Susan TAYLOR, Appellant, v. WELLS FARGO HOME MORTGAGE and Routh Crabtree, P.C., Appellees.
No. S-14211
Supreme Court of Alaska
May 17, 2013
2013 WL 2150821 | 301 P.3d 182
George M. Cruickshank, Routh Crabtree, APC, Anchorage, for Appellee Wells Fargo Home Mortgage.
Richard L. Crabtree, Routh Crabtree, APC, Anchorage, for Appellee Routh Crabtree, P.C.
Before: CARPENETI, Chief Justice, FABE and WINFREE, Justices.
OPINION
CARPENETI, Chief Justice.
I. INTRODUCTION
A woman purchased a home and fell behind on her mortgage payments. Despite the bank having agreed to postpone a foreclosure sale, the bank proceeded with the sale. After the woman threatened suit, the bank repurchased the home and entered into settlement negotiations with the woman; the bank promised to re-convey the property to the woman so that she could proceed with a sale to a third party. The bank subsequently refused to perform and the woman sued both the bank and the bank‘s counsel for breach of
The superior court granted partial summary judgment to the woman on her breach of contract claim, finding that a binding settlement contract had been formed between the woman and the bank. The woman then filed for bankruptcy. The bankruptcy trustee sold the property and the bankruptcy estate abandoned the present state court claim, placing the remaining balance from the sale of the property into the superior court registry.
The superior court held a bench trial on the remaining fraud claim and on the parties’ respective damages. At the conclusion of the woman‘s case, the court granted a directed verdict to the bank and the bank‘s counsel on the fraud claim. The superior court awarded the bank the unpaid loan balance as well as the fair rental value of the property for the woman‘s post-foreclosure occupancy of the property, and awarded the woman lost sale damages. The superior court also awarded the parties prejudgment interest, and later awarded the bank and its counsel attorney‘s fees.
The woman appeals the superior court‘s final judgment. Because the bank abandoned its claim for rental damages at trial, we reverse the superior court‘s award of rental damages and any accompanying award of prejudgment interest. Because any right to recover fees for work performed on behalf of the dismissed defendants has been waived, because it was error to award attorney‘s fees to the bank‘s counsel in responding to the bankruptcy petition, and because the superior court did not properly calculate attorney‘s fees under
II. FACTS AND PROCEEDINGS
A. Facts
Susan Taylor purchased a house in Anchorage in October 2002. Wells Fargo Home Mortgage held the primary mortgage on the house, and Capital One Credit Union held a second mortgage. Sometime around May 2003, Taylor fell behind on her payments to Wells Fargo. Routh Crabtree, P.C.,1 which represented Wells Fargo throughout the present case, initiated a nonjudicial foreclosure sale of the property on behalf of Wells Fargo. A foreclosure sale was scheduled for January 6, 2004. Upon learning of the foreclosure, Taylor listed the property for sale through a real estate agent, Charles Stone, who located a buyer and secured an offer on the property. Stone contacted Routh Crabtree to postpone the foreclosure sale. Despite Stone apparently having reached agreement with Routh Crabtree to postpone the sale, the sale proceeded as scheduled on January 6. After Taylor learned of the foreclosure sale, she contacted a local television station, which publicized the sale. At the time of the foreclosure sale, Taylor owed Wells Fargo $199,588 as the balance on her loan.
Taylor threatened suit against Wells Fargo. On January 28, 2004, Richard Ullstrom, an attorney at Routh Crabtree, sent a letter
Wells Fargo Home Mortgage has entered into an agreement with the party who acquired the Taylor property at the foreclosure sale, to refund the purchase price in return for a deed of the property and a release of all claims. Wells Fargo will then be in a position to return title to the property to Ms. Taylor to allow her to close her sale of the property.
As a condition of doing so, Wells Fargo Home Mortgage will of course require that Ms. Taylor execute a release of all claims she might have in connection with the foreclosure and foreclosure sale. If she is willing to do this, I anticipate that we can have this matter wrapped up by the end of the week. Please advise if she is willing to do so, and if so, I will draft the necessary paperwork.
