Cooper v. Carlson
| Decision Date | 16 July 1973 |
| Docket Number | No. 1769,1769 |
| Parties | Steve E. B. COOPER, d/b/a Cooper Excavating & Construction Company, Appellant, v. Charles L. CARLSON and Margaret J. Carlson, Appellee. |
| Court | Alaska Supreme Court |
Before RABINOWITZ, C. J., CONNOR, ERWIN, FITZGERALD and BOOCHEVER, JJ.
This case presents another facet of the often perplexing problems involving the award of costs and attorney's fees under applicable Alaska law. 1 Cooper contends that he was the 'prevailing party' within the meaning of this court's interpretation of AS 09.60.010 and Alaska Civil Rules 54(d) and 82(a), and that it was an abuse of discretion for the trial judge to refuse to award costs and attorney's fees. 2
The suit arose out of a dispute over the price to be paid for gravel taken from the Carlson's property by the Cooper Excavating and Construction Company. The gravel was used to perform resurfacing and upgrading of the Remington Road, near Delta Junction, Alaska, pursuant to a contract with the State of Alaska.
The Carlsons maintained that in addition to the $1,000 lease fee specified in the written lease, Cooper had orally agreed to pay 15cents per cubic yard for the gravel removed. The evidence established that 94,850 cubic yards of gravel were removed from the Carlsons' property.
In addition to suing for this alleged contract price for the gravel, the Carlsons maintained that when they had tried to close the gate to their property (after Cooper had refused to give an accounting or payment for gravel removed) and had placed their cattle truck across the roadway to the property, that Cooper had secured the assistance of two state troopers who interceded on his behalf without any legal process or authority. They also maintained that Cooper had used and earth moving machine to move the cattle truck, and then immobilized it by piling gravel around it. For these actions, they asked for $25,000 in punitive damages.
By way of answer, Cooper maintained that the written lease was the full and complete agreement with respect to the gravel removed from the property. Thus, he maintained that $1,000 was all that was due, and that it had been paid. He denied the claims of abuse of legal process (use of state troopers) and interference with private property (immobilizing the cattle truck). In addition, in an amended answer filed after a pretrial conference, Cooper filed a counterclaim for interference with the Company's leasehold interests.
While the trial judge did find that the Carlsons were the legal owners of the property and that the lease agreement was ambiguous, he also found that the written lease was the full and complete agreement with respect to the taking of gravel. Since the $1,000 was paid, he held that Cooper was in proper possession of the property during the incidents at issue, and that there was no duty to pay 15cents per cubic yard for the gravel removed or to give an accounting.
The judge found that Carlson had in fact blocked Cooper's access to the property, and that Cooper had secured the assistance of two state troopers and had moved the cattle truck. He found that Cooper had a right to do this, however, since the blockage was a 'wrongful interference with defendant Cooper's lease interest in said property'.
With respect to the counterclaim, the court found that there was in fact an interference by Carlson with a valid lease-hold interest of Cooper, but that no damages due to this interference were shown.
In conformity with these findings of fact and conclusions of law, the trial judge held that the Carlsons were to take nothing by way of Counts I and II of their complaint, and that Cooper was to take nothing by way of his counterclaim. Cooper moved for an order awarding costs and attorney's fees, and an entry of judgment awarding nominal damages on the counterclaim. This motion was denied.
The sole question presented on this appeal is whether the trial court erred in failing to award costs and attorney's fees to Cooper. We thus do not reach the question of whether the court should have awarded nominal damages on the counterclaim.
The trial court did not set forth its reasons for refusing to award costs and attorney's fees. It is conceivable that the court concluded, as is argued by the Carlsons, that Cooper was not the prevailing party due to his failure to secure an award of damages on his counterclaim for interference with his leasehold rights. On the other hand, the court may have considered that Cooper was the prevailing party, but that in the exercise of discretion an award of costs and attorney's fees should be denied.
