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Red Top Mining Inc. v. Anthony (7/30/99) sp-5143
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
RED TOP MINING, INC., )
) Supreme Court No. S-7973
) Superior Court No.
v. ) 4FA-93-2045 CI
MIKE R. MARK ANTHONY, ) O P I N I O N
Appellee. ) [No. 5143 - July 30, 1999]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: William R. Satterberg, Jr., Law
Offices of William R. Satterberg, Jr., Fairbanks, for Appellant.
Michael A. MacDonald, Downes, MacDonald & Levengood, Fairbanks, for
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
Red Top Mining, Inc. appeals the superior court's denial
of three of Red Top's motions: (1) a motion to set aside
a "default"judgment; (2) a motion to reconsider that ruling; and
(3) a motion to intervene. Because the superior court correctly
resolved each of these matters, we affirm.
II. FACTS AND PROCEEDINGS
In August 1993 Mike Mark Anthony filed a quiet title
action on the "Doherty Claim,"a mining claim located outside
of Fairbanks. Anthony's complaint sought to quiet title against
named individuals and their heirs and "all persons unknown claiming
any right, title, and interest in [the Doherty Claim]." Anthony
did not name Red Top in the action.
Anthony alleged that he owned the Doherty Claim via a
quitclaim deed Red Top executed to him in May 1992. Anthony,
claiming to be president of Red Top, had signed the quitclaim
deed to himself as payment for debts he asserted that Red Top owed
him. Anthony contended that Red Top had acquired title in one of
two ways: first, as a successor in interest, it had acquired title
through an option contract that was originally executed in
1937; or alternatively, it owned the claim through adverse
Anthony's quiet title action was vigorously contested
through trial by the named defendants, heirs of the
individuals who originally owned the Doherty Claim. The defendants
denied that title had ever passed to Red Top via the option
contract entered into by Red Top's predecessors; specifically, they
contended that Red Top had never fulfilled the terms of the option
contract. Moreover, they contended that Anthony could not prove
his claim of adverse possession.
A five-day bench trial took place in April 1996. In a
Memorandum and Decision issued in September 1996, the trial
court vested title in Anthony. The court held that the heirs were
precluded by the statute of limitations from making the option
contract claim. Further, the court found that Red Top had met
the requirements for gaining title via adverse possession and that
Anthony's title was thus good as Red Top's successor. Neither
of these two rulings is the subject of this appeal. Red Top did
not appear in any capacity at the trial.
On December 4, 1996, an entity purporting to be Red Top
filed an answer to Anthony's 1993 quiet title complaint. "Red
Top"also moved to set aside the default it asserted the court had
entered against it, although no formal default judgment had
been entered. Red Top alleged, among many other things, that
Anthony was not legally authorized to transfer the Doherty Claim to
himself or anyone else. Thus, Red Top argued that the transfer
from Red Top to Anthony was a nullity.
On December 18, 1996, the trial court issued a decree
quieting title in favor of Anthony. This decree quieted title
against both the heirs and against all persons "unknown." Red
Top was not mentioned in the decree.
Red Top filed a motion for reconsideration of this decree
on December 30, 1996. The court held a hearing on this motion
on January 2, 1997. There the court:
(1) Ruled that Red Top was not a party to the quiet title
(2) Stated that the lawsuit was not a quiet title action
against Red Top because Red Top was known but not named as a
party to the suit. The court reasoned that Red Top was known
because Anthony had title from Red Top. Whether that title was
valid or not, the court ruled, was "a different issue"and any
challenge of that title transfer would be a "different suit."
(3) Stated that it was not ruling on any rights
concerning the relationship between Red Top, the shareholders,
(4) Suggested that Red Top's "real claim"was a
shareholders' action against Anthony for the alleged improper
(5) Stated that if the transfer of the Doherty Claim to
Anthony was not valid then Red Top stood in the shoes of
Anthony and would have title to the property.
(6) Advised that if Red Top wanted to "get in this
lawsuit"it should file a motion to intervene.
Anthony argued that the December 18, 1996 decree quieted
title as to everyone known and unknown, including Red Top, and
that the court's decree said that Red Top has no interest in the
property. The court agreed that Red Top had no present
interest in the property unless the transfer was invalid; if that
were the case, the court stressed that its ruling did not
"prejudic[e] any rights that Red Top may have."
Red Top filed a motion to intervene on January 7, 1997,
Although separate litigation can certainly be
filed to address this issue under the status of the
court's most recent rulings of January 2, 1997, and the
statute of limitations has yet to run with respect to the
transactions, it is nonetheless wise to have the entire
matter resolved before this trial court in the context of
this current proceeding, so that any appellate practice
can be resolved once and for all as between all parties
without the need for separate lawsuits, separate courts,
and potentially conflicting rulings.
The court denied this motion on March 7, 1997.
We decline to address the quagmire of issues surrounding
the existence, or non-existence, of Red Top Mining; who, if
anyone, had the right to control it; and whether Anthony had the
authority to transfer the Doherty Claim. Although the litigants
brief them, those issues are not, at this time, before us and are
not relevant to the disposition of this case.
Appeal has been taken from the following actions of the
trial court: (1) denial of Red Top's motion to set aside the
"default"judgment; (2) denial of its motion to reconsider
that ruling; and (3) denial of its motion to intervene. It is
these matters which we must decide.
