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Brooks Range Exploration Co. v. Gordon (5/3/2002) sp-5561
Brooks Range Exploration Co. v. Gordon (5/3/2002) sp-5561
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BROOKS RANGE EXPLORATION )
COMPANY, INC., ) Supreme Court No. S-9600
)
Appellant, ) Superior Court No. 3AN-95-
10566 CI
)
v. ) O P I N I O N
)
WALLACE GORDON, THELMA ) [No. 5561 - May 3, 2002]
PETERSON, and the GORDON )
FAMILY TRUST, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Jay D. Durych, Jones & Colver,
LLC, Anchorage, for Appellant. Teresa S.
Ridle, Koval & Featherly, P.C., Anchorage,
for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. In a settlement agreement, Brooks Range Exploration
Company, Inc. (BREXCO) agreed to transport Wallace Gordons
property to Anchorage, unless transporting it would violate state
law. The superior court enforced this agreement without holding
an evidentiary hearing, notwithstanding BREXCOs assertion that
transporting the property would violate the Alaska Historic
Preservation Act (AHPA). Because there were genuine factual
issues about whether transporting items found by Gordon would
violate the AHPA, we hold as to the found items that it was error
to enforce the agreement without conducting an evidentiary
hearing. We therefore reverse and remand as to those items that
Gordon claimed he found. We affirm the enforcement order as to
those items Gordon claims he purchased or received as gifts or in
trade.
II. FACTS AND PROCEEDINGS
Until July 13, 1998, Wallace Gordon, Thelma Peterson,
and the Gordon Family Trust were shareholders of Brooks Range
Exploration Company, Inc. (BREXCO). BREXCO is an Alaska
corporation engaged in exploring and developing hard-rock mining
claims in Alaska. Gordon, Peterson, and the Gordon Family Trust
were also shareholders of Brooks Range Ventures, Inc. (BREVCO),
which engaged in placer mining in the Brooks Range.
In 1995 BREXCO filed a superior court complaint against
Gordon, Peterson, the Gordon Family Trust, and others; as
amended, the complaint alleged numerous causes of action,
including breach of contract, breach of the covenant of good
faith and fair dealing, breach of fiduciary duties, and
usurpation of corporate opportunities and interests. BREVCO
intervened as a plaintiff in 1996.
On July 13, 1998 BREXCO and BREVCO each executed
separate settlement agreements with the defendants, including
Gordon, Peterson, and the Gordon Family Trust. Especially
pertinent to this appeal is paragraph five of the BREVCO
settlement agreement, which provides:
WALLACE E. GORDON has identified certain
personal property [mining equipment] now
located at the mining claims of BREVCO . . .
. BREVCO shall transport said personal
property to WALLACE E. GORDON from its
present location to Anchorage, Alaska at
BREVCOs cost and expense in its as is
condition on or before April 15, 1999. Until
delivery BREVCO agrees to bear any risk
associated with the loss or damage to said
personal property. In the event BREVCO fails
to deliver the personal property on or before
April 15, 1999, and WALLACE E. GORDON
institutes suit to enforce this provision of
the Settlement Agreement and prevails, BREVCO
agrees to pay WALLACE E. GORDONs reasonable,
actual attorneys fees. The responsibility of
BREVCO to transport said personal property is
contingent upon the transportation of said
property not constituting a violation of any
state, federal or local law, statute or
ordinance.
(Emphasis added.) BREXCO and BREVCO merged in June 1999.
BREVCOs agreement consequently binds BREXCO. We refer to BREXCO
and BREVCO collectively as BREXCO.
In an April 1999 letter, BREXCO informed counsel for
Gordon, Peterson, and the Gordon Family Trust (collectively the
Gordon Family Trust or the trust) that it would not transport
Wallace Gordons mining equipment to Anchorage. BREXCO asserted
that transporting the mining equipment would violate the Alaska
Historic Preservation Act,1 and that the settlement agreement
therefore did not require BREXCO to transport the equipment. In
late April 1999 the Gordon Family Trust filed a motion in the
1995 proceeding to enforce the settlement agreement; it asked the
superior court to order BREXCO to immediately transport Mr.