When the central issues of the case and the trial court's resolution of them are considered, it is clear that Cooper was the prevailing party. Cooper prevailed on the central issue of the lease agreement constituting the sole and complete agreement between the parties with respect to removing the gravel. Thus, it was held that he had paid the full price due under the contract, was properly in control of the property and did not have to give an accounting. He prevailed on the issue of thevalidity of his actions in securing the assistance of state troopers and in moving the cattle truck. Cooper also prevailed on the issue of whether there was an improper interference with his leasehold interest by Carlson in blocking access to the property. Thus, the only question Cooper failed to prevail on was the argument that the judgment should be entered for nominal damages where there is an interference with a leasehold interest and no evidence of damages.
Even though Cooper did not prevail on that one subsidiary issue, it is clear from this court's previous interpretations of the Civil Rules that a party may be the 'prevailing party' if he is successful with regard to the 'main issues in the action'. The leading case in this regard is Buza v. Columbia Lumber Co., 395 P.2d 511 (Alaska 1964). In the lower court, Columbia had sued Buza for both compensatory and punitive damages for conversion of logs and trespass. Buza had counterclaimed for the value of the logs. Columbia prevailed on its claim for conversion but did not receive any additional damages. The counterclaim of Buza was denied. With respect to the contention that the award of costs to Columbia was error since it did not recover the full amount of relief prayed for, this court stated at page 514:
It is true that Columbia did not recover the full measure of the relief it had prayed for but it was nonetheless the prevailing party and the only prevailing party. Judgment was entered for Columbia, declaring it to be owner 'of the personal property covered by this law suit' and ordering the appellants' counterclaim dismissed with prejudice.
The dictionary states that 'prevailing applies esp. to that which is predominant,' and it has been established by case law that the prevailing party to a suit is the one who successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of the original contention. He is the one in whose favor the decision or verdict is rendered and the judgment entered. (Footnotes omitted.)
The most recent case to follow Buza v. Columbia Lumber Co. is the 1972 case of DeWitt v. Liberty Leasing Co., 499 P.2d 599 (Alaska 1972). In the court below, DeWitt had received a judgment on a construction contract claim of $17,736.11 and Liberty Leasing had prevailed on a counterclaim to the amount of $93.64. In reversing the trial court's determination that neither party was entitled to costs or attorney's fees, Justice Erwin stated for the majority: 3
In Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska 1964), this court discussed the meaning of the term 'prevailing party' . . .. Applying this standard to the case at bar, appellant clearly prevailed in the litigation below . . .. As we stated in Nordin Const. Co. v. City of Nome (sic), 489 P.2d 455, 474 (Alaska 1971), '(a) simple balancing of the recovery in favor of each party makes it clear that (appellant) was the prevailing party in this law suit. . . .' Moreover, appellant prevailed on most of the issues disputed at trial. (Footnotes omitted.)
The Carlsons contend that the counterclaim could have involved damages far in excess of those of the plaintiff's claim. Since the court found that no damages had been proved under the counterclaim, they argue that they should be regarded as the prevailing party or, in the alternative, that neither party prevailed.
In Owen Jones & Sons, Inc. v. C. R. Lewis Co., 497 P.2d 312 (Alaska 1972), we held that a litigant who is successful in defeating a claim of great potential liability may be the prevailing party even though the other side is successful in receiving an affirmative recovery. In that case Lewis successfully defended against a contract claim of $119,663.12. Recovery against Lewis was permitted in quantum meruit for material salvaged in the amount of $7,363.12, but it was clear that Lewis had prevailed on the principal issue.
In the instant case, Cooper prevailed on every liability issue, and was unsuccessful only in his argument that he was entitled to nominal damages on his counterclaim. As indicated above, we thus conclude that he was the prevailing party.
As the prevailing party he was entitled to an award of costs. AS 09.60.010 specifies that 'the supreme court shall determine by rule or order what costs, if any, including attorney fees shall be allowed the prevailing party. . . .' Alaska Civil Rule 54(d) specifies that '(e)xcept when express provision therefor is made either in a statute of the state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.' (Emphasis added.)
In DeWitt we stated...
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