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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Connell v. Will (10/28/2011) sp-6614
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN O'CONNELL, )
) Supreme Court No. S-13540
Appellant, )
) Superior Court No. 3AN-00-12047 CI
v. )
) O P I N I O N
ANTHONY WILL and PAULETTE )
WILL, ) No. 6614 - October 28, 2011
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: Yale H. Metzger, Law Offices of Yale H.
Metzger, Anchorage, for Appellant. No appearance by
Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
STOWERS, Justice.
FABE, Justice, with whom CHRISTEN, Justice, joins, dissenting.
I. INTRODUCTION
In 2002 Kevin O'Connell was awarded damages against Anthony and
Paulette Will for the Wills' failure to pay a promissory note. Under the attorney's fee
provision in the note, O'Connell was also awarded full attorney's fees and costs. After
O'Connell's attorney engaged in post-judgment collection efforts, Anthony Will paid the
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judgment. In 2009 Anthony Will filed a request for an order that the judgment in the
case had been satisfied, and the superior court granted the motion. O'Connell filed a
motion seeking a further award of attorney's fees, arguing that he incurred attorney's
fees in collecting the original judgment and that under the terms of the promissory note
he is entitled to an additional award for those fees. The superior court denied his motion
and O'Connell appeals. He also argues that the superior court should not have
considered Anthony Will's motion for entry of a satisfaction of judgment because
Anthony failed to serve Paulette Will, Anthony's ex-wife, with the motion. Because the
promissory note's terms did entitle O'Connell to post-judgment fees, we reverse the
superior court's order denying O'Connell's motion for attorney's fees. The superior
court did not err in considering Anthony Will's motion, but because O'Connell was
entitled to post-judgment attorney's fees, we vacate the superior court's entry of an order
that the judgment was satisfied and remand for further proceedings.
II. FACTS AND PROCEEDINGS
In October 1999 Anthony and Paulette Will signed a promissory note for
$7,000 payable to Kevin O'Connell. The note provided that $3,500 was due on or before
October 30, 2000 and $3,500 was due on or before October 30, 2001. Further, the note
provided that "in the event default shall be made in the payment of any installment, then
the principal sum shall be and become at once due and payable at the option of the
holder." By signing the note, Anthony and Paulette Will also "promise[d], in case suit
is instituted, to collect this note, or any portion thereof, in addition to the costs and
disbursements of said suit, a reasonable attorney's fee in such suit or action."
In November 2000 O'Connell filed this lawsuit to enforce the promissory
note against the Wills. The Wills contested the lawsuit. O'Connell filed a motion for
summary judgment, and Superior Court Judge Sharon Gleason granted that motion. On
September 26, 2002, the superior court entered final judgment against the Wills for
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$7,000 plus $6,492.50 in attorney's fees and $219.86 in costs, for a total judgment of
$13,712.36.1
Anthony Will subsequently paid the judgment after O'Connell, through
counsel, conducted a search for assets and executed a garnishment of earnings. In March
2009 Anthony Will filed a motion for an order that the judgment in the case was
satisfied. O'Connell opposed the motion on the grounds that it had not been served on
Paulette Will2 as required by Alaska Civil Rule 5 and that he had incurred additional
attorney's fees in the course of collecting on the original judgment. The superior court
granted Anthony Will's motion. O'Connell filed a motion for reconsideration, which
was denied. Addressing O'Connell's argument regarding service on Paulette Will, the
superior court explained that "since the motion sought relief that was of benefit to Ms.
Will, service of the motion upon her by Mr. Will is unnecessary" and "[r]equiring Mr.
Will, a pro se litigant, to comply with that rule in these circumstances would elevate form
far over substance." As to O'Connell's claim for attorney's fees, the superior court
explained that "[t]he parties' contract is reasonably interpreted to permit the recovery of
full attorney's fees during the course of the action - not during collection on any
judgment - particularly where, as here, the plaintiff has already been awarded
$6,492.50 of fees on a principal note due of $7,000." O'Connell appeals.
1 On June 28, 2002, the superior court first entered judgment for $7,219.86.
On September 26, the court amended the judgment by adding the attorney's fees.
2 As O'Connell's opposition stated, "Anthony Will represented . . . that he
and Paulette Will are divorced and that she was not served with a copy of his request."
The opposition appears to have been served on both Anthony Will and Paulette Will.