A. Standard of Review
We review the superior court's refusal to set aside entry
of default and default judgment for abuse of discretion. [Fn. 1]
We have held that "[a]n abuse of discretion will only be found by
this court when we are left with a definite and firm conviction,
after reviewing the whole record, that the trial court erred in its
ruling."[Fn. 2] We review denial of a motion to intervene on
timeliness grounds for abuse of discretion. [Fn. 3]
B. The Trial Court Did Not Abuse Its Discretion in Refusing
to Set Aside the "Default"Judgment against Red Top and by
Refusing to Reconsider that Ruling.
Alaska Rule of Civil Procedure 55(a)(1) provides that a
default judgment for affirmative relief may be entered against
a party who has failed to appear or otherwise defend. However, in
this case no default judgment, actual or constructive, was
entered against Red Top. Therefore the trial court did not abuse
its discretion by refusing to set aside a non-existent default
First, no affirmative relief was assessed against Red
Top. To the contrary, the court expressly reserved Red Top's
claims against Anthony, noting that it was not "prejudicing
any rights that Red Top may have." Although Anthony's original
complaint asked "that the deed executed by Red Top Mining be
declared to be a valid conveyance, vesting fee simple title in
the Plaintiff"the trial court noted nine times in the course of
the hearing on January 2 that it was not ruling on the validity of
Second, the trial court correctly ruled that Red Top was
not a party to the suit since Red Top was neither: (1) a named
party or heir of a named party; nor (2) an "unknown person"
because Anthony received title from Red Top and thus could not be
unknown. Therefore, the court correctly ruled that title was not
quieted against Red Top.
C. The Trial Court Did Not Abuse Its Discretion by Denying
Red Top's Motion to Intervene.
Red Top sought to intervene as a matter of right pursuant
to Civil Rule 24(a). Red Top does not argue that it was
entitled to permissive intervention under Civil Rule 24(b). We
have established that a motion to intervene as a matter of right
must, among other things, be timely. [Fn. 4]
Red Top argues that its motion to intervene some eight
months after the end of the trial was timely. As previously
noted, we have held that there are no fixed standards for
determining when a motion to intervene as a matter of right is
timely; rather, the determination lies "within the discretion of
the trial judge."[Fn. 5] Of particular significance to this case
is the rule that "[a]pplications made after the conclusion of
litigation normally are not timely, absent a showing of
justification for the litigant's failure to act more promptly."
[Fn. 6] Red Top makes no adequate showing of justification here.
Red Top does not argue that as an entity it did not know
of Anthony's quiet title action. Instead it argues that
because one of Red Top's shareholders, Nira Ingle, did not know of
the transfer of the Doherty Claim to Anthony, this lack of notice
should be imputed to the entire enterprise. This argument is
unpersuasive, because it is clear that several of Red Top's
shareholders did know of the transfer.
Alternatively, Red Top argues that it only "can be held
to have been put on notice"of Anthony's action as of January
2, 1997, the day when it learned that Anthony was seeking to quiet
title against Red Top as well as the heirs and those unknown.
This argument lacks merit. First, although Anthony did ask to have
title quieted against Red Top on January 2, 1997, the trial court,
as mentioned above, expressly stated nine times that any property
interests in the Doherty Claim Red Top might have were notaffected by the court's ruling.
Second, this notice argument is at best disingenuous,
given that Red Top sought to set aside the entry of default on
December 4, 1996. Its claim now that it did not have notice
until almost one month later is unpersuasive.
Third, two Red Top shareholders, Erelendson and Grey, had
notice of Anthony's quiet title action in 1994 when they
signed affidavits that challenged the validity of the Doherty claim
conveyance to Anthony. These affidavits were used by the
heirs to challenge Anthony's title. Since at least some of the Red
Top shareholders had notice of the quiet title action in 1994, Red
Top could have sought to intervene at that time instead of in 1997.
Since no default judgment, actual or constructive, had
been entered against Red Top, the trial court did not err in
refusing to set aside a non-existent judgment. Likewise, Red Top's
motion to intervene in the case was untimely. Furthermore, Red Top
acknowledges that at the time of the filing of these motions the
statute of limitations did not preclude it from filing a separate
cause of action against Anthony. Therefore, the superior court did
not abuse its discretion. AFFIRMED.
See Melendrez v. Bode, 941 P.2d 1254, 1256 (Alaska
1997)(citing Murat v. F/V Shelikof Strait, 793 P.2d 69, 73 (Alaska
1990); Peter Pan Seafoods v. Stepanoff, 650 P.2d 375, 378-79
Id. (quoting Peter Pan Seafoods v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982)(internal quotation marks omitted)).
Mundt v. N.W. Explorations, Inc., 947 P.2d 827, 830 (Alaska
1997)(citing United States v. United States Steel Corp., 548 F.2d
1232, 1235 (5th Cir. 1977)).
See State v. Weidner, 684 P.2d 103, 113 (Alaska 1984)(citing
Foster v. Gueory, 655 F.2d 1319, 1324-25 (D.C. Cir. 1981)).
Mundt, 947 P.2d at 830 (citation omitted).
Id. (citing Hertz v. Cleary, 835 P.2d 438, 441 (Alaska 1992)).