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Frost v. Ayojiak (5/8/98), 957 P 2d 1353
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
PAUL FROST, LAURA FROST, and )
ANNIE FOX, ) Supreme Court No. S-7781
) Superior Court No.
v. ) 3AN-94-8191 CI
MOSES AYOJIAK, ) O P I N I O N
Appellee. ) [No. 4984 - May 8, 1998]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: David S. Case, Copeland, Landye,
Bennett and Wolf, LLP, Anchorage, for Appellants. David D.
Clark, Law Office of David D. Clark, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Paul Frost, Laura Frost, and Annie Fox (the Frosts)
appeal the superior court's order denying their Alaska Civil Rule
60(b) motion and granting Moses Ayojiak's Civil Rule 60(a)
motion. We conclude that the superior court erred in holding
that ejecting the Frosts from Lot 3, rather than Lot 3B, was a
"clerical error"and in holding that Ayojiak had had standing to
eject them from Lot 3B when he brought his ejectment action. The
errors committed by the superior court were not harmless. We
reverse the order ejecting the Frosts from Lot 3B and remand for
II. FACTS AND PROCEEDINGS
In 1982 the City of Togiak deeded to Moses Ayojiak Lot
3, Block 10, USS 4905 (Lot 3). Ayojiak built a house on property
he thought was a part of Lot 3. In 1985 Ayojiak sold the house,
but not the land, to John Coopchiak for $15,000. In 1986
Coopchiak sold the house to Annie Fox and Roy Fox. [Fn. 1] After
Roy Fox died, Laura Frost, Annie and Roy's granddaughter, and her
husband Paul Frost moved into the house with Annie. Ayojiak
demanded that the Frosts move the house off his property. When
the Frosts refused, Ayojiak brought an action against the Frosts
to eject them from Lot 3 and to quiet title to Lot 3. The Frosts
cross-complained, claiming title by adverse possession on a
In January 1996 the superior court entered a final
judgment against the Frosts, ejecting them from Lot 3 and
ordering them to pay back rent to Ayojiak. The court found that
the Frosts had not shown colorable title by clear and convincing
evidence. It further found that the Frosts had not brought their
adverse possession claim in good faith. The court opined that
the Frosts had coached witnesses and changed dates on checks to
support their version of the facts and that they "[had taken]
advantage of [Coopchiak] and fabricated evidence of title."
During the time that Paul Frost was preparing to move
the house off Lot 3, he discovered a survey cap on the property.
After some investigation, Frost learned that a 1988 survey had
resulted in the recording of Plat 90-5. Plat 90-5 shows that Lot
3 no longer exists. The City had re-platted Lot 3 into three
parcels -- a city street, Lot 3A, and part of Lot 3B. [Fn. 2]
Lot 3B extends beyond some of the original boundaries of Lot 3.
According to Plat 90-5, the Frosts' house sits on Lot 3B. The
Frosts' house is not located on any part of the land previously
identified as Lot 3. Plat 90-5 was recorded on April 12, 1990.
It lists the City of Togiak and/or Togiak Natives, Limited, as
the record title holder(s) of Lot 3A and Lot 3B.
On February 15, 1996, the Frosts moved for relief from
the final judgment pursuant to Rule 60(b). On March 15 the City
issued a warranty deed to Ayojiak, deeding him Lot 3A and Lot 3B.
[Fn. 3] Ayojiak opposed the Frosts' Rule 60(b) motion and moved
to amend the judgment pursuant to Rule 60(a). The superior court
denied the Frosts' Rule 60(b) motion and granted Ayojiak's Rule
60(a) motion, thereby implicitly finding that the judgment's
reference to Lot 3 was a "clerical error." The court amended the
final judgment to eject the Frosts from Lot 3B. This appeal
A. Standard of Review
Whether an error is a "clerical error"within the
meaning of Rule 60(a) is a question of law. See DeVaney v.
