      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

JEFF MOODY,                                    )
                                               )        Supreme Court No. S-14864/14883
              Appellant and                    )
              Cross-Appellee,                  )        Superior Court No. 3AN-08-07621 CI
                                               )
      v.                                       )        OPINION
                                               )
ROYAL WOLF LODGE,                              )        No. 6966 – November 14, 2014
LINDA BRANHAM, and                             )
CHRIS BRANHAM,                                 )
                                               )
              Appellees and                    )
              Cross-Appellants.                )
                                               )

              Appeal from the Superior Court of the State of Alaska, Third
              Judicial District, Anchorage, Stephanie E. Joannides, Judge.

              Appearances:     Kenneth W. Legacki, Anchorage, for
              Appellant and Cross-Appellee. William M. Bankston and
              John R. Crone, Bankston Gronning O’Hara, P.C., Anchorage,
              for Appellees and Cross-Appellants.

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

              BOLGER, Justice.

I.    INTRODUCTION
              A pilot who worked at a remote fishing lodge filed a claim under the Alaska
Wage and Hour Act (AWHA) for unpaid overtime wages. Applying the four-part test
of Dayhoff v. Temsco Helicopters, Inc.,1 the superior court concluded that the pilot was
a “professional employee” who was exempt from the overtime requirement. But the
legislature amended AWHA in 2005 to adopt the federal definition of this exemption.2
The federal definition restricts the exemption to employees in “professions where
specialized academic training is a standard prerequisite.” 3 Applying this definition, we
conclude that the pilot was not exempt under AWHA and reverse.
II.    FACTS AND PROCEEDINGS
       A.      Facts
               Chris and Linda Branham own and operate the Royal Wolf Lodge, a fishing
lodge that operates seasonally from June to September. The lodge is located in Katmai
National Park, a remote location without access to roads. Employees reside on the
premises during the season, and all materials must be flown in by airplane. The lodge
first hired Jeff Moody as a pilot for the 2002 summer season and terminated him after the
2007 season.
               Moody was the only pilot who flew the lodge’s de Havilland Beaver
aircraft. The parties contest the details of Moody’s responsibilities at the lodge, but they
agree that Moody was responsible for many tasks involving the airplane. For example,
Moody flew clients between the lodge and the fishing destinations, prepared and cleaned
the airplane, and monitored it for potential mechanical problems. He also flew food,
fuel, and other supplies to the lodge. When he was not on duty, Moody was allowed to
engage in personal errands and leisure activities.



       1
               848 P.2d 1367, 1371 (Alaska 1993).
       2
               Ch. 90, § 2, SLA 2005.
       3
               29 C.F.R. § 541.301(d) (2014).

                                            -2­                                       6966
              Although Moody does not have a college degree and did not receive flight
training in a formal academic setting, he hired flight instructors to teach him, and he
studied from manuals to take the Federal Aviation Administration’s (FAA) oral and
written tests. Moody holds a commercial pilot license, an airline transport pilot license,
a certified flight instructor rating, an instrument rating, a multi-engine rating, a single
engine land rating, a single engine sea rating, and a second class medical certificate. His
experience includes over 14,000 hours of flight time.
       B.     Proceedings
              Moody filed a complaint against Chris Branham, Linda Branham, and the
Royal Wolf Lodge (together “Royal Wolf Lodge”) for unpaid overtime wages from the
2006 and 2007 seasons. Moody had a written employment agreement for those seasons,
and he was paid $9,500 per month in 2006 and $9,750 per month in 2007. Moody
claimed that he had worked more than eight hours per day and more than 40 hours per
week and that he was therefore entitled to overtime pay under AWHA. Royal Wolf
Lodge contended that Moody was a professional employee and was thus exempt from
AWHA’s protections.
              At trial, Royal Wolf Lodge presented evidence that Moody was paid a set
monthly salary equivalent to 40 hours regular pay and 32 hours overtime pay per week.
But some of Royal Wolf Lodge’s evidence was inconsistent. Chris Branham testified
that Moody’s salary was for a 30-day period, but he also testified that Moody was paid
by calendar month. Moody’s employment contract specified that his salary was based
on 30 days per month, but it listed hourly rates inconsistent with Chris Branham’s
testimony. The parties also disagreed about whether Moody worked overtime hours.




