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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hodari v. State, Dept. of Corrections (10/27/2017) sp-7208

Hodari v. State, Dept. of Corrections (10/27/2017) sp-7208

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



SABABU HODARI,                                             )  

                                                           )    Supreme Court No. S-16347  

                           Appellant,                      )  

                                                           )    Superior Court No. 3AN-14-09035 CI  

         v.                                                )  

                                                           )    O P I N I O N  

STATE OF ALASKA, DEPARTMENT                                )

  

OF CORRECTIONS,                                            )    No. 7208 - October 27, 2017
 
  

                                                           )  

                           Appellee.                       )  

                                                           )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                   

                  Judicial District, Anchorage, Charles W. Ray, Jr., Judge.  



                  Appearances:    Jon  Buchholdt,  Buchholdt  Law  Offices,  

                  Anchorage,  for  Appellant.    John  K.  Bodick,  Assistant  

                                    

                  Attorney       General,       Anchorage,        and     Jahna      Lindemuth,  

                                                                  

                  Attorney General, Juneau,  for Appellee.  



                  Before:  Stowers, Chief Justice, Bolger, and Carney, Justices.  

                                                               

                   [Winfree and Maassen, Justices, not participating.]  



                  CARNEY, Justice.  



I.       INTRODUCTION  



                  In May 2014 the Alaska Department of Corrections found Sababu Hodari,  

                                           



an inmate at Palmer Correctional Center, guilty of a disciplinary infraction.  Hodari  



appealed the Department's decision to the superior court, arguing that the Department  

                                                                                                   



violated  his  right  to  due  process  by  failing  to  follow  prescribed  procedure  in  the  


----------------------- Page 2-----------------------

disciplinary hearing.  While the appeal was pending the Department reversed its decision                  



and removed the disciplinary records from Hodari's file.  The superior court then found   



that Hodari had effectively prevailed on his appeal, and it allowed him to recover costs                 



and fees from the Department.                     Hodari moved for an award of $4,800 in attorney's and       



paralegal fees.  The court awarded Hodari fees and costs but did not specify the amount  



                           

of the award in its order, so the Department moved for clarification of the fee-award  



                                                                                                           

order.  In its clarification order the court stated that because Hodari had not shown that  



                              

the paralegal fees were for legal work "ordinarily performed by an attorney," he was  



only entitled to $1,800 in attorney's fees.  Hodari appeals, arguing that the superior court  



                                                      

abused its discretion in refusing to award him paralegal fees.  We disagree, and we  



therefore affirm the superior court's fee award.  



II.        FACTS AND PROCEEDINGS  



                     At a Department of Corrections disciplinary hearing held in May 2014,  



Sababu Hodari was found guilty of planning an escape from Palmer Correctional Center.  



                                                                                       

He filed an appeal in the superior court in August 2014, arguing that the Department had  



violated his right to due process by failing to provide him with a complete disciplinary  



                                       

report and by relying on evidence it did not disclose to him.  While Hodari's appeal was  



                                                                                                               

pending the Department informed the court that it intended to conduct a new hearing on  



Hodari's disciplinary offense.  The court therefore concluded that "Hodari has effectively  



                                                                                                                        

prevailed here," and it ordered the Department to show cause why the court should not  



grant Hodari his requested relief along with costs and fees.  



                                                                                    

                     In its response to the show cause order the Department asked the court to  



                                                                                                            

require Hodari to file a motion for costs and fees; it requested that the "statement of costs  



                                                                                                                       

and fees should include a statement of the specific work performed, the date the specific  



work  was  performed,  who  performed  the  work,  the  credentials  of  the  person  who  



performed the work, and the hourly rate for the work."  The superior court then issued  



                                                                  -2-                                                           7208
  


----------------------- Page 3-----------------------

an order dismissing the appeal, naming Hodari the prevailing party, and stating that  



Hodari "may seek costs and/or fees as may be allowed under the law."   



