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The Supreme Court of Alaska has decided whether a licensee was properly sued by a competitor for advertisements in which she referred to herself as a "buyer's agent."
Dixie Dixon ("Licensee"), a real estate licensee who worked for a Re/Max real estate office in Anchorage, Alaska, published an advertisement in which she identified herself as a "buyer's agent" and stated that she "[r]epresents buyers." Competitors within the Anchorage market, David and Linda Garrison ("Garrisons"), sent a letter to the Licensee claiming that these ads were misleading because the Licensee was not exclusively a buyer's representative, since her company also represented sellers. The letter also claimed that the ads violated the ethical standards for a real estate professional. The Garrisons were the shareholders and officers of All Alaska Realestate Investments ("Company"), which was the only "exclusive" buyer's representative firm in Alaska in 1995, representing only buyers and not taking property listings. Another letter was sent to the Licensee from the Company's attorneys which stated that the ads might also violate the Alaska Unfair Trade Practices and Consumer Protection Act ("Act").
Following her receipt of these letters, the Licensee ran a second series of advertisements. In these ads, she purported to describe the difference between a buyer's representative and an exclusive buyer's representative firm, criticizing the latter as potentially limiting the value of their representation because they do not have the benefit of having been on both sides of a real estate transaction. The Garrisons then filed a lawsuit against the Licensee and her supervisors, alleging violations of the Act. After two-and-half years of pretrial proceedings, the Garrisons filed a motion to dismiss their claims, stating that they were not the proper party in interest; instead, the Company should be the party bringing the lawsuit. The trial court granted the motion, but ordered the Garrisons to pay the Licensee half of her attorney's fees. Shortly thereafter, the trial court entered judgment in favor of the Licensee, and awarded her the entire amount of her attorney's fees and costs. The Garrisons and the Company appealed.
The Supreme Court of Alaska affirmed the rulings of the trial court. First, the court ruled on the Garrisons' challenge to the attorney's fee award against them as being premature. The court ruled that this issue was moot, since the Garrisons did not challenge the award until after the trial court had entered a final judgment against the Company.
Next, the Garrisons and the Company challenged the award of attorney's fees to the Licensee. The court considered whether the trial court had properly awarded attorney's fees under an Alaskan rule of civil procedure which allows a trial court to make such an award when "vexatious bad conduct has been found." The court found that while the initial allegations made by the Garrisons and the Company met the minimum pleading standards, the subsequent prosecution of the case did not produce any evidence which supported their allegations. No evidence was produced demonstrating that the ads were deceptive, nor did any witness testify that he/she was confused by the ads. They also never produced evidence which demonstrated they suffered any monetary harm from the ads. Thus, the court ruled that the evidence supported a conclusion that the lawsuit was brought to "merely harass and delay" a competitor, and thus an award of full attorney's fees was appropriate. The court also found that the award was supported by the fact that the Garrisons filed a lawsuit with no individual claims and then prosecuted the case vigorously for two-and-half years. The Act also supported the award of attorney's fees. Therefore, the trial court was affirmed.
Garrison v. Dixon, 19 P.3d 1229 (Alaska 2001).