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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. BP Pipelines (Alaska) Inc. v. State, Dept. of Revenue (5/9/2014) sp-6906
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
BP PIPELINES (ALASKA) )
INC., CONOCOPHILLIPS )
TRANSPORTATION ALASKA, ) Supreme Court Nos. S-14718/14728
INC., EXXONMOBIL PIPELINE ) S-14737 (Consolidated)
COMPANY, KOCH ALASKA )
PIPELINE COMPANY, LLC, ) Superior Court No. 3AN-06-08446 CI
UNOCAL PIPELINE COMPANY, )
Owners, and ALYESKA PIPELINE ) O P I N I O N
SERVICE COMPANY, as agent )
for the Owners, )
) No. 6906 - May 9, 2014
Appellants/Cross-Appellees, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF REVENUE, )
STATE ASSESSMENT REVIEW )
BOARD, and NORTH SLOPE )
BOROUGH, )
)
Appellees, )
)
FAIRBANKS NORTH STAR )
BOROUGH and CITY OF VALDEZ, )
)
Appellees/Cross-Appellants. )
)
----------------------- Page 2-----------------------
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason and Andrew
Guidi, Judges.
Appearances: James M. Seedorf, Hughes Gorski Seedorf
Odsen & Tervooren, LLC, Anchorage, for Appellants and
Cross-Appellees. Mauri Long, Jessica Dillon, and Andalyn
Pace, Dillon & Findley, P.C., Anchorage, for Appellee North
Slope Borough. Robin O. Brena, Laura S. Gould, and
Anthony S. Guerriero, Brena, Bell & Clarkson, P.C.,
Anchorage, and William M. Walker and Craig Richards,
Walker & Richards, LLC, Anchorage, for Appellees and
Cross-Appellants Fairbanks North Star Borough and City of
Valdez.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
These appeals concern the attorney's fees and costs awarded in the 2006
Trans-Alaska Pipeline System tax assessment case.1
The superior court decided that the
Fairbanks North Star Borough, the City of Valdez, and the North Slope Borough were
prevailing parties for purposes of attorney's fees and costs because they had prevailed
on the main issues of the case. The court awarded costs pursuant to Alaska Civil Rule 79
and attorney's fees pursuant to Alaska Civil Rule 82(b)(2), which governs fee awards
"[i]n cases in which the prevailing party recovers no money judgment." The superior
court also applied the enhancement factors of Rule 82(b)(3)(A), (B), and (H) to raise the
1 We decided the merits of the case in BP Pipelines (Alaska) Inc. v. State,
Dep't of Revenue , ___P.3d ___, Op. No. 6867, 2014 WL 685986 (Alaska, Feb. 19,
2014).
-2- 6906
----------------------- Page 3-----------------------
presumptive award from 30 percent to 45 percent of the prevailing parties' reasonable
attorney's fees.
The owners of the Trans-Alaska Pipeline System appeal. They argue that
the superior court should have applied Alaska Appellate Rule 508 instead of Civil Rules
79 and 82. In the alternative, they contend that the three municipalities did not prevail
as against the owners; that fees should have been allocated between separate appeals; that
none of the prevailing parties were entitled to enhanced attorney's fees; and that the
Fairbanks North Star Borough's award should have been reduced as recommended by
a special master. The Fairbanks North Star Borough and the City of Valdez cross-
appeal, arguing that the superior court should have viewed this case as one involving a
money judgment for purposes of an attorney's fees award under Rule 82(b)(1) and, in
the alternative, that they were entitled to a greater enhancement of their fees.
We affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Alaska Statute 43.56.060 directs the Department of Revenue to annually
assess the "full and true value" of oil and gas properties for purposes of determining the
property taxes due the State of Alaska and certain affected municipalities. Covered
2
properties include those used for the pipeline transportation of gas or unrefined oil.
After the Department conducts its initial assessment, an owner of taxable property or an
affected municipality may informally appeal the valuation to the Department.3 The
2 AS 43.56.060.
3 AS 43.56.110(a).
-3- 6906
----------------------- Page 4-----------------------
Department's decision may be further appealed to the State Assessment Review Board.4
Thereafter, taxpayers and taxing authorities are entitled to appeal the Board's action to
the superior court for a trial de novo.5
The Trans-Alaska Pipeline System (TAPS) stretches 800 miles from the oil
fields of the North Slope to a terminal in the City of Valdez. En route it crosses property
within the North Slope Borough (North Slope), the Fairbanks North Star Borough
(Fairbanks), and the City of Valdez (Valdez) (called collectively "the Municipalities").6
TAPS is jointly owned by BP Pipelines (Alaska) Inc. (46.9%); ConocoPhillips
Transportation Alaska, Inc. (28.3%); ExxonMobil Pipeline Company (20.3%); Koch
Alaska Pipeline Company, LLC (3.1%); and Unocal Pipeline Company (1.4%), and is
managed by their agent Alyeska Pipeline Service Company (called collectively "the
Owners"). The valuation of TAPS for the 2006 tax year led to a five-week trial de novo
in the superior court, a superior court valuation that more than doubled that of the Board,
7
This related appeal and cross-appeal
and eventual affirmance on appeal by this court.
concern the costs and attorney's fees awarded by the superior court.
B. The Underlying Case
The proceedings leading up to these appeals began on March 20, 2006,
when the Municipalities and Owners appealed within the Department its initial
assessment of TAPS at $3.344 billion. The Department's decision adjusted the original
4 AS 43.56.120(a); AS 43.56.040.
5 AS 43.56.130(i).
6 Fairbanks and Valdez, though separately represented, have a unified
position. For convenience this opinion refers to them as "Fairbanks/Valdez."
7 BP Pipelines (Alaska) Inc. v. State, Dep't of Revenue , ___ P.3d ___ , Op.
No. 6867, 2014 WL 685986 at *1-2 (Alaska, Feb. 19, 2014).
-4- 6906
----------------------- Page 5-----------------------
assessment (to $3.641 billion), and the Municipalities and Owners appealed to the Board
on April 19, 2006. Following the Board's decision, which again adjusted the assessment
upward (to $4.306 billion), the Owners and Municipalities appealed to the superior court.
