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Bennett v. Weimer (4/9/99), 975 P 2d 691
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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
CONNIE S. BENNETT and GOOD )
TASTE, INC., ) Supreme Court No. S-8410
)
Appellants, ) Superior Court No.
) 3AN-97-00209 CI
v. )
)
WILLIAM WEIMAR and ROBERT ) O P I N I O N
CRONEN, )
) [No. 5104 - April 9, 1999]
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Thomas J. Yerbich, Law Office of
Thomas J. Yerbich, Anchorage, for Appellants. Michael W. Price and
Sabrina E. L. Fernandez, Price & Price, Anchorage, for Appellees.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Board members and officers of a condominium association
owe a fiduciary duty to the condominium owners. Courts, however,
generally do not substitute their judgment for condominium
association officers' decisions unless they are unreasonable.
Connie Bennett owns two units in a condominium complex. William
Weimar and Robert Cronen hold office in and have voting control of
the condominium association. Bennett alleged that Weimar and
Cronen breached their fiduciary duties by remodeling and
landscaping the building's common areas, and by allowing one unit
to be used as a coffee shop. She also claimed that they thwarted
the sale of her units. Because Bennett has produced no admissible
evidence showing that a genuine issue of material fact remains, we
affirm the superior court's grant of summary judgment to Weimar and
Cronen.
II. FACTS AND PROCEEDINGS
The 600 Barrow Condominiums contain six residential and
three commercial units. Connie Bennett, a former president of the
condominium owners' association board of directors, owns
residential Units C and F, personally and as the owner of Good
Taste, Inc. (GTI). William Weimar, the current president of the
association, owns residential Units A and B. Weimar is also the
owner of St. Johns Investments, Inc., which owns the two largest
commercial units (Units 2 and 3). Robert Cronen is the secretary
and treasurer of both St. Johns Investments and the association.
The relative value of each unit determines its owner's voting power
in the association. The value of Weimar's units gives him
sufficient voting power to control the decisions of the
association's board of directors.
An amendment to 600 Barrow's conditions, covenants, and
restrictions (CC&Rs), recorded in 1994 during Bennett's presidency,
prohibited use of the commercial units as restaurants or food
stores. In March 1995 Weimar became president, and Weimar and
Cronen (hereinafter collectively Weimar) gained control of the
association. The board approved using a commercial unit as a
coffee shop. Sometime after approval, counsel to the board advised
it that the 1994 amendment was invalid and unenforceable. The
board, under Weimar, also approved expenditures exceeding $40,000
to remodel common areas and re-landscape common grounds.
Bennett and GTI have tried to sell their units. Bennett
placed her units on the market in June 1995, but has been unable to
sell them.
Bennett sued Weimar and Cronen individually, challenging
various actions taken by Weimar in his capacity as director and
officer of the association. Bennett did not sue the association.
She alleged that Weimar breached his fiduciary duty to the owners
by holding meetings without proper notice, approving plans for use
of a commercial unit in violation of the CC&Rs, incurring
unauthorized expenses, making unnecessary improvements to the
common areas of the building, and failing to maintain the
association's records according to the bylaws. Bennett maintained
that Weimar's actions reduced the value and marketability of her
units. She also alleged that Weimar deliberately made false
statements to prospective buyers of Bennett's units, thereby
preventing their sale. Bennett sought compensatory and punitive
damages.
Weimar moved for summary judgment. The superior court
noted that Weimar supported his motion "with numerous exhibits,
including properly sworn and notarized affidavits, to show that
there were no disputed issues of material fact."
Bennett opposed Weimar's motion, relying primarily on a
non-notarized declaration. The declaration did not state that a
notary was unavailable. The superior court concluded that, under
Alaska Civil Rule 56, it could not consider Bennett's declaration
in ruling on Weimar's motion. The superior court found no genuine
issues of material fact regarding Bennett's claim of breach of
fiduciary duty or intentional interference with prospective
economic advantage. It granted summary judgment to Weimar, denied
Bennett's motion for reconsideration, and entered judgment for
Weimar.
Bennett appeals, arguing that the superior court erred in
disregarding her declaration and in "determining that as a matter
of law the actions of [Weimar] were not unreasonable."
