Childs v. Tulin

799 P.2d 1338, 1990 Alas. LEXIS 119, 1990 WL 172663

• Court: Alaska Supreme Court
• Decided: November 2, 1990
• Docket: S-3408, S-3427
• Status: Published

Opinions

OPINION

MOORE, Justice.

The issue in this case is whether the superior court properly awarded attorney’s fees under Appellate Rule 508(e) and (g) to Charles and Helen Tulin who were named individually as employer-appellees in Donald Childs’ appeal from an adverse decision of the Alaska Workers’ Compensation Board (“Board”). Such an award may be made only if the claimant’s position is “frivolous, unreasonable, or taken in bad faith.” Appellate Rule 508(g). The superior court found that Childs’ appeal as to the Tulins was unreasonable because Childs abandoned any claim against them by failing to specify any basis of liability in his brief before the superior court. We agree.

I.

Donald Childs is an experienced bush pilot and guide.¹ In June 1986, Childs was told of a possible opening of a pilot position with the Kalgin Island Lodge (“Lodge”). Childs contacted Charles Tulin, who interviews and recommends pilots for the Lodge, the same day. While Tulin was not the owner of the business which operated the Lodge, he owned certain lodge facilities and was the co-owner of the real property, improvements and a number of airplanes leased to the Lodge. On July 11, 1986, Childs either volunteered or was asked by Tulin to go to a sporting goods store to pick up two fishing rods. On the way to the sporting goods store, while driving Tu-lin’s car, Childs was involved in an auto accident and was injured.

Childs filed a workers’ compensation claim against the Lodge as well as Charles Tulin Law Office and Charles and Helen Tulin in their individual capacities. After depositions and a hearing, the Board denied Childs’ claim on December 26, 1986. The Board found that Childs was not an employee of any of the defendants.

Childs appealed the Board’s decision as to all the defendants to the superior court. After extensive briefing, Childs indicated at oral argument that he wished to pursue the appeal of the Board’s decision only as to the Lodge. The superior court affirmed the Board’s decision.

Charles and Helen Tulin moved for actual attorney’s fees of $7,116 pursuant to Appellate Rule 508(e) and (g) on the ground that Childs’ appeal as to them was frivolous or unreasonable.² The superior court agreed and awarded the Tulins $4,000 in attorney’s fees. Childs filed a motion for reconsideration of the order awarding fees. The superior court found that an award of fees was appropriate in this case, but that the effort expended was unreasonable and reduced the award to $2,500. Childs appeals the superior court’s fee award.³ The Tulins cross-appeal the reduction of the fee award.

II.

An, award of attorney's fees is subject to the broad discretion of the trial court and will not be overturned unless there is an abuse of that discretion. Wien Air Alaska v. Arant, 592 P.2d 352, 366 (Alaska 1979). “[The] superior court abuses its discretion in granting attorney’s fees to a successful employer-defendant under Appellate Rule 508(e), unless the employee ‘claimant’s appeal was frivolous, unreasonable, or brought in bad faith.’ ” Crawford and Co. v. Vienna, 744 P.2d 1175, 1177 (Alaska 1987) (quoting Whaley v. Alaska Workers’ Compensation Bd., 648 P.2d 955, 960 (Alaska 1982)).

The Tulins maintain that Childs’ appeal as to them was frivolous because Childs never even alleged that he intended to work for the Tulins individually. The Tu-lins cite Childs’ deposition testimony where he states that all of his contacts with Charles Tulin were concerned with his employment with the Lodge.

We do not find Childs’ statements dispos-itive of the issue whether the Tulins may have employed Childs. Childs’ belief that he intended to work only for the Lodge does not preclude the possibility that an implied contract of employment may have been formed between Childs and Tulin. As we said in the first appeal in this case, “[a]n implied employment contract is formed by a relation resulting from ‘the manifestation of consent by one party to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.’ ” Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska 1989) (citations omitted). The record reveals sufficient evidence from which the Board may have found that an implied contract of employment existed between Childs and Tulin even if there was no express contract. Childs performed a number of errands at the Tulins’ request. 779 P.2d at 312. By utilizing his services and directing Childs’ work, Tulin may have manifested his consent that Childs shall work for him. By complying with Tulin’s instructions, Childs may have manifested his consent to act for Tulin.

In addition, even if no implied contract was formed between Childs and Tulin, Childs has an alternative claim that Tulin breached his implied warranty of his authority to act for the Lodge by offering to employ him without the authority to do so. At the hearing before the Board, the Lodge contended that Tulin did not have the authority to hire Childs. At the same time, Childs testified that Tulin offered to employ him and that he accepted the offer. Tulin does not deny that he is an agent for the Lodge. If Tulin extended an offer of employment to Childs with the Lodge which Childs accepted, but Tulin exceeded his authority as an agent of the Lodge in making such an offer, Tulin would be liable for damages caused to Childs. See Pullen v. Dale, 9 Alaska 643, 109 F.2d 538 (9th Cir.1940); 3 Am.Jur.2d Agency § 303 (1986); Restatement (Second) of Agency § 329 (1958). Childs could claim that these damages may include the loss of workers’ compensation benefits.