                                           -3-                                       6966

             Applying the four-part test of Dayhoff v. Temsco Helicopters, Inc.,4 the
superior court ruled that Moody was an exempt professional employee who was not
entitled to overtime pay under AWHA, regardless of the number of hours he worked.
But the court determined that, by the terms of his employment contract, Moody was
entitled to extra pay if he worked more than 30 days per calendar month or more than six
days per week. The court found that Moody worked every day during the 2006 and 2007
seasons and awarded him unpaid wages for the 31st days of July and August for both
seasons as well as for the extra day per week he worked.
             Both sides moved to adjust the award. Royal Wolf Lodge sought attorney’s
fees under Alaska Civil Rules 68 and 82. Moody opposed this motion, arguing that he
was the prevailing party and that, under AS 23.10.110(f), a defendant cannot be awarded
attorney’s fees when a plaintiff litigates his AWHA claim in good faith. Moody also
reiterated his claim that Royal Wolf Lodge had violated AWHA and argued that he was
entitled to mandatory liquidated damages and attorney’s fees under AS 23.10.110(a)
and (c). He further claimed that he was entitled to receive an additional penalty payment
from Royal Wolf Lodge under AS 23.10.140.5
             The superior court determined that Moody was the prevailing party and that
Royal Wolf Lodge was not entitled to an award of attorney’s fees. But the court, noting
its previous conclusion that Moody was exempt from AWHA, also rejected Moody’s
argument for a larger award under AS 23.10.110. And the court rejected Moody’s
argument for a penalty payment under AS 23.05.140 based on its findings that Moody’s
right to overtime compensation was unsettled when he left Royal Wolf Lodge and that

      4
             848 P.2d at 1371.
      5
             It appears Moody intended to cite AS 23.05.140, which provides the
penalty award he claimed. AS 23.10.140 penalizes employers for AWHA violations but
does not benefit employees.

                                           -4-                                     6966
Royal Wolf Lodge had not intentionally withheld compensation from him. The superior
court issued a final judgment for Moody in the principal amount of $12,833.40. Moody
subsequently moved for attorney’s fees under Civil Rule 82, which the superior court
granted.
              Moody appeals the decision denying his AWHA claim. Royal Wolf Lodge
cross-appeals the contract damages and attorney’s fees awards.
III.   STANDARD OF REVIEW
              Whether an employee is an exempt professional under AWHA is a question
of fact.6 “We review factual findings for clear error, and will uphold the superior court’s
findings unless we are left with a definite and firm conviction on the entire record that
a mistake has been made . . . .”7 However, the interpretation of the controlling statutes
and regulations is a legal question which we review de novo.8 “Whether the superior
court violated a party’s due process rights is [also] a question of law, which we review
de novo.”9




       6
              See Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 50-51 (Alaska 2000).
       7
             Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (quoting John v.
Baker, 30 P.3d 68, 71 (Alaska 2001)) (internal quotation marks omitted).
       8
            Mech. Contractors of Alaska, Inc. v. State, Dep’t of Pub. Safety, 91 P.3d
240, 244 (2004) (citing Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska
2003)).
       9
            McCarrey v. Kaylor, 301 P.3d 559, 563 (Alaska 2013) (citing A.M. v. State,
945 P.2d 296, 302 (Alaska 1997)).

                                           -5-                                       6966

IV.	   DISCUSSION
       A.	     Federal Law Now Governs AWHA’s Definition Of “Professional
               Employee.”
               AWHA requires an employer to pay overtime compensation “at the rate of
one and one-half times the regular rate of pay” for hours worked in excess of eight hours
per day or 40 hours per week.10 But this requirement does not apply to the employer of
“an individual . . . employed in a bona fide executive, administrative, or professional
capacity.”11
               In Dayhoff v. Temsco Helicopters, Inc. we adopted a four-part test to
determine whether an employee was a “professional employee.”12 Under Dayhoff, an
employee was considered an exempt professional if “1) the employee’s primary duty is
to perform work requiring knowledge of advanced type, 2) the work requires consistent
exercise of discretion, 3) the work [is] predominantly intellectual and varied, and 4) the
work [is] compensated on a fee basis.”13 These factors were based on the definition of
“professional employee” then found in the Alaska Administrative Code.14
               In 2005, however, the Alaska Legislature amended AWHA to adopt the
federal definition of “professional employee.”15 The federal definition itself had been

       10
               AS 23.10.060(b).

       11
               AS 23.10.055(a)(9)(A). 

       12
               848 P.2d 1367, 1371 (Alaska 1993).