Taylor‘s attorney, Yale Metzger, responded the next day. His letter, in pertinent part, stated:
This will acknowledge receipt of Mr. Ullstrom‘s facsimile dated January 28, 2004, and the settlement offer contained therein. Ms. Taylor has instructed me to communicate her acceptance of Wells Fargo‘s settlement offer. This letter should be considered that acceptance. Please forward a draft of the release you require Ms. Taylor to sign for my review.
On January 31, Ullstrom sent a draft of the release to Taylor. The last paragraph of the draft release contained a confidentiality provision:
The terms and conditions of this Release and underlying agreement shall be confidential. Except as provided above or required by law, court order, the enforcement of the provisions hereof, or as may be reasonably required by creditors, beneficiaries, bureaus, auditors, accountants or tax consultants of the respective parties, or any regulatory or governmental agency, the parties and their counsel shall maintain in strict confidence and shall not disclose the substance or contents of this Release to any third party without the written consent of the parties herein.
On February 4, 2004, Metzger responded that “[t]he draft release conforms with the agreement of the parties except for the last paragraph concerning confidentiality.” Metzger struck the confidentiality provision and Taylor signed the release, thereby tendering her performance under the terms of the alleged settlement agreement. Wells Fargo thereafter refused to perform and maintained that it was not willing to settle without the inclusion of a confidentiality provision.
On February 20, 2004, the buyer at the foreclosure sale quitclaimed all his interest in the property to Wells Fargo.
B. Proceedings
In February 2004, Taylor filed suit against Wells Fargo and Routh Crabtree, P.C.2 Taylor asserted two claims relevant to this appeal: (1) the letters exchanged between Taylor and Wells Fargo created a binding settlement contract, which Wells Fargo breached when it refused to perform; and (2) Wells Fargo, through its agent, Routh Crabtree, fraudulently induced Taylor into accepting a settlement offer that it would not perform unless Taylor agreed to an added confidentiality provision. Three days later Taylor filed a lis pendens on the property.
Wells Fargo counterclaimed and sought the following relief: (1) that Taylor‘s claim be dismissed with prejudice; (2) that Wells Fargo be awarded judgment for Taylor‘s use and occupancy of the property beginning February 20, 2004, the date on which it gained possession of the property from the buyer at the foreclosure sale;3 (3) that Wells Fargo
In December 2004, Superior Court Judge Craig Stowers granted partial summary judgment in Taylor‘s favor on the breach of contract question. The court determined that Wells Fargo made an offer to settle with Taylor in its January 28, 2004 letter, which did not include a confidentiality provision. The court held that Taylor accepted this offer in her January 29, 2004 letter. Based on this finding, the court ordered specific performance. The superior court additionally stated that “[t]he court also intends to exercise its equitable authority to require [Taylor] to pay defendant for the fair value of her occupancy of the premises from the date that she stopped paying until the date that the premises is tendered back to [Wells Fargo].”
On October 15, 2005, Taylor filed for relief under Chapter 7 of the U.S. Bankruptcy Code. In accordance with
In January 2008, the trustee filed a motion under
In December 2008, Wells Fargo and Routh Crabtree made an offer of judgment to Taylor under
In March 2010, Superior Court Judge John Suddock held a bench trial on the remaining issues.10 The parties each presented evidence regarding damages, and Taylor presented evidence regarding her fraud claim. Wells Fargo also abandoned its claim for rental damages for Taylor‘s post-foreclosure occupancy of the property. In support of her fraud claim, Taylor relied on Wells Fargo‘s admission during discovery that “there was never a time when the confidentiality clause was not considered a part of any agreement with [Taylor].” During trial, Erin Hirzel Roesch, an employee of Wells Fargo, testified that, prior to the time of the disputed settlement agreement, Wells Fargo had a policy in place that all settlement agreements would contain confidentiality provisions. Moreover, Roesch testified that this was not the first matter in which Routh Crabtree had represented Wells Fargo. But Roesch also testified that Wells Fargo only would have communicated its policy regarding confidentiality to Routh Crabtree “in a general sense as a requirement,” and that Wells Fargo would not have reviewed Routh Crabtree‘s January 28, 2004 letter to Taylor before it was sent.
