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Noey v. Bledso (4/23/99), 978 P 2d 1264
Notice: This opinion is subject to 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, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STEPHEN W. NOEY, )
) Supreme Court No. S-7905
Appellant, )
) Superior Court No.
v. ) 3AN-95-5642 CI
)
MARK S. BLEDSOE, ) O P I N I O N
)
Appellee. ) [No. 5107 - April 23, 1999]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Gregg B. Brelsford, Burke,
Bauermeister & Brelsford, P.L.L.C., Anchorage, for Appellant. Mark
S. Bledsoe, Law Offices of Mark S. Bledsoe, Anchorage, for
Appellee.
Before: Compton, Eastaugh, Fabe, and Bryner,
Justices. [Matthews, Chief Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
In an interpleader trial involving a fee dispute between
an attorney and his client, the superior court found for the
attorney. The client appeals, raising several procedural and
substantive claims of error. We find no error and affirm the
superior court's judgment.
II. FACTS AND PROCEEDINGS
Stephen Noey hired Mark Bledsoe to represent him in
January 1990. The parties' oral contract provided that Noey would
pay Bledsoe $100-$140 per hour plus costs. Bledsoe primarily
worked on an Anchorage superior court case, Noey v. Cannone, et al.
[Fn. 1] In November 1993, as that case approached its scheduled
trial date in March 1994, Noey hired attorney Mark Davis as co-
counsel to assist Bledsoe on anti-trust issues.
Noey apparently continued to pay Bledsoe's bills
regularly until January 1994. Then he stopped paying. In
March 1994 the parties in Noey v. Cannone began mediating their
dispute. They reached a tentative settlement the day before trial
and finalized the settlement agreement in November 1994. The terms
of the agreement called for the settlement proceeds to be paid into
an account held by Davis.
Shortly before the final settlement, Bledsoe learned that
Noey did not intend to pay Bledsoe's outstanding bills, which, by
then, totaled $45,545.17. By letter dated November 28, 1994,
Bledsoe informed Davis and Noey that he asserted a "retaining
and/or charging lien"against the settlement funds for that amount.
Upon receipt of the funds, Davis retained them in his account, in
accordance with Bledsoe's lien.
On January 19, 1995, Bledsoe wrote to Noey, seeking to
resolve the dispute over his unpaid fees and specifically
suggesting that fee arbitration by the Alaska Bar Association might
be "well suited to resolve our dispute." Bledsoe also indicated
that he "would be willing to submit this matter to the fee
arbitration committee if you would."
Noey evidently did not respond to this offer. Bledsoe
thus requested Davis to file an interpleader action. On
February 1, 1995, Davis informed Noey of Bledsoe's request,
stating:
I told Mr. Bledsoe that I would not interplead
the funds as yet until I had an opportunity to communicate with you
and tell you that you need to attempt to resolve your differences
with him in order to avoid an interpleader action. However, if you
are not able to start a dialog with Mr. Bledsoe[,] I shall be
required to interplead the funds.
Davis filed a complaint in interpleader in June 1995.
The complaint alleged that Noey and Bledsoe both claimed a right to
the entire $45,545.17 still held by Davis; it requested permission
to deposit the funds with the court, relief from liability, and "a
judgment declaring the rights of each defendant to the monies." On
July 17, 1995, and again on August 25, Bledsoe notified Noey by
letter of his right to demand fee arbitration under Alaska Bar
Rule 39. Bledsoe's letters reminded Noey:
The same information as above was
provided to you by my letter of January 19, 1995, and the position
stated in that letter is repeated. We would certainly be more than
willing to submit the dispute to fee arbitration if you are
desirous of that alternative. If you need any further information
concerning this, please feel free to contact this office or the
Alaska Bar Association directly regarding your right to arbitrate
the fee dispute.
Noey did not pursue fee arbitration. In early August, he
and Bledsoe separately answered Davis's interpleader complaint,
asserting competing claims to the disputed settlement funds. Noey
handled the case himself, without an attorney.
The court initially set trial of the interpleader action
for May 1996 but eventually postponed it until July 1. On March 8,
1996, Davis moved to withdraw from the case, and, as "a
satisfactory means of allowing Plaintiff to disentangle himself
from the controversy between the parties,"he proposed to deposit
the disputed funds with the court. Bledsoe did not oppose Davis's
motion. Noey did not object to Davis's withdrawal or to his
proposal to deposit the funds with the court upon withdrawal. But
Noey did object to proceeding with the proposed trial schedule
against Bledsoe. He argued that the "interpleader action is
inappropriate because it wastes the court and the judges['] time
for a matter that is better suited to the fee arbitration process
of the Alaska Bar Association." Noey proposed that the court
dismiss the interpleader action entirely and refer the fee dispute
to arbitration. The court granted Davis's motion to withdraw; its
order did not mention Noey's proposed referral.