State, Dep't of Revenue, 928 P.2d 1198, 1200 (Alaska 1996). We
review questions of law de novo. See Guin v. Ha, 591 P.2d 1281,
1284 n.6 (Alaska 1979). If the error was a "clerical error,"we
review the trial court's decision to amend the judgment under
Rule 60(a) for an abuse of discretion. See Alaskan Village, Inc.
v. Smalley, 720 P.2d 945, 950 (Alaska 1986).
We review an order denying a Rule 60(b) motion to
determine if the trial court abused its discretion. See Benedict
v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska 1996); McCall v.
Coats, 777 P.2d 655, 657 (Alaska 1989). Reversal of the trial
court "is justified only if this court concludes the trial court
was clearly mistaken." Grothe v. Olafson, 659 P.2d 602, 611
B. This Court Will Not Address Whether the Amended
Judgment Was Entered in Violation of Rule 54(c).
On appeal, the Frosts contend for the first time that,
pursuant to Civil Rule 54(c), [Fn. 4] the final judgment cannot
be amended. We do not consider arguments attacking a judgment
unless they were raised below. See Zeman v. Lufthansa German
Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule,
a party may not present new issues or advance new theories to
secure a reversal of a lower court decision."). The Frosts argue
that their Rule 54(c) argument is properly before us because it
is either "an additional theory supporting their argument that
the trial court abused its discretion in granting Ayojiak's
Motion to Amend the Judgment. . . . [Or] it is allowable because
it closely relates to the arguments presented to the trial
court." We conclude that the Frosts did not adequately raise
their Rule 54(c) argument in the superior court. An argument
that an amended final judgment violates Rule 54(c) is not so
closely related to a Rule 60(b) motion that it "could have been
gleaned from [the Frosts'] pleadings." Id. at 1280.
C. The Misidentification of a Parcel of Real Property Is
Not a "Clerical Error"within the Meaning of Rule 60(a).
The superior court amended the final judgment pursuant
to Rule 60(a), which provides in part:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein arising from
oversight or omission may be corrected by the court at any time
of its own initiative or on the motion of any party and after
such notice, if any, as the court orders.
The "clerical error"on which Ayojiak based his motion
to amend was the ejectment of the Frosts from Lot 3, from which
Ayojiak had sued to eject the Frosts, instead of from Lot 3B,
where the house actually sits. The superior court stated in its
decision that "[i]t is undisputed that at all relevant times
[Ayojiak] has been the record owner of the land in question."
This is not supported by the record. According to Plat 90-5, the
house was never located on Lot 3. [Fn. 5] Before the 1988
replatting, the City owned the land on which the Frosts' house
sits. After the 1988 replatting, the City continued to own the
land on which the house sits, which was then called Lot 3B. The
City owned Lot 3B until it deeded the lot to Ayojiak in March
1996, after the superior court's final judgment. The City, not
Ayojiak, was thus the record owner of Lot 3B at the time Ayojiak
brought his ejectment action. Upon discovering that it had
defectively recorded the replatting of Lot 3, the City re-
recorded Plat 90-5 and deeded Ayojiak Lot 3A and Lot 3B. The
superior court simply issued an amended final judgment
substituting "Lot 3B"for "Lot 3"and ejecting the Frosts
therefrom. [Fn. 6]
The Frosts raise several challenges to the superior
court's order amending the final judgment. They contend that
ejecting them from Lot 3 instead of Lot 3B was not a "clerical
error." Even if it was a clerical error, the Frosts argue that
Ayojiak did not have standing to eject them from Lot 3B when he
brought the ejectment action, because he had never held legal
title to Lot 3B and the house had never been located on the lot
to which Ayojiak did hold legal title, i.e., Lot 3. Therefore,
the superior court abused its discretion in granting Ayojiak's
motion to amend.
The Frosts argue that the superior court's amendment of
the judgment to eject them from Lot 3B, instead of Lot 3, was not
merely correcting a "clerical error." Rather, the court
substantively altered the judgment in a way not intended by
Rule 60(a). The Frosts support their argument with the fact that
their house was never located on the land from which the original
judgment ejected them. The superior court, the Frosts contend,
ejected them from property to which Ayojiak only became the legal
title holder after the final judgment was entered.
