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Pieper v. Musarra (3/27/98), 956 P 2d 444
Notice: This opinion is subject to 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
JULIA PIEPER, )
) Supreme Court No. S-7636
Appellant, )
) Superior Court No.
v. ) 3AN-94-6318 CI
)
ANN VAN DORN MUSARRA, ) O P I N I O N
)
Appellee. ) [No. 4960 - March 27, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Julia Pieper, pro se, Anchorage.
J.L. McCarrey, III, Law Offices of McCarrey & McCarrey, Anchorage,
for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
The superior court dissolved the partnership that Julia
Pieper and Ann Van Dorn Musarra formed to run a recreational
vehicle (RV) park. Pieper raises numerous claims of error,
attacking every superior court finding of fact and conclusion of
law. With one exception, we affirm.
II. FACTS AND PROCEEDINGS
Pieper and Musarra agreed to jointly develop and operate
an RV park on property they had acquired near Ninilchik. They
opened the park in the summer of 1991 after developing the
property. According to the partnership's tax returns, the park
lost money every year it was open. Musarra testified that she and
Pieper began to disagree in 1992. Pieper refused to sell her
interest, and Musarra unsuccessfully attempted to sell Musarra's
half interest by listing it for $120,000 with a real estate agent
in 1993.
The State Department of Labor, Labor Standards and Safety
Division, had found electrical code violations at the park in 1991
and required upgrades by the summer of 1993. The upgrades were not
made. In summer 1993 the continuing electrical code violations
caused increased tension between the partners. Pieper did not want
to make the improvements. In March 1994 the State granted the park
another extension to make the electrical upgrades. Before the park
opened in 1994, Musarra, without Pieper's agreement, made the
upgrades. They cost about $10,000.
After unsuccessfully offering to buy Pieper's interest in
the park, Musarra sued to dissolve the partnership. Pieper
answered and filed a counterclaim seeking damages for Musarra's
actions.
The superior court dissolved the partnership. The court
found that the partnership's value was $105,000, that the
partnership's debt was $41,338, and that Musarra's contributions
exceeded Pieper's by $21,210. The court found that Musarra should
be allowed to purchase Pieper's interest, and determined that
Musarra owed Pieper $13,953 for that interest. The court
calculated the value of Pieper's interest as follows:
$105,000.00 Value of Partnership/
Assets
- 11,500.00 Estimated Real Estate
Commission of ten per cent (10%) and Estimated
closing costs.
- 41,338.00 Partnership Debt
$ 52,162.00 Net Partnership Value
$ 52,162.00 Net Partnership Value
ö 2 (Number of Partners)
$ 26,081.00 Each Partner's Interest
- 10,605.00 Amount of additional
contribution Owed [Musarra] by [Pieper]
- 1,523.00 Amount of Previously
Awarded Costs
$ 13,953.00 Amount Owed [Pieper] by
[Musarra]
The court also dismissed Pieper's counterclaim with
prejudice and enjoined Pieper from interfering with Musarra's
ownership of the partnership assets. Pieper appeals.
III. DISCUSSION
A. Standard of Review
We review the trial court's factual findings under the
clearly erroneous standard. See Alaska R. Civ. P. 52(a); see also
Wright v. Wright, 904 P.2d 403, 405 n.1 (Alaska 1995). "To
reverse, we must have a definite and firm conviction that a mistake
has been made." Kilmer v. Dillingham City Sch. Dist., 932 P.2d
757, 763-64 (Alaska 1997) (citing City of Hydaburg v. Hydaburg
Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993)).
We apply our independent judgment in reviewing questions
of law, such as interpretations of Alaska's Uniform Partnership
Act. See Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996) (citing
Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska
1991)). Under this standard, we adopt "the rule of law that is
most persuasive in light of precedent, reason, and policy." Guin
v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
B. Whether the Superior Court Erred in Making Its Findings
of Fact and Conclusions of Law
1. Real estate commission
Pieper argues that the partnership value should not have
been reduced by an estimated real estate commission. The superior
court deducted $11,500 from the value of the partnership to reflect
the cost of selling the property through a real estate agent.