On June 12, 1996, less than three weeks before trial,
Noey petitioned the Bar Association to arbitrate the fee dispute.
On June 24, a week before trial, he notified the court of his
petition and moved to stay his trial pending arbitration. Bledsoe
opposed the motion, arguing that it was untimely under the pretrial
order and that Noey had waived his right to arbitration under
Alaska Bar Rule 39(d). In reply, Noey claimed procedural
confusion: "Had this pro per defendant clearly understood his
procedural rights, a petition for fee arbitration would have been
filed immediately upon the undersigned's being served with
Plaintiff's summons and complaint." Three days before the July 1
trial, the court denied Noey's motion.
After a one-day trial, the court ruled from the bench in
Bledsoe's favor and later entered judgment accordingly. Several
weeks after the trial, through newly-retained counsel, Noey moved
to alter or amend the judgment, or, alternatively, for a new trial.
His motion raised numerous new legal issues and generally
complained that Noey had been treated unfairly. The court denied
the motion, rejecting Noey's claims as meritless and suggesting
that Noey was acting in bad faith:
Noey's position in this case is disingenuous.
Like the orphan who kills his parents and then pleads for mercy,
Noey repeatedly ignored his options and obligations as a party to
these proceedings, and now seeks the court's reversal of what has
transpired as a result of his own conduct.
Noey appeals, renewing many of the issues he first raised
in his post-trial motion.
III. DISCUSSION
A. The Trial Court Did Not Improperly Deny Noey His
Right to Arbitrate the Fee Dispute.
Noey asserts that the trial court erred in refusing him
the right to submit the fee dispute to binding arbitration by the
Alaska Bar Association. Bledsoe responds that Noey waived this
right by failing to assert it in a timely manner and by actively
litigating the interpleader action. [Fn. 2]
In any civil action to recover fees for professional
services rendered by an attorney, a client has a right to binding
arbitration. [Fn. 3] Alaska Bar Rule 39(a) requires attorneys to
serve their clients with written notice of this right "[a]t the
time of service of a summons in [the] civil action[.]"[Fn. 4] To
claim this right, the client must petition the Alaska Bar
Association for arbitration within twenty days of notification.
[Fn. 5] Once filed, the petition entitles the client to stay the
legal action. [Fn. 6] But the right to arbitrate is lost if the
client either fails to file the petition for arbitration within the
prescribed twenty-day period or, after receiving notice of the Bar
Association's fee dispute resolution program, "commences or
maintains a legal action or files any pleading seeking judicial
resolution of the fee dispute."[Fn. 7]
Bledsoe first informally notified Noey of the Alaska Bar
Association's arbitration procedures on January 19, 1995 -- six
months before Davis filed the interpleader action. On July 17,
1995, shortly after Davis filed the interpleader complaint, Bledsoe
formally notified Noey by letter of his right to arbitrate, in
accordance with the notice requirements of Alaska Bar Rule 39(a).
[Fn. 8] He re-sent the notification letter by certified mail on
August 25. Noey failed to petition the Bar Association for
fee arbitration until the following year. On April 1, 1996, Noey
opposed interpleader, and in doing so requested the court to
"refer"the matter to the Bar Association. This was the first time
he expressed any interest in arbitration. Noey did not actually
file a petition to arbitrate with the Bar, as required by Rule 39,
until June 12, 1996. In the interim, by answering Davis's
complaint and asserting his right to the interpleaded funds, Noey
actively participated in the interpleader action.
Noey nevertheless suggests that his efforts to seek
arbitration were timely because Davis filed the interpleader
action, not Bledsoe. Noey contends that a suit to recover
attorney's fees does not trigger Rule 39's filing deadline unless
the suit is filed by the attorney to whom the fees are owed. In
support of this contention, Noey quotes Rule 39(a)'s language
requiring notice "[a]t the time of service of a summons in a civil
action against his or her client for the recovery of fees for
professional services rendered."[Fn. 9]
Noey misreads this language. Although Rule 39(a)
requires attorneys to provide notice of actions "against"their
clients, the rule does not limit this requirement to actions
personally filed by attorneys. The rule's reference to "service of
a summons in a civil action"literally applies to any fee recovery
action against an attorney's client, regardless of who files it.
In our view, this language is sufficiently broad to encompass an
interpleader action filed by a disinterested third-party.
As Bledsoe persuasively argues, Noey's proposal to
interpret the rule more narrowly would create an odd loophole in
the notice requirement. A narrow interpretation would allow
attorneys to escape Rule 39's notice requirement, and potentially
bypass arbitration, by pursuing fee recovery through interpleader
actions. To read Rule 39(a) in this manner would conflict with the
strong public policy favoring arbitration. [Fn. 10]
Noey suggests that if this court disagrees with his
interpretation of Rule 39, the language of the rule is at best
unclear, and he misunderstood it. Asserting that the trial court
disregarded his repeated requests to refer the dispute to
arbitration, he insists that strictly enforcing the rule's twenty-
day requirement against a pro se litigant amounts to "a procedural
technicality to avoid arbitrating the fee dispute."
