Keven WINDEL and Marlene Windel, Appellants, v. Thomas CARNAHAN, Appellee.
Supreme Court No. S-15801
Supreme Court of Alaska.
September 23, 2016
382 P.3d 971
Finally, we note that even Jones‘s notice of the IRS liens would not seem sufficient to put him on inquiry notice as to one of his claims: that Westbrook violated the UTPA by failing to inform his client in writing that he lacked malpractice insurance. Absent evidence not apparent from the record, the earliest Jones could reasonably have discovered this claim was after he filed the complaint and requested insurance information from Westbrook; until then, having received no written disclaimer, Jones could reasonably assume that Westbrook was insured against malpractice claims.
C. We Decline To Reach The Merits Of Jones‘s Motion For Summary Judgment Against Westbrook.
Jones also appeals the superior court‘s denial of his motion for summary judgment on his claims against Westbrook, in which he sought to establish as a matter of law both Westbrook‘s liability and the amount of his own damages. From the context of the summary judgment order, we conclude that the superior court simply denied Jones‘s motion as moot without considering its substance, having decided the case in Westbrook‘s favor on statute of limitations grounds. We decline to address Jones‘s motion before the superior court has done so, and we express no view on its merits.
V. CONCLUSION
We REVERSE the superior court‘s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
Fabe, Justice, not participating.
Chris D. Gronning, Bankston Gronning O‘Hara, P.C., Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices.
OPINION
MAASSEN, Justice.
I. INTRODUCTION
This case has returned to us for review of the superior court‘s decision of attorney‘s fees issues following our remand in Windel v. Mat-Su Title Insurance Agency, Inc. (Windel I).1 The underlying lawsuit involved the validity of an easement that Thomas Carnahan claimed extended over property belonging to Keven and Marlene Windel, as well as Carnahan‘s responsibility for damage allegedly caused by improvements within that easement. The substantive issues were resolved in Carnahan‘s favor in Windel I, but we remanded the case to the superior court for its reconsideration of attorney‘s fees issues. On remand, the superior court awarded attorney‘s fees to Carnahan under
The Windels again appeal. They argue that the superior court erred in its analysis of Rule 68, failed to decide whether Carnahan‘s offer of judgment was valid, and erred in disregarding objections to specific billing entries in Carnahan‘s claim for fees. We conclude that the superior court did not err in its Rule 68 analysis or in its attorney‘s fees award, and we therefore affirm the judgment of the superior court.
II. FACTS AND PROCEEDINGS
A. First Appeal And Our Decision In Windel I
On their first appeal in 2011, the Windels challenged the superior court‘s rulings that Carnahan‘s claimed easement across their property was valid, that Carnahan was not responsible for the easement‘s continued maintenance, and that Carnahan was entitled to an award of attorney‘s fees under
On appeal the Windels had made alternative arguments about attorney‘s fees, involving both
The Windels’ first Rule 68 argument on appeal was based on a partial settlement agreement reached in early 2009, after the superior court had ruled on summary judgment that Carnahan‘s claimed easement was valid. Under the settlement agreement the parties dismissed their remaining damages claims against each other except with regard to the Windels’ recently raised nuisance abatement claim, which alleged they were damaged when work within the easement exacerbated ponding on their property.8 For the nuisance abatement claim, the parties agreed to hire an independent engineer to evaluate its basis and recommend a resolution; if either party declined to accept the engineer‘s recommendation they would submit the claim to the judge for decision.9 The Windels argued in the first appeal that this partial settlement agreement resolved all claims for attorney‘s fees incurred up to early 2009, when they asserted their nuisance abatement claim.