At the close of Taylor‘s case at trial, Wells Fargo and Routh Crabtree moved for a directed verdict on Taylor‘s fraud claim. The superior court found “that no reasonable Court or jury could find that there was fraudulent intent or damage flowing from justifiable reliance on something that turned out to be a misrepresentation because there was no misrepresentation. There was an offer and acceptance. There was a settlement. The settlement holds.” On this basis the superior court granted the motion for a directed verdict. Finally, during closing argument at trial, Taylor for the first time argued that Wells Fargo‘s failure to produce a written deed of trust note violated the statute of frauds and precluded Wells Fargo from recovering the unpaid loan balance.
In November 2010, the superior court entered its Findings of Fact, Conclusions of Law, and Order, in which it primarily considered the parties’ damages. The court first found that Taylor vacated the property in May 2004, that Wells Fargo received effective notice of her departure in December 2004, and that Wells Fargo repossessed the home on or about December 15, 2004. The court also made a number of findings regarding the calculation of Taylor‘s damages, including that: (1) it was reasonable to set the fair rental value of the property at $1,500 per month; (2) Taylor had successfully negotiated her second deed of trust on the property to $6,000; (3) it was reasonable to set the brokerage commission for Taylor‘s sale of the property at six percent; (4) Taylor‘s estimated costs of sale of the property were one percent; and (5) Wells Fargo‘s claim of $5,732 for damages to the property were unsupported by the evidence.
The superior court then concluded that: (1) but for Wells Fargo‘s breach, Taylor would have netted $15,287 from the sale of the property to a third party; (2) Taylor was not entitled to emotional distress damages or consequential damages; and (3) Taylor was liable for occupancy of the property post-foreclosure at a total cost of $17,250. The court also awarded Wells Fargo $199,588, the balance of its deed of trust at the time of foreclosure. The court awarded Taylor $15,287 in lost sale damages against Wells Fargo. Taylor recovered nothing against Routh Crabtree. In a later Amended Final Judgment, the superior court awarded Wells Fargo $52,843 in prejudgment interest on the deed of trust, and $3,973 in prejudgment interest on the rental value. The court awarded Taylor $4,047 in prejudgment interest.
In February 2011, Taylor filed a motion for attorney‘s fees under
In May 2011, the superior court entered its order on attorney‘s fees. The court first sua sponte reconsidered its decision to award prejudgment interest to Wells Fargo, at least as far as this issue related to the court‘s award of attorney‘s fees.11 The court made two distinct observations regarding its award of prejudgment interest to Wells Fargo. First, the court concluded that it “erred when it charged Ms. Taylor prejudgment interest both on the unpaid $17,[250] in rent and the unpaid loan for 2004.” Second, the court concluded that it erred in awarding Wells Fargo prejudgment interest on the unpaid loan, since Wells Fargo had “slept on its rights.” The superior court then found that Taylor‘s fraud claim constituted the main issue in the case, and thus Wells Fargo and Routh Crabtree, as the prevailing parties on that issue, were entitled to attorney‘s fees under
All of the parties then moved for reconsideration of the superior court‘s order regarding attorney‘s fees. In an August 24, 2011 order, the superior court declined to modify its prior award of attorney‘s fees, but the court struck the paragraph stating that Wells Fargo had “slept on its rights.”12
Taylor appeals the superior court‘s final judgment.
III. STANDARD OF REVIEW
“We apply our independent judgment to the interpretation of Alaska statutes and will interpret statutes ‘according to reason, practicality, and common sense, taking into account the plain meaning and purpose of the law as well as the intent of the drafters.‘”13 We review de novo the grant of a directed verdict.14
“We exercise our independent judgment in reviewing the superior court‘s interpretation of
IV. DISCUSSION
A. It Was Error To Award Wells Fargo Damages For Taylor‘s Post-Foreclosure Occupancy Of The Property.
The superior court awarded Wells Fargo the fair rental value of the property for Taylor‘s post-foreclosure occupancy of the house. “Wells Fargo‘s breach,” the court concluded, “did not entitle [Taylor] to live in the house without compensation to the bank. Nor was [Taylor] entitled to occupy the house during the early months of litigation before surreptitiously abandoning it.” The court noted that “[t]here was no testimony about the fair-rental value of the house,” but based on Taylor‘s description of the property the court found it “reasonable to ascribe a fair rental value of $1,500 per month, somewhat less than Taylor‘s monthly mortgage payment.” Based on Taylor‘s having retained occupancy of the property for 11.5 months after the foreclosure sale, the court awarded Wells Fargo $17,250 from the funds held in the court registry.