This argument is not persuasive. The trial court found
Noey to be a sophisticated pro se litigant who had received
multiple notices of the fee arbitration program, but who chose to
sit on his rights for almost a year before petitioning for a stay
on the eve of trial. The record supports the trial court's view.
Although informed of the Bar Association's arbitration process and
encouraged to arbitrate well before the interpleader action, and
although formally notified of his arbitration right when the action
was filed in July 1995, Noey made no effort to petition for
arbitration until June of the following year. Noey did ask the
court to "refer"the fee dispute to arbitration on April 1, 1996,
but at that time he had not petitioned for arbitration. He failed
to do so until three weeks before trial and did not apply for a
stay pending arbitration until the week before trial.
We have frequently recognized that pro se litigants who
make good faith efforts to comply with court rules should not be
held to strict procedural requirements. [Fn. 11] But we have not
excused them from making good faith efforts to assert their rights.
[Fn. 12] We conclude that the court was not clearly erroneous in
finding that Noey waived his right to fee arbitration under Rule 39
by failing to assert it in a timely manner.
B. The Trial Court Correctly Conducted the Interpleader
Proceedings.
Noey next contends that the superior court mismanaged the
interpleader proceedings. Interpleader is an equitable remedy
designed to protect a "stakeholder"[Fn. 13] from multiple
liability and from the burden of defending multiple, conflicting
claims. [Fn. 14] It allows a plaintiff stakeholder to join in a
single action all those parties who are asserting or might assert
claims to a common fund held by the stakeholder. [Fn. 15] In
plainer terms, the stakeholder "sues all those who might have claim
to the money, deposits the money with the . . . court, and lets the
claimants litigate who is entitled to the money."[Fn. 16] By
forcing competing claimants to resolve among themselves what is
basically their own dispute, interpleader spares stakeholders the
need to decide which is the best claim and, in so doing, avoids
exposing them to multiple liability. [Fn. 17]
Interpleader encompasses two distinct procedural stages.
First, the court determines in equity the propriety of
interpleading the adverse claimants and relieving the stakeholder
from liability; second, it adjudicates at law, to the extent
necessary, the adverse claims of the defendant claimants. [Fn. 18]
In this case, Noey alleges error in both stages. He complains that
the court had no evidentiary basis for finding interpleader
jurisdiction at the first stage; and he complains that it erred at
the second stage by failing to require the interpleaded defendants
to file issue-framing pleadings.
1. The court did not err in the first stage of the
interpleader.
Davis's interpleader complaint alleged that he possessed
money that both his client, Noey, and his co-counsel, Bledsoe, had
claimed as their own. According to the complaint, Noey claimed a
right to the fund as a party to the settlement; Bledsoe asserted a
possessory right for legal fees owed. In answering Davis's
complaint, Noey and Bledsoe both admitted these essential
contentions, each asserting a claim to the disputed fund.
By later requesting to withdraw from the case, Davis
implicitly moved for a decree of interpleader. [Fn. 19] Neither
Bledsoe nor Noey objected to Davis's withdrawal. Bledsoe filed a
notice of non-opposition. Though Noey opposed Davis's motion, his
opposition merely sought to deflect the underlying fee dispute into
arbitration. Noey never alleged that Davis had misfiled the action
as an interpleader or that the court lacked authority to allow
Davis's withdrawal and to proceed with adjudication of Noey's and
Bledsoe's conflicting claims.
Noey now argues that the trial court erred in allowing
Davis to withdraw without formal proof that an interpleader action
was proper. Noey maintains that interpleader was inappropriate
because Bledsoe had no valid lien and thus no right to claim the
specific funds held by Davis. He asserts that, at the very least,
a material question of fact existed as to the validity of Bledsoe's
lien. Noey contends that this factual dispute precluded summary
adjudication of Davis's motion to withdraw. In essence, then,
Noey's first-stage argument asserts that the court improperly
granted Davis a judgment on the pleadings. This is a legal point
and is subject to de novo review. [Fn. 20] We conclude that the
argument lacks merit.
Noey builds his argument on the premise that the
stakeholder in an interpleader action cannot be excused, and that
the case cannot proceed as an action between two interpleaded
defendants without positive proof that both defendants actually
have valid claims against the disputed funds. But Noey's premise
is faulty.