There was no evidence that the property would be sold. Entry of
the permanent injunction preventing Pieper from interfering with
the property implies that the superior court assumed Musarra would
not sell the property. Absent a finding, supported by evidence,
that the property would be sold, it was error to deduct an expense
the parties were not likely to incur. The net value of each
partnership interest must consequently be adjusted. Pieper will
recover an additional $5,750.
2. Restraining order
Pieper argues that the superior court erred in granting
Musarra a restraining order. We conclude that the superior court
did not abuse its discretion in permanently enjoining Pieper from
interfering with Musarra's use and occupancy of the partnership's
assets. There was sufficient evidence before the superior court to
justify entry of the injunction, given the fact that Pieper had
improperly filed a lis pendens against Musarra's property and the
evidence of the acrimonious and contentious nature of the
relationship.
3. Remaining issues
Pieper appears pro se in this appeal. We generally apply
a more lenient standard for pro se litigants. See, e.g., Smith v.
Sampson, 816 P.2d 902, 906 (Alaska 1991) (noting that relaxation of
Alaska Appellate Rule 210(e) might be appropriate for pro se
litigant); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("[T]he
pleadings of pro se litigants should be held to less stringent
standards than those of lawyers."). Although we have independently
reviewed the trial transcript, we note that Pieper has not
demonstrated the existence of evidence that would compel findings
different from those entered by the superior court (other than the
reduction discussed in Part III.B.1 for the real estate
commission). We also conclude that she has generally failed to
demonstrate either merit to her remaining arguments or how she
preserved those arguments in the superior court. Notwithstanding
the leeway given to pro se litigants, the requirement that an issue
be preserved by being presented in the superior court arises out of
notions of judicial finality and efficiency, as well as fairness to
the opposing party. Therefore the leeway we give to Pieper is
limited.
Pieper argues that the court erred in admitting Musarra's
evidence because Musarra failed to comply with a pretrial order
requiring counsel to meet before trial and requiring Musarra to
provide records to Pieper. We consider this argument waived
because Pieper did not adequately brief it. Gates v. City of
Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991) (treating issues
addressed cursorily or not at all in a party's appellate briefs as
abandoned). Moreover, Pieper has not demonstrated how admission of
the evidence prejudiced her. See Alaska R. Civ. P. 61; see also
Myers v. Robertson, 891 P.2d 199, 208 (Alaska 1995).
Pieper also argues that the superior court erred: (1) in
finding that "[t]he partnership agreement provided that there
should be no definite term"; (2) in finding that the parties'
relationship deteriorated over the term of the partnership; (3) in
finding that there was an adequate accounting for valuing the
partners' contributions and the partnership's debt and past and
future income; (4) in failing to consider Pieper's 1994 and 1995
mortgage payments when determining the amount of her contributions;
(5) in finding that the partnership agreement and the conduct of
the parties required a reconciliation of capital contributions
between the partners; (6) in finding that the partnership was worth
only $105,000; (7) in finding that the partnership was dissolved
and terminated on the day of trial; (8) in finding that all rights
to the park's name should be given to Musarra; (9) in granting the
dissolution; (10) in ruling that Pieper's interest should be
conveyed for value without payment of the partnership debt; and
(11) in dismissing Pieper's claim that Musarra breached the
partnership agreement.
These arguments are without substantive merit because
Pieper has failed to demonstrate that the court clearly erred in
entering its findings. She has also failed to demonstrate that the
superior court made an error in applying the Alaska Uniform
Partnership Act, AS 32.05.010 et seq.
Furthermore, Pieper has not demonstrated that any alleged
error in finding that the partnership was dissolved and terminated
on the day of trial, and in dismissing her claim that Musarra
breached the partnership agreement, prejudiced Pieper. See Alaska
R. Civ. P. 61; see also Myers, 891 P.2d at 208. Pieper has not
shown how the alleged errors would affect the outcome of the case.
Pieper also failed to argue below that there was an
inadequate accounting for valuing contributions, debt, and past and
future income, or that all rights to the park's name should not be
given to Musarra; we therefore consider these arguments waived.
See Groff v. Kohler, 922 P.2d 870, 875 (Alaska 1996) ("Since [the
argument] was not raised below, it cannot be pursued on appeal.").
IV. CONCLUSION
We REVERSE and REMAND for correction of the amount of the
judgment to eliminate the deduction for the real estate commission,
and AFFIRM in all other respects.