       13
               Id.

       14
               Id. (citing 8 Alaska Administrative Code (AAC) 15.910(a)(11) (1993)).
       15
             Ch. 90, § 2, SLA 2005 (adding subsection (c) to AS 23.10.055 and
explaining that “ ‘bona fide executive, administrative, or professional capacity’ has the
meaning and shall be interpreted in accordance with 29 U.S.C. 201-219 (Fair Labor
                                                                           (continued...)

                                           -6-	                                     6966

amended in 2004, and the 2004 amendments provide additional interpretive guidance,
even for the parts of the definition that appear facially similar to the Dayhoff factors.16
However, the amended federal regulation differs significantly from the first Dayhoff
factor. While the regulation defines a professional employee as one whose “primary
duty is the performance of work . . . [r]equiring knowledge of an advanced type in a field
of science or learning,” it clarifies that this knowledge must be “customarily acquired by
a prolonged course of specialized intellectual instruction.”17
              Most importantly for this case, the federal regulation provides a detailed
explanation of the phrase “customarily acquired by a prolonged course of specialized
intellectual instruction”:
              The phrase “customarily acquired by a prolonged course of
              specialized intellectual instruction” restricts the exemption to
              professions where specialized academic training is a
              standard prerequisite for entrance into the profession. The
              best prima facie evidence that an employee meets this
              requirement is possession of the appropriate academic degree.
              However, the word “customarily” means that the exemption
              is also available to employees in such professions who have
              substantially the same knowledge level and perform
              substantially the same work as the degreed employees, but


       15
       (...continued)
Standards Act of 1938), as amended, or the regulations adopted under those sections.”).
       16
              See Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,122, 22,265-66
(Apr. 23, 2004). Like the second Dayhoff factor, the work must include tasks “requiring
the consistent exercise of discretion and judgment.” 29 C.F.R. § 541.301(b) (2014).
Like the third Dayhoff factor, the work must be “predominantly intellectual in
character.” Id. And like the fourth Dayhoff factor, the employee must be
“[c]ompensated on a salary or fee basis.” 29 C.F.R. § 541.300 (2014).
       17
              29 C.F.R. § 541.300(a)(2).

                                            -7-                                      6966

              who attained the advanced knowledge through a combination
              of work experience and intellectual instruction. Thus, for
              example, the learned professional exemption is available to
              the occasional lawyer who has not gone to law school, or the
              occasional chemist who is not the possessor of a degree in
              chemistry. However, the learned professional exemption is
              not available for occupations that customarily may be
              performed with only the general knowledge acquired by an
              academic degree in any field, with knowledge acquired
              through an apprenticeship, or with training in the
              performance of routine mental, manual, mechanical or
              physical processes. The learned professional exemption also
              does not apply to occupations in which most employees have
              acquired their skill by experience rather than by advanced
              specialized intellectual instruction.[18]
              This definition of “work . . . [r]equiring knowledge of an advanced type
. . . customarily acquired by a prolonged course of specialized intellectual instruction”
is narrower than the definition we used in Era Aviation, Inc. v. Lindfors, where we
upheld a jury’s finding that a commercial airline pilot was an exempt professional based
on her “hundreds of hours of training” and flying time.19 As the 2004 regulatory
amendment makes clear, the professional exemption is “restrict[ed] . . . to professions
where specialized academic training is a standard prerequisite for entrance into the
profession.”20




       18
              29 C.F.R. § 541.301(d).
       19
              17 P.3d 40, 50-51 (Alaska 2000).
       20
             29 C.F.R. § 541.301(d) (emphasis added). In contrast, the pre-2004
regulation was less definite, stating that “the word ‘customarily’ implies that in the vast
majority of cases . . . specific academic training is a prerequisite for entrance into the
field.” 29 C.F.R. § 541.301(d) (2003) (emphasis added).