Courts have not adopted a particular procedure for the
first stage of interpleader, and the issues are typically framed by
motion. [Fn. 21] Courts agree that, at the first stage, the burden
is on the party seeking interpleader. [Fn. 22] Apparently, some
jurisdictions have held that this stage of interpleader is resolved
on motion for summary judgment. Others have favored a motion for
judgment on the pleadings. Still others have no established
procedure. [Fn. 23] But regardless of this uncertainty as to
applicable procedure, there appears to be general agreement that
"[t]he primary test for determining the propriety of interpleading
. . . is whether the stakeholder legitimately fears multiple
vexation directed against a single fund."[Fn. 24] This is an
unexacting standard. [Fn. 25] "[T]o support an interpleader
action, the adverse claims need attain only 'a minimal threshold
level of substantiality.'"[Fn. 26]
In the first stage of this case, as we have already
observed, the parties did not dispute the essential facts for
interpleader in their pleadings. Under these circumstances, there
was no reason for the court to take independent evidence: "In the
absence of a preliminary demonstration of the existence of relevant
disputed facts no hearing was required."[Fn. 27]
Noey nonetheless insists that Bledsoe's lien was invalid
and that the court should have recognized this invalidity sua
sponte. Alaska Statute 34.35.430 provides that an attorney may
assert a retaining lien "upon money in the possession of the
attorney belonging to the client." Noey argues that because the
money in dispute was in Davis's possession when Bledsoe asserted
the lien, the lien was invalid.
Other jurisdictions have allowed attorneys to assert
retaining liens over money in the possession of co-counsel and have
held co-counsel liable for failure to protect the retaining liens.
[Fn. 28] Alaska has not yet decided the issue. Thus, while the
validity of Bledsoe's lien may not have been certain, Davis
"legitimately fear[ed] multiple vexation from a single fund."
Nothing further was required at the first stage of the action.
Noey also argues that the lien was invalid because
Bledsoe and Davis were no longer co-counsel when Davis came into
possession of the funds. He argues that this was at least
sufficiently in dispute to preclude summary adjudication of the
first stage of interpleader. But, again, the relevant inquiry was
not whether the lien was actually valid, but rather whether the
lien was colorably valid so that Davis would risk liability by
ignoring it.
A claim of potential liability that is completely devoid
of substance will not support interpleader jurisdiction. [Fn. 29]
On the other hand, interpleader jurisdiction "is not to be denied
merely because the possibility of multiple liability or multiple
litigation is remote or rests on tenuous grounds."[Fn. 30] In
fact, a stakeholder may institute an interpleader action to avoid
the trouble and expense of resisting adverse claims, "even though
he believes only one of them is meritorious."[Fn. 31]
Here, Bledsoe's lien, though not untroubled, was
sufficiently colorable to support interpleader. The trial court
did not err in granting Davis's motion to withdraw and allowing the
case to proceed as an action between Bledsoe and Noey.
2. The court did not err at the second stage of
interpleader by failing to order the parties to file additional
issue-defining pleadings.
Noey argues that, once the court concluded that
interpleader was appropriate, it erred in failing to require the
parties to plead their claims against one another under either
Alaska Civil Rule 8 or 13. [Fn. 32] He maintains that the purpose
of the pleadings is to provide "a bright line marker for when [the
judicial system] has been formally invoked"; he says, "[c]learly
the court and the prospective defendant need a bright line which
unambiguously signals the beginning of the court's involvement in
a dispute and which articulates the specific claims that the
plaintiff asserts." He argues that this failure deprived the court
of jurisdiction to hear the dispute.
Noey's argument has no merit. The jurisdiction of the
court was the subject of the first stage of interpleader. Noey was
served with a complaint in interpleader, which prayed that Davis be
allowed to deposit the funds with the court and withdraw so that
Bledsoe and Noey could "argue their respective rights and
priorities to this court." Noey and Bledsoe answered the
complaint. Noey also acknowledged that he understood the court's
order dismissing Davis from the action essentially to be a decree
of interpleader, which shifted the focus of the action to "the Mr.
Bledsoe-Mr. Noey dispute."
At the second stage of interpleader, new pleadings are
unnecessary unless the remaining issues are undefined. [Fn. 33]
The need for further pleadings is thus a practical issue for the
trial court to decide on a case-by-case basis. In the present
case, Noey never expressed uncertainty about the issues involved in
the underlying fee dispute. He cannot plausibly maintain that the
parties' original pleadings failed to inform him of Bledsoe's
claims. The court did not abuse its discretion in declining to
order further pleadings.
C. The Court Did Not Deny Noey His Right to a Jury Trial.
Noey separately claims that the trial court's failure to
require further pleadings deprived him of his right to a jury
trial. He reasons that, because the first stage of interpleader is
an equitable action, he had no right to request a jury trial until
the action reached the second stage. And because the court never
required Bledsoe to plead contract claims against Noey after it
excused Davis from the action, Noey contends that he had no
opportunity to request a jury at the second stage.
This argument is meritless. Alaska Civil Rule 38
provides that any party may obtain a jury trial for any triable
issue by demanding the right in writing no later than 10 days after
the "service of the last pleading directed to such issue." A party
who fails to demand the right in a timely manner waives it. [Fn.