Childs thus had a non-frivolous claim against the Tulins for payment of workers’ compensation benefits. His appeal of the superior court’s decision was not frivolous. However, this does not mean that the superior court’s award of attorney’s fees was an abuse of discretion. Although Childs had a potential non-frivolous claim against the Tulins, he failed to argue any such claim in his opening brief before the superior court.⁴ We have held that “[fjailure to argue a point [on appeal] constitutes an abandonment of it.” State v. O’Neill Investigations, 609 P.2d 520, 528 (Alaska 1980). By failing to raise any claim against the Tulins in his brief, Childs abandoned whatever claim he may have had against them.⁵ Once an appellant has abandoned all points on appeal as to a particular party, it is unreasonable for him to pursue the appeal against that party. Since Childs abandoned his claim against the Tulins by failing to brief it, it was unreasonable for him to fail to dismiss them from the appeal.

This is precisely the basis on which the superior court ruled that Childs’ appeal against the Tulins was unreasonable:

If a lawyer decides to abandon or not pursue its claim against a party in the action, a lawyer has an obligation to dismiss the claim against the party. In this case, counsel for Childs did not specify in its brief a specific legal theory as to the basis of appellant’s employment with Charles Tulin Law Offices or Charles Tulin individually, but rather presented general arguments to the court as to why the Board’s decision was in error .... The court finds that appeal against Tulin to be unreasonable and devoid of merit; this finding is supported by Childs’ decision to abandon the appeal against Tulin.

We agree. By failing to dismiss the appeal as to the Tulins before filing his opening brief, Childs forced the Tulins to incur substantial and unnecessary costs in defending themselves in the litigation. The Tulins had to wait until oral argument, eight months after Childs filed his brief, before Childs indicated that he did not intend to pursue the appeal against them. We hold that it was unreasonable for Childs to maintain the appeal as to the Tulins once he had abandoned any claims against them, and therefore that the superior court’s award of fees to the Tulins was not an abuse of discretion.

III.

On cross-appeal, the Tulins allege that the superior court abused its discretion in reducing the original fee award following Childs’ motion to reconsider by (1) not requesting a reply from the Tulins to Childs’ motion for reconsideration and (2) by reducing the fee award because the Tulins’ brief was excessive. We find that both of the superior court’s actions were within its discretion.

Appellate Rule 506(b) provides that “[n]o response to a petition for rehearing shall be received unless requested by the court.” Since Appellate Rule 506 controls rehearings by the superior court acting as an intermediate court of appeals, it was within the court’s discretion not to request a reply to Childs’ “Motion for Reconsideration”.

The superior court also did not abuse its discretion in reducing the fee award. Appellate Rule 508(e) authorizes the appellate court to determine the amount of fees awarded.⁶ It was within the superior court’s discretion to reduce the fee award based on finding that the “massive expenditure of effort” in producing the appellees’ brief was not required. By so finding, the superior court determined that the reasonable fees for such an appeal were $2,500 and awarded that amount. '

The decision of the superior court is AFFIRMED as modified.

COMPTON, J., concurring.

RABINO WITZ, J., with whom MATTHEWS, C.J., joins, dissenting.

1 . For a complete recitation of facts, see Childs v. Kalgin Island Lodge, 779 P.2d 310, 311-12 (Alaska 1989).

2 . Appellate Rule 508 provides in pertinent part:

(e) Attorney’s Fees. Attorney’s fees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney’s fees may be awarded to the appellee or cross-ap-pellee.

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(g) Exemptions. Workers’ Compensation Appeals. In an administrative appeal from the Alaska Workers’ Compensation Board or in an appeal from a denial of a claim of benefits under the Employment Security Act, an award of costs or attorney’s fees shall not be made against the claimant in either the supreme court or the superior court unless the court finds that the claimant’s position was frivolous, unreasonable, or taken in bad faith.

3 .Childs also appealed the Board's finding that the Lodge was not his employer at the time of the accident. We held that in deciding that the Lodge was not Childs’ employer, the court did not apply the correct legal analysis. Childs v. Kalgin Island Lodge, 779 P.2d 310, 313-15 (Alaska 1989). We remanded the case for further proceedings. 779 P.2d at 315.

4 . At no point in his opening brief does Childs allege that Tulin employed him. Childs’ first argument is that had the Board made adequate findings, "it may possibly appear that Charles Tulin in his capacity as practicing attorney at law and owner of the facilities did not act in own name and for himself but with apparent agency for the corporation." Childs’ second argument is that regardless of the adequacy of the Board's findings, "Childs was an employee at the time of his accident ... for reason of manifold tasks which Childs undertook under the direction or supervision or with the direct encouragement of Charles Tulin on behalf of Kalgin."

5 . Childs’ response to Tulin’s argument that he did not employ Childs in his reply brief does not cure his waiver of that point in his opening brief. Where appellant argues points on appeal in its reply brief but not in its opening brief, "these points are waived." Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982).

6 . See supra note 2.