from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3 AN-15-05301 CI Eric A.
Jeffrey J. Jarvi, Anchorage, for Appellant.
C. Severin, Assistant Municipal Attorney, and Rebecca A.
Windt-Pearson, Municipal Attorney, Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Graham prevailed in a civil suit against the Municipality of
Anchorage for breach of contract and breach of the implied
covenant of good faith and fair dealing. He was awarded
partial attorney's fees under Alaska Civil Rule 82(b)(1).
Graham argues that he should have instead been awarded full
fees and costs under his union's collective bargaining
agreement with the Municipality. Because the fee recovery
provision in the agreement is not applicable to Graham's
case, we affirm the superior court's order denying
Graham's motion for full attorney's fees and costs.
FACTS AND PROCEEDINGS
Graham is employed as a firefighter/EMT by the Anchorage Fire
Department (AFD). He has worked for AFD since 1995 and has
held his current position since 2003. After taking AFD's
engineer promotional exam in 2010, Graham wrote a letter to
the AFD fire chief criticizing the subjective nature of the
test. In 2012 Graham failed the interview portion of the
engineer exam. He subsequently filed a complaint with the
Alaska State Commission for Human Rights, alleging
discrimination on the basis of his race (Korean) and age
(48). He also petitioned his union, the International
Association of Firefighters Local 1264 (the Union), to file a
grievance against the Municipality of Anchorage on his
behalf, under the Union's Collective Bargaining Agreement
(CBA) with the Municipality.
Commission investigated Graham's discrimination claim but
officially closed his case in September 2013, as the
investigation did not find substantial evidence to support
his allegations. Similarly, the Union investigated "the
facts and circumstances surrounding [Graham's]
performance on the engineer test," but it declined to
file a grievance against the Municipality to challenge
Graham's exam results. In June 2012 the Union's
counsel informed Graham: "You have exhausted your
contractual remedies under Article VII of the [CBA]. You are
free, at your own cost, to retain counsel and seek any other
remedies to which you believe you may be entitled."
February 2015 Graham filed suit against the Municipality,
alleging breach of contract, breach of the implied covenant
of good faith and fair dealing, and discrimination, among
other legal theories. The case proceeded to trial, and in
August 2017 a jury returned a verdict that the Municipality
caused harm to Graham "by violating the express terms of
the [CBA]" and "by violating the implied promise of
good faith and fair dealing in the [CBA]." The jury also
found that Graham's complaints about how the 2012
engineer exam was structured "were a motivating factor
in him failing the oral board." Graham was awarded $667,
000 in damages for lost wages and benefits, increased income
taxes, and past emotional distress.
October 2017 Graham moved for an award of full attorney's
fees of $258, 960.31 and full costs of $38, 962.45 under
section 7.4.1 of the CBA. Section 7.4.1 provides that
"[i]n the event the prevailing party must seek
enforcement in court of the arbitrator's decision, the
expenses of such efforts shall be borne by the losing
party." Graham also presented two alternative theories
for recovery: enhanced attorney's fees under Alaska Civil
Rule 82(b)(3) or partial attorney's fees under Civil Rule
November 2017 the superior court awarded Graham $71, 667 in
partial fees under Civil Rule 82(b)(1) and $15, 616.06 in
partial costs under Alaska Civil Rule 79(f). The court denied
his theory of recovery under section 7.4.1 of the CBA,
finding that a "[p]lain reading of the CBA allows full
fees only to enforce an arbitrator's
decision. Implicitly there has already been a fully contested
hearing. The full fees would only be for the enforcement
action not the fully contested hearing." (Emphasis in
original.) The court also denied Graham's request for
enhanced fees under Rule 82(b)(3).
appeals the superior court's denial of his full
attorney's fees and costs under section 7.4.1 of the
STANDARD OF REVIEW
review awards of attorney's fees for abuse of discretion,
" but "[interpretation of an
attorney's fees clause in a contract is ... a question of
law." We apply "our independent judgment in
making such an interpretation."
The Superior Court Did Not Err By Denying Graham's Motion
For Full Attorney's Fees And ...