34] The first stage of interpleader is equitable and did not
entitle Noey to a jury trial. [Fn. 35] Because the second stage of
interpleader involved a contract dispute, Noey may well have been
entitled to a jury trial. [Fn. 36] Given the unusual procedural
posture of an interpleader action and the potential for pleadings
at both the equitable and legal stages of interpleader, Noey may
have been confused about precisely when he should request jury
trial if he wanted one. But we find no basis for excusing Noey
from making any effort at all to assert his rights.
The parties twice met with the court for pretrial
conferences. In the resulting pretrial orders, the court clearly
stated that a jury trial had not been requested. Noey did not
object to these orders. He did not object to the absence of a jury
when he appeared for trial. Indeed, he made no mention of a jury
trial at all before filing his post-trial motion to amend the
judgment, which the trial court expressly found to be disingenuous.
In short, we find nothing in the record suggesting that Noey's
willingness to proceed to trial without a jury resulted from
procedural confusion. We conclude that Noey was not deprived of
his right to a jury trial. [Fn. 37]
D. The Court Did Not Err in Conducting Noey's Trial.
Noey raises several trial-related issues, all of which
lack merit.
1. Judge Woodward did not err in failing to recuse
herself.
Noey's case was assigned to Superior Court Judge Joan
Woodward. At the outset of trial, Noey announced his intention to
call only two witnesses: Mr. Davis and Mr. Thwaits. Judge
Woodward noted that Noey had listed her as a trial witness. Noey
responded that he had wanted the judge to testify about some prior
rulings in related proceedings. The judge replied that Noey could
introduce that evidence without her testimony. Trial proceeded,
and Noey made no effort to admit the proposed evidence or to
disqualify Judge Woodward.
Noey claims now that the judge should have recused
herself sua sponte. [Fn. 38] He cites AS 22.20.020(a)(3), which
bars judges from acting in matters in which they are material
witnesses. Since the record fails to establish that Noey actually
intended to call Judge Woodward or that the judge actually could
have offered any material testimony, Noey's claim is meritless.
2. The court did not impermissibly allow Bledsoe to
foreclose on a retaining lien.
Noey argues that by ruling in favor of Bledsoe at trial,
the court improperly allowed him to foreclose on a retaining lien.
Noey insists that retaining liens are merely possessory and that
Bledsoe therefore should have been required to bring a separate
action to obtain payment of the underlying debt. But Noey raises
this argument for the first time on appeal. [Fn. 39] At trial he
primarily contested the terms of his contract with Bledsoe. While
he questioned the validity of Bledsoe's lien, he did not challenge
the manner of its enforcement. Moreover, Noey's argument ignores
that the interpleader trial was not a mere lien foreclosure; it
adjudicated the merits of Noey's legal dispute with Bledsoe, which
centered on the existence of his debt to Bledsoe under an implied
contract theory. As the superior court correctly observed, the
issue at trial was "whether these funds are owed." Thus, the
interpleader trial resolved all issues concerning the underlying
debt.
3. The court held Bledsoe to his burden of proof.
Noey argues that Bledsoe's burden was to prove that he
fully and satisfactorily performed his contract with Noey and that
he was entitled to the specific funds at issue. Noey contends that
Bledsoe failed to meet his burden because he did not prove that his
legal fees were reasonable. Bledsoe responds that he met his
burden by testifying about his representation and submitting over
200 pages of billing records. He argues that he had no need to go
further in proving the reasonableness of his fees because Noey did
not contest the issue. [Fn. 40]
The record supports Bledsoe's position. At trial, Noey
did not dispute the reasonableness of Bledsoe's billings. He
focused on the contention that his contract with Bledsoe capped
Bledsoe's fees at $15,000. The trial court rejected this
contention, finding that Noey had agreed to pay Bledsoe $140 per
hour, with no $15,000 cap on total billings. The court ruled that
Bledsoe had established his fees by "clear and convincing
evidence." It went on to note that Noey did not challenge the
reasonableness of Bledsoe's fees and had introduced no evidence
indicating that they were unreasonable. Having made these
findings, the court commented, "I'm not going to try to analyze
[the reasonableness of the fees billed], based on the very small
amount of testimony in relation to the very large amount billed
here. I'm not going to analyze whether Bledsoe earned those fees,
as it were."
Noey spotlights this comment out of context as support
for his argument that Bledsoe failed to meet his burden. But
viewed in context, the comment merely acknowledges a practical
reality: In the absence of any actual dispute or contrary
evidence, Bledsoe's testimony and records support an inference that
his fees were reasonable. The court had no need to delve deeper
into the issue.