                                                 

                     Hodari's counsel submitted a motion for award of attorney's fees in which  



                                                                                                                        

he stated that he had spent six hours at $300 per hour on the appeal, and that his office  



                                     

expended an additional twenty hours of "non-attorney (paralegal) time" at $150 per hour  



                           

on  the  appeal.          He  did  not  itemize  his  fees  in  any  further  detail.    The  Department  



                                                                             

questioned the accuracy of this hourly reporting, asserting that "[t]here is no way filing  



                                                       

the form pleadings, reviewing this 17-page record, listening to a 5-minute hearing CD,  



                                                

and writing this one argument took six hours of attorney time and 20 hours of paralegal  



                                                      

time."  It asked the court to deny Hodari's motion for attorney's fees, or, if the court  



granted the motion, to require Hodari to submit "an itemized statement of the actual  



                                       

hours performed on this case which includes the work performed, the date of the work,  



                          

who performed the work and the amount of time of the work performed on that date."  



                                                                                                       

                     The court granted Hodari's motion for attorney's fees without ordering him  



                                                                                  

to submit an itemized fee request.  It determined that Alaska Appellate Rule 508, which  



                                                                                                                     

governed the fee award in this case, allowed it to grant full reasonable fees and costs to  

                                                                                        1   The court did not, however,  

                                                                                           

Hodari as a constitutional claimant under AS 09.60.010. 



          1           AS 09.60.010(c) provides in pertinent part:  



                                                                  

                     In  a  civil  action  or  appeal  concerning  the  establishment,  

                                                                    

                     protection, or enforcement of a right under the United States  

                                              

                     Constitution or the Constitution of the State of Alaska, the  

                     court  



                                                

                     (1)  shall  award,  subject  to  (d)  and  (e)  of  this  section,  full  

                                                                                                     

                     reasonable  attorney  fees  and  costs  to  a  claimant,  who,  as  

                     plaintiff,  counterclaimant,  cross  claimant,  or  third-party  

                     plaintiff in the action or on appeal, has prevailed in asserting  

                                                                           

                     the right . . . .  



                                                                 -3-                                                          7208
  


----------------------- Page 4-----------------------

specify the amount of fees the Department was required to pay Hodari; it stated only that  

                                                                                                                



"[t]he  requested  attorney['s]  fees  and  costs  are  reasonable  and  would  not  impose  a  

                                                              



substantial and undue hardship on DOC."   



                                                                               

                     The Department moved to clarify the court's order, asking for clarification  



of three issues.  First, it stated that neither Hodari's motion for attorney's fees nor the  



                                                                                2  

                                                                                                              

court's order specified the amount of fees to be paid.   Second, it noted that the affidavit  



attached to the motion for attorney's fees listed both attorney and paralegal fees, but the  



                                                                                                           

court had not specified whether the Department was required to pay the paralegal fees.  



                     

And third, it observed that although the court's order mentioned costs, Hodari had not  



                                                                            

requested costs in his motion for attorney's fees.  The Department therefore argued that  



                                                                                                   

"a more specific order is necessary for the Department to remit payment."  Hodari filed  



a notice of partial non-opposition to the Department's request for clarification, stating  



that he was seeking $4,800 in fees to be paid by May 19, 2016.  



                          

                     In   its   order   on   the   motion   for   clarification   the   court   noted   that  



                                                                                                                          

AS 09.60.010, under which Hodari was entitled to reasonable attorney's fees, does not  



                                           

define the term "attorney's fees."  The court therefore adopted the Alaska Civil Rule 82  



                                                                                          

definition of attorney's fees as "includ[ing] fees for legal work customarily performed  



by an attorney but . . . delegated to . . . [a] paralegal."  It noted that Hodari had not  



                                                                                                     

itemized his fee request or indicated whether the twenty hours of paralegal work he was  



requesting included work "customarily performed by an attorney," and it concluded that  



                                                           

the Department's request for itemized details "was sufficient to raise the issue."  Because  



Hodari  had  not  identified  which  of  the  paralegal  hours  fell  within  the  definition  of  



                                

attorney's fees, the court limited the fee award to "actual attorney time" and awarded  



          2  

                                                                       

                     Hodari  did,  in  fact,  specify  in  the  affidavit  attached  to  his  motion  for  

attorney's  fees  that  he  was  requesting  a  total  of  $4,800  in  combined  attorney  and  

paralegal fees.  



