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Stadnicky v. Southpark Terrace Homeowner's Ass'n. (5/16/97), 939 P 2d 403
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. 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.
THE SUPREME COURT OF THE STATE OF ALASKA
GEORGE STADNICKY and )
ANN STADNICKY, ) Supreme Court No. S-7359
Appellants, ) Superior Court No.
) 3AN-94-9967 CIV
SOUTHPARK TERRACE HOMEOWNER'S ) O P I N I O N
ASSOCIATION, INC., )
Appellee. ) [No. 4820 - May 16, 1997]
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: J. L. McCarrey, III, Law Offices of McCarrey &
McCarrey, Anchorage, for Appellants. Michael T. Stehle and Kenton K. Pettit,
Bogle & Gates P.L.L.C., Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
Southpark Terrace Homeowner's Association sought to enforce a
restrictive covenant against the Stadnickys. The covenant barred the use of
metal roofing in Southpark subdivision. The superior court granted summary
judgment and awarded actual, reasonable attorney's fees to Southpark. The
Stadnickys appeal. We affirm.
II. FACTS AND PROCEEDINGS
The Stadnicky family bought a home in the Southpark
Subdivision in Anchorage in 1984. The property was subject to a Declaration of
Covenants and Restrictions adopted by the Southpark Terrace Homeowner's
Association (Southpark). Southpark's purpose is oversight of the subdivision
and maintenance of its common areas.
The version of the covenants in effect at the time this
dispute arose is dated 1987. There were two earlier versions, dated 1980 and
1983. The 1983 covenants, which were in effect at the time the Stadnicky family
bought their home, prohibited the use of metal roofing material. [Fn. 1] The
1987 covenants prohibited the use of metal roofing materials unless approved by
the Architectural Control Committee (Committee), a three-member committee
consisting of Southpark board members. [Fn. 2] The 1987 covenants also permit
Southpark to recover actual, reasonable attorney's fees for enforcement of the
The 1987 covenants provide for pre-approval of construction
plans by the Committee. The Stadnickys did not follow this procedure. Instead,
they built a play house in the back yard in 1992 and later submitted the plans
to the Committee. The play house roof was metal, though the plans as submitted
did not so indicate. The Committee, aware of the metal roof, rejected the plans
and requested that the Stadnickys replace or cover the roof. From January 1993
until July 1994, the Southpark board of directors attempted to get the
Stadnickys to comply with the covenant. The Stadnickys refused. [Fn. 3]
Southpark filed suit against the Stadnickys, asking for
removal of the metal roof and for actual, reasonable attorney's fees and costs.
The superior court granted summary judgment and awarded actual, reasonable
attorney's fees to Southpark. The Stadnickys appeal.
A. Standard of Review
We will uphold summary judgment only if the record presents no
genuine issues of material fact and the moving party is entitled to judgment on
the law. Newton v. Magill, 872 P.2d 1213, 1215 (Alaska 1994). On questions of
law, we will adopt the rule of law which is most persuasive in light of
precedent, reason, and policy. Ford v. Municipality of Anchorage, 813 P.2d 654,
655 (Alaska 1991). We review attorney fee awards for abuse of discretion.
McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167 (Alaska 1993).
B. The Stadnickys Have Not Properly Challenged Southpark's
Failure to Adopt Reasonable Standards for Enforcement of the Covenant.
The Stadnickys argue that the 1987 covenants apply and that
the Committee must decide, using reasonable, clear and ascertainable standards,
whether to allow the metal roof. Southpark argues that the Stadnickys failed to
raise this argument in superior court and may not now raise it. To have
preserved this issue for appeal, the Stadnickys must show they raised the issue
below. Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985).
The complaint filed by the Stadnickys stated "[Southpark's]
conduct in attempting to enforce the covenant was unreasonable." However, in
proceedings before the superior court, the Stadnickys relied on the argument
that Southpark's adoption of the 1987 covenants was invalid. They did not
challenge on the theory that Southpark's enforcement of the covenant was
unreasonable. The Stadnickys' first explicit argument that the Committee needed
standards before rejecting the metal roof is found in a motion for
reconsideration before the superior court.
An issue raised for the first time in a motion for
reconsideration is not timely. Miller v. Miller, 890 P.2d 574, 576, n.2 (Alaska
1995) (". . . the issue was improperly raised in the motion for reconsideration,
since it had never previously been raised."). The Stadnickys' attempt to raise
this issue in their motion for reconsideration was not timely. [Fn. 4] Since
the Stadnickys failed to raise this issue in a timely fashion, this issue is not
properly before this court on appeal.
The Stadnickys also did not include this argument in their
points on appeal. [Fn. 5] Because we conclude the Stadnickys did not adequately
raise the issue before the superior court, we need not determine the result of
their failure to include it in the points on appeal. [Fn. 6]
C. The Superior Court Did Not Rely on the 1983 Covenants.
The Stadnickys argue that the superior court erred by using
the 1983 version of the covenants as the basis for ordering removal of the metal
roof. This argument is meritless.
The superior court did not rely on the 1983 covenants. The
superior court relied expressly on the 1987 covenants, finding that the
Stadnickys' attempt to challenge the 1987 amendments was meritless because more
than one year had passed since Southpark adopted the covenants. [Fn. 7]
The superior court did note that, in addition to the 1987
covenants, both the 1980 covenants and the 1983 covenants prohibited metal
roofing material. Accordingly, the superior court stated that even if the
Stadnickys could prevail on their argument that the 1987 amendments were
invalid, their metal roof would still be barred. The superior court's reference
to the older covenants does not change the fact that its decision rested on its
interpretation of the 1987 covenants.