III. DISCUSSION
A. Standards of Review
We review a grant of summary judgment de novo. [Fn. 1]
Summary judgment is appropriate if "the evidence in the record
fails to disclose a genuine issue of material fact and the moving
party is entitled to judgment as a matter of law."[Fn. 2]
We review a lower court's decision to admit or exclude
evidence for abuse of discretion. [Fn. 3] We find an abuse of
discretion only when left with "a definite and firm conviction,
after reviewing the whole record, that the trial court erred in its
ruling."[Fn. 4]
B. Summary Judgment Materials
1. Bennett's declaration
Bennett argues that the superior court improperly
disregarded the declaration she submitted in response to Weimar's
summary judgment motion. Weimar responds that the superior court
correctly refused to consider the declaration because it was not
notarized, did not state that a notary was unavailable, and,
therefore, did not meet the statutory requirements of an affidavit.
Weimar also argues that, even if the declaration had been admitted,
it would not have prevented summary judgment because it contains no
admissible evidence creating a genuine issue of material fact.
The superior court reasoned that Alaska Civil Rule 56
does not "allow a court to consider a non-notarized written
statement such as the Declaration of Connie S. Bennett."
Rule 56(c) emphasizes the importance of affidavits, as
opposed to unsworn allegations, with regard to summary judgment.
It provides that a summary judgment motion "may be supported by
affidavits setting forth concise statements of material facts made
upon personal knowledge."[Fn. 5] The party opposing summary
judgment "may serve opposing affidavits, a concise 'statement of
genuine issues' setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be litigated,
and any other memorandum in opposition to the motion."[Fn. 6]
When a party has made and properly supported a summary judgment
motion, "an adverse party may not rest upon the mere allegations or
denials of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for
trial."[Fn. 7] Therefore, "assertions of fact in unverified
pleadings and memoranda cannot be relied on in denying a motion for
summary judgment."[Fn. 8] Alaska Statute 09.63.010 lists persons
who may witness an affidavit. [Fn. 9]
Alaska Statute 09.63.020(a) specifies how an equivalent
document may be created when a notary public is unavailable. [Fn.
10] Bennett's declaration does not meet the requirements of that
statute because it does not assert that a notary or other
authorized official was unavailable. We conclude that Bennett's
declaration does not satisfy the requirements of Rule 56 or AS
09.63.020(a).
Bennett argues that, when deciding whether to grant
summary judgment, courts may treat a nonmoving party's papers more
leniently than the moving party's papers. Bennett asserts,
"[c]ourts have even accepted verified pleadings as well as
declarations as being the functional equivalent of an affidavit in
opposition to a motion for summary judgment."
Federal courts may treat verified pleadings as equivalent
to affidavits, if the verified complaint "is based on personal
knowledge and sets forth facts admissible in evidence and to which
the affiant is competent to testify."[Fn. 11] We have also
allowed parties to rely on verified pleadings in opposing summary
judgment. [Fn. 12] Verified documents, however, are prepared under
oath and are sworn and signed "before a person authorized by law to
take the person's oath or affirmation."[Fn. 13] Therefore,
verified and notarized documents satisfy the same basic
requirements. [Fn. 14]
Bennett also urges us to consider her declaration because
she made it "under penalty of perjury." She reasons, "It seems
incongruous for the rules to be such that a person could be
convicted of perjury for making a statement in the manner Bennett
did in this case, and yet that same statement is not sufficient
evidence to support a civil action."
Federal courts permit unsworn declarations in lieu of
affidavits if the declarations are signed under penalty of perjury.
[Fn. 15] Congress passed 28 U.S.C. sec. 1746, allowing such
declarations, after finding that "[t]he requirement that the person
who signs an affidavit must appear before a notary and be sworn can
be inconvenient."[Fn. 16] Congress found that documents might
have to be executed outside normal business hours when a notary is
unavailable. [Fn. 17] And, for documents executed outside the
United States, it found that notarization might pose additional
problems regarding the authority of the officer administering the
oath and the authenticity of the officer's seal.
Our statutes, however, contain no analogous provision
permitting unsworn declarations in lieu of affidavits. In AS
09.63.020(a), our legislature has provided an exception to the
notarization requirement when a notary is unavailable. If a notary
is available, sworn affidavits are required. If a notary is
unavailable, a document satisfying AS 09.63.020(a) is required.
