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Wassink v. Hawkins, dir. Div. of Land and Water mgmt. (9/24/93), 859 P 2d 712
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
HENRY WASSINK and CONSUELO )
WASSINK, ) Supreme Court File
) No. S-4457
Appellants, ) Superior Court File No.
) 3AN-85-17234 Civil
v. )
)
TOM HAWKINS, Director, Division )
of Land and Water Management, ) O P I N I O N
Alaska Department of Natural )
Resources, )
)
Appellee. ) [No. 4005--September 24, 1993]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: Joe P. Josephson,
Anchorage, for Appellants. Robert C.
Nauheim, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
This is the second time this case is before us. The
Wassinks contend that summary judgment was again
improperly entered in favor of Tom Hawkins, Director,
Division of Land and Water Management, Alaska
Department of Natural Resources. The judgment
terminated the Wassink's agricultural interest in a
Point Mackenzie dairy farm. The judgment allowed the
Wassinks sixty days to remove improvements.2 The
Wassinks contend that genuine issues of material fact
continue to exist regarding affirmative defenses to
Hawkins' action. We agree, and therefore reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Most of the facts relevant to this appeal are set forth
in Wassink v. Hawkins, 763 P.2d 971, 972-73 (Alaska
1988). In September 1982 Melody Wassink, the daughter
of Harry Wassink and Consuelo Wassink, won a state held
lottery enabling her to purchase a 474.22 acre dairy
parcel at Point MacKenzie. The price of the parcel was
$58,820, less a resident land discount of $17,646. A
$2,058 down payment was made, the balance to be paid
over twenty-one years. In December 1982 Melody entered
into a $119,421 clearing loan with the Agricultural
Revolving Loan Fund (ARLF).
Early in 1983 Harry Wassink purchased some $80,000
worth of farm and construction machinery. However, it
was not until November 1984 that the Wassinks obtained
an interest in the parcel when Melody assigned the
property to them. The Wassinks assumed the clearing
loan in December 1984.
In May 1985 the Wassinks applied for and were approved
for $522,942 in construction loans for the purpose of
constructing a dairy barn on the parcel. In July 1986
they were approved for a cow loan with the condition
that the barn and equipment would be ready before cows
would be ordered.3
In August the Wassinks requested and received a sixty
day extension of the cow loan to enable them to
complete the barn. On August 21 the parcel was
inspected and found to be less than 60% completed. On
September 25 the parcel was again inspected. The barn
was 75-80% completed and was not ready for cows. After
September 25 no additional construction funds were to
be released. On October 3 the parcel was
inspected by inspectors for the clearing loans and land
sale contracts for the Point MacKenzie project. The
inspectors were told the dairy was two weeks from
completion. On October 16 the inspectors returned and
found the dairy was still approximately two weeks from
completion. The Wassinks decided not to finish the
barn, so they claim, after the state refused to
disburse the proceeds from the cow loan and after the
state had repudiated the extensions.
In Wassink we reversed the superior court's summary
judgment in favor of Hawkins and remanded the case for
further proceedings. Id. at 975. We held enforceable
a stipulation between the Wassinks and Hawkins in which
the Wassinks agreed to waive any and all defenses to
Hawkins' action to terminate the land sale contract, as
to defenses which may have existed prior to the waiver.
Id. However, we concluded that facts alleged regarding
the state's activities after the date of the 1986
stipulation were sufficient to raise genuine issues of
material fact regarding the availability of the
affirmative defenses of waiver, frustration, and
estoppel. Id.
In May 1989, six months after remand, the Wassinks'
attorney withdrew from the case. No further
proceedings occurred until May 1990 when the superior
court issued a Notice and Order of Dismissal. Hawkins
announced his intent to proceed and in June filed a new
motion for summary judgment, supported by the
affidavits of several state employees.
Hawkins claims he sent a copy of the motion for summary
judgment to the Wassinks by regular mail. The Wassinks
deny having received it. They claim they were unaware
until August 29, 1990, that the motion was pending. It
was discovered at that time by an attorney, Joe
Josephson, who represented them in the related case of
State v. Cange, 3AN-88-0056. On August 30, Mr.
Josephson began preparing an appearance and a motion
for an extension of time to respond. He informed the
law clerk for Superior Court Judge J. Justin Ripley
that the motion would be delivered that morning.
Sometime on August 30 Judge Ripley entered summary
judgment in favor of Hawkins.
The court denied the Wassinks' motion to vacate the
summary judgment and the Wassinks' later motion to add
a counterclaim to the case, raising an issue of clouded
title due to the land's status as Mental Health Trust
Lands. After the court entered final judgment, the
Wassinks again appealed.
II. HAWKINS IS NOT ENTITLED TO SUMMARY JUDGMENT
Wassink involved Hawkins' attempted termination of the
land sale contract for the Wassink's dairy farm for
failure to comply with development requirements by the
deadlines established by a 1986 stipulation between the
parties.
In Wassink, we determined that the following alleged
facts, supported by evidence in the record, were
sufficient to raise genuine issues of material fact
regarding the affirmative defenses of waiver, estoppel
and frustration:
In June 1986 the ARLF re-approved the
Wassinks' cow loan. In July 1986 the
Wassinks submitted permit applications
(apparently for the Grade A facility
classification) to the State's Department of
Environmental Conservation (DEC). In August
1986 Heim sent the letter purportedly
altering the conditions of the stipulation.
On or about the second week of October 1986,
the Wassinks were notified that the loan
check was in. When the Wassinks went to pick
up the check, they were told by the Division
of Agriculture that the money would not be
released until the barn was completed and a
Grade A dairy permit obtained. According to
the Wassinks a Grade A permit cannot be
obtained until there are milking cows on the
premises since the milk product must be
tested as part of the permitting process.
These two conditions, if enforced, would
place the Wassinks in a "Catch-22"situation.
According to the Wassinks, historically the
state has granted cow loans without the
prerequisite of an interim permit from DEC.
763 P.2d at 975.
According to the Wassinks, the law of the case after
Wassink is that genuine issues of material fact existed
which preclude summary judgment. We agree. We have
reviewed the record in detail. Nothing has changed
since our decision in Wassink. The State has provided
no new evidence which would support a different result
in the present case. Genuine issues of material fact
regarding waiver, frustration, and estoppel preclude
summary judgment.
III. CONCLUSION
The decision of the trial court is REVERSED and the
case is REMANDED once again for further proceedings
consistent with this opinion.
_______________________________
2. The suit giving rise to this appeal does not adjudicate
any obligation the Wassinks may have to the
Agricultural Revolving Loan Fund (ARLF).
3. Wassink claims he was told in late October that the cow
loan check would not be released until he obtained a
Grade A dairy permit. This would put Wassink in a
"Catch 22"position, since he could not get a permit
until he had cows milking, and he could not get cows to
be milked without the permit. The loan examiner claims
no Grade A dairy permit was required. The loan was not
distributed because the dairy was not ready for cows.
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