Taylor argues that it was error for the superior court to award Wells Fargo the fair rental value for Taylor‘s post-foreclosure occupancy of the property because “there was no testimony about the fair-rental value [of the property].” She also contends that Wells Fargo‘s failure to introduce any evidence regarding the fair rental value of the property indicated that Wells Fargo had abandoned its claim during trial. Wells Fargo admits that it did not request rental damages, but contends that the superior court nonetheless was justified in awarding such damages.17
We agree with Taylor. Despite the superior court‘s 2004 partial summary judgment order, which stated that the court would award rental damages against Taylor, rental damages should not have been assessed after Wells Fargo abandoned this claim. Moreover, we agree with Taylor that there was insufficient evidence regarding the rental value of the property. Thus, we reverse the superior court‘s decision on this issue.
B. It Was Not Error To Award Wells Fargo Funds From The Sale Proceeds Of The Property Even Though Wells Fargo Failed To Produce A Deed Of Trust Note Pursuant To Alaska Statute 09.25.010 Because Taylor Voluntarily Admitted The Existence Of The Deed Of Trust Note.
In its November 9, 2010 Findings of Fact, Conclusions of Law, and Order, the superior court concluded that Wells Fargo was entitled to the unpaid loan balance at the time of foreclosure, which was valued at $199,588. Taylor disputes this award on appeal.
In particular, Taylor contends that Wells Fargo‘s failure to produce a written deed of trust note violated Alaska‘s statute of frauds, codified at
Taylor‘s February 17, 2004 complaint contained the following allegations, which recognized the making of an agreement with Wells Fargo:
7. In connection with the purchase of the above property, Susan Taylor executed a deed of trust and [d]eed of trust note as the Trustor, naming Land Title Company of Alaska as the Trustee and Residential Mortgage as the Beneficiary.
8. Upon information and belief, the beneficial interest in the above deed of trust was transferred by assignment to Wells Fargo Home Mortgage on or about October 22, 2002.
....
12. Upon learning of [Wells Fargo‘s] nonjudicial foreclosure, the Plaintiff listed the above property for sale through a real estate agent named Charles Stone on or about November 20, 2003....
13. Charles Stone knew at the time of the listing that the seller was in default on her deed of trust note with Wells Fargo and that the property was in a nonjudicial foreclosure.
....
16. Mr. Stone secured an offer on Ms. Taylor‘s property on December 10, 2003 for an amount in excess of the amount necessary to cure the default with Wells Fargo....
Further, Taylor also confirmed at trial under direct examination that she recognized that Wells Fargo held a deed of trust note on the property:
Q Okay. When—when Wells Fargo made you the settlement offer in January where they—what—what did you understand the terms of that offer to be?
A The terms of the offer is if I sign this paper by—and I agree to that paper, then I‘ll have the house by the week‘s—week‘s end. That‘s what I understood.
Q Okay. So you—did you understand that they were going to get the house back from Mr. Rhymer?
A Yeah.
Q And that they were going to return the house to you.
A Return the house to me.
Q And was it going to be subject to the original deed of trust?
A I‘m not sure on the deed of trust, but I know—all I know, they was going to return the house back to me so we can go through with the original sale....
Q All right. And then ...
A ... of the house
Q All right. And then did you understand that Wells Fargo would be paid what they were owed on the house ...
A Yeah. Yeah.
Q ... from the proceeds of the sale?
A Yes.
Because Taylor voluntarily admitted, both in pleadings and during direct examination, the making of an agreement with Wells Fargo, we reject Taylor‘s statute of frauds argument.