Ayojiak argues that his title to Lot 3B is derivative
of his title to Lot 3, and that to correct the final judgment to
reflect that the house sits on Lot 3B was to correct a clerical
error within the meaning of Rule 60(a). Ayojiak relies on State
v. 7.536 Acres, 431 P.2d 897 (Alaska 1967). In 7.536 Acres, the
land totaled 9.942 acres, but was wrongly described as 7.536
acres. Id. at 901. We stated that it was "probable . . . that
the slight variance in acreage . . . results from a clerical
error. Such an error is not fatal to the validity of the
judgment and may be corrected by the trial court upon remand."
Id. It was not contended that the boundaries of the 9.942 acres
were different than the boundaries of the land erroneously
described as containing 7.536 acres.
We conclude that ejecting the Frosts from Lot 3,
instead of Lot 3B, was not a "clerical error"within the meaning
of Rule 60(a). 7.536 Acres is distinguishable. In the instant
case, the superior court was not amending the final judgment to
reflect a correction in the description of the amount of property
Ayojiak owned, or a correction in the description of the identity
of the property Ayojiak owned. Plat 90-5 reveals that the
Frosts' house never sat on Lot 3, and that Ayojiak had never
owned the property on which the house does sit until the City
deeded it to him in March 1996, two months after the original
The discovery of Plat 90-5 reveals that the original
final judgment was incorrect in several ways: (1) Lot 3 no longer
existed; (2) the Frosts' house never sat on Lot 3; and (3) the
Frosts' house did not sit on property owned by Ayojiak at the
time he brought the ejectment action. These defects in the final
judgment are not mere "clerical errors."
In support of his contention that substituting Lot 3B
for Lot 3 was nonetheless a correct remedy, Ayojiak argues that
any future litigation would merely repeat the previous trial
because "[t]he [first] litigation was over who owned the land the
house sat on, Moses Ayojiak or the Frosts." It is because the
litigation only concerned whether Ayojiak or the Frosts owned the
land on which the house sat, and Plat 90-5 reveals that neither
owned the land, that amending the final judgment substantively
changed that judgment, a remedy not contemplated by Rule 60(a).
See 12 James Wm. Moore, Moore's Federal Practice sec. 60.11
ed. 1997) (stating that a judgment should be amended pursuant to
Rule 60(a) only to correct mindless mechanical mistakes, but may
not be used for the purpose of making rulings that should have
been made and were not).
D. The Denial of the Frosts' Rule 60(b) Motion Was an
Abuse of Discretion.
The Frosts appeal the superior court's order denying
Civil Rule 60(b) relief, alleging that relief was warranted under
subsections (1), (2), (5), and (6) of the rule. In Babinec v.
Yabuki, 799 P.2d 1325 (Alaska 1990), we set out the requirements
for obtaining relief pursuant to Rule 60(b)(2) (newly discovered
evidence). We stated:
The newly discovered evidence must:
(1) be such as would probably change the
result on a new trial;
(2) have been discovered since the trial;
(3) be of such a nature that it could not
have been discovered before trial by due diligence;
(4) be material; [and]
(5) not be merely cumulative or impeaching.
Id. at 1333.
The Frosts argue that the discovery of Plat 90-5 meets
the Babinec requirements for obtaining Rule 60(b)(2) relief.