The first superior court appeal was filed in Anchorage on May 25, 2006,
by BP, ExxonMobil, Unocal, and Alyeska, requesting a trial de novo of the TAPS
valuation. North Slope entered an appearance in the appeal and Fairbanks/Valdez filed
a cross-appeal. The remaining TAPS owners, ConocoPhillips and Koch, together with
Alyeska filed a second superior court appeal in Anchorage on June 21, 2006. Again,
North Slope entered an appearance and Fairbanks/Valdez filed a cross-appeal in which
they listed the same points on appeal as they had in the first appeal. A week later a third
superior court appeal was filed by Fairbanks/Valdez in Fairbanks. In July 2006 the three
superior court appeals were consolidated for purposes of a single trial de novo before
Judge Sharon Gleason in Anchorage.
The trial de novo began on August 10, 2009, and lasted for over five weeks.
The main dispute was over the method to be used to calculate "the full and true value"
of TAPS. The Municipalities proposed a valuation of $11.570 billion, employing a cost
approach that analyzed the replacement cost of TAPS while taking into consideration its
enhanced value because of the profitability of the entire oil enterprise as an integrated
entity. In contrast, the Owners contended that TAPS should be valued at $850 million,
arguing for a tariff/income approach that considered only the income stream that TAPS
generated. In the agency proceedings, both the Department and the Board had opted for
the cost approach; the superior court ultimately agreed. It found the cost approach to be
the best indicator of value and applied it using a "replacement cost new less
depreciation" (RCNLD) method, which determines the current replacement cost of the
property and then deducts for depreciation.
-5- 6906
----------------------- Page 6-----------------------
A second major point of contention was which cost study should be applied
to accurately calculate RCNLD: the Owners' study, which estimated the replacement
cost at about $8.545 billion, or the study advanced by the Municipalities, which
estimated the replacement cost at $18.712 billion. The superior court concluded that the
Municipalities' study was more in accord with the statutory standards and accepted its
estimate of value. The superior court next decided complex issues regarding the amount
of depreciation to be deducted, then concluded that TAPS should be valued at
"approximately $9.977 billion - or just over 50% of its estimated replacement cost."
C. Award Of Attorney's Fees
The Department and the Municipalities asserted prevailing party status and
8
moved for attorney's fees and costs. Each based its request on Civil Rule 82(b) and
sought an increase of the award under the enhancement factors of Rule 82(b)(3). The
Owners opposed, arguing in part that Fairbanks/Valdez and North Slope had not
prevailed against the Owners, but rather had prevailed against the Department and the
Board. The Owners also contested portions of the Municipalities' fee requests and
claimed that any attorney's fees, if awarded, should be apportioned between the Owners'
appeal and the Fairbanks/Valdez appeal and not subject to enhancement under
Rule 82(b)(3).
On July 25, 2011, the superior court entered its first order on attorney's fees
and costs. The court found that the Department and the Municipalities were the
prevailing parties against the Owners, and it analyzed costs and attorney's fees under
Civil Rules 79 and 82. The court awarded fees pursuant to Rule 82(b)(2), applicable to
8
The Department and Fairbanks/Valdez requested attorney's fees pursuant
to Rule 82(b)(1), governing cases in which there is a money judgment. North Slope
requested attorney's fees pursuant to Rule 82(b)(2), governing cases in which there is no
money judgment.
-6- 6906
----------------------- Page 7-----------------------
non-money judgments, instead of Rule 82(b)(1), applicable to money judgments.
Consequently, the court began with a presumptive award of 30 percent of reasonable
actual fees. It then determined that enhancement to 45 percent was appropriate under
Rule 82(b)(3)(A) because of "the complexity of the litigation," under (B) because of "the
length of trial," and under (H) because of "the relationship between the amount of work
performed and the significance of the matters at stake." The court declined to increase
fees based on any of the other Rule 82(b)(3) factors, including (F) ("the reasonableness
of the claims and defenses pursued by each side") and (G) ("vexatious or bad faith
conduct"), which the prevailing parties had urged the court to apply. The court also
refused to allocate fees between the appeals as the Owners had requested. Finally, to
address more specific objections to the fee requests, the superior court appointed a
special master to help determine the amount of fees that could be considered fair and
reasonable.
The special master determined that a 15 percent reduction in Fairbanks's
claimed fees would be fair "[b]ecause of a pattern of unnecessary duplication of effort."
Fairbanks opposed the recommended decision, arguing that the master failed to
recognize that Fairbanks had to put extra time and effort into the case as the leading
litigant. On de novo review of the special master's recommendation, the superior court
agreed with Fairbanks and declined to reduce its fees. The court awarded the
Municipalities their costs, totaling $514,551.14, and 45 percent of their requested
attorney's fees, with Fairbanks, Valdez, and North Slope receiving $837,649.84,
$478,519.47, and $628,586.55 respectively.
The Owners present the following points on this appeal: (1) as an appellate
court in an administrative appeal, the superior court should have applied Appellate
Rule 508 instead of Civil Rules 79 and 82 to its awards of costs and attorney's fees; (2)
the Municipalities were not prevailing parties as against the Owners; (3) alternatively,
-7- 6906
----------------------- Page 8-----------------------
the superior court abused its discretion when it failed to allocate fees and costs between
the Municipalities' appeals and the Owners' appeals; (4) the superior court abused its
discretion when it enhanced the awards of attorney's fees; and (5) the superior court
abused its discretion when it rejected the special master's recommendation to reduce
Fairbanks's fee request by 15 percent. Fairbanks/Valdez cross-appeal, arguing that: (1)
this case involves a money judgment, and the superior court therefore erred by awarding
fees pursuant to Rule 82(b)(2) instead of Rule 82(b)(1); and (2) the superior court abused
its discretion by failing to grant a greater enhancement of attorney's fees under Rule
82(b)(3), due to the "unreasonableness of the [TAPS] Owners' positions" and the bad
faith or vexatious conduct demonstrated by the Owners' failure to disclose an important
9
study during the case on the merits.
III. STANDARDS OF REVIEW
10
"We apply our independent judgment in reviewing conclusions of law,"
which includes the superior court's decision whether to apply the Civil Rules or
11
We review "a superior court's
Appellate Rule 508 to awards of fees and costs.
9 The Owners have not appealed the Department's prevailing party status or
its right to attorney's fees. Two of the Owners' arguments nevertheless implicate the
Department: that Appellate Rule 508 governed the awards of fees and costs and should
be applied on remand, and that none of the prevailing parties' fees should have been
enhanced under Rule 82(b)(3). The Department has not taken a position on this appeal.
