Opinion
Supreme Court No. S-12904.
March 25, 2009.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, No. 4FA-02-1940 CI.
Appearances: Cory R. Borgeson, Borgeson Burns, P.C., Fairbanks, for Appellant. Thomas R. Wickwire, Law Office of Thomas Wickwire, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Winfree, Justice, not participating.].
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This case presents the question of whether a co-defendant may recover reasonable actual attorney's fees under Alaska Civil Rule 68(b) when the other defendant did not prevail and defendants' counsel intermingled in billing entries the work done on behalf of each client. We conclude that she can and thus that it was an abuse of discretion to deny attorney's fees. To avoid further, unnecessary litigation, we have reviewed the billing entries in the record and calculated the proper award rather than remanding.
This case arises out of a protracted estate dispute between the decedent's son and the estate's personal representative and co-trustees. See Martin v. Dieringer, 108 P.3d 234 (Alaska 2005); Martin v. Dieringer, Mem. Op. J. No. 1203, 2005 WL 503637, at *1 (Alaska, Mar. 4, 2005).
II. FACTS AND PROCEEDINGS
On August 14, 2002, Darrel Martin filed a complaint against James Dieringer, in James's capacity as personal representative and co-trustee of Darrel's father's estate, and against Nancy Dieringer, in her capacity as co-trustee of the estate. Darrel only directed one of the complaint's nine counts solely at Nancy; that count alleged that "[s]he violated the terms of the trust." Darrel aimed another count, which alleged conversion, against both Nancy and James. Darrel's remaining seven claims implicated only James.
In September 2005 Nancy made an offer of judgment to Darrel under Civil Rule 68, "allow[ing] judgment to be entered against her by the Plaintiff, Darrel Martin, in the amount of One Thousand Dollars ($1,000.00), plus costs and attorney fees . . . to resolve all matters arising out of the facts and counts" of the case. Darrel did not accept the offer within ten days; thus, it was deemed not accepted.
Civil Rule 68(a) provides, in relevant part:
At any time more than 10 days before the trial begins, either the party making a claim or the party defending against a claim may serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim for the money or property or to the effect specified in the offer, with costs then accrued.
See id. ("An offer not accepted within 10 days is considered withdrawn.").
Nancy moved for summary judgment in May 2006, seeking dismissal from the case. In support of her motion, she argued that "[t]he facts regarding Nancy Dieringer are not in dispute," she "never took an active role [in the estate as co-trustee] because the trust was never funded or operated, and she did not accept the duty, role, and responsibilities associated with being a trustee." On October 12, 2006, the superior court granted her motion. Darrel did not appeal.
In May 2007 Nancy moved for attorney's fees, arguing that because she had made an offer of judgment to Darrel, she was "entitl[ed] . . . to a greater fee award than Rule 82 allows." Specifically, she argued that because Darrel did not recover anything against her — she was dismissed from the lawsuit — his final judgment of zero was at least ten percent less favorable than her offer and thus, she was entitled to seventy-five percent of her "reasonable actual attorney's fees." She calculated that her reasonable actual attorney's fees subsequent to the offer of judgment amounted to $30,078.75 for 146.3 hours of work. Nancy requested seventy-five percent of this total, or $22,559.06.
Civil Rule 68(b) states, in pertinent part:
If the judgment finally rendered by the court is at least 5 percent less favorable to the offeree than the offer, or, if there are multiple defendants, at least 10 percent less favorable to the offeree than the offer, the offeree, whether the party making the claim or defending against the claim, shall pay all costs as allowed under the Civil Rules and shall pay reasonable actual attorney's fees incurred by the offeror from the date the offer was made as follows:
(1) if the offer was served no later than 60 days after the date established in the pretrial order for initial disclosures required by Civil Rule 26, the offeree shall pay 75 percent of the offeror's reasonable actual attorney's fees[.]
Additionally, Nancy's motion noted that though she and James were represented by the same lawyer and firm, his fees "were kept separate and greatly exceeded" hers. The motion did not include itemized billing records because, as claimed in an accompanying affidavit, "[t]hese detailed monthly billings contain information in the nature of attorney-client communication and attorney work product." Nancy did inform the court, in the same affidavit, that she was "willing to submit the detailed, un-redacted, monthly billings to the Court in camera, if it is deemed necessary and appropriate."
