Garrison v. Dixon, No. S-8916

CourtSupreme Court of Alaska (US)
Citation19 P.3d 1229
Docket Number No. S-8916, No. S-9075., No. S-8975
PartiesLinda S. and David A. GARRISON, and All Alaska Realestate Investments, Inc., Appellants and Cross-Appellees, v. Dixie DIXON, Mark Korting and Re/Max Properties, Appellees and Cross-Appellants.
Decision Date30 March 2001

Julia B. Bockmon, Robertson, Monagle & Eastaugh, Anchorage, for Appellants/Cross-Appellees.

Jon T. Givens, Bankston & McCollum, Anchorage, for Appellees/Cross-Appellants.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

Advertising placed by real estate agent Dixie Dixon led Linda and David Garrison and their corporation to file suit against Dixon and her employer, Re/Max.1 [Exc. 1-24] Dixon and Re/Max ultimately prevailed in all respects, and the superior court awarded full attorney's fees and costs to them because it found that the Garrisons and their firm prosecuted the case in bad faith and to gain an advantage over a business competitor. Because we conclude that certain of the Garrisons' claims are moot and the superior court did not abuse its discretion with regard to the others, we affirm the decisions of the superior court.

II. FACTS AND PROCEEDINGS

Dixie Dixon, a Re/Max real estate agent in Anchorage, ran two advertisements in 1995 in which she held herself out as a "buyer's agent." David and Linda Garrison, shareholders and officers of All Alaska Realestate Investments (AARI), a business competitor of Re/Max, took issue with those ads.

AARI was the only exclusive real estate buyer's agency in Alaska. Re/Max, by contrast, represented both buyers and sellers of real estate in its real estate brokerage business. Re/Max was the seller's agent for approximately twenty-two percent of the real estate listed in Anchorage in 1995. However, since Re/Max agents like Dixon also routinely represented real estate buyers, the two corporations were business competitors.

Shortly after Dixon ran the October 1995 ad that the Garrisons thought was improper, Linda Garrison sent a memorandum to Dixon claiming that Dixon's ads were misleading and in violation of the ethical standards of a professional real estate agent. Several days later the Garrisons' attorney sent a follow-up letter to Dixon advising her that her ad might be a violation of the Alaska Unfair Trade Practices and Consumer Protection Act.2 Specifically, the Garrisons objected to Dixon's ads referring to herself as a "buyer's agent" because they contended she could not be a buyer's agent in transactions in which Re/Max also represented the seller. The Garrisons noted that when they contacted other real estate agents with the same concern, those agents had changed their ads as the Garrisons requested or placed small disclaimers regarding in-house listings in the ads. Dixon did not.

Dixon changed her advertisements, but not in the way the Garrisons wanted. Her next ad, entitled "Beware of Buyers Agency," warned readers of the "difference between a buyers agent and a buyers agency," and criticized the latter. The following ad run by Dixon was titled "Be Aware of Buyers Agency" and again contained language favorably comparing buyer's agents to buyer's agencies.

These ads prompted the Garrisons to file suit against Dixon, Re/Max, and several other Re/Max agents and supervisors under the Alaska Unfair Trade Practices and Consumer Protection Act.3

After more than two and one-half years of pretrial motion practice, the Garrisons moved to dismiss with prejudice their claims as individuals because AARI was the real party in interest. In their motion to dismiss, the Garrisons admitted that they "were never real parties in interest." The trial court dismissed the Garrisons' individual claims, and then granted Dixon's motion for a Civil Rule 54(b) entry of final judgment against the Garrisons. The court awarded attorney's fees against the Garrisons in the amount of $17,625.00—fifty percent of the actual attorney's fees incurred by Dixon to that point.

About three months later, the court granted summary judgment to Dixon and against AARI on the remaining issues in the case. Then, finding that the case was litigated in bad faith for the purpose of harassing a business competitor, the court awarded full, actual attorney's fees against AARI.

The Garrisons and AARI now appeal.

III. STANDARDS OF REVIEW

We review for abuse of discretion both a grant of final judgment under Rule 54(b)4 and an award of attorney's fees and costs.5 We will find an abuse of discretion upon a showing that an award is "arbitrary, capricious, or manifestly unreasonable, or that it stemmed from an improper motive."6 We review factual findings under the clearly erroneous standard.7

IV. DISCUSSION
A. Whether the Superior Court Erred in Entering Civil Rule 54(b) Final Judgment Against the Garrisons Is Moot.

The Garrisons argue that the superior court abused its discretion by entering final judgment against them under Civil Rule 54(b)8 about three months before the final resolution of the claims brought by AARI. In particular, the Garrisons note that the trial court did not follow Rule 54(b)'s explicit requirement that it make "an express determination that there is no just reason for delay" before it directed entry of final judgment and awarded attorney's fees.