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III. STANDARD OF REVIEW
We review trial court orders regarding violations of Civil Rule 5 for abuse
of discretion.3 We usually review an award of attorney's fees for abuse of discretion.4
Abuse of discretion exists only "if the award is arbitrary, capricious, manifestly
unreasonable, or the result of an improper motive."5 Here, however, the dispositive issue
is whether the promissory note allowed recovery of attorney's fees incurred during
collection on the judgment. This is a question of contract interpretation, and we apply
our independent judgment to matters of contract interpretation.6
IV. DISCUSSION
A. The Superior Court Did Not Err In Considering The Motion For An
Order Of Satisfaction Of Judgment Despite The Defect In Service.
On March 16, 2009, after payment of the $13,712.36 judgment against the
Wills for both the amount owed on the note and attorney's fees incurred until the
superior court's grant of summary judgment, Anthony Will requested that the superior
court issue an order that the judgment had been satisfied. O'Connell opposed the
motion, in part because Anthony Will had failed to serve Paulette Will, his ex-wife and
co-defendant. The superior court rejected O'Connell's argument, concluding in its
denial of O'Connell's motion for reconsideration that service on Paulette Will was
unnecessary because the motion would benefit her and that "requiring [Anthony] Will,
3 See, e.g., Murat v. F/V Shelikof Strait, 793 P.2d 69, 73-74 (Alaska 1990)
(applying abuse of discretion standard where plaintiffs served corporate officers, rather
than the corporation's attorney of record, with motion for default judgment).
4 Reid v. Williams, 964 P.2d 453, 460 n.17 (Alaska 1998).
5 Id. (quoting Hughes v. Foster Wheeler Co., 932 P.2d 784, 793 (Alaska
1997)).
6 Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466 (Alaska 2004).
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a pro se litigant, to comply with that rule in these circumstances would elevate form far
over substance." On appeal, O'Connell argues that the superior court's decision to
consider the motion without first requiring service on Paulette Will is reversible error.
1. O'Connell does not have standing to assert any argument
Paulette Will might have for failure of service.
Although the question whether a party can object to another party's
defective service on a third party is a question of first impression in Alaska, the general
rule is that such a party cannot object.7 For example, the Montana Supreme Court
explained that "questions of defective service of process may be raised only by the one
on whom attempted service was made."8 This rule comports with Alaska's principles of
standing, and we choose to follow it. We have held that to establish interest-injury
standing to bring a claim, parties "must demonstrate that they have a sufficient personal
stake in the outcome of the controversy and an interest which is adversely affected by the
complained-of conduct. The degree of the injury need not be great: an identifiable trifle
7 See, e.g., Meadows of Citrus Cnty., Inc. v. Jones, 704 So. 2d 202, 203 (Fla.
App. 1998) ("[Defendants] lack standing to assert the alleged untimely service of process
on a co-defendant and this appeal is accordingly dismissed."); In re Estate of Stanford,
581 N.E.2d 842, 848 (Ill. App. 1991) ("Where a party was given notice, he cannot
complain that others were not notified."); Superior Outdoor Advert. Co. v. State Highway
Comm'n of Missouri, 641 S.W.2d 480, 483 (Mo. App. 1982) ("[T]he general rule is that
the issue of defective service of process may be raised only by the one on whom the
attempted service was made . . . ."); see also 72 C.J.S. Process § 123 (2011) ("As a
general rule, the question of defective service may be raised only by the one on whom
attempted service has been made.").
8 Hull v. D. Irvin Transp . Ltd., 690 P.2d 414, 417 (Mont. 1984).
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is sufficient to establish standing to fight out a question of principle."9 Where a party
does not have standing to bring a claim, the claim must be dismissed.10
O'Connell does not have standing to argue that Anthony Will's failure to
serve Paulette Will required the superior court not to consider Anthony Will's motion.
In his briefing, O'Connell does not identify any possible personal interest that would be
adversely affected by the superior court's consideration of Anthony Will's motion before
Paulette Will was properly served. He argues that proper service was important in this
case because Paulette Will "might have an indemnity claim against her co-defendant
which could have potentially been negatively [a]ffected by the relief sought by
[Anthony] Will." While this may be true, it suggests potential injury to Paulette Will,
not injury to O'Connell.
2. The superior court did not abuse its discretion by considering
Anthony Will's motion even though Paulette Will had not been
served.
Alaska Rule of Civil Procedure 5(a) provides that "written motion[s] other
than [those] which may be heard ex parte . . . shall be served upon each of the parties."