Darrel opposed the motion for attorney's fees, arguing Nancy's motion did not indicate whether her attorneys spent any time on her defense that was separate and independent from that spent on James's defense. He claimed "it seems possible that all of the time the defense attorneys spent on this case was spent defending James and billed to him." He also noted that though he had requested Nancy's billing records on June 6, he did not receive the itemized billing records until June 12, the day before his opposition motion was due. Although he claimed he thus did not have time to review the records, in an accompanying affidavit he asserted that the thirty-three pages of billing records pertained only to work done on a motion for reconsideration of our decision, on claims "asserted only against" James, and on reviewing the deposition and report of an expert who, according to Darrel, "did not address any liability or damage issues involving claims against Nancy."
Apparently the records were mailed to him on or about June 8.
See Martin v. Dieringer, 108 P.3d 234 (Alaska 2005) (vacating several of the probate master's findings and the awards of attorney's fees and personal representative fees, and remanding for reconsideration of such fee awards).
He also noted certain billing entries charging the wrong rate for one of Nancy's attorneys; Nancy acknowledged this error.
Replying to Darrel's opposition, Nancy explained that because "the defenses of both Nancy and James were based on the same set of facts and legal arguments," "the attorneys fees incurred in the matter are difficult to separate out." She nevertheless claimed that her attorneys "made every effort to keep the billing entries separate for the two co-defendants" and that the "billing statements accurately reflect work done in [her] prevailing defense following the date of her offer of judgment." Nancy again claimed that based on her offer of judgment, she was entitled to seventy-five percent of reasonable actual attorney's fees under Rule 68(b).
In August 2007 the court denied Nancy's motion for attorney's fees, finding she had failed to show reasonableness and necessity of the actual attorney's fees incurred because she had provided only "conclusory statements" by way of evidence. In reaching this decision, the court quoted Marron v. Stromstad, in which we held that "where the rule authorizes reasonable actual fees, a court may not award attorney's fees to a party who has not itemized his or her requested fees, when the opposing party has requested such itemization." The court, apparently unaware that Nancy had submitted itemized billing records to Darrel, stated her "offer to submit billings in camera is of no consequence as plaintiff must have an opportunity to review the same materials the court reviews." Referring only to the affidavit attached to the original motion, in which Nancy's attorney offered to provide in camera review of the itemized billing records, the court found that the affidavit failed to satisfy Nancy's burden of showing reasonableness and necessity of the fees incurred.
123 P.3d 992 (Alaska 2005).
Id. at 1014.
Nancy moved for reconsideration, arguing the court had "overlooked factual matters involving the disclosure of itemized attorney's fees billings to Darrel" consistent with Marron. The court denied the motion, finding "the fee itemization attached to the reply does not change" the court's earlier decision. In so concluding, the court "found that work purportedly done on Nancy's behalf was indistinguishable from work that had to be done for James' defense," and that "when this court compared fee entries for James and Nancy, the fees purportedly billed to Nancy involved work required for James' defense." The court stated, "Counsel for Dieringers cannot collect fees for representing James, who was not a prevailing party, in the guise of fees for Nancy's defense," explaining this result would be unfair to Darrel. The court also found the "itemized entries were either too vague or described services for James to allow this court to make a fair determination that they were reasonably incurred for Nancy's defense." Additionally, the court, stressing that Rule 68's purpose "is to encourage settlement and avoid litigation," found "[i]t would have served little purpose for the plaintiff to accept the defendants' offer of $1000 regarding two claims against Nancy without also settling the remaining eight claims against James." Nancy appeals.
Nancy had attached the itemized billing records to her reply to Darrel's opposition. She again attached them to her motion for reconsideration.
III. STANDARD OF REVIEW
We review the superior court's application of the law in its determination of whether to award attorney's fees independently, but the court's "fact-based decisions as to whether attorney's fees are reasonable and should be awarded" for abuse of discretion. "We will not interfere with the trial court's determination [regarding attorney's fees] unless . . . the court abused its discretion by issuing a decision which is arbitrary, capricious, manifestly unreasonable, or which stems from an improper motive."