The requirement that the party appear before a notary public or
other person authorized by AS 09.63.010 to administer an oath
(assuming one is available) to swear the truth of a document's
contents is potentially more effective at producing truth during
motion practice than the threat of of discretionary prosecution for
perjury. A notary also requires the affiant to produce
identification before the notary signs and seals the document. [Fn.
18] Absent legislative requirement that we do so, we are not
willing to equate an unsworn declaration with an affidavit for
purposes of summary judgment proceedings. This is an additional
safeguard which we wish to retain.
Finally, we must decide whether Weimar timely objected to
the form of Bennett's declaration. Weimar first challenged the
procedural sufficiency of the declaration at oral argument on the
summary judgment motion. Weimar had previously treated the
declaration as an affidavit. Because Weimar first raised this
issue at oral argument, the superior court was not compelled to
hold that the unsworn declaration was insufficient. But Bennett
never submitted a corrected document. Any possible error on the
part of the superior court in failing to give Bennett an
opportunity to supply an adequate document is made harmless by
Bennett's failure to tender a document that conformed to the
requirements of AS 09.63.010 or AS 09.63.020(a) when she moved for
reconsideration, and by her failure to request additional time in
which to supply a conforming document.
We conclude that Bennett's declaration is inadmissible,
and that any error in rejecting it is harmless.
2. Affidavits submitted by Weimar
Bennett also raises a procedural challenge to the
materials Weimar submitted when he moved for summary judgment. She
asserts that the Glenn Stewart and Robert Cronen affidavits do not
show that the affiants had personal knowledge of the facts. She
also argues that documents attached to Weimar's supporting
memorandum were "neither sworn nor certified."
Bennett, however, acknowledges that she first raised this
objection when she moved for reconsideration. Without deciding
whether Weimar's materials are procedurally sufficient, we conclude
that the superior court properly considered them because Bennett
made no timely objection to them. [Fn. 19]
C. Breach of Fiduciary Duty
Bennett argues that Weimar breached his fiduciary duties
to the association and its members. Although she asserts that the
superior court applied the correct standard in judging Weimar's
actions, she argues that it misapplied the standard; she raises
several challenges to the reasonableness of Weimar's actions.
Weimar argues that Bennett could only have created a
genuine issue of material fact with an affidavit "alleg[ing] facts
rising to the level of fraud, dishonesty or incompetence." He
contends that summary judgment on this issue was appropriate
because, even with her declaration, Bennett introduced no evidence
of fraud, dishonesty, or incompetence. The superior court granted
summary judgment, explaining, "[Bennett] allege[s] that [Weimar's]
decisions were unreasonable, but [she] fail[s] to proffer any
evidence that would permit a trier of fact to conclude the
expenditures were unreasonable under the permissive business
judgment standard. . . ."
We turn first to the standard by which the actions of
condominium officers' are judged. [Fn. 20] Bennett proposes a
reasonableness standard. She draws an analogy between condominium
owners with voting control and directors or majority shareholders
of a corporation. She argues that directors have a fiduciary duty
to act in the best interests of the corporation, and to manage the
corporation's affairs with "the same degree of care that an
ordinary prudent person would use." She contends that Weimar, as
an owner with voting control, breached those fiduciary duties to
the other members of the association.
Weimar relies on Papalexiou v. Tower West Condominiums,
[Fn. 21] which applies the business judgment rule to evaluate the
actions of a board of directors of a condominium association.
Under that standard, "[c]ourts will not second-guess the actions of
directors unless it appears that they are the result of fraud,
dishonesty or incompetence."[Fn. 22]
The superior court found that Weimar's actions satisfied
a "permissive business judgment standard,"which appears similar to
the reasonableness standard Bennett advances.
Alaska Statute 34.08.330(a) requires officers and members
of the executive board of owners' associations "to exercise the
care required of fiduciaries of the unit owners." Although AS
34.08.750 appears to allow the importation of the business judgment
rule into the law of condominium associations, [Fn. 23] we favor a
standard that includes reasonableness. In O'Buck v. Cottonwood
Village Condominium Association, [Fn. 24] we considered the
application of the business judgment rule to condominium boards.