                                                                 -4-                                                          7208
  


----------------------- Page 5-----------------------

Hodari $1,800 in attorney's fees, the amount corresponding to the hours he had listed as   



attorney work.   



                                                                  

                    Following  the  court's  order,  Hodari  filed  a  motion  for  reconsideration  



arguing that the Department had not questioned whether the paralegal work was work  



                                                                                                       

"customarily performed by an attorney," but rather had asserted that the number of work  



hours claimed was unreasonable.  Because he believed the Department had not raised the  



question whether the paralegal fees were to be included in the attorney's fees, he argued  



                                                                                               

that it was error for the court to raise the question sua sponte.  He argued that the court  



                                                                                          

instead should have ordered him to submit a more specific, itemized list of the paralegal  



fees he was seeking so that "the court could examine the records for reasonableness."  



                                                                                                   

In support of his motion for reconsideration, Hodari submitted an affidavit itemizing his  



                                                                                                        

paralegal fees.  The court denied the motion, concluding that Hodari did not present any  



                                       

argument "that could not have been addressed" "in briefing on the motion for attorney's  



                                               

fees."  The court reiterated that the Department had asked Hodari to itemize his requested  



fees, but Hodari had failed to do so.  



                                                                                     

                    Hodari now appeals, arguing that the court abused its discretion in denying  



the award of paralegal fees.  



III.      STANDARD OF REVIEW  



                                           

                    We  review  a  superior  court's  award  of  attorney's  fees  for  abuse  of  



                  

discretion;  the  same  standard  of  review  applies  when  the  superior  court  acts  as  an  



                                            3  

intermediate appellate court.   We will find an abuse of discretion when the superior  



          3         Miller v. Matanuska-Susitna Borough , 54 P.3d 285, 289 (Alaska 2002);  



Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska  

1992).  



                                                               -5-                                                         7208
  


----------------------- Page 6-----------------------

court's award of attorney's fees is "arbitrary, capricious, manifestly unreasonable, or  

improperly motivated."4  



IV.       DISCUSSION  



                                                                              

                    In an appeal from an agency decision to the superior court, Appellate Rule  



                                                               5  

                                                                                                   

508 governs the award of attorney's fees.   Attorney's fees may be awarded under the  



                                                                                                6  

                                                                                                          

rule only if they are "provided by statute, caselaw, or contract."                                For parties prevailing  



                                                                                                                           

on a claim or appeal "concerning the establishment, protection, or enforcement of a right  



under  the  United  States  Constitution  or  the  Constitution  of  the  State  of  Alaska,"  

AS 09.60.010(c) requires courts to award "full reasonable attorney fees and costs."7  



Alaska Statute 09.60.010(c) does not specifically define "attorney's fees."  However,  



                                                                                                          

"we  have  allowed  the  superior  court  to  use  Rule  82(b)(2)  as  a  guideline  in  an  

administrative appeal,"8 and Rule 82(b)(2) defines attorney's fees as "includ[ing] fees  



                        

for legal work customarily performed by an attorney but which was delegated to and  



          4         Roderer v. Dash , 233 P.3d 1101, 1106 (Alaska 2010) (quoting Rhodes v.  



Erion , 189 P.3d 1051, 1053 (Alaska 2008)).  



          5         Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995).  



          6         Alaska R. App. P. 508(e)(1).  



          7         See Krone v. State, Dep't of Health & Soc. Servs.                           , 222 P.3d 250, 255-56  



(Alaska 2009).  The statute establishes certain exceptions to this rule, neither of which  

applies here:  A court may not award fees when the claimant had "sufficient economic  

                          

incentive   to   bring   the   suit,   regardless   of   the   constitutional   claims   involved,"  

AS 09.60.010(d)(2), and a court may reduce the fee award when "the full imposition of  

                                                                               

the award would inflict a substantial and undue hardship upon the party ordered to pay  

                                                                                                

the fees and costs or, if the party is a public entity, upon the taxpaying constituents of the  

                                                                                                                            

public entity."  AS 09.60.010(e).  