The Garrisons' argument is moot because the superior court entered a true final judgment in the case long before the Garrisons filed their brief in this court. A claim is moot "if the party bringing the action would not be entitled to any relief even if [it] prevail[s]."9 Even if we were to agree that the form of the certification lacked the required factual finding, remanding for a correction of the order would be pointless because the superior court has already ruled on all of the issues and entered what is indisputably a final judgment.

In addition, the Garrisons have not even argued, nor do we perceive, that they have been prejudiced by this possible error. The superior court entered the true final judgment only about three months after the Rule 54(b) judgment against the Garrisons and, as noted, long before they filed their appellate brief. No issue bearing on the underlying merits of the original controversy is before us on appeal; the Garrisons voluntarily sought and obtained dismissal of their individual claims with prejudice, and no appeal has been taken from the superior court's grant of summary judgment on the claims brought by AARI.

Given the lack of substantive issues on appeal, the only consequence of a possibly erroneous Rule 54(b) final judgment is a premature appeal. But even this is not prejudicial because "if a notice of appeal is filed after the announcement of a decision but before the date shown in the clerk's certificate of distribution on the judgment, the notice of appeal shall be treated as filed on the date shown in the clerk's certificate of distribution on the judgment."10 A premature appeal "should be held in abeyance until it is timely, or it should be dismissed with notice that it may be refiled when it becomes timely."11 Because the superior court entered the true final judgment just three months after it entered the Rule 54(b) final judgment, the Garrisons' appeal was completely unaffected.

Accordingly, even if the trial court's entry of judgment pursuant to Rule 54(b) was procedurally flawed, there is no harm to be undone. The matter is moot, and we decline to reach it for that reason.

B. The Superior Court Did Not Err in Awarding Full Attorney's Fees.

The trial court awarded attorney's fees against the Garrisons, when their individual claims were dismissed, and against AARI, when its case was finally dismissed. Although we conclude that the theory advanced by Dixon for the first award, a theory apparently adopted by the court, was flawed, we nonetheless affirm because any error was harmless. We also conclude that the superior court did not err in awarding fees against AARI.

1. Although Civil Rule 82 does not allow for awards of "several" attorney's fees against multiple non-prevailing parties, as Dixon suggested, the award itself was not an abuse of discretion.

When the Garrisons successfully moved for dismissal of their individual claims after two and one-half years of litigation, Dixon sought an award of enhanced attorney's fees based on several factors: the complexity of the case, the fact that it had been prepared for trial, and the claim that the Garrisons' case was not reasonable and was brought in bad faith. Dixon also reasoned that because two of the plaintiffs were severally liable for twenty percent of her fees each, an award of fifty percent of the fees incurred to that point was only a slight enhancement. Dixon asked for $17,625—half of the total fees she had incurred. By signing Dixon's proposed order, which cross-referenced Dixon's memorandum supporting the Motion for Attorney's Fees, the court adopted all of the arguments put forth by Dixon. But some of those arguments are flawed.

At one point in the memorandum, Dixon argued:

Pursuant to Rule 82(b)(2), defendants would be entitled to an award of 20 percent of actual attorneys' fees necessarily incurred against David Garrison and 20 percent of its fees from Linda Garrison. Thus, under Rule 82(b)(2), defendants would be entitled to a, several, total judgment of 40 percent of its fees.

This argument is wrong. The text of Rule 82(b)(2) makes no mention of a "several" liability scheme that is dependent upon the number of non-prevailing parties.12 Instead, a Rule 82(b)(2) award is based on the amount of the prevailing party's (or parties') actual reasonable attorney's fees.13 Under the rule, the number of non-prevailing parties is inconsequential. Yet under Dixon's approach, a defendant who before trial defeated a claim brought by five plaintiffs would be entitled to recover 100 percent of its attorney's fees under Rule 82(b)(2). Accordingly, we reject this...

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2 cases
  • Sec. Alarm Fin. Enters., L.P. v. Alder Holdings, LLC
    • United States
    • U.S. District Court — District of Alaska
    • February 7, 2017
    ...1983) ("[E]vidence of specific harm suffered must be adduced if the statement is not defamatory on its face."); Garrison v. Dixon, 19 P.3d 1229, 1235 n.22 (Alaska 2001) (affirming award of full attorney's fees to UTPA defendant who prevailed on summary judgment because "plaintiffs could sho......
  • Keating v. Nordstrom, Inc.
    • United States
    • U.S. District Court — District of Alaska
    • April 10, 2020
    ...L.P. v. Alder Holdings, LLC, No. 3:13-cv-00102-SLG, 2017 WL 506237, at *4 (D. Alaska, Feb. 7, 2017)); see also Garrison v. Dixon, 19 P.3d 1229, 1235 n.22 (Alaska 2001) ("[T]he claims ultimately failed on summary judgment because plaintiffs could show no monetary losses, as required for a pr......

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