10
R & Y, Inc. v. Municipality of Anchorage , 34 P.3d 289, 292 (Alaska 2001).
11 Wagner v. Wagner, 183 P.3d 1265, 1267 (Alaska 2008) (citing Strong
Enters., Inc. v. Seaward , 980 P.2d 456, 458 (Alaska 1999)) (considering de novo
whether trial court should have applied Rule 82(b)(1) or Rule 82(b)(2) in calculating the
fee award).
-8- 6906
----------------------- Page 9-----------------------
12
determination of prevailing party status and attorney's fees for abuse of discretion" and
"will only reverse if the award is 'arbitrary, capricious, manifestly unreasonable, or
13
If the superior court varies an award under Rule
stemmed from improper motive.' "
82(b)(3) it must explain its reasons, and "[l]egal questions involved in exceptions to an
award of attorney's fees are reviewed de novo, while exceptions that rely on factual
findings are reviewed for clear error."14
IV. DISCUSSION
A. The Superior Court Did Not Err In Applying Civil Rules 82 And 79
Instead Of Appellate Rule 508 To Its Awards Of Fees And Costs.
The Owners argue that the superior court should have awarded fees and
costs pursuant to Appellate Rule 508 instead of Civil Rules 82 and 79. They argue that
although the superior court was required by statute to provide a trial de novo,15 the nature
of the proceeding was still that of an appeal from an administrative decision; and because
it was an appeal, any award of fees had to be made pursuant to the appellate rules. The
Owners cite a number of our cases in support of the contention that Appellate
Rule 508(e) alone governs awards of attorney's fees in administrative appeals.16 But
12 State v. Jacob, 214 P.3d 353, 358 (Alaska 2009) (quoting Braun v. Denali
Borough , 193 P.3d 719, 726 (Alaska 2008)) (internal quotation marks omitted).
13 Wagner, 183 P.3d at 1266-67 (quoting Ware v. Ware, 161 P.3d 1188, 1192
Alaska 2007)).
14 Cizek v. Concerned Citizens of Eagle River Valley, Inc., 71 P.3d 845, 848-
49, 851 (Alaska 2003) (citing Dobos v. Ingersoll , 9 P.3d 1020, 1026 (Alaska 2000)).
15 AS 43.56.130(i) ("An owner or municipality may appeal to the superior
court for, and is entitled to, trial de novo of the board's action.").
16 See Agen v. State of Alaska, Dep't of Revenue, Child Support Enforcement
Div. , 945 P.2d 1215, 1221 (Alaska 1997) (citing Royal Krest Const. Inc. v. Municipality
(continued...)
-9- 6906
----------------------- Page 10-----------------------
none of the cited cases involved a situation like this one, where the superior court
conducted a trial de novo.
The most analogous case is Bowers Office Products, Inc. v. Fairbanks
17
In Bowers , in what was essentially an
North Star Borough School District .
18
the superior court
administrative appeal from a school district's contracting decision,
conducted a five-day trial after allowing the disappointed bidder to supplement the
administrative record with evidence of " 'additional irregularities' which [allegedly]
19
tainted the bid process." The superior court awarded attorney's fees pursuant to Civil
20
Rule 82, which we held to be an "appropriate" use of the rule. While noting that
awards of attorney's fees pursuant to Appellate Rule 508 were "the normal course . . .
in administrative appeals to the superior court," we observed that Bowers presented "a
hybrid in that it was an administrative appeal with an augmented record," which thus
16(...continued)
of Anchorage, 640 P.2d 133, 134 (Alaska 1981) for the holding that "it is error for a
superior court acting as an intermediate appellate court to award fees under Civil Rule
82, rather than under Appellate Rule 508"); see also Diedrich v. City of Ketchikan , 805
P.2d 362, 371 (Alaska 1991) (holding that where the superior court treated an action as
an administrative appeal, "the Appellate Rules, not the Civil Rules, govern the award of
attorney's fees").
17 918 P.2d 1012 (Alaska 1996).
18
The disappointed bidder had filed an original action in superior court, but
the superior court determined that it was actually "an administrative appeal pursuant to
AS 22.10.020(d)." Fairbanks N. Star Borough Sch. Dist. v. Bowers Office Prods., Inc. ,
851 P.2d 56, 57 (Alaska 1992).
19 Bowers Office Prods. , 918 P.2d at 1013.
20 Id. at 1015.
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----------------------- Page 11-----------------------
21
"partook of both administrative review and de novo litigation." The use of Rule 82
acknowledged the reality that the expense and attorney time a party incurs in a trial de
novo are more like those of a trial-court proceeding than an appeal. It follows that in this
case, involving an administrative appeal in which proceedings were wholly de novo, the
superior court was correct to apply Civil Rules 79 and 82.
Further support for the superior court's decision is found in Appellate
Rule 609(b), which states in relevant part:
(1) In an appeal from an administrative agency, the superior
court may in its discretion grant a trial de novo in whole or in
part. . . . (2) All further proceedings in such action are
governed by the rules governing procedure in the superior
court . . . .
The Owners acknowledge Rule 609's requirement that the "rules governing procedure
in the superior court" apply in a trial de novo, but they dispute that Rule 82 is one of
22
those rules, citing State v. Native Village of Nunapitchuk . In Nunapitchuk we
considered whether Rule 82 was a "rule of practice and procedure," thus requiring a two-
thirds vote of both houses of the legislature to change it, or "substantive law," meaning
23 According to the Owners, we
it could be changed by a simple majority of each house.
acknowledged in Nunapitchuk that Rule 82 is substantive when we recognized that it
"creates a right to partial attorney's fees."24 But a more contextually complete quotation
from the opinion shows otherwise:
21 Id.
22 156 P.3d 389 (Alaska 2007).
23 Id. at 395-96.
24 Id. at 397.
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----------------------- Page 12-----------------------
Using the Ware test, when we ask whether Rule 82 "creates,
defines and regulates rights" or is a "method of enforcing the
rights," no clear answer emerges. On the one hand, the rule
creates a right to partial attorney's fees, and the attorney's
fees awarded under the rule, as Ware recognized, can be quite
substantial in terms of value. On the other hand, the rule is
part of a method for enforcing rights external to court
proceedings that are vindicated by the judgment in favor of
the prevailing party. If fees were not allowed, the prevailing
party would suffer a loss in spite of its victory. A Rule 82
award of partial fees mitigates this effect. The latter, it seems
to us, is the better view. We believe that the allocation of
attorney's fees under the rule is, to use Judge Weeks's
language [from his decision in the superior court], "not so
much a right of itself but tends to be how rights are
[25]
enforced."
