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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bradley v. Klaes (03/28/2008) sp-6242
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
| ROBERT H. BRADLEY, | ) |
| ) Supreme Court No. S- 12178 | |
| Appellant, | ) |
| ) Superior Court No. 4FA- 04-1000 CI | |
| v. | ) |
| ) O P I N I O N | |
| DANIEL L. KLAES, LYNDA K. | ) |
| KLAES, ANN CUNNINGHAM, and | ) No. 6242 March 28, 2008 |
| TOM ZACZKOWSKI, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Robert H. Bradley, pro se,
Fairbanks. Joseph W. Sheehan, Law Offices of
Joseph W. Sheehan, Fairbanks, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
MATTHEWS, Justice.
The main question in this appeal is whether the
superior court properly granted summary judgment establishing
user fees for a taxiway and private airstrip. We conclude that
summary judgment was improperly granted on this issue because
there was a genuine issue of material fact as to what the
appropriate fee should be.
I. FACTS AND PROCEEDINGS
On April 20, 2004, the owners of three parcels adjacent
to the Bradley Sky Ranch Subdivision in North Pole filed suit
against the owners of the subdivision. The plaintiffs, Daniel
and Lynda Klaes, Ann Cunningham, and Tom Zaczkowski, alleged that
each owned an easement granting access to and use of an airstrip
located on the subdivision property. They alleged that they had
fully paid the annual user fee for use and access to the airstrip
of $300 to James or Leslie Bradley and that Robert Bradley had
demanded additional fees and interfered with their right of
access to the airstrip. The plaintiffs sought an order
confirming their rights to use the airstrip and a determination
that the fees that they had been paying were reasonable. They
also sought a preliminary and permanent injunction prohibiting
Robert Bradley from making additional demands for payment and
from interfering with their right of access to the airstrip.
On May 14, 2004, Robert Bradley, represented by
counsel, filed an answer and counterclaim admitting that he had
attempted to block plaintiffs access across his property to the
airstrip and that he had demanded that plaintiffs pay him fees as
a condition of obtaining access to the airstrip. Robert
counterclaimed for unpaid fees and damages in an unspecified
amount. Robert also filed a memorandum in opposition to the
motion for preliminary injunction.
In the memorandum Robert admitted that the plaintiffs
have a taxiway easement to the airstrip that they may use if they
pay a reasonable fee. He contended that the easement is limited
to noncommercial uses and is to last only as long as the airstrip
is used as an airstrip. Robert explained that he had been in
litigation with his brothers James and Leslie concerning the
ownership and control of the subdivision and that under a
settlement in that litigation James and Leslie would own the
airstrip while Robert would own portions of the subdivision on
which the plaintiffs taxiway easement was located. Robert stated
that under the settlement agreement user fees were payable to
him, that this had been communicated to the plaintiffs in
November 2003, and that nonetheless plaintiffs made their
payments to Leslie.
The plaintiffs filed a reply in support of their motion
for preliminary injunction on May 24, 2004. The reply indicated
that Robert was demanding $175 per month per aircraft and
asserted that this fee was unreasonable. The reply also noted
that the taxiway that the plaintiffs use to gain access to the
airstrip is maintained by the plaintiffs rather than Robert and
that the easement agreement provides for a fee for the use of the
runway and does not require the payment of a separate access fee.
The reply acknowledged three areas of dispute: (1) what fee is
reasonable for access and use of the airstrip; (2) whether the
fee should have been paid to Robert; and (3) whether the Klaeses
were involved in commercial operations.
Concerning the amount of the fee, the plaintiffs argued
that historically the fee had been $300 per user per year
regardless of the number of aircraft each user stored on the
users property. The per-user rather than per-aircraft issue was
important because, according to his affidavit, Daniel Klaes owns
five aircraft and at various times throughout the year all of
these aircraft could be on his property. Daniel Klaes indicated
that he had been paying $300 for the use of the airstrip for more
than ten years. Tom Zaczkowski also filed an affidavit
indicating that he owned two aircraft and that he too had been
paying $300 for access and use of the airstrip for the past ten
years.