We decided that "a condominium association rule will not withstand
judicial scrutiny if it is not reasonable."[Fn. 25] Noting the
authority for and against application of the business judgment
rule, we concluded, "there is little if any difference whether one
uses the business judgment analogy in applying the reasonableness
standard. . . . [T]he rule at issue measures up to any standard of
reasonableness."[Fn. 26] Similarly, in Dunlap v. Bavarian Village
Condominium Association, [Fn. 27] we applied a reasonableness test
to a condominium rule against storing "junk"cars in carports. We
concluded that the rule "bears a fair and substantial relationship
to legitimate condominium purposes of improving aesthetics and
marketability by eliminating junk cars."[Fn. 28]
We must therefore decide whether there is a genuine issue
of material fact about the reasonableness of Weimar's actions
challenged by Bennett.
1. The renovations
Bennett contends that the board, with only $41,000 in
reserves, imprudently spent $45,600 on renovations. She claims
that the remodeling and landscaping raised her dues by 250%, and
decreased the value, marketability, and security of the building.
Weimar supported his summary judgment motion with a prima
facie showing that the remodeling had a valid purpose. He
submitted an affidavit from Cronen stating that the board of
directors decided that the renovations were necessary "based on
considerations of aesthetics, safety, security and the convenience
of the homeowners. Alternatives were also considered." He also
noted, and Bennett does not dispute, that "[a]ll expenditures for
repair were made with approval from the board of directors in
accordance with the By-laws."
Appearance and marketability are legitimate objectives
for an association to pursue. [Fn. 29] In Dunlap we concluded that
the association's rule against storing junk cars in carports could
be applied to Dunlap and his car, even though the parties
"disagree[d] over whether the presence of Dunlap's Mustang in the
carport ha[d] a detrimental effect on the appearance of [the
complex] . . . ."[Fn. 30] Similarly, in O'Buck, the parties did
not agree that the association's ban of exterior television
antennae improved the appearance of the building. [Fn. 31] The
O'Bucks maintained that the ban was "[nothing] more than a sop to
personal prejudice or unarticulated personal values."[Fn. 32] But
we explained that "condominium owners consciously sacrifice some
freedom of choice in their decision to live in this type of
housing. Unit owners may not rely on the courts to strike down
reasonable rules on the grounds of differences in aesthetic
tastes."[Fn. 33]
Bennett's case is slightly different. Bennett challenges
certain decisions by the association, not an association rule or
ban. And Bennett sued Weimar and Cronen individually. But the
reasoning of O'Buck and Dunlap still applies because, like the
O'Bucks and Dunlap, Bennett challenges judgments of aesthetics and
marketability.
There was no evidence properly before the court to rebut
the showing in the Cronen affidavit that the remodeling was done
for a legitimate purpose. To prevent summary judgment, Bennett
needed to provide more than her opinion that the renovations were
unnecessary; she needed to present evidence showing that they were
unreasonable. Bennett's strongest evidence of unreasonableness was
the claim in her declaration that her dues increased 250%. But
this is not admissible evidence. See Part III.B.1. Bennett's
declaration also presented her opinion that the renovations only
benefited Weimar's commercial units. Although Bennett implied that
the renovations were unreasonable self-dealing by Weimar, she
introduced no admissible evidence to support her theory. [Fn. 34]
We therefore affirm summary judgment on this issue.
2. The coffee shop
Bennett also argues that approving plans for the use of
one unit as a coffee shop violated the CC&Rs and constituted a
breach of fiduciary duty. She notes that an amendment to the CC&Rs
prohibited the use of a commercial unit as a restaurant or food
store. Cronen's affidavit states that the board allowed the coffee
shop "[i]n reliance on a legal opinion as to the validity of an
amendment to the By-laws." Bennett reasons that "[t]his opinion of
counsel, unlike a decision of a court, binds no one and is just
that, a mere opinion." She also notes, and Weimar acknowledged,
that the board obtained the legal advice only after approving the
opening of the coffee shop.
The superior court concluded that enforcement of the
amendment to the CC&Rs "was not an option"because counsel advised
the board that the amendment was invalid. The court also noted
that Bennett "proffer[ed] no evidence that the initial approval and
subsequent acquiescence of the coffee shop's operation [were]
contrary to the interests of the Association or intended to
personally benefit [Weimar]."
In support of his summary judgment motion, Weimar
submitted the attorney's letter opining that the amendment relied
upon by Bennett was invalid. The board could permissibly rely on
that letter to decline to enforce the amendment. Bennett
introduced no evidence that the board's refusal to enforce the
amendment, after obtaining counsel's advice that it was invalid and
unenforceable, was unreasonable. Bennett's attorney effectively
conceded as much in oral argument before our court. We therefore
affirm summary judgment on this issue.