                                           -8-                                       6966

             Because the federal definition of “professional employee” differs from the
state regulation that informed our Dayhoff analysis, the four-part Dayhoff test no longer
controls whether an employee is an exempt professional under AWHA. Instead, trial
courts should look to 29 C.F.R. §§ 541.300 and .301 in making this determination.
Specifically, they should apply the “primary duty test” of §§ 541.300 and .301, paying
special attention to the clarifications provided by § 541.301(b) through (f).
             In this case, the superior court correctly recognized that Alaska now relies
on 29 C.F.R. §§ 541.300 and .301 to determine whether the professional exemption
applies to an AWHA claim. But the court incorrectly paraphrased § 541.301(d) as
follows:
             The requirement that the knowledge be customarily acquired
             through prolonged specialized instruction generally restricts
             the exemption to fields where specialized academic training
             is a prerequisite. However, the word “customarily” broadens
             the exemption such that it may also apply to professions that
             have “substantially the same knowledge level and perform
             substantially the same work as the degreed employees, but
             who attained the advanced knowledge through a combination
             of work experience and intellectual instruction.”[21]
Using this formulation and continuing to apply the Dayhoff factors, the superior court
concluded that the required credentials of a lodge pilot like Moody were similar to the
credentials of pilots in cases where those pilots have been found to be exempt.22
             But all of these cases preceded the amendment to 29 C.F.R. § 541.301 in
2004. And contrary to the superior court’s determination, the word “customarily” in the



      21
             Emphasis added and citations omitted.
      22
             See Era Aviation, Inc. v. Lindfors, 17 P.3d 40 (Alaska 2000); Paul v.
Petroleum Equip. Tools Co., 708 F.2d 168 (5th Cir. 1983); Kitty Hawk Air Cargo, Inc.
v. Chao, 304 F. Supp. 2d 897 (N.D. Tex. 2004).

                                           -9-                                      6966
primary duty test does not broaden the exemption to include entire professions where
advanced training — but not academic or intellectual instruction — is required. Instead,
“customarily” broadens the exemption only to individual employees who lack specialized
academic training but nevertheless work in professions where such training is “a standard
prerequisite for entrance into the profession.”23 The regulation provides as examples “the
occasional lawyer who has not gone to law school, or the occasional chemist who is not
the possessor of a degree in chemistry.”24 Both examples involve professions in which
specialized academic instruction is generally required. Incorrectly paraphrasing §
541.301(d) led to the application of the wrong legal standard.
              Since the 2004 amendment of 29 C.F.R. § 541.301(d), every federal court
considering whether pilots fall within the professional exemption has concluded that they
do not, because commercial piloting does not require specialized academic training as
a standard prerequisite.25 In Pignataro v. Port Authority, the Third Circuit Court of
Appeals upheld a trial court’s determination that helicopter pilots did not qualify for the
professional exemption under the Fair Labor Standards Act.26 The appellate court


       23
              29 C.F.R. § 541.301(d) (2014).
       24
              Id.
      25
              Pignataro v. Port Auth., 593 F.3d 265, 269-71 (3d Cir. 2010); McCoy v. N.
Slope Borough, Docket No. 3:13-CV-00064-SLG, 2013 WL 4510780, at *1, 6-8 (D.
Alaska Aug. 26, 2013); Howard v. Port Auth., 684 F. Supp. 2d 409, 415 (S.D.N.Y.
2010). The Second Circuit recently commented in dicta that “even experienced
professionals, from airline pilots to surgeons, utilize checklists and standardized
protocols.” Pippins v. KPMG, LLP, 759 F.3d 235, 247 n.4 (2d Cir. 2014). But the issue
of whether pilots were professional employees under §§ 541.300 and .301 was not before
the appellate court.
      26
            593 F.3d at 269-71 (alteration in original) (citations omitted) (internal
quotation marks omitted).

                                           -10-                                      6966

acknowledged the significant credentials required to become a Port Authority helicopter
pilot: 2,000 hours of flying time, a commercial helicopter pilot certificate, a second class
medical certificate, knowledge of the FAA’s rules and regulations, and a high school
diploma or GED.27 But critically, none of those credentials involved the attainment of
an advanced academic degree — the “pilots’ knowledge and skills were acquired through
experience and supervised training as opposed to intellectual, academic instruction.”28
For this reason, the court concluded that the pilots were “not ‘learned professionals’ and
. . . not exempt from the provisions of the [Fair Labor Standards Act].”29
              In Howard v. Port Authority, which also involved Port Authority helicopter
pilots, the federal district court adopted Pignataro’s reasoning and found that “Port
Authority helicopter pilots obtain the required advanced knowledge primarily through
experience rather than academic study.”30
              And in McCoy v. North Slope Borough, the federal district court determined
that North Slope Borough search and rescue pilots are not exempt professionals.31 Much
like the helicopter pilots in Pignataro, the pilots in McCoy were required to have
extensive credentials, including an airline transport license, a first class medical
certificate, and 3,000 hours of flight time (including 500 hours in remote or arctic




       27
              Id. at 269.

       28
              Id. at 270.

       29
              Id.

       30
              684 F. Supp. 2d at 415.
       31
            Docket No. 3:13-CV-00064-SLG, 2013 WL 4510780, at *1, 6-8 (D. Alaska
Aug. 26, 2013).