We concluded that "Rule 82 is a rule of procedure because it more readily falls on the
procedure side of the substance and procedure divide under the definitions established
26
by the precedents of this court." The superior court's decision to apply Rules 79 and
82 in this case thus finds support in the command of Appellate Rule 609(b) that "the
rules governing procedure in the superior court" apply to trials de novo.27
B. The Superior Court Did Not Err In Determining That
Fairbanks/Valdez And North Slope Were Prevailing Parties As
Against The Owners.
25 Id. at 397-98 (emphasis added) (citing Ware v. City of Anchorage, 439 P.2d
793, 794 (Alaska 1968)).
26 Id. at 402.
27
Appellate Rule 609(b) contemplates trials de novo granted by the superior
court "in its discretion." Here, a trial de novo was required by statute, AS 43.56.130(i).
We do not need to decide whether Appellate Rule 609(b) nonetheless governed, since
we hold that the superior court's use of Civil Rule 82 was otherwise justified under our
case law.
-12- 6906
----------------------- Page 13-----------------------
In assessing prevailing party status for purposes of awarding attorney's fees
and costs, we have consistently held that "[t]he prevailing party is the one who has
successfully prosecuted or defended against the action, the one who is successful on the
main issue of the action and in whose favor the decision or verdict is rendered and the
judgment entered." 28 A prevailing party need not have received all the relief requested,29
and a party who recovers on only one of several claims may still be the prevailing
30
party.
In this case, in deciding which parties had prevailed for purposes of Rules
79 and 82, the superior court assessed "the litigation as a whole"31 and concluded that
"the State and each of the Municipalities" were prevailing parties "[o]n the main issues
in dispute in the 2006 tax year litigation - including the applicability of the RCNLD
approach and the allowable depreciation for economic obsolescence." Again, we review
this determination for abuse of discretion.32
The Owners do not dispute that the Municipalities prevailed on the main
issues in the case. They argue, however, that the Municipalities' appeals were directed
against the Department and the Board, not the Owners, and that the Municipalities
therefore cannot have prevailed against them . They point out that Fairbanks/Valdez filed
28 Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1242 (Alaska 2013)
(quoting Taylor v. Moutrie-Pelham, 246 P.3d 927, 929 (Alaska 2011)) (internal
quotation marks omitted).
29 Id. (citing Blumenshine v. Baptiste , 869 P.2d 470, 474 (Alaska 1994)).
30 Id. (citing State, Dep't of Corrs. v. Anthoney, 229 P.3d 164, 167 (Alaska
2010)).
31 Chambers v. Scofield, 247 P.3d 982, 989 (Alaska 2011).
32 State v . Jacob, 214 P.3d 353, 358 (Alaska 2009) (quoting Braun v. Denali
Borough , 193 P.3d 719, 726 (Alaska 2008)).
-13- 6906
----------------------- Page 14-----------------------
appeals only against the Department and the Board, and that North Slope did not file an
appeal at all but was a "nominal appellee" in the superior court. The Owners cite two
federal cases for the proposition that separate claims tried in a single proceeding may
33
retain "their separate and distinct character." According to the Owners, their separate
appeals maintained their separate character despite the consolidation of all appeals in the
superior court for a single trial de novo. Consequently, the Owners argue, the
Municipalities, even if prevailing parties, did not prevail against them, and the Owners
cannot be liable for the Municipalities' costs and attorney's fees.
Alaska Statute 43.56.130(i) provides that "[a]n owner or municipality may
34
appeal to the superior court for, and is entitled to, trial de novo of the board's action."
As with most administrative appeals, the statute itself does not contemplate that
interested parties will be arrayed against each other in the case's caption. But Appellate
Rule 602 clarifies the parties' relative postures on an appeal. Rule 602(h) states in part:
All parties to the trial court or agency action when the final
order or judgment was entered are parties to the appeal. A
party who files a notice of appeal, whether separately or
jointly, is an appellant under these rules. All other parties,
including the agency in an appeal from an administrative
[35]
agency decision, are deemed to be appellees.
By operation of this rule, the Owners, because they filed an appeal, were appellants, and
each of the Municipalities was automatically deemed an appellee; the reverse was true
for the appeals filed by the Municipalities.
33 The Owners cite Cont'l Airlines, Inc. v. Goodyear Tire & Rubber Co., 819
F.2d 1519, 1523 n.1 (9th Cir. 1987) and Johnson v. Manhattan Ry. Co. , 289 U.S. 479,
496-97 (1933).
34 AS 43.56.130(i) (emphasis added).
35 Alaska R. App. P. 602(h).
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----------------------- Page 15-----------------------
Furthermore, our case law has long made it clear that, regardless of how
parties are formally arranged, fees and costs may be awarded based on actual adversity
36
In First National Bank of Fairbanks v. Enzler , a bankruptcy trustee filed
of interests.
an action in the superior court, seeking to set aside an allegedly fraudulent conveyance
37
between the Enzlers, a husband and wife. The bank "was joined as a nominal
defendant in the suit" solely because of its status as a creditor.38 The superior court ruled
for the Enzlers following trial and awarded them attorney's fees and costs against the
39
bank. The bank appealed, arguing that it had only been a party because the trustee
named it and that the Enzlers would have incurred "substantially the same costs and
40 In response, the Enzlers pointed out that the
attorney's fees" had it not been involved.
bank had opposed their motion to require the trustee to post a cost bond, had actively
participated at trial, and had "join[ed] the trustee on all issues raised on appeal."41 In
light of these arguments, and in recognition of the trial court's discretion in determining
"which party prevails and is entitled to costs," we "agree[d] with the trial court's
36 See Moses v. McGarvey, 614 P.2d 1363, 1373 (Alaska 1980) ("Under some
circumstances a party may be considered to have prevailed over another even though
neither has filed a claim.").
37 537 P.2d 517, 520 (Alaska 1975).
38 Id.
39
Id. at 525.
40 Id.
41
Id.