Moreover, notice of a motion "should be served on a co-party whose rights are affected
by the motion."11
Although we have not articulated a specific standard for deciding whether
to set aside a trial court's order on the basis of lack of complete service of a motion, we
have used an abuse of discretion standard for deciding whether to set aside a trial court's
order on the basis of defective service. In Murat v. F/V Shelikof Strait, we interpreted
9 Keller v. French, 205 P.3d 299, 304-05 (Alaska 2009) (internal quotation
marks and citations omitted)).
10 Id. at 305.
11 See 60 C.J.S. Motions and Orders § 18 (2011).
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our prior decisions to stand for the rule that "mere service on a party rather than on a
party's attorney in violation of the civil rules will not render a judgment void, but will
instead subject it to possible reversal based on the particular circumstances of the
individual case."12 In Murat, the plaintiffs had served the corporation's officers, rather
than the corporation's attorney of record.13 We explained that "[i]t appear[ed] highly
unlikely that [the attorney], even if he had been served, would have taken any action
whatsoever" and noted that the attorney had already moved to withdraw from the case
and "had repeatedly failed to take any action on the earlier discovery requests."14 We
concluded that the trial court did not abuse its discretion by entering default judgment
against the corporation for failure to comply with discovery and we declined to set aside
the default judgment.15
Under the abuse of discretion standard as applied in Murat, the superior
court in this case did not abuse its discretion in considering Anthony Will's motion
despite his failure to serve Paulette Will. As in Murat, it appears highly unlikely that
Paulette Will would have taken action on Anthony Will's motion even if she had been
properly served. Indeed, she did not take any action on the matter after receiving
O'Connell's opposition or motion for reconsideration and, despite ample notice, she has
not taken any action on O'Connell's appeal.
Although we conclude that the superior court did not err in considering
Anthony Will's motion, because we conclude that O'Connell is entitled to post-judgment
12 793 P.2d 69, 73 (Alaska 1990).
13 Id. at 72-73.
14 Id. at 73-74.
15 Id. at 71, 74.
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attorney's fees, as explained in part B below, we vacate the superior court's order that
the judgment was satisfied, and remand for further proceedings.
B. O'Connell Is Entitled To Post-Judgment Attorney's Fees.
In response to Will's motion for an order acknowledging satisfaction of the
judgment, O'Connell sought $2,397.50 in attorney's fees and $45.00 in costs.
O'Connell's attorney charged $2,397.50 in fees and $45.00 in costs to place liens on the
Wills' assets and to serve Anthony Will's employer with a writ of garnishment. The
superior court held that O'Connell was not entitled to post-judgment attorney's fees
under the parties' promissory note, which it found was "reasonably interpreted to permit
the recovery of full attorney's fees during the course of the action - not during
collection on any judgment - particularly where, as here, the plaintiff has already been
awarded $6,492.50 of fees on a principal note due of $7,000." We disagree and hold that
O'Connell can recover reasonable post-judgment attorney's fees and costs under his
contract with the Wills.
When interpreting contracts, our duty is to "ascertain and give effect to the
reasonable intentions of the contracting parties."16 We determine the intention of
contracting parties by "resort[ing] to the language of the disputed provision and other
provisions, relevant extrinsic evidence, and case law interpreting similar provisions."17
We seek to interpret contractual terms harmoniously, "avoiding those interpretations that
cause conflicts among the provisions."18
16 Estate of Polushkin ex rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska
2007) (quoting W. Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 (Alaska
1991)).
17 W.Pioneer, Inc., 818 P.2d at 656.
18 Rockstad v. Global Fin. & Inv. Co., 41 P.3d 583, 586-87 (Alaska 2002).
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The plain language of the contract supports a finding that the parties
intended to provide for reimbursement of all attorney's fees incurred in a "suit or action"
to collect the note, including those incurred through post-judgment enforcement actions.
The contract between O'Connell and the Wills provides that the signatories "promise[],
in case suit is instituted, to collect this note, or any portion thereof, in addition to the
costs and disbursements of said suit, a reasonable attorney's fee in such suit or action."