DeNardo v. Cutler, 167 P.3d 674, 677-78 (Alaska 2007) (quoting Marron, 123 P.3d at 998) (internal quotation marks omitted).
Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979); see also Cooper v. Carlson, 511 P.2d 1305, 1310 (Alaska 1973) ("[T]he denial of a motion for [attorney's] fees may not be arbitrary or capricious or for some improper motive.").
IV. DISCUSSION
A. Nancy's Appeal Was Not Untimely.
As a threshold matter, Darrel argues that under Alaska Appellate Rule 204(a)(3)(E), Nancy's appeal is late and so "should be dismissed as untimely." We disagree.
Appellate Rule 204(a)(3)(E) requires filing an appeal from a decision on a motion for reconsideration within thirty days of the "date of notice as defined by Civil Rule 58.1(c) or on the date of denial of the motion pursuant to Civil Rule 77(k)(4), whichever is earlier." Alaska Civil Rule 58.1(c)(2) explains that "[t]he date of notice of a written order is the date shown in the clerk's certificate of distribution on the written order." If instead the court does not rule on a motion for reconsideration "within 30 days from the date of the filing of the motion," the motion "shall be taken as denied" under Alaska Civil Rule 77(k)(4).
Compare Alaska R. Civ. P. 58.1(c)(2) (governing written orders) with Alaska R. Civ. P. 58.1(c)(1) (governing oral orders).
Alaska R. Civ. P. 77(k)(4) (providing also that the motion is considered denied if the court has not ruled on it "within 30 days of the date of filing of a response requested by the court").
Alaska Civil Rule 6(a) provides guidelines for computing "any period of time prescribed or allowed by these rules"; it explains that "the day of the act, event, or default from which the designated period of time begins to run is not to be included," but the "last day of the period is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday."
Nancy filed her motion for reconsideration on August 27, 2007; the court denied the motion on September 26, 2007. The time between Nancy's filing and the court's order — August 28 to September 26 — was exactly thirty days. Because the court entered a written order on the motion within thirty days from the date of its filing, Rule 77(k)(4) does not apply and instead, Rule 58.1(c)(2) controls. Here, the date of distribution of the superior court's order denying reconsideration was September 28, 2007. Per Rule 6(a), we must count thirty days from this date to determine whether Nancy's appeal was timely. Thirty days from September 29 is October 28, 2007, a Sunday. Under Rule 6(a), this means the deadline for filing an appeal was Monday, October 29. Nancy filed her appeal on October 29. Thus, her appeal was timely.
September 26, 2007, was the effective date of the order because the court signed it on that date and the order was not preceded by an oral order. See Alaska R. Civ. P. 58.1(a)(2) ("The date of entry of a written order not preceded by an oral order is the date the written order is signed unless otherwise specified in the order.").
Four days in August plus twenty-six days in September.
Because the order was written, Rule 58.1(c)(1) also does not apply.
Nancy counts that thirty days from the date of distribution would be "Saturday, October 27, 2007," but she must have so calculated by erroneously including the date of the court's distribution of the order. See Alaska R. Civ. P. 6(a) (providing the date of the event from which the period of time begins to run is not to be included in calculating the period of time allowed).
B. It Was an Abuse of Discretion To Deny Nancy's Request for Reasonable Actual Attorney's Fees Under Rule 68.
Nancy argues the superior court abused its discretion in denying her attorney's fees because, Nancy contends, she is a prevailing party and the court was mistaken in asserting she had not complied with Marron and provided itemized billing records upon Darrel's request. She also claims that the court should have reviewed the billing records she submitted and that had it done so, it would have seen the records "were not vague." Further, she argues she is entitled to seventy-five percent of her reasonable actual attorney's fees under Rule 68(b)(1) because, she asserts, she made a valid offer of judgment and Darrel's judgment of nothing was at least ten percent less favorable than her offer of $1,000.
