovee v.
Lasage, 664 P.2d 160, 164 n.10 (Alaska 1983).
7. Lyman also raises arguments which were contested in the
superior court in his Opposition to Bill of Costs and
Notice of Taxation of Costs and his Opposition to
Defendant State of Alaska's More Definite Statement on
Attorneys Fees. These arguments include the contention
that the award was excessively harsh and improperly
commingled costs incurred in pursuit of the federal
court action with those incurred in pursuit of the
state court action.
Lyman argues that the award was excessively harsh since
it was several times greater than his own attorney's
fees and since the defendants admitted having
difficulty segregating the costs of pursuing the state
case from the federal court case. Additionally, Lyman
claims that the defendants were reimbursed for costs of
depositions and preparations which were never used in
the pleadings in court.
8. The concept of "bordering"has no role in applying the
federal standard. The superior court should make an
absolute determination whether a claim was frivolous,
vexatious or brought in bad faith and not employ a
sliding scale adjusting the percentage of costs in
accordance with the perceived quantum of frivolity of
the federal claim.
9. "[T]he state case"is the language used by the trial
court. It is not clear to us whether this means the
state court case or merely the state law cause of