(emphasis added) Black's Law Dictionary defines "suit" as "[a]ny proceeding by a party
or parties against another in a court of law,"19 "action at law" as "[a] civil suit stating a
legal cause of action and seeking only a legal remedy,"20 and "action" as "[t]he process
of doing something; conduct or behavior."21 Black's also states that the word
"proceeding" is "used to express the business done in courts," which may include "all
ancillary or provisional steps, such as arrest, attachment of property, garnishment,
injunction, writ of ne exeat . . . [and] the enforcement of the judgment, or a new trial, as
may be directed by the court of last resort."22 Applying these definitions, the plain
language of the contract indicates that the parties intended to provide for all reasonable
attorney's fees incurred by O'Connell for services performed for him by his lawyer in
engaging in further proceedings to collect the note, including enforcing the judgment
rendered against the Wills.
This interpretation of the contract's language is also consistent with our
precedent regarding contractual attorney's fees clauses. In Gamble v. Northstore
Partnership, we held that where a contractual provision has the "evident purpose of
19 BLACK 'S LAW DICTIONARY 1572 (9th ed. 2009).
20 Id. at 33.
21 Id. at 32.
22 Id. at 1324 (emphasis added).
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shifting reasonable [attorney's] fees to the winner in litigation concerning [a] contract,"
the contract must be construed as calling for fee shifting "at all court levels."23 We also
stated that "the primary concern in setting rules for attorney fee awards must be the
encouragement of efficient litigation."24 Gamble thus stands for the proposition that we
construe contractual attorney's fees provisions broadly, and in a way that encourages
efficient litigation.
In Rockstad v. Erikson, we reiterated our holding in Gamble that, where the
parties intend it, contractual attorney's fees clauses must be construed as calling for fee
shifting at all levels "and not just in proceedings before the trial court,"25 and concluded
that an attorney's fees provision in a note and deed of trust included fees incurred in
"post-judgment appellate proceedings."26 Although we were not presented with the
question whether the note in Rockstad also provided for attorney's fees incurred during
post-judgment enforcement actions, our holding in Rockstad supports our conclusion that
the attorney's fees provision in the note between O'Connell and the Wills provided for
attorney's fees incurred post-judgment to enforce the judgment. To hold otherwise
would require us to artificially distinguish attorney's fees incurred for post-judgment
appellate proceedings from attorney's fees incurred for post-judgment enforcement
proceedings, and would in many cases eviscerate the evident purpose of contractual
attorney's fees clauses like the one at issue. When a contract between two parties
indicates that the parties intended to shift reasonable attorney's fees to the winner in
23 28 P.3d 286, 290 (Alaska 2001).
24
Id. at 291 (quoting Presley of S. Cal. v. Whelan, 196 Cal.Rptr. 1, 3 (Cal.
App. 1983)).
25 113 P.3d 1215, 1224 (Alaska 2005).
26 Id.
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litigation concerning the contract, interpreting that contract to require the losing party to
pay all attorney's fees except for fees incurred while attempting to enforce the judgment
- a cost that is only incurred when the losing party refuses to pay after a judgment has
been rendered against him - would be entirely contrary to the essential purpose of such
a clause.
Our conclusion is also consistent with Alaska's Civil Rule 82 and our
precedent regarding that rule. Alaska rejects the American rule for attorney's fees, that
is, the rule that litigants pay their own fees.27 Instead, Alaska's Civil Rule 82 provides
for partial fee-shifting in most civil cases absent any agreement between contracting
parties28 for "services performed up to the time of the judgment."29 In Rockstad,
however, we concluded that "where a contract between the parties allows for one party
to recover attorney's fees in the event of litigation, 'the contract provision must prevail
over any limitations otherwise imposed by Rule 82.' "30 When parties include a
provision for attorney's fees in their contract, they draft that provision in the shadow of
Rule 82, and it is logical to infer that the intent behind a contractual attorney's fees
clause is therefore to provide for attorney's fees that are not otherwise provided by
Rule 82. But Rule 82 has two limitations: it provides generally for reimbursement of
only partial attorney's fees, and it provides for reimbursement of attorney's fees for
27 See, e.g., Hatch v. T & L Assocs., 726 A.2d 308, 309 (N.J. Super. App. Div.
1999) (discussing the "so-called American rule of litigants paying their own fees");see
also Susanne Di Pietro & Teresa W. Carns, Alaska's English Rule: Attorney's Fee
Shifting in Civil Cases, 13 ALASKA L. REV . 33-94 (1996).