E. The Superior Court Had Jurisdiction to Decide this Case.
Noey argues on appeal that the superior court lacked
subject matter jurisdiction over this dispute because jurisdiction
was vested in the supreme court. The argument presents a legal
question, which is subject to de novo review. [Fn. 41]
As we have already mentioned, the current fee dispute
arose from Bledsoe's representation of Noey in Noey v. Cannone.
Bledsoe had also represented Noey in another civil action, Noey v.
DEC. [Fn. 42] Noey v. DEC was pending on appeal before the Alaska
Supreme Court when the current interpleader action was tried in the
superior court. In his post-trial motion in the interpleader
action, Noey suggested that Bledsoe had submitted overlapping bills
in DEC and Cannone. Noey further asserted that he needed more
information to determine whether any of the fees Bledsoe claimed in
Cannone were for work performed in DEC, and he reserved the right
to seek a stay of the interpleader action if he determined that the
DEC appeal "directly impacts Mr. Bledsoe's contract."
On appeal, Noey argues that Bledsoe breached his duty of
candor in failing to apprise the trial court of the DEC matter then
pending on appeal and that, because related matters were pending
before the supreme court, the superior court lacked jurisdiction to
hear the contract issue presented in the interpleader action.
These claims are based on wholly unsubstantiated
allegations. At trial, Noey did not challenge the reasonableness
of Bledsoe's fees or the quality of his work. Nor did he raise his
theory that Bledsoe's billings in Cannone actually might be for
work performed in DEC. Given Noey's trial theory, there were no
material facts with respect to DEC for Bledsoe to disclose, and
there is no record evidence of overlapping billings.
Moreover, even if all facts were as Noey alleged, the
trial court would not have been deprived of jurisdiction to hear
the contract dispute in this case. Alaska Appellate Rule 203
divests trial courts of jurisdiction over "proceedings on appeal
. . . in the appellate court[.]" Because this interpleader action
was not the "proceeding on appeal"in DEC, the appeal in DEC could
have had no effect on the superior court's jurisdiction to hear the
interpleader trial, even if DEC conceivably might have impacted
this case.
F. The Court Was Not Required to Enter Written Findings.
Noey argues that Bledsoe violated Alaska Civil Rule 78 by
failing to prepare and submit proposed findings of fact and
conclusions of law "in writing"and that the trial court violated
Civil Rule 52(a) by failing to enter written findings and
conclusions. But Civil Rule 78 only specifies that successful
parties must prepare and submit proposed findings and conclusions
in writing "[u]nless otherwise ordered by the court." Here, the
court ordered Bledsoe to submit a proposed judgment. And Civil
Rule 52(a) does not require written findings. [Fn. 43] It only
specifies that, upon concluding an action, "the court shall find
the facts specially and state separately its conclusions of law[.]"
To satisfy this rule, findings need only be sufficiently detailed
to permit review. [Fn. 44] The trial court in this case made
detailed oral findings of fact and conclusions of law. Because its
findings are sufficient to permit appellate review, further written
findings and conclusions were unnecessary.
G. The Court Did Not Abuse Its Discretion in Denying Noey a
New Trial.
Noey claims that the superior court erred in denying his
alternative motion for a new trial. The decision to grant or deny
a new trial motion rests with the sound discretion of the trial
judge and is reversible on appeal only "in the most exceptional
circumstances and to prevent a miscarriage of justice."[Fn. 45]
In denying Noey a new trial, the court found that he raised no
contentions that were not or could not have been raised at trial.
On appeal, Noey merely argues that cumulative error required a new
trial. Because we have concluded that the trial court committed no
error, Noey's cumulative error argument fails. We conclude that
the court did not abuse its discretion in denying Noey a new trial.
IV. CONCLUSION
Finding no error, we AFFIRM the superior court's
judgment.
FOOTNOTES
Footnote 1:
No. 3AN-88-7719.
Footnote 2:
Whether Noey waived his right to arbitrate is a question of
fact; we will set aside the trial court's finding of a waiver only
if it is clearly erroneous. See Airoulofski v. State, 922 P.2d
889, 894 nn.4-5 (Alaska 1996).
Footnote 3:
See Alaska Bar Rule 39.
Footnote 4:
Alaska Bar Rule 39(a) provides:
(a) Notice Requirement by Attorney to
Client. At the time of service of a summons in a civil action
against his or her client for the recovery of fees for professional
services rendered, an attorney will serve upon the client a written
"notice of client's right to arbitrate or mediate,"which will
state:
You are notified that you have a right to
file a Petition for Arbitration of Fee Dispute or a Request for
Mediation and stay this civil action. Forms and instructions for
filing a Petition for Arbitration of Fee Dispute or a Request for
Mediation and a motion for stay are available from the Alaska Bar
Association, 510 L Street, Suite 602, Anchorage, AK 99501-1958,
(907) 272-7469. If you do not file the Petition for Arbitration of
Fee Dispute or a Request for Mediation within twenty (20) days
after your receipt of this notice, you will waive your right to
arbitration or mediation.
