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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stuart v. Whaler's Cove, Inc. (09/29/2006) sp-6051
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
| EVELYN L. STUART, Trustee of the | ) |
| Milton J. and Evelyn L. Stuart Trust | ) Supreme Court No. S-11952 |
| and Successors, | ) |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 1JU-03-100 CI | |
| v. | ) |
| ) | |
| WHALERS COVE, INC., RICHARD | ) O P I N I O N |
| L. POWERS, RICHARD L. POWERS, | ) |
| d/b/a WHALERS COVE LODGE, INC., | ) |
| ) | |
| Appellees. | ) No. 6051 - September 29, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Ray C. Preston, Law Offices of
John M. Rice, P.C., Juneau, for Appellant.
Kristen D. Pettersen, Dillon & Findley, P.C.,
Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This case presents the question of whether the superior
court erred when it refrained from holding Whalers Cove, Inc., in
contempt for allegedly failing to comply with a prior order of
the court. We conclude that because Whalers Cove had made
significant efforts to comply with the prior order, the superior
court was well within its discretion when it refused to hold
Whalers Cove in contempt.
II. FACTS AND PROCEEDINGS
The Milton J. and Evelyn L. Stuart Trust, with Evelyn
Stuart as the trustee (Stuart), and Whalers Cove, Inc. (Whalers
Cove), the owner of the Whalers Cove Lodge, both own property on
the eastern end of Killisnoo Island in Southeast Alaska. A fifty-
foot-wide right-of-way runs east-west, bisecting the eastern part
of the island. One of Stuarts two parcels abuts the right-of-way;
the other parcel is connected to the fifty-foot right-of-way by a
ten-foot-wide right-of-way. The fifty-foot right-of-way runs
through the property of Whalers Cove before terminating at
Killisnoo Harbor.
In the course of operating its lodge, Whalers Cove both
constructed and improved buildings that encroached on the right-
of-way. Whalers Cove also expanded an existing reservoir. After
the expansion was complete, the reservoir along with its
embankment extended twenty-nine feet into the right-of-way.
Stuart, seeking to have the encroachments removed, sued
Whalers Cove. At the end of the ensuing trial, the superior court
determined that the permanent encroachments . . . are
unreasonable as a matter of law and fact. The superior court
explained that the expanded reservoir and related embankment were
unreasonable not just because they directly impeded the
subdivision owners private property rights in the right-of-way,
but also because they made the right-of-way a largely impassable
glacier in the winter. The superior court concluded that Whalers
Coves placement of permanent obstructions over the right of way,
including erection of a berm/dam and water reservoir[,]
constitute a nuisance and shall be removed at defendants expense
within six months of this order.
The superior court asked Stuart to prepare an
appropriate form of judgment. That judgment, signed by the
court, stated that [b]ased on the Findings of Fact and
Conclusions of Law entered July 23, 2004, the defendants
placement of permanent obstructions over the right of way
constitute[s] a nuisance. The judgment went on to declare that
[a]ll permanent obstructions over the right of way, including
those obstructions specifically identified in the Courts July 23,
2004 Trial Findings of Fact and Conclusions of Law, shall be
removed at defendants expense by January 23, 2005.
After the judgment issued, Whalers Cove moved the fuel
station and all of the buildings and ramps that had encroached on
the right-of-way. Whalers Cove also made three attempts to move
the reservoir and associated embankment off of the right-of-way
and onto Whalers Cove property. Whalers Cove succeeded in moving
all of the reservoirs water off of the right-of-way. However,
the reservoir embankment still extends into the right-of-way.
The parties dispute the extent to which the embankment continues
to encroach Richard Powers, the owner of Whalers Cove, admits
that the embankment extends into the right-of-way, but only by
ten feet, while Stuart claims that the embankment encroaches by
fifteen to twenty feet. Whalers Cove contends that its work on
the reservoir and embankment actually improved the right-of-way
by preventing it from serving as a natural drainage ditch.
Whalers Cove also claims that as a result of its efforts, the
reservoir has been moved south and thus further onto Whalers Cove
property than it was at the time the right-of-way was created.
Once the January 23, 2005 deadline for moving the
encroachments had passed, Stuart filed a motion for an order to
show cause for why Whalers Cove should not be held in contempt
for failing to move the encroaching embankment. After hearing
oral argument on the motion, the superior concluded that Whalers
Cove had exerted significant effort to reconstruct the reservoir
so as to make the right-of-way more passable. The superior court
denied Stuarts motion.