The court denied Nancy's motion for reconsideration of its denial of her request for attorney's fees because it "found that work purportedly done on Nancy's behalf was indistinguishable from work that had to be done for James' defense," and that requiring Darrel to pay "fees for representing James, who was not a prevailing party, in the guise of fees for Nancy's defense" would be unfair. The court also found the billing records "too vague or described services for James to allow this court to make a fair determination that they were reasonably incurred for Nancy's defense." Additionally, the court concluded that because the goals of Rule 68 are to "encourage settlement and avoid litigation," accepting Nancy's offer here would not have furthered those goals — Darrel would still have had to litigate against James.
First, we reject the superior court's conclusion that awarding Nancy fees under Rule 68 would not further the rule's goals. Although the court correctly identifies the goals of Rule 68 — encouraging settlement and avoiding litigation — we disagree that Nancy's offer of judgment here would not have furthered these purposes. Rule 68(a) requires that an offer of judgment be such that if accepted, it would "allow judgment to be entered in complete satisfaction of the claim." We have rejected "piecemeal offers," or those that fail to include every claim. Here, by contrast, Nancy's offer of judgment included "all matters arising out of the facts and counts" of the case. Thus, if Darrel had accepted Nancy's offer, he would have avoided litigation over the claim specific to her. Although he would not have avoided litigating the remaining claims against James, he would have avoided litigating claims against Nancy. Her offer of judgment was therefore valid. And, because Darrel's final judgment of nothing was at least ten percent less favorable than her offer of $1,000, she is entitled to seventy-five percent of reasonable actual attorney's fees under Rule 68(b)(1).
Cf. Fernandes v. Portwine, 56 P.3d 1, 9 (Alaska 2002) (holding that when a defendant's offer of judgment to co-plaintiffs "was not comprehensive, definite and unconditional" because it did not include a number of claims involving both plaintiffs, accepting the offer of judgment "would have served little purpose"); Hayes v. Xerox Corp., 718 P.2d 929, 936-37 (Alaska 1986) (explaining that joint offers of settlement, or offers conditioned on acceptance by both co-parties, are generally excluded from Rule 68 because it would be unfair to require both parties to accept a settlement that might not be individually fair and would "frustrate the chances of settlement which is the purpose behind Civil Rule 68").
Second, we conclude it was an abuse of discretion not to award Nancy fees for the work done solely on her behalf. In so holding, we agree with the superior court that Nancy's itemized billing records are, in fact, confusing and do intermingle work done for James with that done for Nancy. For instance, the June 29, 2006 entry describes the work done as: "Review plaintiff's complaint and damage calculations/estimates, prepare discovery requests, meet with attorney Borgeson to prepare for attending hearing on Motion for Summary Judgment regarding Nancy Dieringer." This billing entry clearly refers to work done on behalf of both clients and it is impossible to separate the tasks worked and hours spent on each client. Similarly, the two December 21, 2005 entries, which state "[m]eet with client to work on discovery requests" and "[m]eet with Dieringer regarding discovery and strategy," fail to indicate which client or which Dieringer is meant.
Although we have held a superior court does not abuse its discretion in reducing an award of attorney's fees when billing records "are too vague to allow a fair determination that [fees] were reasonably incurred," we have also permitted "awards of attorney's fees without an itemization of . . . costs in the record," unless the opposing party requested such an itemization and one was not given. Because here Nancy responded to Darrel's request for an itemization, and because at least some of the itemized billing records reflect work done specifically for Nancy, we conclude it was an abuse of discretion to refuse to award her any fees at all. But we also hold the court did not abuse its discretion in finding that "[o]nly the amount of fees made necessary by [Darrel's] rejection of the offer should be included in the fee award to Nancy." Awarding Nancy fees for work done for James, though also done for Nancy, would be unfair to Darrel. Thus, Nancy's award is limited to the fees incurred for work unique to her.
Bobich v. Hughes, 965 P.2d 1196, 1200-01 (Alaska 1998).
Korean Air Lines Co. v. State, 779 P.2d 333, 340 (Alaska 1989) (citations omitted); see also In re Estate of Johnson, 119 P.3d 425, 436 n. 43 (Alaska 2005) (vacating the superior court's award of attorney's fees to the extent the award was based on "billing records [that] were not sufficiently detailed for the superior court to determine the reasonableness of fees").