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----------------------- Page 16-----------------------
alignment of the Bank as a plaintiff below" and affirmed the award of costs and fees
42
against it.
Similarly, in State ex rel. Palmer Supply Co. v. Walsh & Co., a supplier had
brought a claim against a general contractor's bonding company, which impleaded a
43 We found no abuse of discretion in the superior
subcontractor as the likely liable party.
court's award of attorney's fees against the supplier and in favor of the subcontractor,
despite the supplier's contention that it could not be liable for fees to a third-party
44
And in Moses v. McGarvey , in which a group of
defendant it had not sued.
shareholders had sued The Aleut Corporation and its president, Moses, we affirmed the
superior court's order that Moses reimburse the corporation for the fees and costs
assessed against it in the plaintiffs' favor;45 but at the same time we reversed an award
to the corporation of its own fees and costs against Moses, noting that "Moses and the
corporation were not aligned on opposing sides of the controversy," and they "used the
46
same attorney and had the same goal."
In this case, the Owners were clearly aligned against the Municipalities on
every substantive issue. The Owners and the Municipalities were not just nominally
opposing parties; they were the primary litigants. North Slope, too, was bound by any
decision regardless of whether it participated in the appeal as more than a "nominal
appellee." The great disparity in the value of TAPS urged by the Owners ($850 million)
42 Id. at 526.
43 575 P.2d 1213, 1216 (Alaska 1978).
44 Id. at 1220-21.
45 614 P.2d 1363, 1366-68 (Alaska 1980).
46 Id. at 1373.
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----------------------- Page 17-----------------------
and that urged by the Municipalities ($11.570 billion) assured that neither the
Municipalities nor the Owners could prevail on the substantive issues in the case without
the other side having lost.
47
The
The federal cases cited by the Owners are procedurally inapposite.
prevailing party determination in this case was governed by our own case law, and the
superior court's decision that the Municipalities were the prevailing parties against the
Owners was consistent with that case law and well within the bounds of the court's
discretion.
C. The Superior Court Did Not Err By Declining To Allocate Fees
Between The Owners' Appeals And The Municipalities' Appeals.
The Owners also argue that our case law required the superior court to
allocate fees between the appeals brought by the Owners and those brought by the
Municipalities. According to the Owners, "[w]hile there is no question that both appeals
were addressed within a single trial proceeding and that the claims in the two sets of
appeals overlapped with each other, there was never any restructuring of the case that
altered the separate and distinct nature of the pleadings," and "[i]n the absence of such
a restructuring, the fact that [Fairbanks/Valdez] prevailed in their appeal against [the
Department] does not make them prevailing parties with respect to the Owners' separate
appeal." This appears to be largely a restatement of the preceding argument: that is, that
47 In Cont'l Airlines v. Goodyear Tire and Rubber Co. , the court held that
consolidation of two federal products liability cases did not affect the diversity
jurisdiction in either case, as diversity jurisdiction "depends upon the state of the parties
at the commencement of the suit." 819 F.2d 1519, 1523 n.1 (9th Cir. 1987) (quoting
Connolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829)). In Johnson v. Manhattan Ry. Co. ,
the Court held that despite the consolidation of two suits, one a receivership and the other
a creditor's challenge to the receiver's orders, the second suit was still "collateral" to the
first and therefore required proof that the receiver lacked jurisdiction, not simply that he
erred, before his orders could be set aside. 289 U.S. 479, 496-97 (1933).
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while the Municipalities may have prevailed in their separate appeals, the Owners were
not parties to those appeals and cannot be liable for attorney's fees allocated to those
appeals; and while the Owners did not prevail in their separate appeals, the
Municipalities were not parties to those appeals and cannot be awarded attorney's fees
allocated to those appeals. We reject this argument for the reasons given above. The
issues in the appeals were the same; the adversity of interests was the same; and the
appeals were logically consolidated and tried together. The superior court was not
required to treat the appeals as if they maintained a "separate and distinct nature" that
was belied by the actual proceedings.
The Owners cite two cases in support of their allocation argument. In
48
we held that the superior court's
Myers v. Snow White Cleaners & Linen Supply, Inc. ,
award of 20 percent of actual attorney's fees to a prevailing defendant "was a reasonable
allocation between [the defendant's] actual attorney fees and costs necessarily incurred
defending against the [plaintiffs'] direct claim, as opposed to fees spent defending
49
against the cross-claims of the other defendants." We did not hold in Myers that the
allocation among these claims was required - only that it was within the superior
court's discretion. In the Owners' other suggested authority, Lyman v. State ,50 we
reversed a Rule 82 award of attorney's fees against a pro se litigant in a case in which
four of his five causes of action were brought under federal civil rights statutes, and
federal law, with a higher standard of frivolousness, governed any fee awards related to
48 770 P.2d 750 (Alaska 1989).
49 Id. at 753.
50 824 P.2d 703 (Alaska 1992).
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51
those claims. The Owners argue that "the need for allocation of fees between separate
federal and state claims" is "akin to the need for an allocation where separate
proceedings are consolidated for trial purposes," but we disagree. The federal and state
claims at issue in Lyman implicated different rules governing the award of fees; the
consolidated appeals at issue here do not.
In declining the Owners' request that attorney's fees be allocated between
the appeals of the Owners and the Municipalities, the superior court explained:
The Alaska Supreme Court has held that "[e]ach request for
fees or costs to a prevailing party in a multiparty lawsuit
should be considered objectively on its own merits." Myers
v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750,
753 (Alaska 1989). In this case, on most of the main issues
in the 2006 tax year trial de novo, the Owners were aligned
against the positions of both the State and the Municipalities.
All of the moving parties received a substantial additional tax
payment as a result of the 2006 decision. As such, with
respect to each of the requests for fees and costs before this
court, this court finds that the Owners should be solely
responsible for the amounts to be awarded to each of the
moving parties. Stated differently, even though the different
appeals of the parties were consolidated into one trial de novo
for the 2006 tax year, this court finds that it is appropriate to
allocate 100% of each of the moving parties' fee award[s] to
the Owners.
Again, we conclude that the superior court's decision on this issue - whether to allocate
attorney's fees between the appeals - was consistent with our case law and well within
its discretion.
51 Id. at 707 (citing 28 U.S.C. § 1875(d)(2) (1988) and DeNardo v.
Municipality of Anchorage , 775 P.2d 515, 518 (Alaska 1989).