C. It Was Not Error To Enter A Directed Verdict On Taylor‘s Fraudulent Inducement Claim.
At the close of Taylor‘s case at trial, Wells Fargo and Routh Crabtree moved for a directed verdict on Taylor‘s fraud claim. The superior court found “that no reasonable Court or jury could find that there was fraudulent intent or damage flowing from justifiable reliance on something that turned out to be a misrepresentation because there was no misrepresentation. There was an offer and acceptance. There was a settlement. The settlement holds.” On this basis the superior court granted the motion for a directed verdict on the issue of fraud.
Taylor argues that it was error for the superior court to grant Wells Fargo and Routh Crabtree‘s motion for a directed verdict on Taylor‘s fraudulent inducement claim because fair-minded, reasonable jurors exercising reasonable judgment could have found that Wells Fargo and Routh Crabtree fraudulently induced Taylor to enter into the settlement agreement. In particular, she contends that “when [Wells Fargo and Routh
In its response, Wells Fargo argues that Taylor has failed to produce any specific evidence that Wells Fargo and Routh Crabtree created a scheme to induce Taylor to enter into the settlement agreement, and it asserts that Routh Crabtree decided to include a confidentiality clause when it drafted the proposed release. Routh Crabtree also asserts that any error made by the superior court in dismissing Taylor‘s fraud claim at the conclusion of her case was harmless, as there is “no reason to think that the trial court‘s decision would have been any different if it were delayed until the trial was concluded.”
The legal test in reviewing a directed verdict “is whether the evidence, and all reasonable inferences which may be drawn from the evidence, viewed in the light most favorable to the non-moving party, permits room for diversity of opinion among reasonable jurors.”19 We have stated that “such motions should be scrutinized under a principle of minimum intrusion into the right to jury trial guaranteed under the Alaska Constitution.... If there is any doubt, questions of fact should be submitted to the jury.”20
We have held that “[t]he elements of fraudulent misrepresentation are (1) misrepresentation of fact or intention, (2) made fraudulently, (3) for the purpose or with the expectation of inducing another to act in reliance; and (4) justifiable reliance by the recipient, (5) causing loss.”21 We have also noted that “[a] representation is fraudulent if the maker knows it is untrue. A statement can be literally true and still be a fraudulent misrepresentation if the maker knows the statement is materially misleading.”22
In support of her fraud claim, Taylor relied on Wells Fargo‘s admission during discovery that “there was never a time when the confidentiality clause was not considered a part of any agreement with [Taylor]....” During trial, Erin Hirzel Roesch, a Wells Fargo employee testified that, prior to the time of the disputed settlement agreement, Wells Fargo had a policy in place that all settlement agreements would contain confidentiality provisions. Moreover, Roesch testified that this was not the first matter in which Routh Crabtree had represented Wells Fargo. Taylor relied on this evidence to assert that Wells Fargo and Routh Crabtree fraudulently induced Taylor to enter into a settlement agreement with which they knew they would not comply. But Roesch also testified that Wells Fargo would have communicated its policy regarding confidentiality to Routh Crabtree only “in a general sense as a requirement,” and that Wells Fargo would not have reviewed Routh Crabtree‘s January 28, 2004 letter to Taylor before it was sent. This testimony was not controverted by Taylor.
We conclude that the superior court did not err in granting the directed verdict on Taylor‘s fraud claim. Although Wells Fargo had a policy regarding confidentiality provisions in place at the time of the disputed settlement agreement, Taylor has failed to produce specific evidence regarding the particular events in question, and she did not controvert Roesch‘s testimony that Wells Fargo would not have reviewed the settlement offer before it was sent. Based on the evidence presented, reasonable jurors could not disagree that Wells Fargo and Routh Crabtree did not make a fraudulent misrepresentation of fact or intention to Taylor. We therefore affirm the superior court‘s grant of a directed verdict.