          8  

                                                   

                    Griswold v. Homer City Council, 310 P.3d 938, 943 (Alaska 2013) (citing  

Stalnaker v. Williams, 960 P.2d 590, 597-98 (Alaska 1998)).  



                                                               -6-                                                         7208
  


----------------------- Page 7-----------------------

                                                                        

performed by an investigator, paralegal or law clerk."  Although the court has broad  

discretion in awarding attorney's fees,9 where a fee-award rule "authorizes reasonable  



                             

actual fees, a court may not award attorney's fees to a party who has not itemized his or  



                                                                                                                  10  

her requested fees, when the opposing party has requested such itemization."                                          



          A.	  	    The  Court  Did  Not  Abuse  Its  Discretion  In  Declining  To  Award  

                    Hodari Paralegal Fees.  



                                                       

                    Hodari argues that the Department did not request an itemization of his  



                                                   

attorney's fees.  He concedes that "had a specific and cognizable request for itemization  



                                                                                         11  

                                                                                                     

been lodged, it would have been his duty to provide one."                                     But he argues that the  



                                                                       

Department's purported request for itemization consisted of only "one cursory sentence  



                                                       

located in an alternative argument in the conclusion" of its opposition to attorney's fees,  



and that this request was not sufficient to require him to submit a fee itemization.  He  



asserts  that,  had  the  court  ordered  him  to  itemize  his  fee  request,  he  "would  have  



immediately complied" - indeed, he argues, once the court's final order put him on  



notice  of  the  itemization  requirement,  he  duly  submitted  his  itemized  paralegal  fee  



request along with his motion for reconsideration.   



          9         Doubleday v. State, Commercial Fisheries Entry Comm'n                                 , 238 P.3d 100,  



110  (Alaska  2010)  (citing  Alaska  R.  App.  P.  508(e);  Cleaver  v.  State,  Commercial  

Fisheries Entry Comm'n , 48 P.3d 464, 470 (Alaska 2002)).  



          10  

                                                                                                               

                    Marron v. Stromstad , 123 P.3d 992, 1014 (Alaska 2005).  By contrast, we  

                                                                                                                   

have upheld awards of attorney's fees in the absence of an itemized request when the  

paying party did not request fee itemization.  Koller v. Reft , 71 P.3d 800, 810 (Alaska  

2003) (citing Luedtke v. Nabors Alaska Drilling, Inc. , 768 P.2d 1123, 1138 (Alaska  

1989)).  



          11        Marron , 123 P.3d at 1013 ("[W]e have suggested that a prevailing party  



                                                                                

must  itemize  any  requested  fees  where  his  or  her  opponent  has  made  'a  specific  

cognizable request for itemization.' " (quoting Koller , 71 P.3d at 810)).  



                                                              -7-	 	                                                     7208
  


----------------------- Page 8-----------------------

                    Hodari's argument that the Department's request for fee itemization was  



                                                                      

not sufficiently specific and cognizable is not supported by our precedent.  In Marron  



                                                                               

v. Stromstad we held that the paying party's request for a "detailed listing of services"  

     



in  her  opposition  to  a  motion  for  attorney's  fees  was  "sufficiently  specific  and  



                                                                                                     12  

                                                                                                         Like the paying  

cognizable" to require the moving party to submit a fee itemization. 



party in Marron , the Department in this case included a clear, detailed request for fee  



                                                                                                      

itemization in its opposition to Hodari's motion for attorney's fees:  It asked Hodari to  



                                                                                              

provide "an itemized statement of the actual hours performed on this case which includes  



the work performed, the date of the work, who performed the work and the amount of  



time  of  the  work  performed  on  that  date."    This  request  specifically  identified  the  



                                                                                                         

information sought from the itemization, and it was sufficient to require Hodari to submit  



                          13  

                                                                                                 

a fee itemization.             As the Department points out, Hodari did  not present evidence  



regarding  his  paralegal  fees  until  his  motion  for  reconsideration,  and  courts  will  



                                                                                                     14  

                                                                                                         Because Hodari  

ordinarily not consider new evidence in a motion for reconsideration. 