See Marron v. Stromstad, 123 P.3d 992, 1013-14 (Alaska 2005) (holding a court may not award fees under Rule 68 if the opposing party has requested an itemization of billing records and the proponent of the fee request has not given such an itemization); Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1138 (Alaska 1989) (stating "[t]rial courts should base their awards on itemized statements," but refusing to "overturn a fee award for this reason" when "no itemized statement was requested by" the party opposing the fee award).
The superior court was factually incorrect when, in ruling on the original motion for fees, it refused an in camera review of the records because it assumed Darrel had not had the opportunity to review them. The record shows Darrel did have an opportunity to review the records before his opposition memorandum was due. If the court had agreed to the in camera review, it could have determined if the billing statements were vague or confusing and could have requested supplementation or clarification. See Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 399 (Alaska 1994) ("Where a party has failed in the opinion of the court to adequately support its claim, the court has the discretion to allow supplementation or refiling.").
Further, to the extent the court may have believed itemized billing records were required to satisfy the burden of proving reasonable actual attorney's fees, rather than being required only if requested by the opposing party, the court was in error. See Marron, 123 P.3d at 1013-14; Luedtke, 768 P.2d at 1138.
See Cooper v. Carlson, 511 P.2d 1305, 1311 (Alaska 1973) (suggesting that lower courts may, in their discretion, consider the "equities of the situation" in ruling on attorney's fee requests).
We are not convinced by Nancy's arguments that the billing statements reflect a "near 50/50 split" in attorney's fees incurred on behalf of James and Nancy. Rather, significantly more fees were incurred on James's behalf. The statements Nancy submitted bill James $61,889.50 for work on this case and Nancy $27,934.75.
Likewise, we are not persuaded by Nancy's claims that defending both James and Nancy required their attorneys to do "double the work," that Nancy had to defend herself against "all" of Darrel's claims "because each defendant must provide for their own defense," or that Nancy was "forced to defend against [Darrel's] claims in the exact same way James was." Only one of the nine counts was aimed solely at Nancy, whereas the first seven counts were directed only at James.
To the extent the superior court may have denied the fee request as a sanction for "arbitrarily assigning to the prevailing party work that was required to defend the non-prevailing party," the court abused its discretion. We have made it clear that a court may not use fee requests "as a vehicle for accomplishing any purpose other than providing compensation where it is justified." Cooper, 511 P.2d at 1310-11 (quoting De Witt v. Liberty Leasing Co. of Alaska, 499 P.2d 599, 602 (Alaska 1972)).
Having so determined, we also conclude that because of the already protracted nature of this litigation, remanding for further proceedings would not be the best remedy. We instead reverse the superior court's order denying Nancy attorney's fees and conclude, based on our review of the thirty-three pages of itemized billing statements in the record, that Nancy is entitled to $2,057.25 in reasonable actual attorney's fees under Rule 68(b).
See In re Estate of Johnson, 119 P.3d 425, 436 n. 43 (Alaska 2005) (declining to remand on the issue of attorney's fees "[d]ue to the lengthy delays in this case").
Because, as discussed above, the billing statements are confusing and combine work done for Nancy and James, we arrived at Nancy's fee award in the following manner. We have included fees for work done solely for Nancy and fees in billing entries whose descriptions suggest that most of the work was probably done on Nancy's behalf, though some of the work also benefitted James. We have excluded fees in billing statements whose descriptions suggest that the substantial weight of the work was done for James or that the work would have been done for James even if Nancy had never been a party to the lawsuit, though the work may have also benefitted Nancy. We have also excluded fees when the billing statement failed to identify for which client the work was done and the work necessarily would have benefitted both clients. Finally, we have excluded fees incurred for work done solely for James.