28 Alaska R. Civ. P. 82.
29 Torrey v. Hamilton, 872 P.2d 186, 187 (Alaska 1994).
30 113 P.3d at 1224 (quoting Ursin Seafoods, Inc. v. Keener Packing Co.,
741 P.2d 1175, 1181 (Alaska 1987)).
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actions taken only up until the time of judgment.31 Because there appears to be no
principled basis for concluding that the contracting parties in this case intended to avoid
one of Rule 82's limitations but not the other, we must conclude that the attorney's fees
clause at issue, which provides for recovery of all reasonable attorney's fees incurred
while collecting the note, was written with the intent of providing all reasonable
attorney's fees for all actions taken to enforce the note, including collections actions
taken after the final judgment was entered. As discussed above, this conclusion is
consistent with and supported by our attorney's fee rules and precedent.
Finally, we note that construing contractual attorney's fees clauses to
exclude attorney's fees incurred for post-judgment collection and enforcement
proceedings would be inefficient and might stimulate further litigation. If we construed
such clauses to exclude attorney's fees incurred while attempting to collect on a note
through post-judgment enforcement proceedings, the prevailing party could alternatively
file a separate lawsuit to enforce a judgment and then recover attorney's fees incurred
for post-judgment enforcement actions in the new litigation. But filing a separate lawsuit
to enforce a judgment rather than utilizing liens and other post-judgment enforcement
mechanisms in an existing case results in greater economic costs to the parties and to
judicial and court resources.
Because the plain language of the promissory note indicates that the parties
intended to provide for attorney's fees incurred in all actions taken to collect on the note,
and because our precedent regarding contractual attorney's fees clauses supports the
conclusion that contractual attorney's fees clauses like the one at issue provide for
attorney's fees incurred during post-judgment enforcement proceedings, we reverse the
31 Alaska Civil Rule 82(b); see, e.g., Torrey, 872 P.2d at 187.
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superior court's order denying O'Connell's motion for post-judgment attorney's fees,
and remand for further proceedings.
V. CONCLUSION
For the foregoing reasons, we VACATE the superior court's order for
satisfaction of judgment, REVERSE the court's order denying post-judgment attorney's
fees, and REMAND for further proceedings.
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FABE, Justice, with whom CHRISTEN, Justice, joins, dissenting.
I disagree with the court's conclusion that the contract between O'Connell
and the Wills authorizes the award of post-judgment collection costs. In my view, the
attorney's fee provision in the contract simply does not contemplate these expenses. The
contract provides that the signatories "promise[], in case suit is instituted, to collect this
note, or any portion thereof, in addition to the costs and disbursements of said suit, a
reasonable attorney's fee in such suit or action . . . ." (Emphasis added.) Because the
phrase "reasonable attorney's fee in such suit or action" cannot be construed to include
post-judgment collection costs, I respectfully dissent.
When interpreting contracts, we have stated that our "duty is to 'ascertain
and give effect to the reasonable intentions of the contracting parties.' "1 We determine
the intention of contracting parties by "resort to the language of the disputed provision
and other provisions, relevant extrinsic evidence, and case law interpreting similar
provisions."2
I conclude that the term "attorney's fees," when examined using the
traditional tools of contract interpretation, does not include collection costs. The addition
in this contract of the qualifier "in such suit or action" makes me more certain of this
conclusion. By referring to "such suit or action," the contract expressly provides only
for attorney's fees incurred during the litigation of the action in the trial or appellate
courts.
1 Estate of Polushkin ex rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska
2007) (quoting Western Pioneer, Inc. v. Harbor Enters., Inc., 818 P.2d 654, 656 (Alaska
1991)).
2 Western Pioneer, 818 P.2d at 656.
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Black's Law Dictionary defines "suit" as "[a]ny proceeding by a party or
parties against another in a court of law"3 and "action at law" as "[a] civil suit stating a
legal cause of action and seeking only a legal remedy."4 The court reasons that Black's
Law Dictionary defines "suit" as being a "proceeding" and that, under some definitions,
"proceeding" has been defined to include "ancillary or provisional steps" such as
enforcement of a judgment. The court therefore concludes that a "suit" can include post-
judgment collection efforts. There are several flaws in this argument. Not every
"proceeding" is a "suit." A "suit" does not include all "proceedings," only those
"proceedings" that take place "in a court of law."5 And even if post-judgment collection
efforts can be classified as "proceedings," they are not "proceedings" that take place "in
a court of law." The word "suit" is limited to the litigation of an actual lawsuit in the trial
or appellate courts.
Treating "attorney's fees" as distinct from "costs of collection" is especially
natural in Alaska. Alaska, unlike other jurisdictions, has a longstanding practice of
awarding partial attorney's fees, first by statute and then by Civil Rule 82.6 The phrase
"attorney's fees" is therefore widely used in Alaska and has come to have a particular
meaning here. When parties include a provision for attorney's fees in their contract, they
draft that provision in the shadow of Rule 82.