Failure to give this notice will be
grounds for dismissal of the civil action.
Footnote 5:
Alaska Bar Rule 39(b) provides:
(b) Stay of Civil Proceedings. If an
attorney, or the attorney's assignee, commences a fee collection
action in any court, the client may stay the action by filing
notice with the court that the client has requested arbitration of
the fee dispute by the Bar within twenty (20) days of receiving the
notice of the client's right to arbitration. This notice will
include proof of service on the attorney or the attorney's
assignee. If a civil action has been filed, the Alaska Bar
Association must receive an order of stay prior to commencing
arbitration.
Footnote 6:
Alaska Bar Rule 39(c) provides:
(c) Stay of Non-Judicial Collection
Actions. After a client files a petition, the attorney will stay
any non-judicial collection actions related to the fee in dispute
pending the outcome of the arbitration.
Footnote 7:
Alaska Bar Rule 39(d) provides:
(d) Waiver of Right to Request or
Maintain Arbitration. A client's right to request or maintain an
arbitration is waived if:
(1) the attorney files a civil action
relating to the fee dispute, and the client does not file a
petition for arbitration of a fee dispute within twenty (20) days
of receiving the "client's notice of right to arbitrate"pursuant
to paragraph (a) of this rule; or
(2) after the client received notice of
the fee dispute resolution program, the client commences or
maintains a civil action or files any pleading seeking judicial
resolution of the fee dispute, except an action to compel fee
arbitration, or seeking affirmative relief against the attorney for
damages based upon alleged malpractice or professional misconduct.
Footnote 8:
See Rule 39(a), supra note 4.
Footnote 9:
See Rule 39(a), supra note 4 (emphasis added).
Footnote 10:
See A. Fred Miller, Attorneys at Law, P.C. v. Purvis, 921 P.2d
610, 616-17 (Alaska 1996).
Footnote 11:
See, e.g., Collins v. Arctic Builders, 957 P.2d 980, 982
(Alaska 1998).
Footnote 12:
See Wright v. Black, 856 P.2d 477, 480 (Alaska 1993).
Footnote 13:
First Interstate Bank v. United States, 891 F. Supp. 543, 546
n.5 (D. Or. 1995) (citation omitted) ("The term stakeholder is
commonly used in interpleader actions to describe a person or
entity who possesses a fund to which adverse claims are made, but
who personally has no claim or interest in the fund.").
Footnote 14:
Washington Elec. Co-op., Inc. v. Paterson, Walke & Pratt,
P.C., 985 F.2d 677, 679 (2d Cir. 1993).
Footnote 15:
See 7 Charles Alan Wright et al., Federal Practice and
Procedure sec. 1702, at 493 (2d ed. 1986 & Supp. 1998).
Footnote 16:
Cripps v. Life Ins. Co. of N. America, 980 F.2d 1261, 1265
(9th Cir. 1992) (citation omitted).
Footnote 17:
7 Charles Alan Wright et al., Federal Practice and Procedure
sec. 1702, at 493-94 (2d ed. 1986).
Footnote 18:
See Mid-America Indem. Co. v. McMahan, 666 F. Supp. 926, 928
(S.D. Miss. 1987); 7 Charles Alan Wright et al., Federal Practice
and Procedure sec. 1714, at 581-87 (2d ed. 1986).
Footnote 19:
Davis essentially moved for judgment on the pleadings. A
judgment on the pleadings, like summary judgment, is subject to de
novo review. See McAdoo v. Diaz, 884 P.2d 1385, 1387 n.2 (Alaska
1994).
Footnote 20:
See id.
Footnote 21:
See 7 Charles Alan Wright et al., Federal Practice and
Procedure sec. 1714, at 582 (2d ed. 1986).
Footnote 22:
See id. sec. 1714, at 583.
Footnote 23:
See id.
Footnote 24:
See id. sec. 1704, at 501 (2d ed. 1986 & Supp. 1998).
Footnote 25:
See Equitable Life Assur. Soc. v. Porter-Englehart, 867 F.2d
79, 84 (1st Cir. 1989).
Footnote 26:
See id. (quoting 7 Charles Alan Wright et al., Federal
Practice and Procedure sec. 1704, at 504 (2d ed. 1986) (footnote
omitted)).
Footnote 27:
In re J.B., 922 P.2d 878, 881 (Alaska 1996) (citation
omitted).
Footnote 28:
See Jones v. Miller, 203 F.2d 131, 134-36 (3d Cir. 1953);
Davidson v. Collier, 122 S.E.2d 465, 467 (Ga. App. 1961); see also
7 Am. Jur. 2d Attorneys at Law sec. 335 (1997); Thomas G. Fischer,
Annotation, Attorney's Retaining Lien: What Items of Client's
Property or Funds Are Not Subject to Lien, 70 A.L.R.4th 827, 864-65
(1989).