          12        Id .  



          13        Cf. Koller, 71 P.3d at 810 (finding no specific, cognizable request for fee  



itemization where paying party "complained frequently about having to pay" and asked  

                                       

his  own  attorney  for  a  fee  itemization  but  "never  made  a  motion  in  court  seeking  

itemization").  This was also the second request for fee itemization submitted by the  

Department; in its earlier response to the court's show cause order, it had requested a  

                         

"statement  of  costs  and  fees  [that]  should  include  a  statement  of  the  specific  work  

performed, the date the specific work was performed, who performed the work, the  

credentials of the person who performed the work, and the hourly rate for the work."   



          14  

                                                                       

                     Achman v. State, 323 P.3d 1123, 1127 n.13 (Alaska 2014) (citing Koller ,  

71 P.3d at 805 n.10).  



                                                              -8-                                                        7208
  


----------------------- Page 9-----------------------

                                   

failed to submit a fee itemization even after the Department's specific and cognizable  

request, it was not an abuse of discretion to deny the paralegal fees.15  



                     Hodari  further  argues  that  the  court's  order  was  erroneous  because  it  



                                                                                                                          

"results in a default presumption that all services performed by a paralegal are of a nature  



not  normally  performed  by  an  attorney."    Without  citing  any  legal  precedent  or  



                                                                                                                  

presenting any argument about why the court should presume otherwise, he states that  



"[t]he record does not disclose any reason to presume that all of the paralegal hours  



claimed were for work that was of a nature not normally performed by an attorney."  



                                                                                                

                     The award of attorney's and paralegal fees is left to the broad discretion of  



                            16  

                                                       

the superior court.             The court may determine whether the requested fees are reasonable  



                                          

and  may  refuse  to  award  fees  based  on  "billings  that  are  too  vague  to  allow  a  fair  



                                                                                                                            

determination that they were reasonably incurred or incurred in connection with the . . .  



          15         Both   Hodari   and   the   court   appear   to   conflate   the   fee-itemization  



requirement with the requirement that paralegal fees be for work "customarily performed  

                                                                         

by  an  attorney."    The  court  noted  in  its  order  that  the  Department's  request  for  fee  

itemization  was  sufficient  to  raise  the  issue  of  whether  the  paralegal  fees  met  the  

                                                                             

definition of "attorney's fees."  And although the court's decision was based on Hodari's  

                                                                                       

failure to show that the paralegal fees were for legal work, Hodari dedicates his argument  

                                                   

almost entirely to the fee-itemization requirement. The two bases for denial of paralegal  

                                                                               

fees  are  conceptually  distinct,  but  we  "may  affirm  the  superior  court  on  any  basis  

                                                                                                                 

supported by the record, even if that basis was not considered by the court below or  

                                                                                                                        

advanced by any party."  Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).  



          16        Alaskasland.com, LLC v. Cross, 357 P.3d 805, 825 (Alaska 2015) ("We  



                                                  

have 'consistently held that . . . the award of costs and fees [is] committed to the broad  

                                                                         

discretion of the trial court.'  'Therefore, any party seeking to overturn a trial court's  

                                               

decision in this regard [bears] a heavy burden of persuasion.' " (quoting Schultz v. Wells  

Fargo Bank, N.A., 301 P.3d 1237, 1241 (Alaska 2013) (third alteration in original)).  



                                                                -9-                                                          7208
  


----------------------- Page 10-----------------------

                  17  

lawsuit."      Any   requested  attorney's  fees  are  therefore  subject  to  a  showing  of  



reasonableness and connection to the litigation; by the same token, the court must have                                                   



the discretion to determine whether requested paralegal fees are for work "customarily   



performed by an attorney."  Requiring the court to presume that all paralegal fees meet            



the  definition  of  "reasonable  attorney's  fees"  would  directly  undermine  the  court's  



discretion in this regard.  Hodari's argument is therefore without merit.  



