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Shearer v. Mundt (12/14/2001) sp-5513
Shearer v. Mundt (12/14/2001) sp-5513
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, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
PAUL G. SHEARER, )
) Supreme Court No. S-9224
Appellant, )
) Superior Court No.
v. ) 4FA-95-714 CI
)
VALERIE V. MUNDT, ) O P I N I O N
)
Appellee. ) [No. 5513 - December 14, 2001]
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Paul Shearer, pro se, Lake Oswego, Oregon.
Valerie V. Mundt, pro se, Fairbanks.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and
Carpeneti, Justices.
PER CURIAM
Paul Shearer appeals from the denial of his motion for attorney's fees,
claiming that, as a prevailing party, he is entitled to fees under Alaska Civil Rule 82.
Shearer, a pro se litigant, argues that the trial court erred in relying on Alaska Federal
Savings and Loan Ass'n v. Bernhardt [Fn. 1] to deny him attorney's fees. He claims that Alaska
Federal Savings does not apply to him and that the court failed to give sufficient reasons
for denying his motion for fees. In the alternative, he argues that this court should reverse
Alaska Federal Savings in light of the Alaska Judicial Council's recommendation that this
court reconsider its decision to deny attorney's fees to lay pro se litigants while granting
them to attorney pro se litigants. Shearer raises state equal protection and civil rights
constitutional challenges to this court's disparate treatment of attorney and lay pro se
litigants. We reject all of Shearer's arguments and affirm the judgment of the trial court.
On January 19, 1999, following a bench trial, the superior court quieted title
in Paul Shearer to a parcel of land in Kantishna described as the northerly 330 feet,
excluding the westerly 330 feet, of Rainy No. 5. In so doing, the court invalidated any
encumbrances created by Daniel Ashbrook or Valerie Mundt. Shearer defended his title
below pro se, and sought costs and Rule 82 attorney's fees. The superior court rejected
his claim for attorney's fees, citing Alaska Federal Savings for the principle that
"[a]ttorney's [f]ees may not be awarded to lay litigants."[Fn. 2] Pursuant to Shearer's motion
for reconsideration, the court permitted Shearer to file a motion for attorney's fees.
Shearer filed a motion for attorney's fees, accompanied by his affidavit and a
memorandum in support of his motion. The court again denied Shearer's request for fees
pursuant to Alaska Federal Savings, but awarded Shearer $1801.01 in costs pursuant to
Civil Rule 79. Shearer appealed the court's denial of attorney's fees.
Shearer argues that the superior court erred when it denied him attorney's
fees, because attorney's fees are the right of every prevailing party according to Civil Rule
82. However, Rule 82 does not permit awards of attorney's fees to pro se litigants who
are not attorneys. [Fn. 3] The superior court correctly applied the law by denying Shearer's
motion for attorney's fees.
Because we have already determined that lay pro se litigants are not entitled
to Rule 82 attorney's fees, it is not necessary to address Shearer's arguments that he was
a prevailing party, that his fees were reasonable, or that the case was complex and he
performed work an attorney would have performed had he hired one. Similarly, Shearer's
argument that the superior court erred in failing to conclude that he documented
reasonable attorney's fees does not advance his case.
Shearer claims that the court abused its discretion by failing to give a more
detailed reason for the denial of his motion for attorney's fees. We have held that while
a trial court must explain its reasons for deviating from the fee schedule laid out in Rule
82, the court need not provide its reasons for an award if the fee schedule does not apply. [Fn. 4]
In this case the fee schedule did not apply, but the court nevertheless indicated that it was
denying the motion based on Alaska Federal Savings, and gave Shearer the citation to the
case. Shearer's argument that the court was also required to explain its holding to him is
incorrect and we reject it.
Shearer argues that if Alaska Federal Savings precludes the trial court from
granting him Rule 82 attorney's fees, we should reverse Alaska Federal Savings. Shearer
argues in particular that the Alaska Judicial Council's findings and recommendation in its
Executive Summary of the Council's 1995 report "Alaska's English Rule: Attorney's Fee
Shifting in Civil Cases"mandate reversing Alaska Federal Savings. Reversal of Alaska
Federal Savings, however, is unwarranted, and we decline the invitation.