Stuart filed a motion for reconsideration, which the
superior court also denied. Stuart now appeals.
III. STANDARD OF REVIEW
Stuart argues that when the superior court denied her
motion to show cause for why Whalers Cove should not be held in
contempt, it accepted all the facts put forward as true.
According to Stuart, we should therefore analogize this case to a
denial of summary judgment and use the de novo standard of review
when deciding this appeal.
We decline to adopt Stuarts proposed standard of
review. In the course of refusing to hold Whalers Cove in
contempt, the superior court made a number of factual findings,
including that Whalers Cove had made significant efforts to
reconstruct the reservoir. We review the superior courts factual
findings on the issue of contempt for clear error.1 While we
review de novo a superior courts decision to hold someone in
contempt pursuant to Alaska Civil Rule 90(b),2 a superior courts
decision not to hold a party in contempt is committed to the
courts discretion and is one to which we will accord considerable
deference.3
IV. DISCUSSION
The superior court found that Whalers Cove had made a
significant effort to reconstruct the reservoir and that Whalers
Coves efforts were designed to make the right-of-way safer and
more passable. The record documents in detail the efforts
Whalers Cove made to reconstruct the reservoir, including using
heavy equipment, draining the reservoir, installing a new liner,
reinforcing the embankment to keep water off of the right-of-way,
and digging a new overflow from the reservoir. A director of
Whalers Cove involved in the reconstruction process gave his
opinion that the reconstructed embankment was helping to prevent
the right-of-way from serving as a drainage channel. Given this
evidence in the record and the absence of any contrary evidence,
we conclude that the superior courts factual findings are not
clearly erroneous.
Stuart argues that because Whalers Cove had the
physical capability to move the embankment off of the right-of-
way, the superior court should have held Whalers Cove in
contempt, even though Whalers Cove admittedly did what it could
to improve the situation without sacrificing [its] water supply.
The superior court determined that since Whalers Cove had made
significant efforts that appeared to have achieved the purpose of
the previous order, namely making the right-of-way more passable,
it would not hold Whalers Cove in contempt. Indeed, the superior
court recognized during the contempt hearing that requiring
Whalers Cove to move the reservoir and embankment further would
likely result in the right-of-way becoming less passable. Given
the superior courts weighing of the costs and benefits of strict
compliance with its previous order, we decline to hold that the
superior court abused its discretion.
Stuart further argues that the superior courts decision
not to hold Whalers Cove in contempt rested on the courts
problematic focus on the present-day rather than the potential,
future use of the right-of-way. Yet the superior courts decision
not to hold Whalers Cove in contempt need not prevent the court
from addressing future problems with the right-of-way. A
decision not to hold a party in contempt differs from a finding
that a party satisfied a judgment. The superior courts past
refusal to hold Whalers Cove in contempt does not preclude Stuart
from seeking future court intervention if circumstances change
and it becomes clear that the embankment must be moved to make
the right-of-way more passable or suitable for utility or road
construction. Indeed, the superior court appeared to acknowledge
the possibility that further action would need to be ordered when
it stated that it looks as if its still not known if if this
[reconstruction] is going to be a fix. Or if if, in fact, the
reservoir is going to have to be moved further back or other
steps taken just to make [the right-of-way] passable and safe.4
V. CONCLUSION
For the above reasons we AFFIRM the superior courts
decision not to hold Whalers Cove in contempt.
_______________________________
1 Willoya v. State, Dept of Corr., 53 P.3d 1115, 1120
(Alaska 2002).
2 Anchorage Police & Fire Ret. Sys. v. Gallion, 65 P.3d
876, 879-80 (Alaska 2003).
3 See Matanuska Elec. Assn v. Rewire the Board, 36 P.3d
685, 700-701 (Alaska 2001) (noting that the clearly erroneous
standard of review for factual findings in contempt cases is
consistent with the deferential review used by courts in other
jurisdictions and citing cases employing an abuse of discretion
standard).
4 Stuart further argues that the superior court
incorrectly believed that bad faith was a necessary element of
civil contempt and erroneously found Whalers Coves failure to
comply with its order to be non-willful. We need not reach this
argument because the superior courts decision to deny Stuarts
motion had a basis apart from the superior courts determination
that the willfulness element of contempt had not been satisfied.
As we have explained, the superior courts finding that Whalers
Cove had made significant efforts to move the embankment was
sufficient justification for its discretionary decision not to
hold Whalers Cove in contempt.
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