D. Taylor Waived Any Argument Regarding The Superior Court‘s Award Of Prejudgment Interest To Wells Fargo.
In its February 2011 Amended Final Judgment, the superior court awarded $199,588 to Wells Fargo on the deed of trust note and included prejudgment interest dating from January 15, 2004. Taylor did not object to this award. But after Wells Fargo sought attorney‘s fees under
Taylor argues that it was error for the superior court to award “Wells Fargo both prejudgment interest and rent,” asserting that such error “amounted to a double recovery for Wells Fargo.” Taylor requests that we recognize and correct the superior court‘s errors. Wells Fargo responds that it was entitled to prejudgment interest on the amount owed under the deed of trust note from January 15, 2004, through the date of final judgment, because of its inability to use the funds throughout that time period.
Generally, “a party may not raise an issue for the first time on appeal.”23
Although Taylor could have objected to the superior court‘s entry of prejudgment interest, she failed to dispute the award of interest until the superior court sua sponte raised the issue in its order regarding attorney‘s fees. Moreover, Taylor‘s motion for reconsideration of the superior court‘s Amended Final Judgment recognized the court‘s award of prejudgment interest and alleged that the only error that the superior court committed in regards to interest was that it applied the wrong interest rate. There is no indication in the record that Taylor opposed the award of prejudgment interest until the superior court sua sponte raised the issue in May 2011. Because Taylor failed to object to Wells Fargo‘s proposed entry of prejudgment interest, we conclude she waived her right to object to the calculation of prejudgment interest on appeal.24 But we also note that, due to our reversal of the superior court‘s award of rental damages, any award of prejudgment interest to Wells Fargo in relation to the award of rental damages must be vacated.
E. The Superior Court Did Not Properly Determine Whether Wells Fargo Was The Prevailing Party Under Alaska Civil Rule 68 .
In its May 18, 2011 order, the superior court concluded that Wells Fargo was the prevailing party for two independent reasons: (1) “Taylor‘s home equity recovery, offset by Wells Fargo‘s back-rental recovery, was substantially less than Wells Fargo[‘s] offer of judgment“; and (2) Wells Fargo prevailed on the fraud issue, which was the main issue in the case.
Taylor argues that the superior court abused its discretion when it determined that Wells Fargo was the prevailing party for purposes of
As an initial matter, we note that the superior court did not properly determine whether Wells Fargo was the prevailing party under
Since the ultimate ... award reflects compensation for an injury as of the day of its occurrence, interest to the date the offer is made must be added to the jury award before a valid comparison of the two figures can be made. If ... the offer of
judgment specifically includes costs rather than simply an offer to pay reasonable costs in addition to the fixed amount contained in the offer of judgment then costs accrued up to the date of the offer must also be added to the amount awarded ... if the two figures are to be compared meaningfully.... [C]alculation of this figure is straightforward: The proper mathematical formula for the computation of a judgment under Rule 68 would appear as follows:
J = (V + PI) + (AF + C),
for which
J = Judgment for computation under Rule 68 to determine whether the Offer of Judgment had been exceeded;
V = Jury verdict;
PI = Prejudgment interest accrued prior to the Offer of Judgment;
AF = Attorney‘s fees incurred by the offeree prior to the Offer of Judgment;
C = Costs incurred by the offeree prior to the Offer of Judgment.26
We therefore remand to the superior court for proper calculation under our holding in Farnsworth.
F. The Superior Court Did Not Abuse Its Discretion In Determining That Routh Crabtree Was The Prevailing Party For Purposes Of Awarding Attorney‘s Fees.
In its May 18, 2011 order, the superior court concluded that Routh Crabtree was the prevailing party as to Taylor. The court also found that Taylor‘s fraud claim as against Routh Crabtree was “unreasonable” and therefore awarded enhanced attorney‘s fees under
Taylor argues that she should be considered the prevailing party as to Routh Crabtree. Taylor‘s argument is based on her assertion that Routh Crabtree, as Wells Fargo‘s agent, acted negligently and therefore should be liable for its conduct on behalf of Wells Fargo, its principal. Taylor concludes that “since Wells Fargo is liable to Susan Taylor [with respect to the breached settlement agreement], its agent Routh Crabtree is as well.” Based on her argument that the breach of contract claim was the main issue in the case, Taylor concludes that she should also be awarded attorney‘s fees against Routh Crabtree.