Gordons personal property to Anchorage.2 In May BREXCO filed a
complaint for declaratory judgment, seeking a declaration that:
a) the property items are historic artifacts, b) title to the
property rests with the State of Alaska, c) the property does not
belong to Gordon, [and] d) [BREXCO] is not obligated to transport
the property to Gordon or to otherwise remove it from its current
location . . . .
The superior court consolidated BREXCOs declaratory
judgment action with the 1995 proceeding. On October 12, 1999
the superior court granted the trusts motion to enforce the
settlement agreement and ordered BREXCO to transport Gordons
mining equipment to Anchorage before November 15, 1999. The
superior court did not conduct an evidentiary hearing before
ruling on the trusts motion to enforce.
BREXCO unsuccessfully moved for reconsideration. The
superior court entered a final judgment ordering BREXCO to
transport Gordons mining equipment to Anchorage. BREXCO appeals.
III. DISCUSSION
A. Standard of Review
We review a ruling on a motion to enforce a settlement
agreement for abuse of discretion.3 The superior court may not
summarily enforce a settlement agreement without conducting an
evidentiary hearing, unless there are no genuine issues of
material fact regarding the existence or terms of the agreement.4
We review de novo the question whether there are genuine issues
of fact material to a motion to enforce a settlement agreement.5
B. It Was Error To Grant the Trusts Motion To Enforce the
Settlement Agreement Without Conducting an Evidentiary
Hearing.
1. The Alaska Historic Preservation Act (AHPA)
Whether it was error to grant the Gordon Family Trusts
motion to enforce the settlement agreement without conducting an
evidentiary hearing depends in part on our interpretation of the
Alaska Historic Preservation Act.6 The legislature enacted the
AHPA in 19717 to preserve and protect the historic, prehistoric,
and archaeological resources of Alaska from loss, desecration,
and destruction so that the scientific, historic, and cultural
heritage embodied in these resources may pass undiminished to
future generations.8
To that end, AS 41.35.020 provides: The state reserves
to itself title to all historic, prehistoric, and archeological
resources situated on land owned or controlled by the state,
including tideland and submerged land, and reserves to itself the
exclusive right of field archeology on state-owned or controlled
land. Alaska Statute 41.35.230(2) defines historic, prehistoric
and archeological resources to include deposits, structures,
ruins, sites, buildings, graves, artifacts, fossils, or other
objects of antiquity which provide information pertaining to the
historical or prehistorical culture of people in the state as
well as to the natural history of the state. Alaska Statute
41.35.200(b) states that [a] person may not possess, sell, buy,
or transport within the state, or offer to sell, buy, or
transport within the state, historic, prehistoric, or
archeological resources taken or acquired in violation of [the
AHPA] . . . . (Emphasis added.) Finally, AS 41.35.210 provides
that a person who is convicted of violating a provision of the
AHPA is guilty of a class A misdemeanor, and AS 41.35.220 states
that a person who violates a provision of the AHPA is subject to
a maximum civil penalty of $100,000 for each violation.
When are historic, prehistoric, and archeological
resources situated on land owned or controlled by the state for
purposes of AS 41.35.020(a)? Websters New World Dictionary of
the American Language defines situated as placed as to site or
position; located.9 Thus, under a literal interpretation of the
statute, the mere presence, even if temporary, of a historic,
prehistoric, or archeological resource on land owned or
controlled by the state would be sufficient to vest title to the
item in the state, and to trigger the provisions of the AHPA.
But where the literal interpretation of a statute would lead to
absurd results, courts can interpret the words of the statute to
agree with the intention of the legislature.10
Here, a literal interpretation of the phrase situated
on in AS 41.35.020(a) could lead to absurd results. For example,
it seems unlikely that the legislature intended that title to
personal property that qualifies as a historic, prehistoric, or
archeological resource under AS 41.35.230(2) would pass to the
state simply because its owner transported the property across
state-owned or controlled land, and the property was only
temporarily located on state land. We therefore interpret the
AHPA to apply only to abandoned historic, prehistoric, or
archeological resources situated on land owned or controlled by
the state. Indeed, even BREXCOs brief states: BREXCO suspects .
. . that when the Alaska Historic Preservation Act was adopted
the Alaska legislature intended that the Act be construed in
harmony with existing law, including the statutory and common law
pertaining to abandoned property and escheat.