The Windels’ second Rule 68 argument was that if the partial settlement agreement did not resolve the attorney‘s fees issues, it was error for the superior court to decide that Carnahan beat his offer of judgment.10
The Windels’ Rule 82 arguments addressed the superior court‘s decision that the case could be divided into two segments for purposes of attorney‘s fees: the first “concerning the validity of the easements and associated damages issues, and the second solely regarding the nuisance claim.”11 The superior court decided that Carnahan was the prevailing party in the first segment because he beat his offer of judgment but that neither party prevailed in the second segment.12 The Windels argued that for Rule 82 purposes the case should be considered not as separate segments but as a whole, and that under such an analysis neither party prevailed because one main issue, the validity of the easement, was resolved in Carnahan‘s favor and the other main issue, nuisance, was resolved in the Windels’ favor.13 Alternatively, the Windels maintained that under a bifurcated analysis they should have been considered the prevailing parties because the case‘s first segment settled (and Carnahan was therefore entitled to no fees for it) and they prevailed in the second part, which involved only their nuisance claim.14
In Windel I “we first reject[ed] the Windels’ argument that the 2009 settlement agreement resolved attorney‘s fees for the litigation up to the point of the settlement.”15 Noting that an amendment to the settlement agreement stated that “[t]he final judgment will be subject to motions for costs and attorney‘s fees, and to appeal,”16 we determined that the agreement “clearly reflect[ed] that the parties expected and left open questions of which party would be entitled to recover costs and attorney‘s fees for both the litigation up to the settlement agreement and the anticipated future litigation over the equitable nuisance abatement claim.”17 We therefore concluded that the settlement agreement did not preclude Carnahan from recovering attorney‘s fees for the entire litigation.18
We observed that because of the “open bifurcation question,” we were unable to determine whether Carnahan had beat his offer of judgment.25 If the offer of judgment properly applied to the entire litigation, then the superior court‘s comparison of the offer to the litigation only up to the time of the partial settlement would have been error.26 We also noted that if on remand the superior court considered the entire litigation for purposes of the comparison, it should consider efforts Carnahan made voluntarily in 2007 to abate potential damage to the Windels’ property as well as “the additional court-ordered nuisance remediation” that resulted from the superior court‘s later decision of the Windels’ nuisance abatement claim.27
Finally, we addressed the issue of
We concluded that “the complex competing concerns and interests in determining the prevailing party or parties” warranted remand to the superior court. We asked the superior court to “render sufficient findings
B. Superior Court Proceedings After Remand
On remand, in a lengthy written order issued in August 2014, the superior court interpreted our decision in Windel I to hold that it had erred in considering the case as two segments subject to separate analyses. The superior court instead considered the litigation as a whole and ruled in favor of Carnahan, concluding that under
As we had directed, the superior court took into account the voluntary and court-ordered remediation costs in determining how well Carnahan fared. But the superior court disagreed with our description of one of the relevant facts. In Windel I we stated that Carnahan had voluntarily constructed the 2007 culvert.33 But on remand the superior court found that “[u]pon careful review of the record, it appears that [Carnahan] did not build the 2007 culvert.” Because “the building of the 2007 culvert was not a voluntary remediation effort attributable to [Carnahan],” the superior court determined that Carnahan only had to spend $4,000—the amount of the additional court-ordered remediation.
The superior court then conducted a point-by-point comparison of the offer of judgment and the entire litigation. The court ruled that Carnahan prevailed on the first term of his 2006 offer of judgment, which would have declared that the easement was valid, because the court granted him summary judgment on that issue. The court next determined that Carnahan prevailed on the third term of his offer, which would have provided for judgment in the Windels’ favor for attorney‘s fees and costs, on grounds that the Windels “were not prevailing parties as to any important aspect of the case and were not entitled to seek attorney‘s fees or costs.” With respect to the fourth term of Carna-
han‘s offer, the court found that Carnahan “agreed to withdraw his counterclaims as part of the [partial settlement agreement], just as he had offered in his 2006 offer of judgment,” presumably meaning that the court found this point to be a wash: Carnahan did no better or worse than his offer. And finally, with respect to the nuisance claim that the settlement agreement had reserved for further negotiation or decision, the superior court found that Carnahan prevailed because the $4,000 he had to spend in additional remediation was sufficiently less than the $10,000 he offered to pay the Windels in his offer of judgment.