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D. The Superior Court Correctly Applied Rule 82(b)(2) For A Non-
Money Judgment Instead Of Rule 82(b)(1) For A Money Judgment.
Fairbanks/Valdez appeal the superior court's decision to award attorney's
fees pursuant to Rule 82(b)(2) instead of Rule 82(b)(1). Rule 82(b)(1) governs "the
award of attorney's fees to a party recovering a money judgment in a case," while
Rule 82(b)(2) governs "cases in which the prevailing party recovers no money
judgment." The key distinction here is in how the award is calculated. The presumptive
fee schedule of Rule 82(b)(1) awards a prevailing party 20 percent of the first $25,000
of the total money judgment and 10 percent of the remainder. Rule 82(b)(2) awards a
presumptive 30 percent of reasonable actual attorney's fees for a case going to trial. In
cases resulting in a large money judgment, a Rule 82(b)(1) award will often exceed the
allowable percentage of actual reasonable attorney's fees calculated under Rule 82(b)(2).
In this case, Fairbanks/Valdez claim they would receive $4,089,208.50 under Rule
82(b)(1), as opposed to the $1,316,169.31 they were collectively awarded under Rule
82(b)(2)-(3), based on their actual fees.
In assessing which section of Rule 82 should apply, the superior court
52 which involved a dispute between
relied upon Strong Enterprises, Inc. v. Seaward,
Seaward and his former partners. Seaward prevailed in the superior court on the
majority of the issues, and the superior court ordered an accounting and required his
53
former partners to pay for his stake in the partnership. Seaward was awarded the
presumptive 30 percent of his actual reasonable attorney's fees under Rule 82(b)(2), but
on appeal his former partner, Strong, argued that Rule 82(b)(1) should apply because
52 980 P.2d 456 (Alaska 1999).
53 Id. at 457-58.
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money was to change hands as a result of the judgment. 54 Though we acknowledged that
55
a money judgment is generally one "that requires money to 'change hands,' " we
disagreed that Seaward had obtained a money judgment:
Several circumstances persuade us that Seaward did not
recover a money judgment. The final judgment required
Seaward's former partners to perform accountings and
required Strong to pay Seaward for his interests in two
partnerships. It did not specify the amounts payable, nor did
it specify how the parties should calculate those amounts. It
simply specified the general procedure by which Seaward's
total recovery could be determined. Nor was it merely
preliminary to entry of a more specific judgment. Rather, it
was self-executing and did not require the parties to return to
court for approval of the accountings or the amounts to be
paid as determined by the accountings. Assuming no further
disputes, complying with the judgment would have required
no further judicial intervention and no entry of a specific
[56]
damages award.
In this case, the superior court found Strong Enterprises to be closely
analogous. The superior court held that the Department would have to perform an
accounting of sorts to determine taxes due; that the final judgment only stated a general
procedure for how the calculations would be made; that the calculations were not
preliminary to a final and more specific judgment; and that the judgment was self-
executing, requiring no further judicial intervention. Consequently, the superior court
determined that the Municipalities did not receive a money judgment and that Rule
82(b)(2) applied.
54 Id.
55 Id.
56 Id.
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Fairbanks/Valdez dispute the superior court's application of Strong
Enterprises . They contend primarily that the judgment's procedure for payment, though
not specifying the exact amount to be paid, prescribed a statutory process that would
result in an exact calculation of the amounts owed to the Municipalities. They argue that
unlike the accountings in Strong Enterprises, the final judgment allowed for no
discretion, but rather ordered the Department to issue a supplemental assessment roll
57 58
based on the new 2006 value of TAPS pursuant to statutory law.
Fairbanks/Valdez also direct our attention to Atlantic Richfield Co. v. State 59
60
and State, Commercial Fisheries Entry Commission v. Carlson, both of which, they
contend, demonstrate that a money judgment exists whenever the judgment results in
61
In Atlantic Richfield , taxpayers disputed the oil and gas
money changing hands.
57 The superior court's final judgment on the merits stated:
The Alaska Department of Revenue shall issue a
supplemental certified assessment roll reflecting the 2006
value of TAPS within 30 days of the date of this Final
Judgment Entered Under Civil Rule 54(b), which shall form
the basis for the affected municipalities to issue new tax bills,
and for the calculation by the Department of any applicable
tax credits under AS 43.56.010(d).
58 See AS 43.56.140 and 15 Alaska Administrative Code (AAC) 56.045.
59 723 P.2d 1249, 1252 (Alaska 1986).
60 270 P.3d 755, 765 (Alaska 2012).
61 Fairbanks/Valdez also direct us to a Ninth Circuit case, but we do not find
it particularly apt. In Ministry of Defense & Support for the Armed Forces of the Islamic
Republic of Iran v. Cubic Defense Systems, Inc., the court held that a judgment
confirming an arbitral award was a "money judgment" for purposes of post-judgment
interest, reasoning that "although the judgment does not spell out the amount of the
(continued...)
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62
corporate income tax and requested a refund of taxes already paid. We upheld the tax
as constitutional; we also held that the State had not received a money judgment for
63
purposes of Rule 82 because no money changed hands. We reasoned that "[t]he
taxpayers paid the challenged tax under protest, then sued for a refund; hence, the
64
[S]tate's victory resulted in no money judgment." Fairbanks/Valdez read this as
implying that if money had changed hands - if the taxpayers had not already paid the
challenged taxes and were required to do so as a result of the judgment, or if the
taxpayers had prevailed, requiring the State to refund the taxes already paid - then there
would have been a money judgment.
Carlson was a class action suit brought by non-resident fishermen who
65
We held that
challenged the higher cost of non-resident commercial fishing licenses.
the law violated the privileges and immunities clause of the federal constitution, and we
remanded to the superior court to determine the difference between fees paid by non-
66
resident and resident fishermen so the amount could be refunded. The superior court
calculated the refund and entered a final judgment for the plaintiffs totaling over $82
61(...continued)
[arbitration] award, a definite and certain designation of the amount [owed] is readily
discernible by looking to the arbitration award itself." 665 F.3d 1091, 1101 (9th Cir.
2011). Here, in contrast, supplemental taxes still needed to be calculated and assessed
at the time the judgment was entered. Unlike in Ministry of Defense , a "definite and
certain designation of the amount [owed]" could not be "readily discern[ed.]"