Abandoned property is property whose owner has
manifested an intention to relinquish all title, possession, or
claim to the property.11
2. Genuine issues of material fact could not be
resolved without an evidentiary hearing.
In deciding whether to enforce an alleged settlement
agreement without conducting an evidentiary hearing, courts treat
the motion to enforce as a summary judgment motion.12 Thus, the
question [on appeal] is whether the evidence presented to the
trial court indicated that there was no genuine issue of material
fact and that as a matter of law the parties had entered into a
valid compromise agreement.13
A party seeking summary judgment must demonstrate the
absence of a genuine material factual dispute and entitlement to
judgment as a matter of law.14 In support of its motion to
enforce the settlement agreement, the trust submitted the
affidavit of Wallace Gordon. In his affidavit, Gordon stated: I
purchased most of the items [of mining equipment located on
BREVCOs mining claims] and other items were loaned to me. Only a
few of the items on the list were found by me and I found them on
my own mining claims. (Emphasis added.) Gordon also attached to
his affidavit a handwritten document which listed all of the
items and described the source of each item. Because Gordons
affidavit and his attached list indicated that he had found some
of the items,15 the trust did not meet its initial burden of
demonstrating the absence of a genuine factual dispute about
whether transporting those items would violate the AHPA. As to
the other items, Gordons affidavit and list made out a prima
facie showing that they were not subject to the AHPA.
Even if a summary judgment movant has made out a prima
facie showing that there is no genuine issue of material fact,
the non-moving party may avoid summary judgment by producing
competent evidence establishing that a genuine factual dispute
exists.16 BREXCO responded to Gordons affidavit with the
affidavit of Naomi Costello. Costello affied:
When I first visited [BREVCOs mining
operation], Gordon was living in an old
cabin. I noticed that there were old mining
tools, lanterns, utensils, pots, buckets, an
anvil, and other items spread around the yard
and leaning against the old cabin. The items
were obviously very old. They were worn,
weathered, and rusted, and many of them had
old-fashioned wooden handles.
Costellos affidavit also stated: Gordon told me that he had
gathered the items from various drift mines in the area. . . .
On occasion when I visited, [Gordon] would show me new items that
he had gathered and he would tell me which old mining site he had
collected them from. (Emphasis added.)
Costellos affidavit tended to support Gordons statement
that he had found some of the items he kept in and around his
cabin. As to items Gordon said he had found, Costellos affidavit
demonstrates that there is a genuine factual dispute about
whether the found items fall within the AHPA.
Costellos affidavit does not assert that Gordon
actually found the items that he had described as having
purchased or received. Costellos affidavit therefore creates a
genuine, material factual dispute only as to items Gordon
admitted he found or Costello expressly claimed Gordon found.
Because Costellos affidavit did not create a genuine factual
dispute about whether the AHPA applied to items Gordon claimed he
received by gift, trade, or purchase, the court did not err in
enforcing the transportation agreement as to those items. But
because there was a genuine factual dispute about whether
transporting the found items would violate the AHPA, it was error
to enforce the transportation agreement without conducting an
evidentiary hearing as to the found items.17
The Gordon Family Trust argues that Costellos affidavit
is irrelevant and thus inadmissible18 because (1) there is nothing
in her Affidavit to indicate that the items she describes are the
same items BREXCO agreed to transport in the Settlement
Agreement; (2) there is nothing in Ms. Costellos Affidavit to
show that the pieces of mining equipment are items covered by the
Alaska Historic Preservation Act. The trust also argues that the
Court was free to disregard her opinion testimony because BREXCO
presented no evidence that Ms. Costello is a mining expert or
that she is competent to testify as to the age and ownership of
these items. These arguments are not well taken.
Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.19 Costellos affidavit was
relevant because it tended to establish that at least some of the
disputed items were abandoned when Gordon found them. That
proposition in turn was relevant to determining whether the items
were protected by the AHPA. Costellos affidavit did not
specifically indicate whether the items it listed were the same
as the items contemplated by the settlement agreement; but her
affidavit was nonetheless germane as to those items that Gordon
conceded he found. Moreover, because Costellos affidavit did not
rely on scientific, technical, or other specialized knowledge,20
it did not require a foundation establishing Costello as a mining
expert. Indeed, the most relevant portions of Costellos
affidavit simply described Gordons statements regarding the
source of the old mining equipment.