Finding that Carnahan beat his offer of judgment when considering the litigation in its entirety, the superior court concluded that he was eligible for
In November 2014 the superior court awarded fees pursuant to
C. Issues Presented In This Appeal
The Windels raise these issues on appeal: (1) When the litigation is properly analyzed, did Carnahan do better than his offer of judgment so as to be entitled to an award of attorney‘s fees under
III. STANDARDS OF REVIEW
“We exercise our independent judgment in reviewing the superior court‘s interpretation of
IV. DISCUSSION
A. The Superior Court Did Not Err In Its Award Of Attorney‘s Fees To Carnahan Under Civil Rule 68.
The Windels contend that the superior court erred in its August 2014 award of
dels, to be set off against the $10,000 he offered to pay in the offer of judgment; (2) holding that the cost of the additional court-ordered remediation was only $4,000; and (3) failing to put a monetary value on the interference-with-access claim that Carnahan gave up in the partial settlement. We conclude, however, that the superior court did not err in its
1. The superior court properly considered the 2007 culvert.
We assumed in Windel I that Carnahan had constructed the 2007 culvert.37 Based on that assumption, we noted that in the past we have “rejected the argument that voluntary payments and partial settlements must be ignored when comparing a final judgment to a previous offer of judgment“; we therefore held that the cost of constructing the 2007 culvert should factor into the superior court‘s analysis on remand as an offset to Carnahan‘s offer of judgment.38 The Windels argue that the superior court on remand failed to take the 2007 remediation into account, but the record shows otherwise. The court found as a factual matter that Carnahan did not build the 2007 culvert and therefore the construction “was not a voluntary remediation effort attributable to [Carnahan].”39 The superior court‘s finding that Carnahan did not after all construct the 2007 culvert finds support in the evidence and is not clearly erroneous.40
Penalizing an offeror and rewarding an offeree for payments made by a third party could discourage settlements, undercutting the purpose of
2. The superior court properly took account of the additional court-ordered remediation.
The Windels next argue that the superior court erred in its Rule 68 analysis when it found that Carnahan “paid approximately $4,000 for the additional remediation efforts ordered by [the superior] court: the building of an additional culvert, and the construction of swales or t-ditches for both of the culverts.” The Windels argue that because the additional court-ordered remediation had not been completed as of the filing of this appeal, we should remand the issue again so the superior court can determine the actual cost of the additional remediation once it is completed—and only then decide whether the 2006 offer of judgment has been bettered and which party prevailed.44 We decline to do so.
In January 2010, following the evidentiary hearing on the nuisance abatement issue, the superior court ordered Carnahan to install an additional culvert and swales or t-ditches by August of that year. But in later email correspondence through their attorney, the Windels made clear that they wanted Carnahan to delay work on the remediation while they appealed the underlying issue of the easement‘s validity. The parties agreed to put off the work pending the outcome of Windel I.45 And as Carnahan notes, our decision in Windel I came after the 2013 construction season, so the next opportunity for installation of the second culvert and t-ditches was in 2014. Carnahan got a new bid that year in the amount of $4,100—an increase of just $100 from the 2010 estimate.
According to the Windels, the cost today would be significantly higher, because new
Carnahan counters that the eventual cost of the additional remediation is irrelevant and that the court was correct to use the unrebutted estimate he submitted in 2010, when he first moved for attorney‘s fees. He argues that “[d]etermining whether [he] ‘beat’ his offer of judgment requires a determination of what the remediation cost [was] at the time of the final judgment, i.e., during the 2010 construction season.” (Emphasis in original.) He maintains that the fact that the additional remediation had not been completed by the time final judgment was entered “does not alter the analysis of whether Carnahan had beaten his offer of judgment at the end of the litigation.”
Carnahan‘s analysis is persuasive. An attorney‘s fees award at the end of a case should not be put on indefinite hold until the parties have accomplished whatever it is that the superior court has ordered them to do. The
3. The superior court did not err by failing to take into consideration the claims the Windels and Carnahan gave up in the partial settlement agreement.