62 723 P.2d at 1250-52.
63 Id. at 1252.
64 Id. at 1252 n.5 (citation omitted).
65 270 P.3d at 757.
66 Id. at 759.
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million for principal and prejudgment interest, along with attorney's fees calculated on
67
the money judgment pursuant to Rule 82(b)(1). Fairbanks/Valdez point out that the
judgment in Carlson was based on the State's calculations of the refunds due; that here,
too, the payments to the taxing authorities are based on the State's calculations; and that
in Carlson we upheld the superior court's use of Rule 82(b)(1) to calculate attorney's
fees. But in Carlson, unlike this case, the superior court actually entered a money
judgment; and the superior court's consequent use of Rule 82(b)(1), as opposed to Rule
68
82(b)(2), was not challenged on appeal.
Neither Atlantic Richfield nor Carlson is sufficiently like this case to direct
its outcome. An important factor here is the nature of the task set for the superior court
on the administrative appeal. The superior court's task was to conduct a trial de novo of
69 70
the Board's action - principally, to determine the "full and true value" of TAPS. No
party asked for entry of a money judgment, nor was it the superior court's task to enter
one. To calculate, assess, and collect taxes on the basis of the superior court's
assessment of the "full and true value" of TAPS was the responsibility of the taxing
authorities after the superior court had completed its work.
We accordingly agree with the superior court that the result in this case
follows from our holding in Strong Enterprises. As in Strong Enterprises, the final
judgment in this case did not specify the amount of the Owners' tax liability; it did not
67 Id. at 757, 759-60.
68 See id. at 766. The State in Carlson challenged the trial court's use of the
Rule 82(b)(1) schedule for cases that are "contested with trial," arguing that a three-day
evidentiary hearing did not qualify as a "trial." Id. The State did not challenge the
premise that the case fell under some category of Rule 82(b)(1).
69 AS 43.56.130(i).
70 AS 43.56.060.
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direct the parties how to calculate the amount of taxes due; it "simply specified the
71
general procedure" for determining that amount. Furthermore, like the judgment in
Strong Enterprises, the judgment here was not "preliminary to entry of a more specific
judgment [but rather] was self-executing and did not require the parties to return to court
72
And finally, as
for approval" of the determination of the amounts of taxes to be paid.
in Strong Enterprises, "[a]ssuming no further disputes, complying with the judgment
would have required no further judicial intervention and no entry of a specific damages
73
award." We conclude that the superior court properly awarded fees under the
provisions of Rule 82(b)(2).
E. The Superior Court Did Not Abuse Its Discretion In Its Consideration
Of The Rule 82(b)(3) Enhancement Factors.
1. The superior court did not err by granting the Municipalities a
15 percent enhancement under Rule 82(b)(3)(A), (B), and (H).
Civil Rule 82(b)(3) allows the court to vary an attorney's fee award if it
determines a variance is warranted based on listed factors. Here, the superior court
enhanced attorney's fees from Rule 82(b)(2)'s presumptive rate of 30 percent (for a
contested case that goes to trial) to 45 percent. This enhancement was based on several
listed factors: (A) ("the complexity of the litigation"), (B) ("the length of trial"), and (H)
("the relationship between the amount of work performed and the significance of the
matters at stake"). The Owners challenge the enhancement on several grounds.
First, the Owners assert that the complexity and length of trial are already
reflected in the attorneys' billable hours, and they argue that these factors therefore
71 See Strong Enters., Inc. v. Seaward, 980 P.2d 456, 458 (Alaska 1999).
72 See id.
73 See id.
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cannot stand alone as justification for an enhancement. The Owners cite Tenala, Ltd. v.
74
in which we observed that "complexity works poorly as an independent
Fowler ,
enhancing factor in Rule 82(b)(2) cases where hourly fees, rather than the amount of a
75
money judgment, serve as the measure of the fees to be awarded." But in Tenala we
nonetheless affirmed the superior court's use of complexity as the sole enhancing factor,
explaining that the over-counting that results from considering both hourly billings and
76
In Cizek v.
complexity "points to a weakness in the rule, not to trial court error."
Concerned Citizens of Eagle River Valley, Inc., too, we accepted both length and
complexity as proper factors for enhancement, noting that they are "explicitly listed as
permissible considerations under Civil Rule 82(b)(3), and therefore are an appropriate
77
And in Ware v. Ware we stated, "While we have
basis for the trial court's decision."
occasionally expressed concern about the use of factor (A) - complexity of the
litigation - to enhance fees . . . we have repeatedly upheld its use."78 Accordingly, as
there is no question that the trial in this case was lengthy and complex, we cannot say
that the superior court abused its discretion when it used factors (A) and (B) of Rule
82(b)(3) to enhance its award of attorney's fees.
The Owners also argue that the superior court improperly referred to a
theoretical award of attorney's fees made under Rule 82(b)(1), for cases involving a
money judgment, in deciding whether to apply factor (H), "the relationship between the
74 993 P.2d 447 (Alaska 1999).
75 Id. at 451 n.19.
76 Id.
77 71 P.3d 845, 851 (Alaska 2003).
78 161 P.3d 1188, 1199 (Alaska 2007).
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amount of work performed and the significance of the matters at stake." But we see
nothing objectionable in the superior court's reference to Rule 82(b)(1) by analogy. The
court wrote, "One indication of [the significance of the issues at stake] is demonstrated
by the far greater amount of fees that would have been awarded had the 2006 judgment
constituted a 'money judgment,' as set forth in the Municipalities' briefing." The court
went on to state that "[t]he case involved the valuation of one of the largest assets in the
state, and while not public interest litigation, the 2006 tax year litigation certainly has a
significant impact on the taxing authorities, the taxpayers and the public."
We further note that this case has been litigated for over eight years, and
the Municipalities calculate that it will result in the Owners paying the State and
Municipalities a combined total of $152,491,572 in supplemental taxes for the 2006 tax
year. That the issues at stake were significant and that they justified a large amount of
work by both sides cannot seriously be disputed. The superior court did not abuse its
discretion when it applied the factor of Rule 82(b)(3)(H) to enhance the fees awarded.
