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Graham v. Municipality of Anchorage

Supreme Court of Alaska

August 9, 2019

JEFF GRAHAM, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3 AN-15-05301 CI Eric A. Aarseth, Judge.

          Jeffrey J. Jarvi, Anchorage, for Appellant.

          Samuel C. Severin, Assistant Municipal Attorney, and Rebecca A. Windt-Pearson, Municipal Attorney, Anchorage, for Appellee.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

          OPINION

          STOWERS, JUSTICE.

         I. INTRODUCTION

         Jeff 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.

         II. FACTS AND PROCEEDINGS

         Jeff 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.[1]

         The 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."

         In 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.

         In 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 82(b)(1).

         In 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).

         Graham appeals the superior court's denial of his full attorney's fees and costs under section 7.4.1 of the CBA.[2]

         III. STANDARD OF REVIEW

         "We review awards of attorney's fees for abuse of discretion, "[3] but "[interpretation of an attorney's fees clause in a contract is ... a question of law."[4] We apply "our independent judgment in making such an interpretation."[5]

         IV. DISCUSSION

         A. The Superior Court Did Not Err By Denying Graham's Motion For Full Attorney's Fees And ...


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