Because the superior court did not rely on the 1983 covenants,
the Stadnickys' argument that the superior court improperly granted injunctive
relief to Southpark also fails. The superior court properly granted injunctive
relief under AS 34.08.320(a)(4). [Fn. 8]
D. The Superior Court Properly Awarded Attorney's Fees.
Under the 1987 covenants Southpark may recover actual,
reasonable attorney's fees and costs it incurs in any action to enforce the
covenants. [Fn. 9] The 1983 covenants have no provision for attorney's fees.
The Stadnickys argue that the superior court order granting
attorney's fees under the 1987 covenants was inconsistent with the previous
order granting summary judgment based on the 1983 covenants. As discussed
above, the superior court did not rely on the 1983 covenants, nor did it find
that the 1987 covenants were invalid. The fact that the 1983 covenants do not
provide for recovery of attorney's fees is irrelevant. The superior court
properly applied the 1987 covenants and awarded attorney's fees and costs to
The Stadnickys are correct that Southpark must submit accurate
records of the hours expended and a brief description of the services provided.
Hayes v. Xerox Corp., 718 P.2d 929, 939 (Alaska 1986). The record contains
copies of the bills from Southpark's attorneys, with sufficient detail for the
superior court to determine fees.
The Stadnickys also argue that if Southpark is entitled to
attorney's fees, it has not proven the reasonableness of the fees. However, the
Stadnickys make no explicit claim that Southpark's fee request was unreasonable.
A review of the motion for attorney's fees and the bills from Southpark reveals
no unreasonable fees or abuse of discretion by the superior court.
Because the 1987 covenants apply, we need not reach the
Stadnickys' argument that they are public interest litigants. Under the express
provisions of the covenant, the Stadnickys must bear the cost of Southpark's
enforcement of the covenants.
E. Southpark's Thirty-Day Objection Rule Does Not Apply.
Finally, the Stadnickys argue that Southpark was foreclosed
from objecting to the metal roof, under its own rule that it must communicate
acceptance or rejection of a proposed property modification within thirty days
of the submission of the plan.
The Stadnickys did not submit any plans under this rule. They
did not submit plans of a proposed modification; rather, they submitted plans
after they had completed construction of the play house. They also failed to
comply with the covenant requirement that the plans show the materials to be
used in the proposed construction. Because the Stadnickys did not submit their
construction plans for preapproval, they cannot now invoke the rule's time
limits for preapproval of construction plans.
The judgment of the superior court is AFFIRMED.
Art. V, 18 (1983) states ". . . nor may any building be
constructed on any lot with a metal roof."
Art. V, 21 (1987) provides:
No metal building shall be constructed or maintained on any
lot, nor may any building be constructed on any lot with a metal roof unless
approved by the Architectural Control Committee.
The cost to reshingle the play house roof was estimated at $250.
According to the record, another member of Southpark offered to do the work for
free. The Stadnickys refused that offer.
There is nothing in the record to suggest that were we to reach this
issue, the covenant would not be considered reasonable under our prior cases.
This court previously has upheld property covenants if they are
reasonable. Dunlap v. Bavarian Village Condominium Ass'n, 780 P.2d 1012, 1017
(Alaska 1989) (owners cannot have the courts override reasonable rules on the
basis of differences in aesthetic tastes); O'Buck v. Cottonwood Village
Condominium Ass'n, 750 P.2d 813, 819 (Alaska 1988) (rule prohibiting external
television antennae reasonable despite fact that it was based on differences in
The fact that the Committee may grant an exception does not
necessarily render the general bar on metal roofs too unspecific or
unreasonable. Southpark's Committee has permitted only one exception to the use
of metal roofing. In that case, Southpark attempted to enforce the covenant,
notified the foreclosing bank that there was a covenant violation on the
property, and included language in the resale certificate for the property that
the metal roof was not approved and that the purchaser might be liable for
attorney's fees to enforce the covenant. Southpark approved a variance for the
new owners only on condition that the roof be kept in good repair, and that it
be replaced whenever construction was required. There is no indication that the
exception allowing the Committee discretion in permitting some metal roofing has
been unfairly or unreasonably applied.
The Stadnickys argue they included this argument in their points on
appeal "by implication." They argue that because Alaska is a notice pleading
state, the statement in the answer along with the points on appeal has preserved
this issue for appeal. The definition of notice pleading is "a short and plain
statement of the claim." Alaska R. Civ. P. 8(a). The Stadnickys can not meet
this requirement through implication.
The Stadnickys argue that the superior court erred in granting
injunctive relief. The Stadnickys also argue that summary judgment was
improperly granted. Neither of these arguments was included in the points on
appeal and are thus waived. We note that the Stadnickys could not have
prevailed on the merits on either of these issues.
AS 34.08.250 provides:
An action to challenge the validity of an amendment adopted by
the association under this section may not be brought more than one year after
the amendment is recorded.
AS 34.08.320(a)(4) provides:
(a) . . . the association may
. . . .
(4) institute, defend, or intervene in litigation or
administrative proceedings or seek injunctive relief for violations of its
declaration, bylaws, or rules in its own name on behalf of itself or two or more
unit owners on matters affecting the common interest community;
. . . .
Art. IV, 5 (1987) provides:
. . . If it is necessary for the Board to go to court to
enforce the provisions contained in these covenants, conditions and
restrictions, the offending lot owner shall pay actual, reasonable fees and
costs of any such action.