2. The superior court did not abuse its discretion by failing to
award a greater enhancement of Fairbanks/Valdez's attorney's
fees.
a. The 2005 study and Rule 82(b)(3)(G)
Rule 82(b)(3)(G) provides for the enhancement of attorney's fees because
of the other side's "vexatious or bad faith conduct." The superior court declined to find
such conduct in this case. Fairbanks/Valdez allege, however, that the Owners acted in
bad faith and vexatiously when they failed to disclose a 2005 study that allegedly
contradicted some of their positions at trial. Fairbanks/Valdez contend that they are
entitled to further enhancement of their reasonable attorney's fees under
Rule 82(b)(3)(G) to reach at least 75 percent, if not 100 percent.
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Fairbanks/Valdez contend that they made numerous requests for studies like
the 2005 study during discovery but that it was not made available until the subsequent
trial de novo involving the 2007-2009 tax years. They assert that the superior court was
not aware of the existence of the study until June 2011 and could not have reviewed the
study's conclusions before July 25, 2011, the date it issued its Order re Motions for Costs
and Attorney's Fees.
But this argument was never raised in the superior court. Fairbanks/Valdez
concede that they had a copy of the 2005 study as early as December 2010, and they
referenced its key conclusions in a June 2011 motion. They could have presented the
information to the superior court before it ruled on the attorney's fees motions, or, if
justified, they could have asked the superior court to reconsider its attorney's fees order
on the basis of newly discovered evidence. Simply put, the superior court in the 2006
tax appeals never heard an argument for enhancement based on the late production of the
2005 study, and we will not consider the issue in the first instance on appeal.79
b. The reasonableness of the Owners' claims under Rule
82(b)(3)(F)
Rule 82(b)(3)(F) allows the court to vary the presumptive 30 percent of
reasonable actual attorney's fees under Rule 82(b)(2) based on "the reasonableness of
the claims and defenses pursued by each side." In its order on attorney's fees, the
superior court took note of the Owners' "trial position . . . that TAPS was worth a total
of $850 million" and stated that the reasonableness of this position "could be
questioned," juxtaposing that amount with "the comparable amounts that have recently
been invested into replacing far shorter transit pipelines from Prudhoe Bay to Pump
79 Mills v. Hankla , 297 P.3d 158, 167 (Alaska 2013) (noting that we do not
address new issues or theories that were not presented in the trial court).
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80
Station 1." The superior court declined to give the "reasonableness" factor any weight,
however, given the lack of controlling precedent on the governing valuation standards
in AS 43.56.060(e).
Fairbanks/Valdez maintain that the Owners' reliance on the tariff income
valuation method was unreasonable. They also note that the Owners' proposed valuation
of $850 million was less than 10 percent of the value ultimately found by the superior
court. Consequently, they argue that the superior court abused its discretion when it
failed to apply an additional enhancement under Rule 82(b)(3)(F) based on the
unreasonableness of the Owners' position.
But the superior court has wide discretion in determining awards of
81
attorney's fees. Despite the superior court's observation that "the reasonableness of the
Owners' 2006 trial position could be questioned," its further conclusion - that there
was no controlling law to constrain the parties' litigation positions - is also sound. The
court was not required to further enhance the fee award beyond the 45 percent it had
reached by applying other relevant factors of Rule 82(b)(3).82
F. The Superior Court Did Not Abuse Its Discretion When It Rejected
The Special Master's Recommendation That Fairbanks's Fee Request
Be Reduced By 15 Percent.
In its July 25, 2011order on costs and attorney's fees, the superior court
asked that a special master review the prevailing parties' billings for reasonableness. The
80 The superior court's amended decision noted that "there are two, 24-mile-
long transit lines from the Prudhoe Bay field to Pump Station 1 that were recently
replaced at a cost in excess of $600 million."
81 Keenan v. Wade , 182 P.3d 1099, 1109 (Alaska 2008).
82
Rule 82(b)(3) specifies that "[t]he court may vary an attorney's fee award
. . . if, upon consideration of the factors listed below, the court determines a variation is
warranted" (emphasis added).
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special master determined that "[Fairbanks's] redacted billing records suggest that
[Fairbanks] often had two and sometimes three attorneys working on the same effort."
Though recognizing that "this litigation was highly complex and that the money stakes
were considerable," the special master found that "[Fairbanks] had a pattern of
duplication of work that was unreasonable for purposes of a Rule 82 analysis." He
therefore concluded that only 85 percent of Fairbanks's actual attorney's fees were
reasonable.
Fairbanks objected to the recommended reduction. The superior court
83
reviewed the special master's findings de novo and determined that the reduction was
not warranted.
The Owners argue that the superior court abused its discretion in setting
aside the reduction, because its acknowledgment of duplicative work is inconsistent with
83 Alaska Civil Rule 53(d)(2)(B) requires that when a party objects to a
special master's recommendation, "[t]he court must consider under a de novo standard
of review all objections to findings of fact made or recommended in the report, and must
rule on each objection."
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84
its ultimate conclusion that the attorneys' efforts were "not unreasonable." But the
superior court's decision of the issue was expressly based on its own "considerably
greater familiarity with the details of the case." Specifically, the court concluded that the
master made a mistake in underestimating the amount of discovery in the case, and the
court relied on its own better understanding of the "role of each of the lead attorneys
participating in the case, the complexity of the document management, and the extensive
legal issues that were presented." The court found the research, drafting, and discovery
tasks were not in fact duplicative, and it noted in particular that it was not unreasonable
for Fairbanks to sometimes have several lawyers in court given the way the court
conducted its proceedings. This detailed explanation, explicitly based on the superior
court's close familiarity with the litigation and supported by findings of fact that are not
clearly erroneous, is more than sufficient to support the court's decision to reject the
special master's recommended reduction in fees.
V. CONCLUSION
We AFFIRM the superior court's decisions on attorney's fees and costs.
84 The Owners cite Demoski v. New , 737 P.2d 780, 787 (Alaska 1987), in
which duplicative billings were one factor supporting the trial court's modest fee award.
But the award in Demoski was based on a number of findings without parallel here:
The court found that one of the attorneys [for the plaintiffs]
had impermissibly overcharged them, that the billings were
duplicative, that a substantial amount of the services
performed related to [unrelated claims], and that counsel for
the [prevailing parties] generated much unnecessary work by
making vituperative attacks on opposing counsel and parties
and by failing to follow the civil rules and the provisions of
the pre-trial order.
737 P.2d at 787.
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