Footnote 29:
See 7 Charles Alan Wright et al., Federal Practice and
Procedure sec. 1705, at 507-09 (2d ed. 1986).
Footnote 30:
First Interstate Bank v. United States, 891 F. Supp. 543, 546
(D. Or. 1995) (citations omitted).
Footnote 31:
Id. (quoting New York Life Ins. Co. v. Welch, 297 F.2d 787,
790 (D.C. Cir. 1961)); see also Equitable Life Assur. Soc. v.
Porter-Englehart, 867 F.2d 79, 84 (1st Cir. 1989) ("[I]t is
immaterial whether the stakeholder believes that all claims against
the fund are meritorious. Indeed, in the usual case, at least one
of the claims will be very tenuous.") (quoting 7 Charles Alan
Wright et al., Federal Practice and Procedure sec. 1704, at 504 (2d
ed. 1986) (footnote omitted)); Dakota Livestock Co. v. Keim, 552
F.2d 1302, 1308 (8th Cir. 1977) (holding that interpleader
jurisdiction extends to potential as well as actual claims).
Footnote 32:
Alaska Civil Rule 8 sets out the general rules of pleading.
Subsection (a) provides:
(a) Claims for Relief. A pleading which
sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim or third-party claim, shall contain (1)
a short and plain statement of the claim showing that the pleader
is entitled to relief, and (2) a demand for judgment for the relief
the pleader seeks. Relief in the alternative or of several
different types may be demanded.
Alaska Civil Rule 13 governs counterclaims. Subsection (a)
provides:
(a) Compulsory Counterclaims. A pleading
shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if
it arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim and does not require for its
adjudication the presence of third parties of whom the court cannot
acquire jurisdiction. But the pleader need not state the claim if
(1) at the time the action was commenced the claim was the subject
of another pending action, or (2) the opposing party brought suit
upon the claim by attachment or other process by which the court
did not acquire jurisdiction to render a personal judgment on that
claim, and the pleader is not stating any counterclaim under this
Rule 13.
Footnote 33:
See Old Colony Ins. Co. v. Lampert, 129 F. Supp. 545, 550-51
(D.N.J.), aff'd per curiam, 227 F.2d 520 (3d Cir. 1955) ("To
require each interpleaded defendant to reply to each answer would
serve no useful purpose. The issues were clearly defined by the
answers of all of the claimants to the fund.").
Footnote 34:
See Alaska R. Civ. P. 38(d).
Footnote 35:
See McGill v. Wahl, 839 P.2d 393, 396 (Alaska 1992).
Footnote 36:
See id.; cf. Ross v. Bernhard, 396 U.S. 531, 542 n.15 (1970)
(commenting that although historically interpleader was considered
a completely equitable action, the trend in the lower courts is to
provide a right of jury trial for legal issues raised); Beacon
Theatres, Inc. v. Westover, 359 U.S. 500, 510-11 (1959)
(instructing the federal courts to inquire into the legal or
equitable nature of each issue in the case in determining whether
the litigants have a right to jury trial).
Footnote 37:
Compare, e.g., Collins v. Arctic Builders, 957 P.2d 980, 982
(Alaska 1998) (court must inform pro se litigants of specific
defects in their pleadings), with Wright v. Black, 856 P.2d 477,
480 (Alaska 1993) (pro se litigant must make good faith attempt to
comply with judicial procedures in order to benefit from lenient
standard). See also Bauman v. State, Div. of Family & Youth
Servs., 768 P.2d 1097, 1099 (Alaska 1989) (pro se litigants are
expected to acquire general familiarity with and attempt to comply
with the rules of procedure).
Footnote 38:
A trial judge's decision not to recuse herself is reviewed for
abuse of discretion. See Wasserman v. Bartholomew, 923 P.2d 806,
815 n.25 (Alaska 1996).
Footnote 39:
See State v. Northwestern Const., Inc., 741 P.2d 235, 239
(Alaska 1987) (holding that arguments generally may not be raised
for the first time on appeal).
Footnote 40:
The factual findings of the trial court will be upheld unless
clearly erroneous. See State v. Beard, 960 P.2d 1, 5 (Alaska
1998).
Footnote 41:
See Andrews v. Alaska Operating Eng'rs--Employers Training
Trust Fund, 871 P.2d 1142, 1144 (Alaska 1994).
Footnote 42:
No. 3AN-84-8759.
Footnote 43:
See Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska
1974); Moore v. Moore, 499 P.2d 300, 303 (Alaska 1972).
Footnote 44:
See Urban, 526 P.2d at 328; Moore, 499 P.2d at 303.
Footnote 45:
Dowling Supply & Equip., Inc. v. City of Anchorage, 490 P.2d
907, 909 (Alaska 1971) (quoting Ahlstrom v. Cummings, 388 P.2d 261,
262 (Alaska 1964)).