                                           -11-                                       6966

areas).32 But while the pilots’ training was both specialized and prolonged, it was “not
a course of specialized intellectual instruction akin to an academic degree.”33
              The United States Department of Labor, which promulgated 29 C.F.R. §§
541.300 and .301, also takes the position that pilots are not professional employees. As
early as 1975, the Department concluded that aviation is not “work requiring knowledge
of an advanced type in a field of science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study.”34 The Department maintained
this position in its comments accompanying the amendment to § 541.301 in 2004.35 And
it reiterated this view in a 2009 Wage and Hour Opinion Letter sent to an employer of
pilots holding airline transport and commercial licenses.36
              We agree with the analysis in Pignataro, Howard, and McCoy. Under the
primary duty test of 29 C.F.R. §§ 541.300 and .301, Moody is not eligible for AWHA’s
professional exemption. We acknowledge the superior court’s findings that Royal Wolf
Lodge requires its pilots to have commercial pilot licenses, to comply with the
requirements of 14 C.F.R. §§ 135.61-.129, and to pass written and oral tests
demonstrating their knowledge of FAA rules. And we note Chris Branham’s assertion


         32
              Id. at *1.
         33
              Id. at *8 (emphasis in original).
         34
              Dep’t of Labor Wage and Hour Opinion Letter WH-303 (Jan. 20, 1975)
(internal quotation marks omitted).
         35
              Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22,156 (Apr. 23,
2004) (noting also that pilots employed by commercial airlines are exempt from overtime
under a different section of the Fair Labor Standards Act).
         36
              Dep’t of Labor Wage and Hour Opinion Letter FLSA 2009-6 (Jan. 14,
2009).

                                           -12-                                    6966

that he would only consider hiring pilots with at least 1,500 hours of total flying time.
But none of these requirements involves “specialized intellectual instruction” as required
by the federal regulations.
             It is true that Moody had additional credentials and experience that
exceeded Royal Wolf Lodge’s hiring requirements. But the relevant determination is not
whether Moody personally acquired specialized intellectual instruction, but whether that
instruction is a standard prerequisite for entrance into the aviation profession. The
record in this case shows that piloting — even commercial piloting — does not generally
require academic training. Therefore we cannot say that the “primary duty” of a pilot
such as Moody requires “knowledge of an advanced type . . . customarily acquired by
a prolonged course of specialized intellectual instruction.”37
             Because Moody was not an exempt employee under AWHA, we remand
for further proceedings on whether Moody in fact worked overtime as defined by
AS 23.10.060 and whether he is entitled to recover compensation for unpaid overtime.38
      B.	    The Superior Court’s Determination That Moody Took No Days Off
             And Was Entitled To Contract Damages Was Not Clearly Erroneous.
             Although the superior court rejected Moody’s AWHA claim, it nevertheless
awarded him contract damages. After reviewing extensive oral testimony from witnesses
and documentary evidence from both sides, the superior court found:
             The 2006 and 2007 contracts, when considered together and
             in relation to the 2005 contract, provide guidance as to the
             intent of the parties. The intent of the parties was that Moody


      37
             29 C.F.R. § 541.300(a)(2) (2014).
      38
             Royal Wolf Lodge claims the superior court found that Moody never
worked more than 40 hours per week. But the superior court merely disclaimed a factual
finding on the issue, stating, “I did not find that Moody actually worked over 40 hours
a week.” We conclude that this issue remains unresolved.