3 BLACK 'S LAW DICTIONARY 1572 (9th ed. 2009).
4 Id. at 33.
5 Id. at 1152 (defining "suit" as "[a]ny proceeding by a party or parties
against another in a court of law") (emphasis added).
6 Teresa W. Carns & Susanne DiPietro, Alaska's English Rule: Attorney's
Fee Shifting in Civil Cases, 13 ALASKA L. REV . 33, 39-40 (1996).
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In construing Rule 82's provision for "attorney's fees," we have given that
term a specific and limited meaning, excluding other activities outside of litigation.7
Civil Rule 82 fees "must relate solely to attorney's services performed in the case in
which the judgment is entered."8 We have limited fee awards for attorney's services to
the "costs of the action"9 and have expressly interpreted Civil Rule 82 to provide
compensation "only . . . for attorney's services performed up to the time of judgment."10
And we have only made an exception to our rule that fees may not be awarded for
collection efforts in cases involving the "collection of judgments for child
support[, which] is a special subject to which special rules apply."11 In Torrey, we also
clarified that post-judgment attorney's fees may not be collected under the authority of
Civil Rule 79: "Rule 79, like Rule 82, only relates to costs expended up to the time of
judgment." 12
This understanding of "attorney's fees" comports with the national
understanding that "attorney's fees" and "costs of collections" are distinct terms.
Accordingly, when parties use the term "attorney's fees" in their contract, they can be
7 Marsingill v. O'Malley, 128 P.3d 151, 163 (Alaska 2006) ("[I]t was error
to award attorney's fees for legislative work and for work related to the first appeal.");
Alaska State Hous. Auth. v. Riley Pleas, Inc ., 586 P.2d 1244, 1249 (Alaska 1978)
(declining to award attorney's fees for fees incurred in arbitration).
8 Torrey v. Hamilton, 872 P.2d 186, 187 (Alaska 1994).
9 Cameron v. Hughes, 825 P.2d 882, 887 (Alaska 1992) (quoting O'Link v.
O'Link, 632 P.2d 225, 231 (Alaska 1981)), limited by Torrey, 872 P.2d at 188 n.1.
10 Torrey, 872 P.2d at 187.
11 Id. at 188 n.1.
12 Id. at 188.
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presumed to use that term as distinct from costs of collection. If contracting parties wish
to allocate costs of collection, they can do so - but they must do it expressly.
Examining case law from other jurisdictions interpreting similar provisions
confirms that attorney's fees are distinct from post-judgment collection costs. Many
judicial decisions discussing the relationship between attorney's fees and post-judgment
costs of collection have involved contracts that featured express provisions for both
"attorney's fees" and "costs of collection."13 The practice reflected in these decisions is
that a separate provision for "costs of collection" needs to be added to a contract if such
a provision is desired. The contracting parties in these cases and the courts that have
reviewed similar clauses have referred to attorney's fees and costs of collection as
distinct items.14
The court reasons that Gamble v. Northstore Partnership15 counsels that we
should construe contractual provisions for attorney's fees broadly and therefore
concludes that the attorney's fee provision in this contract should be construed to include
post-judgment collection costs. But while Gamble establishes that we should interpret
contractual provisions for attorney's fees broadly, collection costs are distinct from
attorney's fees. I would therefore affirm the superior court and respectfully dissent.
13 See, e.g., Alabama State Bar v. Hallett, 26 So. 3d 1127, 1130 (Ala. 2009);
Thomas v. Arkoosh Produce, Inc., 48 P.3d 1241, 1250 (Idaho 2002); Tulley v. Sheldon,
982 A.2d 954, 958 (N.H. 2009); Harsch Props., Inc. v. Nicholas, 932 A.2d 1045, 1047
(Vt. 2007).
14 See, e.g.,Int'l Sales-Rentals Leasing Co. v. Nearhoof , 263 So. 2d 569 (Fla.
1972);Am. Serv. & Supply Co. v. Raby, 206 N.E.2d 94, 95-96 (Mass. 1965) (referring
to both attorney's fees and costs of collection); Strenge v. Clarke, 569 P.2d 60 (Wash.
1977) (referring to three categories of expenses: collection costs, court costs, and
attorney's fees).
15 28 P.3d 286 (Alaska 2001).
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