3. Credit for fees and costs
Bennett also argues that the board did not "credit [her]
with the $22,000 [in fees and costs] she expended for and on behalf
of the Association . . . in prosecuting lawsuits involving St. John
[sic] Investments and defendants . . . ." Weimar responds that
this issue would be "more appropriately handled"in the lawsuit in
which Bennett incurred the fees. The superior court did not decide
this issue.
Bennett has waived this argument by inadequately briefing
it on appeal. She cites no authority to explain her legal theory
why Weimar is responsible in this case for fees incurred in another
case or to suggest that a factual issue remains. [Fn. 35] We
therefore decline to address this issue.
4. Intentional interference with prospective economic
advantage
Finally, Bennett argues that Weimar intentionally
interfered with possible sales of Bennett's units. Bennett
concedes that, on the evidence it did consider, the superior court
correctly concluded that Weimar did not interfere with Bennett's
prospective sales. But she contends that her declaration
establishes genuine issues of material fact on this question.
Because we concluded above in Part III.B.1 that Bennett's
declaration is inadmissible, her argument here necessarily fails.
Given her concession, the insufficiency of her declaration, and her
failure to argue that Weimar did not satisfy his initial burden of
establishing the absence of genuine material factual issues and his
entitlement to judgment as a matter of law, we affirm Weimar's
summary judgment on this claim. [Fn. 36]
IV. CONCLUSION
Because there are no genuine issues of material fact
regarding Bennett's claims, we AFFIRM the grant of summary judgment
to Weimar and Cronen on all of Bennett's claims.
FOOTNOTES
Footnote 1:
See Ramsey v. City of Sand Point, 936 P.2d 126, 129 (Alaska
1997).
Footnote 2:
Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1369
(Alaska 1993) (quoting Dayhoff v. Temsco Helicopters, Inc., 772
P.2d 1085, 1086 (Alaska 1989)).
Footnote 3:
See Williams v. Utility Equip., Inc., 837 P.2d 1112, 1115
(Alaska 1992).
Footnote 4:
Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79
(Alaska 1982).
Footnote 5:
Alaska R. Civ. P. 56(c).
Footnote 6:
Id.
Footnote 7:
Alaska R. Civ. P. 56(e).
Footnote 8:
Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977).
Footnote 9:
AS 09.63.010 provides:
Oath, affirmation, and acknowledgment. The
following persons may take an oath, affirmation, or acknowledgment
in the state:
(1) a justice, judge, or magistrate of a
court of the State of Alaska or of the United States;
(2) a clerk or deputy clerk of a court
of the State of Alaska or of the United States;
(3) a notary public;
(4) a United States postmaster;
(5) a commissioned officer under AS
09.63.050(4); or
(6) a municipal clerk carrying out the
clerk's duties under AS 29.20.380.
Footnote 10:
AS 09.63.020(a) provides:
A matter required or authorized to be
supported, evidenced, established, or proven by the sworn
statement, declaration, verification, certificate, oath, or
affidavit, in writing of the person making it (other than a
deposition, an acknowledgment, an oath of office, or an oath
required to be taken before a specified official other than a
notary public) may be supported, evidenced, established, or proven
by the person certifying in writing "under penalty of perjury"that
the matter is true. The certification shall state the date and
place of execution, the fact that a notary public or other official
empowered to administer oaths is unavailable, and the following: "I
certify under penalty of perjury that the foregoing is true."
Footnote 11:
Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); see
also McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987).
Footnote 12:
See e.g., Smith v. Thompson, 923 P.2d 101, 102 n.1 (Alaska
1996); Wettanen v. Cowper, 749 P.2d 362, 363 (Alaska 1988).
Footnote 13:
AS 09.63.040(a), (b).
Footnote 14:
See AS 09.63.030, .020.
Footnote 15:
See 28 U.S.C. sec. 1746. See also Goldman, Antonetti,
Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l Inc., 982 F.2d 686,
689-90 (1st Cir. 1993) ("Under federal law, an unsworn statement
signed under penalty of perjury may be used, in lieu of a sworn
statement or affidavit, to support or oppose a motion for summary
judgment."); Davis v. Frapolly, 756 F. Supp. 1065, 1067 (N.D. Ill.
1991).
