If our contract sets its own rule for who pays attorney's fees, does it displace Alaska Civil Rule 82's default fee-shifting schedule?
Yes: Civil Rule 82's own text makes a contrary party agreement the first-listed override of its default schedule. HP Ltd. Partnership v. Kenai River Airpark, LLC quotes the rule directly: "Under Alaska Civil Rule 82, 'Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule.'"
The trap
This entry verifies only the opening sentence of Rule 82(a), that a party agreement is one of the two express overrides of the rule's default fee-shifting schedule ("except as otherwise provided by law or agreed to by the parties"). The rest of Rule 82's mechanics are real and should be checked directly, not assumed away by a general fee clause: a tiered percentage-of-judgment schedule for money judgments, a separate percentage rule for cases with no money judgment, a multi-factor test a court may use to vary any award, and a short post-judgment deadline for moving for fees. The variance power is not a gloss: "Alaska Civil Rule 82(b)(3) permits a court to vary from the fee schedule described in subsection (b)(1) or (b)(2) if the court determines that variation is warranted based on a variety of factors," and the eleven factors run from the complexity of the litigation to "other equitable factors deemed relevant." A contract fee clause displaces only what it actually addresses: do not assume it silently zeroes out every part of Rule 82's default mechanics.
6 authorities
- case270 P.3d 719HP Ltd. Partnership v. Kenai River Airpark, LLCAlaskadecided 2012read it at the source ↗
The words that state the rule
Under Alaska Civil Rule 82, "Except as otherwise provided by law or agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's fees calculated under this rule."
The words that state the rule
The court shall adhere to the following schedule in fixing the award of attorney's fees to a party recovering a money judgment in a case: Judgment and, if Awarded, Prejudgment Interest Contested With Trial Contested Without Trial Non-Contested First $ 25,000 20% 18% 10% Next $ 75,000 10% 8% 3% Next $400,000 10% 6% 2% Over $500,000 10% 2% 1%
The words that state the rule
Alaska Civil Rule 82(b)(3) permits a court to vary from the fee schedule described in subsection (b)(1) or (b)(2) if the court determines that variation is warranted based on a variety of factors.
The words that state the rule
In cases in which the prevailing party recovers no money judgment, the court shall award the prevailing party in a case which goes to trial 30 percent of the prevailing party’s reasonable actual attorney’s fees which were necessarily incurred, and shall award the prevailing party in a case resolved without trial 20 percent of its actual attorney’s fees which were necessarily incurred.
The words that state the rule
The factors are: (A) the complexity of the litigation; (B) the length of trial; (C) the reasonableness of the attorneys’ hourly rates and the number of hours expended; (D) the reasonableness of the number of attorneys used; (E) the attorneys’ efforts to minimize fees; (F) the reasonableness of the claims and defenses pursued by each side; (G) vexatious or bad faith conduct; (H) the relationship between the amount of work performed and the significance of the matters at stake; (I) the extent to which a given fee award may be so onerous to the non-prevailing party that it would deter similarly situated litigants from the voluntary use of the courts; (J) the extent to which the fees incurred by the prevailing party suggest that they had been influenced by considerations apart from the case at bar . . . ; and (K) other equitable factors deemed relevant.
- case403 P.3d 1153Government Employees Insurance Co. v. GonzalezAlaskadecided 2017read it at the source ↗
The words that state the rule
Alaska Civil Rule 82(c) states that a motion for an award of attorney’s fees “must be filed within 10 days after the date shown in the clerk’s certificate of distribution on the judgment as defined by [Alaska] Civil Rule 58.1.”
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.