Ayojiak, however, asserts that the newly discovered Plat 90-5
would not change the end result of the litigation; i.e., ejecting
the Frosts from the land upon which the house sits. Also,
Ayojiak argues, the Frosts failed to show the existence of a
meritorious defense to his ejectment action, as required to
obtain Rule 60(b) relief. See Cleary Diving Serv. v. Thomas Head
& Greison, 688 P.2d 940, 943 (Alaska 1984) (stating that "in
order to prevail on a 60(b) motion, a movant must generally show
the existence of a meritorious claim as well as one of the
grounds stated in the rule, such as excusable neglect or
Plat 90-5 meets the Babinec requirements for obtaining
relief under Rule 60(b)(2). First, Plat 90-5 would change the
result of a new trial. The court ordered the Frosts to pay back
rent to Ayojiak beginning from September 1, 1992, when the Frosts
permanently moved into the house. Although the City deeded
Ayojiak the land on which the Frosts' house sits in 1996, from
1992 until 1996 the house sat on property owned by the City, not
Ayojiak. While a new trial may result in ejecting the Frosts from
Lot 3B, to which Ayojiak now seemingly holds legal title, [Fn. 7]
a new trial might not result in ordering the Frosts to pay back
rent to Ayojiak from 1992. Second, Plat 90-5 was discovered
since the trial. Third, although Plat 90-5 had been recorded
since 1990, the Frosts had no reason to doubt that Ayojiak was
the record owner of the land on which the house sat. The Frosts
bought the house from Coopchiak, who had bought the house from
Ayojiak. The Frosts had not had any reason to believe that
Ayojiak had sold a house on property that he did not legally own.
Fourth, Plat 90-5 is material to the litigation. As discussed
above, Plat 90-5 reveals not only that Lot 3 no longer exists,
but that the Frosts' house never sat on Lot 3; rather, the house
sits on land owned by the City until it was deeded to Ayojiak in
1996. Lastly, Plat 90-5 is neither cumulative nor impeaching.
Ayojiak's argument that the Frosts did not assert a
meritorious defense is incorrect. The Frosts' argument that
their house was not sitting on Ayojiak's property when he brought
the ejectment action is a meritorious defense to an ejectment
We conclude that the superior court abused its
discretion in denying the Frosts' Rule 60(b)(2) motion. Given
our holding under Rule 60(b)(2), we need not address Frosts'
arguments regarding other subsections of the rule.
E. The Errors Were Not Harmless.
Since Ayojiak currently holds apparent legal title to
Lot 3B, the superior court's errors are seemingly harmless.
Legal ownership gives Ayojiak the right to bring an ejectment
action against the Frosts pursuant to AS 09.45.630, and he would
Before Ayojiak was deeded Lot 3B in 1996, the Frosts'
house sat on property owned by the City. The Frosts' adverse
possession defense to Ayojiak's ejectment action could not have
been a defense to such an action by the City. The Frosts cannot
adversely possess City property. See AS 29.71.010 ("A
municipality may not be divested of title to real property by
adverse possession."). While the City, and not Ayojiak, was the
proper plaintiff to have brought the ejectment action against the
Frosts in 1994, Ayojiak may now be entitled to eject the Frosts
from Lot 3B. Arguably the Frosts will not be prejudiced by being
ejected from Lot 3B without another trial. However, further
inquiry reveals that the superior court must address certain
issues on remand before it can allow Ayojiak to eject the Frosts
from Lot 3B.
The Frosts argue that they deserve a chance to raise a
defense to an ejectment action from Lot 3B that they did not
raise in the Lot 3 ejectment action. The Frosts' additional
argument is that the City's actions in deeding Lot 3A and Lot 3B
to Ayojiak were illegitimate. [Fn. 8] The Frosts argue that the
"1996 deed from the Togiak mayor is invalid,"because evidence of
the alleged 1988 oral agreement [Fn. 9] is unreliable and because
the mayor lacked the authority to unilaterally execute a deed to
Ayojiak in 1996. [Fn. 10] The Frosts cite Togiak City Ordinance
Chapter 4.3, section 4, in support of their contention that the
mayor did not have the authority to unilaterally grant Ayojiak
Lot 3A and Lot 3B. Section 4 provides:
The council may approve after public notice
the conveyance and exchange of a parcel of
city property for an equivalent parcel of property owned by
another person subject to such conditions as the council may
impose on the exchange, whenever in the judgement of the council
it is advantageous to the city to make the property exchange.