Routh Crabtree responds that, contrary to Taylor‘s assertion, it was not found to be a party to the breached settlement agreement. Citing the RESTATEMENT (SECOND) OF AGENCY § 32827 and Jensen v. Alaska Valuation Serv., Inc., 688 P.2d 161 (Alaska 1984),28 Routh Crabtree contends that “[t]he agent of a competent, disclosed principal does not become a party to a transaction made [on] behalf of his principal.” Thus, Routh Crabtree concludes it was not liable for Wells Fargo‘s breach of the settlement agreement and therefore Taylor could not be a prevailing party as against Routh Crabtree on this issue. Moreover, Routh Crabtree also contends that it is entitled to attorney‘s fees under
Routh Crabtree is correct. While the superior court concluded that Wells Fargo had breached the settlement contract, there is no indication in the record that the superior court found Routh Crabtree also liable for Wells Fargo‘s non-performance, and the superior court‘s final judgment awarded no damages against Routh Crabtree. Moreover, Routh Crabtree is correct that, absent an agreement between it and Taylor, or a finding that it acted negligently toward Taylor, Routh Crabtree was not liable
G. Any Right To Recover Fees For Work Performed On Behalf Of The Dismissed Defendants Has Been Waived.
“Stephen Routh, PC and Richard Crabtree, a Partnership” and “Richard Crabtree, individually” were dismissed by way of a Rule 54(b) judgment in January 2010. Taylor argues that any right to seek attorney‘s fees for work performed on their behalf has been waived. We agree.
Any attorney‘s fees for work on behalf of the dismissed defendants should have been requested within ten days of distribution of the final judgment that dismissed those defendants.30 No timely request was made. Thus, any right to collect those fees has been waived. Upon remand, the superior court shall not award attorney‘s fees for work on behalf of the dismissed defendants.
H. It Was Error To Award Routh Crabtree Attorney‘s Fees For Work Performed in Taylor‘s Bankruptcy Case.
The superior court‘s February 2011 Amended Final Judgment specified that Routh Crabtree “shall recover from and have judgment from the funds in the court registry and against Susan Taylor.” When the court later entered its May 18, 2011 order on attorney‘s fees, it did not modify this language. Thus, Routh Crabtree‘s attorney‘s fees were enforceable against Taylor personally.
Taylor contends that, on account of her discharge in bankruptcy, it was error for the superior court to award Routh Crabtree attorney‘s fees against her personally. Routh Crabtree responds that, because it sought attorney‘s fees only for the period of time after Taylor filed her bankruptcy petition, any award of fees should be enforceable against Taylor personally.
We have held that attorney‘s fees incurred in bankruptcy proceedings must be sought in the bankruptcy court.31 Thus, it was error for the superior court to award fees incurred by Routh Crabtree in responding to Taylor‘s bankruptcy petition. Upon remand, the superior court shall not award attorney‘s fees for work in Taylor‘s bankruptcy case.
I. It Was Error To Award Routh Crabtree Attorney‘s Fees Based On The Time It Spent Seeking Penalties Against Taylor‘s Attorney.
On February 17, 2011, Routh Crabtree moved for
V. CONCLUSION
Because Wells Fargo abandoned its claim for rental damages at trial, we REVERSE the superior court‘s award to Wells Fargo of rental damages for Taylor‘s post-foreclosure occupancy of the property. Accordingly, any award of prejudgment interest to Wells Fargo in relation to the superior court‘s award of rental damages is vacated. Because the superior court did not apply Farnsworth to calculate whether Wells Fargo was a prevailing party under
STOWERS, Justice, not participating.
No. A-10763
Court of Appeals of Alaska.
March 22, 2013.
Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
COATS, Chief Judge.
After being convicted for a felony, Sam G. Williams Jr. was granted parole. The Parole Board stated that Williams was to reside at a community residential center (CRC) for ninety days. While being transported in a CRC van to the residential center, Williams opened the van door, left the van, and left the area. Based on this conduct, Williams was convicted of escape in the second degree, which is defined as removing oneself from