The trust argues that the language in paragraph five of
the settlement agreement concerning the legality of transporting
the mining equipment is a condition precedent which is
unenforceable because the condition is simply not sufficiently
unambiguous to be construed as a condition precedent.21 We are
unpersuaded by this argument. Paragraph five expressly states
that BREXCOs performance is contingent upon the transportation of
[the mining] property not constituting a violation of any state,
federal or local law, statute or ordinance. (Emphasis added.)
This provision is not ambiguous in context of this case.
We conclude that there are genuine issues of material
fact about whether the AHPA prohibits transporting the found
items. We therefore reverse the enforcement order with respect
to the found items and remand for an evidentiary hearing to
determine whether transporting those items would violate the
AHPA. But because there is no genuine issue of material fact
regarding the legality of transporting the rest of Gordons items,
we affirm the enforcement order with respect to the equipment
Gordon did not find.
C. Attorneys Fees
Paragraph five of the settlement agreement provides for
an award of reasonable, actual attorneys fees [i]n the event
BREVCO fails to deliver the personal property on or before April
15, 1999, and WALLACE E. GORDON institutes suit to enforce this
provision of the Settlement Agreement and prevails. The superior
courts 1999 final judgment and 2000 corrected final judgment
included an award of $8,789.72 to the Gordon Family Trust,
apparently for attorneys fees. BREXCO argues that if we reverse
the order enforcing BREXCOs obligation under the settlement
agreement to transport Wallace Gordons mining equipment to
Anchorage, we must also vacate the attorneys fees award based
thereon. We agree. Having partially reversed the order granting
the trusts second motion to enforce the settlement agreement, we
must vacate the award of attorneys fees incurred in bringing that
motion.22 We follow the procedure we recently outlined in Gamble
v. Northstore Partnership23 and award nominal fees in this appeal,24
leaving it to the superior court on remand to award reasonable,
actual fees per the contract.
BREXCO also urges us to vacate the superior courts
March 10, 2000 award of reasonable, actual attorneys fees
incurred as a result of the Gordon Family Trusts third motion to
enforce the settlement agreement.25 BREXCO argues that the March
10, 2000 award is dependent on, and would not have been entered
absent the superior courts order granting the trusts second
motion to enforce the settlement agreement. But the trusts third
motion sought an order enforcing BREXCOs obligation under the
settlement agreement to pay the trust $38,089.28 annually. The
third motion was thus unrelated to the second motion, which
sought to enforce BREXCOs obligation to transport Gordons mining
equipment. We therefore decline to vacate the March 10, 2000
award of reasonable, actual attorneys fees incurred in bringing
the third motion to enforce the settlement agreement.
IV. CONCLUSION
For these reasons, we REVERSE the order requiring
BREXCO to transport Gordons found mining equipment to Anchorage,
and REMAND for further proceedings in accordance with this
opinion. We also VACATE the award of attorneys fees granted in
the transportation dispute. We AFFIRM the enforcement order to
the extent it required BREXCO to transport Gordons other items,
and AFFIRM the trusts award of attorneys fees in the dispute
about annual payments.
_______________________________
1 AS 41.35.010 - .240.
2 The Gordon Family Trust called this motion the Second
Motion to Enforce Settlement Agreement.
3 Dickerson v. Williams, 956 P.2d 458, 462 (Alaska 1998)
(citing Rice v. Denley, 944 P.2d 497, 499 (Alaska 1997)).
4 Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987)
(Where material facts concerning the existence or terms of an
agreement to settle are in dispute, the parties must be allowed
an evidentiary hearing.); see also Miller v. Manuel, 828 P.2d
286, 291-92 (Haw. App. 1992) (holding that motions to enforce
disputed compromise agreements are treated as motions for summary
judgment); cf. Rice, 944 P.2d at 499 (In ruling upon a motion to
enter judgment on the record, the superior court has discretion
to deny the motion if the court determines that material issues
of fact exist as to the existence of the settlement agreement or
to a material term of the settlement. (quoting Pavek v. Curran,
754 P.2d 1125, 1126 (Alaska 1988))); Acevedo v. Burley, 944 P.2d
473, 476 n.2 (Alaska 1997) (holding that evidentiary hearing is
not required in judicial proceeding in absence of genuine issue
of material fact).