              B.		         Any Abuse Of Discretion In The Court's Award Of Attorney's Fees  

                           Was Harmless.  



                           Hodari argues that the superior court's different treatment of attorney's and   



paralegal fees was "arbitrary and capricious."  He notes that none of the hours for which   



he requested payment were itemized, yet the court granted the attorney's fees and denied   



the  paralegal  fees.    He  concludes  that  the  case  should  be  remanded  for  a  new  



determination of the attorney's fee award.  Hodari correctly notes that the Department  



requested  itemization  of  all  fees,  not  just  paralegal  fees.    However,  given  the  small  



                                                                                                                                      

amount of attorney's fees at stake, any error in the court's failure to require itemization  



                                                                                                                            

of the attorney's fees was harmless.  In Capolicchio v. Levy, we affirmed a $488.20 fee  



                                                                                                                     

award despite the moving party's failure to submit a fee itemization in response to the  



                                               18  

paying party's request.                             We concluded that the appellant  



                           is correct that Marron requires an itemized billing statement  

                                                                          

                           and that [the appellee's] counsel did not provide one.  But  

                           here, because the amount of attorney's fees was so low and  

                           the hours [the appellee's] counsel expended on defending the  

                                                        

                           case were so minimal, any error in failing to order itemization  

                                                                                            

                           was  harmless:    The  superior  court  could  consider  the  fee  

                                                                                                                                       

                           request to be reasonable per se.  Under such circumstance, we  



              17           Bobich v. Hughes , 965 P.2d 1196, 1200 (Alaska 1998).  



              18            194 P.3d 373, 381-82 (Alaska 2008).  



                                                                                    -10-                                                                                     7208  


----------------------- Page 11-----------------------

                            

                    will  not  find  reversible  error  in  the  failure  to  require  

                                     [19] 

                    itemization.  



                                       

In light of this precedent, and in light of the fact that the Department that was burdened  



by  any  erroneously  awarded  fees  has  not  objected  to  the  erroneous  fee  award,  we  



                                                        

conclude that any abuse of discretion in the superior court's decision to award attorney's  



fees without itemization was harmless.  



                                                                               

                    We note, however, that the Department in its initial opposition to Hodari's  



motion for attorney's fees raised a legitimate concern about the accuracy of his time  



reporting.  As the Department noted, Hodari's attorney evidently reused briefs he had  



                                             

submitted in prior, unrelated  appeals:  The briefs in this case repeat verbatim entire  



                                                                                                    20  

                                                                                                          Attorneys  may  

passages  from  briefs  filed  in  two  similar,  but  unrelated,  appeals. 



                                                        

certainly  reuse  pertinent  language  from  prior  proceedings  in  their  court  filings.  



However,  in  doing  so,  they  must  accurately  reflect  the  time  spent  preparing  the  



                                                                               

documents for the particular matter at bar.  In a case such as this one, where little more  



than the name of the appellant was changed from prior filings, the attorney's obvious  



recycling of briefs should lead the court to consider carefully the attorney's fee request  



                                                                                                                       

to determine whether the amount requested is reasonable.  Where requested fees are not  



sufficiently itemized or otherwise appear unreasonable, courts should not hesitate to deny  



those  fees.    Nevertheless,  because  the  Department  did  not  raise  this  issue  again  on  



                                                                                

appeal,  we  do  not  address  further  the  question  of  the  reasonableness  of  Hodari's  



attorney's fees.  



          19        Id.  



          20        Hodari's attorney failed even to change the name of the other appellant to  

                                                                                                                

Hodari's name in one passage.  



                                                             -11-                                                        7208
  


----------------------- Page 12-----------------------

V.      CONCLUSION  



                 Because the court did not abuse its  discretion in denying the award of  



                                                                 

paralegal fees, and because any abuse of discretion in the award of attorney's fees was  



harmless, we AFFIRM the superior court's decision.  



                                                    -12-                                             7208

  

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