Based on these principles, we conclude that Nancy may recover the following fees incurred for work done on the May 2006 summary judgment motion to dismiss Nancy from the case: $640 for 3.2 hours of work on February 10, 2006, that included "start[ing] motion to dismiss"; $240 for 1.2 hours of work on April 12, 2006, that included "work[ing] on motion for summary judgment"; $400 for 2.5 hours of work on June 29, 2006, that included preparing for a hearing on the "Motion for Summary Judgment regarding Nancy Dieringer"; $450 for 1.8 hours of work on July 20, 2006, for "[w]ork[ing] on preparation and attend[ing] hearings on motions for summary judgment"; $405 for three hours of work on September 5, 2006, researching "Martin's damages claims" and Nancy's "potential liability as trustee"; $320 for two hours of work on June 1, 2006, for "draft[ing] Reply to Opposition to Motion for Summary Judgment regarding Nancy Dieringer"; $208 for 1.3 hours of work on June 2, 2006, preparing a "final draft" of the reply to Darrel's opposition to Nancy's summary judgment motion; and $48 for 0.3 hours of work on October 2, 2006, spent reviewing Darrel's "supplemental memorandum regarding Nancy Dieringer's Summary Judgment claim."
Though this billing entry also describes working on discovery, which probably also benefitted James, we can infer from the billing statement's description that most of the work was likely done for Nancy's motion to dismiss.
Again, this entry also includes work that likely benefitted James — reviewing the pleadings and attending a hearing, the summary of which does not appear in the record — but because the motion for summary judgment was specifically for Nancy and we can infer from the billing statement that most of the hours were likely spent on Nancy's behalf, we have included the fees incurred in her award.
The fees incurred are included though the entry also covered work that probably benefitted James as well — reviewing Darrel's complaint, reviewing damage estimates, and preparing discovery requests — because we can infer that the bulk of the hours were probably spent on the work unique to Nancy.
This entry also describes work done on an order to compel. But though the summary of the hearing indicates some of the time was spent on discovery matters, benefitting both Nancy and James, the majority of the hearing consisted of legal and factual arguments regarding whether Nancy ever took an active role in the trust, an issue relevant only to the summary judgment motion to dismiss her on that ground. Because the clear inference is that most of the time spent on activities described in this billing entry was for work unique to Nancy, we have included the fees incurred in her fee calculation.
Though Martin's damages claims related to both Nancy and James, this entry is one of the few that specifically identifies Nancy as the client for whom the work was completed. Although the entry does not separate the time spent on Martin's damages from that spent on Nancy's potential liability, we can infer that a large portion of the hours billed probably covered time spent on work unique to Nancy. Therefore, we have included the fees incurred.
This billing entry includes other activities that necessarily involved James, such as "[p]repare final version of Affidavit and Reply to Opposition to Motion to Accept Late Filing of Statute of Limitations Motion" and two phone calls to James. But because the reply to the summary judgment motion to dismiss Nancy is specific to Nancy, and because the billing statement describes the work done on Nancy's behalf as drafting the reply, suggesting that a substantial amount of time was probably spent on the matter, we can infer that most of the hours billed were likely spent on Nancy. Thus, we include the fees incurred in the fee calculation.
Nancy may also recover fees incurred for work regarding the offer of judgment and subsequent to the date it was entered: $32 for 0.2 hours on August 1, 2006.
The fees we have excluded from Nancy's fee calculation include, as discussed above, those incurred in tasks that were necessarily done for James, that would have been done on his behalf regardless of whether Nancy was a party to the lawsuit, and that failed to specify for whom work was done. We have also excluded fees when the billing entry's description suggested the majority of the hours billed related to work on James's behalf. Additionally, we did not include fees incurred for hours spent on work done only for James. Finally, because the only record of work done on Nancy's fee request appears in a block billing entry in which the work done solely on her behalf was only one of eight tasks, we cannot infer that most of the hours recorded were spent on work unique to Nancy. We therefore excluded the fees incurred from Nancy's fee calculation.
For instance, billing statements for research on potential liability as trustee or on breach of fiduciary duties that fail to identify for which client the research was done cannot be included because both James and Nancy were trustees; we thus cannot say this research was unique to Nancy or done mostly for Nancy. Similarly, billing entries describing general discovery matters without identifying for which client the work was done are also not included because such matters were necessarily done on behalf of James and would have been done on his behalf whether or not Nancy was a party to the case.