We have explicitly held that attorney's fees are not available to lay pro se
litigants, because the purpose of Rule 82 is "to partially compensate a prevailing party for
the expenses incurred in winning his case."[Fn. 5] In denying attorney's fees to lay pro se
litigants in Alaska Federal Savings, we articulated that "'Attorney's fees presupposes
attorney representation."[Fn. 6] The purpose of Rule 82 attorney's fees is to compensate
litigants for fees they incur through legal representation, not to compensate litigants for
the economic detriment of litigating. The Council Report has no bearing on our holding
in Alaska Federal Savings.
Shearer argues that permitting pro se litigants who are attorneys to recover
attorney's fees while denying the same benefit to lay pro se litigants violates his right to
equal protection under the state constitution, [Fn. 7] as well as the state constitution's
prohibition against discrimination on the basis of race, color, creed, sex, or national
origin. [Fn. 8] Because Shearer does not allege that he has been discriminated against on the
basis of race, color, creed, sex or national origin, we decline to address his discrimination
argument.
As to equal protection, Shearer argues tersely that he should be given "equal
rights and opportunities to collect Rule 82 fees as a prevailing party"and that article I,
section 1 "supports reversing 'AK Fed Savings v Bernhardt' since that original decision
allowed discrimination against one class of litigants."[Fn. 9] As a general matter, issues not
briefed or only cursorily briefed are considered waived. Shearer's failure to develop his
equal protection argument comprises a waiver of that argument, and we consider it
abandoned. Further, the argument is meritless, because attorney and non-attorney pro se
litigants are not similarly situated. Attorneys' representational services have a "clear
marketable value"whether they "are directed to the representation of others or oneself,"
whereas the representational services of non-lawyers have no such value. [Fn. 10] Since the
basis of any equal protection claim is disparate treatment of similarly situated persons, [Fn. 11]
and the latter requirement is not here present, Shearer's equal protection claim would fail
even if it were adequately presented.
Shearer alternatively urges us to reverse Sherry v. Sherry, in which we
permitted an award of attorney's fees to pro se attorney litigants. [Fn. 12] Shearer does not have
standing to request such relief, however, because it will not redress his injury. [Fn. 13] In any
event, reversal of Sherry is unwarranted, as Shearer has not demonstrated that the
disparate treatment of the two categories of pro se litigants violates equal protection
rights.
The superior court did not err when it relied on Alaska Federal Savings in
denying Shearer's motion for attorney's fees pursuant to Rule 82. Shearer is a lay pro se
litigant, and is not entitled to attorney's fees under Rule 82. The disparate treatment of
lay and attorney pro se litigants does not violate equal protection rights, because these two
categories of litigants are not similarly situated. The trial court's denial of Shearer's
motion for attorney's fees is AFFIRMED.
FOOTNOTES
Footnote 1:
794 P.2d 579 (Alaska 1990).
Footnote 2:
Id.
Footnote 3:
See id. at 581-82; see also Gates v. City of Tenakee Springs, 822 P.2d 455, 463 (Alaska 1991).
Footnote 4:
See Municipality of Anchorage v. Anchorage Police Dep't Employees
Ass'n, 839 P.2d 1080, 1092 (Alaska 1992).
Footnote 5:
Edwards v. Alaska Pulp Corp., 920 P.2d 751, 755 (Alaska 1996) (quoting
Tobeluk v. Lind, 589 P.2d 873, 876 (Alaska 1979)).
Footnote 6:
Alaska Federal Savings, 794 P.2d at 581.
Footnote 7:
Alaska Const. art. I, § 1.
Footnote 8:
Alaska Const. art. I, § 3.
Footnote 9:
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).
Footnote 10:
See Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1181 (Alaska
1993).
Footnote 11:
See, e.g., Lauth v. State, Dep't of Health & Soc. Servs., 12 P.3d 181, 187
(Alaska 2000).
Footnote 12:
622 P.2d 960, 966 (Alaska 1981).
Footnote 13:
See Hoblit v. Commissioner of Natural Resources, 678 P.2d 1337, 1340
(Alaska 1984) (Under the interest-injury approach, a "party asserting standing [must
demonstrate] a sufficient 'personal stake' in the outcome of the controversy to ensure
the requisite adversity.").
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5513