                                          -13-	                                     6966

             would be paid an agreed upon sum per month for a 30 day
             period and that his contract did not contemplate any overtime
             for any work done in that 30 day period. . . .
But the court also noted that the 2006 and 2007 contracts stated that “[o]ne day off a
week is provided, or accumulated for time off” and that Moody’s salary was “based on
30 days per month; or pro rated per day.” Relying on Moody’s work records, which the
court found to be more credible than Royal Wolf Lodge’s documents, the superior court
determined that Moody took no days off during the 2006 and 2007 seasons. As a result,
it awarded him contract damages for his unpaid work on the 31st days of July and
August and on the seventh day of each week of both seasons.
             Royal Wolf Lodge does not challenge the court’s interpretation of Moody’s
employment contracts, but it argues that the superior court clearly erred in finding
Moody took no days off during the 2006 and 2007 seasons.39
             First, Royal Wolf Lodge cites its employees’ testimony that Moody did not
work over 40 hours per week and that he did not contribute to tasks other than piloting
and maintaining his aircraft. But this testimony concerns only the total number of hours
Moody worked each week and whether he engaged in general maintenance work at the
lodge. It provides no insight into which days Moody worked.
             Second, Royal Wolf Lodge argues that the superior court gave insufficient
consideration to Chris Branham’s post-decision affidavit, which attested that there were
“days [Moody] did not fly at all.” But this untimely affidavit was submitted more than
five months after the superior court’s decision. Because Royal Wolf Lodge did not




      39
             While Royal Wolf Lodge argues in its briefing that Moody took “days” off
in 2006 and 2007, it conceded at oral argument that, with the exception of June 26, 2006,
Moody worked every disputed day.

                                          -14-                                     6966
submit this affidavit in conjunction with an Alaska Civil Rule 60(b) claim,40 the superior
court was under no obligation to consider this new evidence after it issued its decision.
We decline to credit the document now.
              Finally, Royal Wolf Lodge points to Moody’s testimony that he flew zero
hours on June 26, 2006. But in his testimony, Moody did not admit taking the day off;
he merely acknowledged that his work that day did not involve flying. Moody further
testified that he worked 11 hours on June 26. Even Royal Wolf Lodge’s log records,
while contradicting Moody’s claim as to the number of hours, state that he worked two
hours that day.
              For these reasons, we find no clear error in the superior court’s finding that
Moody worked every day during the 2006 and 2007 seasons. We affirm the superior
court’s award of contract damages.41
        C.	   The Superior Court Did Not Violate Royal Wolf Lodge’s Due Process
              Rights When It Determined That Moody Was Entitled To Contract
              Damages.
              Royal Wolf Lodge argues it did not receive adequate notice that the
superior court could award contract damages because Moody pled his overtime claim
solely under AWHA.
              A trial court violates due process if it does not provide a party with
adequate notice and an opportunity to be heard on the claims addressed by the court’s




        40
              The affidavit was attached to a post-judgment brief concerning attorney’s
fees.
        41
            If on remand the superior court determines that Moody is entitled to
damages under AWHA, the court may need to reconsider whether contract damages
remain appropriate given the possibility of a double recovery.

                                           -15-	                                      6966

decision.42 “[T]he due process analysis is a flexible and contextual one focusing on the
interest and not the outcome, [but] there must be some actual prejudice . . . and not
merely the ‘theoretical possibility of prejudice.’ ”43 Therefore, “[a] the party raising a
due process objection must show that it has suffered actual prejudice, even in a case
where the notice is clearly inadequate.44
             Although Moody pled no contract claims in his complaint, Royal Wolf
Lodge put Moody’s employment contracts at issue by raising their interpretation and
application as a defense against Moody’s AWHA claim. Moreover, at oral argument
before this court, Royal Wolf Lodge conceded it would not have litigated the case any
differently had it received prior notice that Moody could be awarded contract damages.
Royal Wolf Lodge thus did not suffer any prejudice from the court’s decision to award
Moody contract damages, and we conclude that the superior court’s decision did not
violate due process.
V.    CONCLUSION
             We REVERSE the determination that Moody was an exempt professional
employee under AWHA and REMAND for further proceedings. We VACATE the




      42
             Price v. Eastham, 75 P.3d 1051, 1056 (Alaska 2003); Cushing v. Painter,
666 P.2d 1044, 1046 (Alaska 1983) (reversing a custody decision because the parties
were not given adequate notice that the court would make a final custody award after an
interim custody hearing).
      43
           Paula E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
276 P.3d 422, 433 (Alaska 2012) (citations omitted) (quoting D.M. v. State, Div. of
Family & Youth Servs., 995 P.2d 205, 212 (Alaska 2000)).
      44
             See id. (applying Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)).

                                            -16-                                    6966

superior court’s orders declaring Moody to be the prevailing party and awarding him
attorney’s fees.45 We AFFIRM the superior court’s decision on all remaining issues.




      45
             Because the merits of Moody’s AWHA claim remain unresolved, we need
not reach these issues.

                                       -17-                                    6966