Footnote 16:
H.R. Rep. No. 94-1616, at 1 (1976), reprinted in 1976
U.S.C.C.A.N. 5644, 5645.
Footnote 17:
See id.
Footnote 18:
See AS 44.50.070 ("A notary public shall require oaths and
affirmations to be given in the notary's presence and require
persons appearing before the notary to produce identification.").
Footnote 19:
See Murat v. F/V Shelikof Strait, 793 P.2d 69, 75 (Alaska
1990) (noting "the well-recognized principle that a failure to
timely raise any evidentiary objection constitutes waiver of that
objection and permits the court to consider the proffered
evidence"). See also Alaska R. Civ. P. 77(k) (allowing a party to
"move the court to reconsider a ruling previously decided"and
requiring the movant to "specifically designate that portion of the
ruling, the memorandum, or the record, . . . which the movant
wishes the court to consider") (emphasis added).
Footnote 20:
This is a subject of much debate. See, e.g., Robert G.
Natelson, Consent, Coercion, and "Reasonableness"in Private Law:
The Special Case of the Property Owners' Association, 51 Ohio St.
L.J. 41, 48 (1990) (noting that "individual courts and commentators
have resorted to public law and constitutional standards, judicial
review of the developer's exercise of reserved powers, trust law,
and the laws of business corporations and housing cooperatives"for
precedent to apply to property owners' associations); Note,
Judicial Review of Condominium Rulemaking, 94 Harv. L. Rev. 647,
656-67 (1981).
Footnote 21:
401 A.2d 280, 285 (N.J. 1979).
Footnote 22:
Papalexiou, 401 A.2d at 286. See also Rywalt v. Writer Corp.,
526 P.2d 316, 317 (Colo. App. 1974) (concluding that courts should
not interfere with acts of directors of homeowners' association
absent evidence of bad faith or fraud); Schwarzmann v. Ass'n of
Apartment Owners, 655 P.2d 1177, 1181 (Wash. App. 1982) (holding
that court would not second-guess actions of directors absent a
showing of fraud, dishonesty, or incompetence, and that directors
could not be held personally liable without a showing that they
acted in bad faith or knowingly condoned wrongful or negligent
conduct).
Footnote 23:
AS 34.08.750 provides:
The principles of law and equity, including
the law of corporations and unincorporated associations, the law of
real property, and the law relative to capacity to contract,
principal and agent, eminent domain, estoppel, fraud,
misrepresentation, duress, coercion, mistake, receivership,
substantial performance, or other validating or invalidating cause
supplement the provisions of this chapter except to the extent
inconsistent with this chapter.
(Emphasis added.)
Footnote 24:
750 P.2d 813, 817-18 & n.4 (Alaska 1988).
Footnote 25:
Id. at 817.
Footnote 26:
Id. at 817 n.4 (holding that the association's ban of
television antennae was reasonable).
Footnote 27:
780 P.2d 1012, 1016-17 (Alaska 1989).
Footnote 28:
Id. at 1017. Accord, Thanasoulis v. Winston Tower 200 Ass'n,
519 A.2d 911, 912 (N.J. Super. App. Div. 1986) (stating that courts
will not second-guess association's reasonable, good-faith acts),
rev'd on other grounds, 542 A.2d 900 (N.J. 1988); Riss v. Angel,
934 P.2d 669, 680-81 (Wash. 1997) (requiring directors of
homeowners' associations to act reasonably and in good faith).
Footnote 29:
See Dunlap, 780 P.2d at 1017; O'Buck, 750 P.2d at 818.
Footnote 30:
780 P.2d at 1017.
Footnote 31:
See 750 P.2d at 818.
Footnote 32:
Id.
Footnote 33:
Id.
Footnote 34:
See French v. Jadon, Inc., 911 P.2d 20, 24-26 (Alaska 1996)
(affirming summary judgment against a nonmoving party who
introduced opinions and speculation, but no admissible evidence, to
rebut the moving party's sworn statements).
Footnote 35:
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) ("Where a point is given only a cursory statement in
the argument portion of a brief, the point will not be considered
on appeal"); State v. O'Neill Investigations, Inc., 609 P.2d 520,
528 (Alaska 1980).
Footnote 36:
See Alaska R. Civ. P. 56(c); Yurioff v. American Honda Motor
Co., 803 P.2d 386, 388-89 (Alaska 1990).
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