We have also excluded fees incurred for work done on the motion to dismiss based on the statute of limitations. Though the motion was made on behalf of both Nancy and James, the work would have been done regardless of whether Nancy was a party. Similarly, because the attorneys for Nancy and James would have deposed Donna and Darrel Martin even if James had been the only defendant, we do not include the fees incurred for these depositions.
We have not discussed every itemized billing entry that falls under these categories, but each entry's description indicates the work was largely done for James or cannot be said to have been unique to Nancy.
This is the case with the fees incurred in deposing Peter Brautigam, which we do not include in Nancy's fee calculation because though two pages of the deposition related to Nancy's liability, it appears that the remaining sixty-six pages of the sixty-eight-page deposition related to James's defense. Brautigam would have been deposed even if Nancy had not been a party to the lawsuit and it appears the vast majority of the time spent in his deposition was devoted to issues relevant only to James's defense.
We also excluded the fees incurred for seven hours of work researching the statute of limitations "for beneficiaries['] tort claim against personal representative and trustee" and "review[ing] and revis[ing] [the] Motion for [Summary Judgment] to Dismiss based upon Statute of Limitations and Motion for [Summary Judgment] to remove Nancy Dieringer from complaint" on May 8, 2006. Because the summary judgment motion to dismiss Nancy was filed on May 8, 2006, and because the motion was only three pages long, we cannot infer that most of the seven hours worked on May 8 were spent on reviewing and revising the motion, the only task unique to Nancy's defense. As we have explained, the motion to dismiss based on the statute of limitations would have been filed regardless of whether Nancy was a party. Likewise, we excluded the fees incurred in four hours of work spent on four tasks on May 26, 2006, only one of which was unique to Nancy.
Fees incurred in general preparation for trial and before the court granted Nancy's motion to dismiss may not be included in her fee award because this work was necessarily and largely done on James's behalf. This includes fees incurred for attending a status hearing on July 24, 2006, because the summary of proceedings from that hearing indicates its purpose was to schedule the jury trial and because the jury trial was necessarily going to be focused on the eight claims against James, as compared to the two claims against Nancy.
Fees incurred researching the Summit Lake property value pertain to James only and are not included in Nancy's fee award. Work done preparing for trial subsequent to the court's October 12, 2006 grant of Nancy's summary judgment motion and fees incurred during trial likewise cannot be included in her fee calculation because she was no longer a party to the litigation.
The bulk of the work included in this billing statement clearly refers to trial preparation done on James's behalf:
Research Alaska law regarding preclusion of fact testimony for trial preparation purposes; review file for adjudicated facts; review bills for use in motion for attorneys' fees for Nancy Dieringer's defense; research motions practice for telephone testimony in preparation for drafting motion for Yvette Martin to testify via phone; draft motion and memorandum of law for Yvette Martin to testify via phone; draft proposed order for same; review trial notebook contents; review witness lists for plaintiff and defendant for trial preparation purposes[.]
Nancy is thus entitled to seventy-five percent of the total of the above-listed fees, or $2,057.25. C. The Superior Court Did Not Violate Nancy's Right to Due Process.
The fees we have included total $2,743. $2,743 x 0.75 = $2,057.25.
Nancy claims the court violated her due process rights by refusing her motion to reconsider "based on concerns to which Nancy was unable to respond." We conclude this claim has no merit.
Under Civil Rule 77(k), a party may move for reconsideration when the "court has overlooked or misconceived some material fact or proposition of law." Here, Nancy moved for reconsideration because the court "overlooked" the fact that she had provided itemized billing statements to Darrel. In ruling on Nancy's motion for reconsideration, the court considered those records and found that "the fee itemization attached to the reply does not change the result." Nancy received due process when the court examined her itemized billing statements in reconsidering her motion for fees. She has further received due process by bringing this appeal. We thus conclude the court did not violate her due process rights.
V. CONCLUSION
For the above reasons, we REVERSE the superior court's denial of attorney's fees and REMAND for entry of judgment of $2,057.25 in attorney's fees to Nancy.