5 See Miller, 828 P.2d at 291-92 (holding that motions to
enforce disputed compromise agreements are treated as motions for
summary judgment); Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska
1997) (holding that grants of summary judgment are reviewed de
novo).
6 AS 41.35.010-.240.
7 Ch. 130, 1, SLA 1971.
8 AS 41.35.010.
9 Websters New World Dictionary of the American Language
1332 (2d ed. 1978).
10 Sherman v. Holiday Constr. Co., 435 P.2d 16, 18-19
(Alaska 1967); see also 2A Norman J. Singer, Statutes and
Statutory Construction 46:07, at 196-97 (6th ed. 2000).
11 Smith v. State, 510 P.2d 793, 795 (Alaska 1973)
(stating that abandonment of property is demonstrated by an
intention to relinquish all title, possession, or claim to [the]
property, accompanied by some type of activity or omission by
which such intention is manifested. (quoting Edward G. Mascolo,
The Role of Abandonment in the Law of Search and Seizure: An
Application of Misdirected Emphasis, 20 Buff. L. Rev. 399, 400-01
(1970))); see also Kile v. Belisle, 759 P.2d 1292, 1295-96
(Alaska 1988) (Abandonment is the intentional relinquishment of a
mining claim. It is a voluntary act on the part of a claimant
and consists of a subjective intent to abandon coupled with an
external and objective act by which that intent is carried into
effect. (citations omitted)); cf. King v. Petroleum Servs. Corp.,
536 P.2d 116, 119 (Alaska 1975) (The elements of abandonment of
real property are an intent to abandon and conduct carrying out
that intention.); D.M. v. State, 515 P.2d 1234, 1237 (Alaska
1973) ([I]t may well be that a subjective intent is determinative
when dealing with abandonment of personal property, over which
the owner exercises an absolute property right . . . .); 1 Am.
Jur. 2d Abandoned, Lost, and Unclaimed Property 1 (1994)
(defining abandoned property as that to which the owner has
voluntarily relinquished all right, title, claim and possession,
with the intention of terminating his ownership, but without
vesting ownership in any other person, and with the intention of
not reclaiming any future rights therein . . . .).
12 E.g., Miller, 828 P.2d at 291.
13 Id.
14 Alaska Travel Specialists, Inc. v. First Natl Bank of
Anchorage, 919 P.2d 759, 762 (Alaska 1996).
15 For example, the list attached to Gordons affidavit
stated: [Grizzly gold pan] I found about 4 miles down Wild River
after a flood on a gravel bar and [Large dump bucket arm] - was
located at mine site with other items scattered around.
16 Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska
1999).
17 BREXCO argues that Don Cloyds affidavit also raised
genuine issues of material fact precluding the summary
enforcement of the settlement agreement. The Gordon Family Trust
responds that because the Cloyd affidavit was submitted in
support of BREXCOs motion for reconsideration, which, the trust
argues, did not contain any legal proposition that differed from
those originally raised in opposition to the motion for summary
judgment, BREXCO may not rely on the affidavit on appeal. We
agree with the trust. The new factual material submitted with
the reconsideration motion cannot be the basis for claiming the
superior court erred. Alaska R. Civ. P. 77(k).
18 See Alaska R. Civ. P. 56(e) (Supporting and opposing
affidavits . . . shall set forth such facts as would be
admissible in evidence . . . .).
19 Alaska R. Evid. 401.
20 Alaska R. Evid. 702.
21 Norton v. Herron, 677 P.2d 877, 882 (Alaska 1984)
(holding that conditions precedent will not be enforced unless
they are expressed in plain, unambiguous language or arise by
clear implication (citations omitted)).
22 Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991).
23 28 P.3d 286, 293 (Alaska 2001) (Where appeals are not
dispositive on the merits but merely stepping stones to an as-yet-
unknown final result, and where there is a statutory or
contractual provision calling for an award of full attorneys fees
to the party who ultimately prevails, full fees for work on
appeal can best be assessed in the trial court at the conclusion
of the case.).
24 Appellate Rule 508(e) (Attorneys fees may be allowed in
an amount to be determined by the court.).
25 The superior court awarded the Gordon Family Trust
reasonable, actual attorneys fees of $9,344 incurred in enforcing
BREVCOs settlement obligations for a third time.