Gary Carlos, President of the Togiak City Council in 1988, made a
sworn statement in March 1996 that in 1988 the City Council
approved the replatting of the land, and Ayojiak's Lot 3 was
modified to become Lot 3A and Lot 3B. Carlos supported his
claims with the September 4, 1988, City Council Meeting Minutes
(Meeting Minutes). The Meeting Minutes reveal that the City
Council discussed the approval of the land survey. The Meeting
Minutes, however, do not refer specifically to Ayojiak's land.
Additionally, there is no evidence that the mayor or the city
council gave public notice of the land exchange either in 1988 or
1996. Thus, whether Ayojiak legitimately received Lot 3A and
Lot 3B in exchange for Lot 3 is arguable.
In light of the fact that the City may not have taken
the proper procedural steps when it deeded Ayojiak Lot 3B, the
superior court's errors cannot be considered harmless. Moreover,
although the superior court found that the Frosts may have acted
in bad faith, and had no claim to Lot 3B, the uncertainty
regarding the status of the 1996 warranty deed to Lot 3B supports
the conclusion that we must reverse the judgment of the superior
court and remand this case for further findings. Specifically,
the superior court should determine whether Ayojiak holds valid
title to Lot 3B. If the court finds Ayojiak's title valid, it
should eject the Frosts. It should recalculate the back rent the
Frosts owe Ayojiak so as to reflect the fact that Ayojiak
acquired legal title to Lot 3B in 1996, not 1992, the date from
which the final judgment currently awards Ayojiak back rent.
With respect to back rent between 1992 and 1996, the court should
consider whether Ayojiak is equitably entitled to back rent for
this period in view of the 1988 replat and the actions associated
therewith. If the superior court finds Ayojiak's title invalid,
it should dismiss his ejectment action against the Frosts.
We REVERSE the superior court's order denying the
Frosts' Rule 60(b) motion and granting Ayojiak's Rule 60(a)
motion to amend the final judgment, and REMAND the case for
further proceedings consistent with this opinion.
At trial, the Frosts alleged that Coopchiak sold the house to Laura Frost in 1987. The
trial court found that the evidence did not support that assertion. Rather, the court found that
Coopchiak sold the house to the Foxes in 1986.
See Appendix A, showing the relevant portion of Plat 90-5 indicating the boundaries of
Lot 3, Lot 3A, and Lot 3B.
The warranty deed was signed by the mayor of Togiak.
Rule 54(c) provides:
A default judgment shall not be different in kind from or exceed in
amount that prayed for in the demand for judgment. Except as to a party against whom a default
judgment is entered, every final judgment shall grant the relief to which the party in whose favor it
is rendered is entitled, even if the party has not demanded such relief in the pleadings.
As stated above, the 1988 replatting, which revealed that the house never sat on Lot 3,
also eliminated Lot 3.
The superior court's Amended Final Judgment awarded the same amount of money
damages to Ayojiak as its original final judgment. The court awarded Ayojiak $8,000 (rent owed
from September 1, 1992, to present), with interest at 10.5 percent per annum from and after
September 21, 1994, and attorney's fees.
But see discussion infra Part III.E of the issues surrounding the legitimacy of Ayojiak's
warranty deed to Lot 3B.
The Frosts first disputed Ayojiak's ownership of Lot 3B in their Reply to Ayojiak's
Opposition to their Rule 60(b) Motion for Relief from Final Judgment. Among the reasons the
Frosts gave for why Ayojiak's "claim of ownership to Lot 3B, Block 11 is questionable"is that
the deed executed by the mayor in 1996 was not approved by the Togiak City Council after public
Ayojiak alleges that
[t]he City and the Landowners in the area met in 1988 to resolve
various trespass problems in the area, because people[']s houses were not on their lots and city
streets trespassed across private property. The property in the area was resurveyed into Plat 90-
5. Plat 90-5 required land exchanges from the City to lot owners and lot owners to each other as
well as lot owners to the City. All parties in interest agreed . . . ."
While the "City of Togiak"was listed as the "Grantor"on the 1996 warranty deed, Isaac
Tuday, Togiak Mayor, was the sole signer of the deed.