The Windels’ third claim of error in the superior court‘s decision to apply
The logic of this argument is too attenuated for us to accept. It assumes not only that Carnahan‘s counterclaim had merit but also that it had at least the monetary value Carnahan assigned to it in his amended answer. But on this appeal, as in the superior court, the Windels do not explain why the claim should be given the value Carnahan alleged it had. And because Carnahan agreed to drop the claim, neither its merit nor its value was ever determined. The superior court did not err by rejecting this argument.
Because we reject the Windels’ various challenges to the superior court‘s analysis of
B. The Windels Have Waived The Argument That The Offer Of Judgment Was Invalid Because It Was Made Jointly And Unapportioned.
The Windels argue that the superior court erred by failing to address the validity of Carnahan‘s offer of judgment, an issue we touched on in a footnote in Windel I. We expressly left it to the superior court to address in the first instance whether “Carnahan‘s offer of judgment is void because it was made to [Keven and Marlene Windel] jointly and un-apportioned” should the issue be raised on remand.47
The Windels barely raised this argument on remand and now have briefed it inadequately on appeal; like the superior court, we therefore decline to address it. As they did in the superior court, the Windels argue on appeal that the court is “require[d] ... to address the issue of whether or not an offer made by a single offeror to multiple offerees is void,” cite a single case without explanation,48 and conclude that the issue “should be resolved in favor of the Windels by voiding the offer of judgment.” We have held that “[i]ssues not properly raised or briefed at trial are not properly before this court on appeal”49 and that “where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal.”50 Although the Windels include a slightly more substantial argument on the issue in their reply brief, waiver due to inadequate briefing “is not correctable by arguing the issue in a reply brief.”51 We therefore conclude that the validity of Carnahan‘s offer of judgment is not properly before us for decision.
C. The Windels’ Argument That The Offer of Judgment Was Voided By The Later Settlement Is Barred By The Law Of The Case Doctrine.
The Windels also challenge the superior court‘s failure to address another issue we mentioned in a footnote in Windel I. Because the issue was not before us in that appeal, we expressed no opinion about “whether an offeror may tender an offer of judgment and then later assert additional claims that materially change the litigation so that it might be unfair to enforce the original offer of judgment.”52 The issue is still not before us, and therefore we again express no opinion on it.
The argument the Windels make that purports to address this footnoted issue actually addresses something different: where the litigation is changed not by the assertion of new claims but by partial settlement of the original claims. And this argu-
The law of the case doctrine, which is “‘akin to the doctrine of res judicata,’ generally ‘prohibits the reconsideration of issues which have been adjudicated in a previous appeal in the same case.‘”54 Because we rejected in Windel I the argument that the partial settlement agreement rendered the offer of judgment void, we do not consider it again here.
D. The Windels Waived Their Challenges To Specific Billing Entries.
Finally, the Windels assert that Carnahan should not have been awarded attorney‘s fees for certain services performed between 2005 and 2010 because they were unrelated to this litigation. The first time the Windels raised these objections was in October 2014, when they filed their response to the superior court‘s order on remand and Carnahan‘s recalculated fees request. When the court made its award in November 2014, it noted in a handwritten addendum that “[p]laintiffs’ objections to other minor fees were expressly waived on appeal and by plaintiffs’ failure timely to object prior to the court awarding fees to Carnahan in 2010.”
Carnahan first submitted the relevant billing records in support of his 2010 fees request; the Windels raised no objection at that time. The superior court evaluated the parties’ submissions and in September 2010 awarded Carnahan $49,902.60 in Rule 82 attorney‘s fees. The Windels did not raise any objections to specific time entries in their first appeal; in fact, we explicitly noted in Windel I that the Windels were “not contesting the amount of attorney‘s fees awarded and therefore no factual issues remain[ed] to be decided.”55 Because the Windels had a full opportunity to litigate objections to specific billing entries at the time of the 2010 fees award but failed to do so, we see no clear error in the superior court‘s determination that those objections are waived.
V. CONCLUSION
The superior court‘s award of attorney‘s fees pursuant to
Fabe, Justice, not participating.