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Chuit River Lodge v. Hamilton (4/22/94), 872 P 2d 186
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
DENNIS W. TORREY, d/b/a )
CHUIT RIVER LODGE, ) Supreme Court No. S-5210
)
Appellant, ) Superior Court No.
) 3AN-86-3156 CI
v. )
) O P I N I O N
ROBERT E. HAMILTON, )
)
Appellee. ) [No. 4073 - April 22, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley,
Judge.
Appearances: Larry L. Caudle,
Anchorage, for Appellant. Thomas J. Yerbich,
Law Office of Thomas J. Yerbich, Anchorage,
for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.]
MATTHEWS, Justice.
Dennis W. Torrey, the debtor under a state court
judgment in favor of Robert E. Hamilton, filed for bankruptcy.
Hamilton, in turn, filed an adversary proceeding in Torrey's
bankruptcy case. The question presented in this appeal is
whether the attorney's fees incurred in the adversary proceeding
in bankruptcy are recoverable as "costs of collection" for the
original state court judgment. We answer this question in the
negative.
The $10,500 superior court judgment against Torrey was
entered in 1988. After Torrey filed for bankruptcy and Hamilton
filed an adversary action in that proceeding, the bankruptcy
court entered a stipulated judgment of $15,000 in favor of
Hamilton. Any payments made on the bankruptcy court judgment
were to be credited to the superior court judgment. Concerning
costs and attorney's fees, the bankruptcy court stated:
IT IS FURTHER ORDERED that with
regard to the issues concerning recovery of
costs and attorney's fees incurred by the
plaintiff, Robert E. Hamilton, this Court
hereby defers and remands these issues to the
Superior Court for the State of Alaska, Case
No. 3AN-86-3156 Civil for determination if
the plaintiff, Robert E. Hamilton, shall
recover costs and attorney's fees from April
19, 1990 as costs of collection resulting
from the original Judgment entered by the
Superior Court . . . as this adversary
proceeding directly arises out of and relates
to the Superior Court case.
Subsequent to the entry of the bankruptcy judgment, the
principal and interest on the judgment were paid. A satisfaction
of the judgments in both courts was entered under which Hamilton
reserved his right to "seek an award of attorney fees and costs
in the state court." Hamilton then moved in the superior court
for an award of attorney's fees in the sum of $20,761 plus costs.
Relying on Alaska Civil Rule 82, the superior court awarded
Hamilton $14,000 in attorney's fees. From this award Torrey
appeals.
Under Civil Rule 82 reasonable partial attorney's fees
are awarded to the prevailing party in a civil action. However,
such fees must relate solely to attorney's services performed in
the case in which the judgment is entered. Alaska State Hous.
Auth. v. Riley Pleas, Inc., 586 P.2d 1244, 1249 (Alaska 1978).
Moreover, Civil Rule 82 only provides compensation for attorney's
services performed up to the time of the judgment. See, e.g.,
Alaska R. Civ. P. 82(c) (motions for attorney's fees under Civil
Rule 82 must be filed within ten days after date shown in the
clerk's certificate of distribution on the judgment). Since the
award in this case is for services performed in bankruptcy rather
than the superior court and the services were performed after the
judgment was entered, the award in this case is not authorized
under Civil Rule 82.1
Hamilton argues that post-judgment attorney's fees are
authorized under Alaska Civil Rule 79(b). In particular, at the
time of the award, the last sentence of Civil Rule 79(b) read:
In addition to the items allowed as
costs by law and in these rules, a party
shall be allowed any other expenses
necessarily incurred in order to enable a
party to secure some right accorded the party
in the action or proceeding.2
Although the trial judge explicitly declined to base
the award on Civil Rule 79, this court may affirm the judgment on
any appropriate ground, even if it is a ground which was rejected
by the trial court. State v. Alaska Land Title Ass'n, 667 P.2d
714, 725 (Alaska 1983); Ransom v. Haner, 362 P.2d 282, 285
(Alaska 1961). Nonetheless, we conclude that post-judgment
attorney's fees in civil actions may not be awarded under the
authority of Civil Rule 79.3 Rule 79 read in context with Rule
82 is clearly meant to be limited to costs other than attorney's
fees. Further, Rule 79, like Rule 82, only relates to costs
expended up to the time of judgment. This is apparent because
the cost bill under Rule 79(a) must be served within ten days
after the date shown in the clerk's certificate of distribution
of the judgment.4
As no basis for the award of attorney's fees has been
demonstrated, the award must be REVERSED.
_______________________________
1 In Cameron v. Hughes, 825 P.2d 882 (Alaska 1992), the
trial court awarded attorney's fees for post-judgment attorney
services incurred in an attempt to collect child support. The
award was challenged because the trial court had not made
findings concerning the necessity and reasonableness of the
award. Id. at 887. We reversed the award on this basis and
remanded the case to the trial court for a hearing to determine
the amount of attorney's fees reasonably and necessarily incurred
to enforce the judgment. Id. The Cameron opinion implies that a
post-judgment award of attorney's fees may be awarded. However,
that issue was merely assumed, not argued. Further, collection
of judgments for child support is a special subject to which
special rules apply. For example, judgments for child support
may be modified at any time after judgment upon motion of either
party. AS 25.24.170. A child support judgment creditor may levy
against otherwise exempt property. AS 09.38.065(a)(1)(A). Child
support arrearages may not be waived or stipulated away
retrospectively or without court approval. Nix v. Nix, 855 P.2d
1332 (Alaska 1993). Thus, insofar as Cameron may indicate that
an award for post-judgment attorney's fees is authorized, such a
rule is limited to judgments for child support, as Cameron
reflects "the compelling public policy favoring enforcement of
child support obligations." Cameron, 825 P.2d at 886 (quoting
Anderson v. Anderson, 736 P.2d 320, 323 n.2 (Alaska 1987)).
2 At the time of the award the full text of Civil Rule
79(b) was as follows:
Items Allowed as Costs. A party
entitled to costs may be allowed premiums
paid on the expenses of posting,
undertakings, bonds or security stipulations,
where the same have been furnished by reason
of express requirement of law or on order of
the court; the necessary expense of taking
depositions for use at trial and producing
exhibits; the expense of service and
publication of summons or notices, and
postage when the same are served by mail;
filing fees and other charges made by the
clerk of the court and fees for transcripts
required in the trial of a case in the
superior court; and costs paid by the
prevailing party's attorney for computerized
legal research. In addition to the items
allowed as costs by law and in these rules, a
party shall be allowed any other expenses
necessarily incurred in order to enable a
party to secure some right accorded the party
in the action or proceeding.
Former Alaska R. Civ. P. 79(b). Subsequently the rule was
amended by adding an additional sentence at the end of the rule
which provides: "Fees for investigators, paralegals or law
clerks shall not be allowed as costs." Alaska R. Civ. P. 79(b).
3 Trial courts may have inherent authority to award
attorney's fees for post-judgment conduct which is frivolous or
vexatious. We have recognized such authority in a pre-judgment
context. Malvo v. J.C. Penney Co., Inc., 512 P.2d 575, 588
(Alaska 1973); cf. Miller v. Sears, 636 P.2d 1183, 1195 (Alaska
1981) (in absence of bad faith, award for costs may not exceed
amount provided for by Administrative Rules). That issue,
however, is not presented in this case.
4 This does not mean that no post-judgment costs may be
awarded. Alaska Administrative Rule 11 provides a specific
schedule of costs which may be recovered for specified post-
judgment services relating to attachment, garnishment and
execution sales. However, Administrative Rule 11 does not
include general attorney's fees.
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