With respect to who should receive the fees, the
plaintiffs claimed that they did not receive notice that Robert
had the right to receive the fees until April 30, 2004.
Regarding the Klaeses commercial operations, the reply
acknowledged that the Klaeses own a corporation, Bettles Lodge,
Inc., to which they lease their aircraft. Bettles Lodge, Inc.,
is, in part, an air service, but it operates out of Bettles, not
out of the Klaeses North Pole property. Nonetheless, the reply
confirms that during the winter months the aircraft are parked on
the Klaeses property and that all the aircraft return there for
maintenance.
A hearing on the motion for preliminary injunction was
held on May 27, 2004. At the close of the hearing the court
granted a preliminary injunction. The injunction enjoined Robert
from interfering with the plaintiffs access to the airstrip and
also enjoined him from demanding or collecting any fees from the
plaintiffs in conjunction with their use of the taxiway and
airstrip.
Roberts attorney withdrew on November 30, 2004, and
Robert thereafter represented himself. On May 5, 2005, Robert
moved to dismiss the case for want of prosecution relying on
Civil Rule 41(e). Robert relied on Civil Rule 41(e)(1)(B) which
provides that a case may be dismissed for want of prosecution if
the case has been pending for more than one year and no trial or
mandatory pretrial scheduling conference has been scheduled or
held. Roberts motion to dismiss was set for oral argument to be
held on June 27, 2005.
On June 17, 2005, the plaintiffs moved for summary
judgment. They requested an order making the preliminary
injunction permanent and confirming that the present user fee of
$300 per year or $25 per month is reasonable. In support of the
motion the plaintiffs quoted the language of the easement
contained in the deeds to their property. The easement language
grants plaintiffs a non-exclusive right of private use . . . as
an easement . . . of the existing private airstrip . . .
including the right of access thereto from the herein conveyed
real estate . . . subject to a right in the owners, for
themselves and their heirs and assigns . . . to hereafter levy or
impose reasonable landing or use fees upon any user of said
airstrip, and as a condition of the continuing use of the same
. . . .
Plaintiffs argued that although Robert had the right to
collect user fees he did not have the right to set them.
Plaintiffs relied on the order of settlement in the case between
the Bradley brothers for this assertion. The paragraph on which
they relied states: Other landowners who may have rights of
access to the airstrip will pay user fees (that the owners of the
airport may have previously had the right to collect) to Robert
Bradley.1 The plaintiffs also argued that Roberts attempt to
charge a fee of $175 per aircraft per month was unreasonable.
They cited charges made by other airstrips in the area, none of
which exceeded $40 per month.
The plaintiffs each submitted an affidavit in support
of the motion for summary judgment. Each affidavit confirmed
that another private airstrip in the area charged $30 per month
per lot, a second charged $35 per month per lot, and Fairbanks
International Airport charged $40 per month for a standard tie
down. The plaintiffs also supported their motion with affidavits
of James and Leslie Bradley. They affied, identically, that the
$25 per month user fee is more than reasonable, without regard to
the number of aircraft, given the limited services provided.
Each stated, I am aware generally that the fee charged . . . is
consistent with the fee being charged by other local privately
owned airstrips.
On the same day that they filed their motion for
summary judgment, the plaintiffs stipulated with James and Leslie
Bradley to dismiss them as defendants. They were dismissed on
August 19, 2005.
On June 27, 2005, Robert Bradley moved pursuant to
Civil Rule 56(f) to extend the time to respond to the motion for
summary judgment so that he could conduct discovery in order to
obtain information needed to oppose the motion for summary
judgment. On July 11, 2005, the plaintiffs filed their
nonopposition to Roberts Rule 56(f) motion to extend, suggesting
that Robert be allowed an additional thirty days within which to
conduct discovery and file his opposition. On July 22, 2005, the
court granted Roberts motion for additional time so that he could
conduct discovery, extending the time for opposing the plaintiffs
motion for summary judgment for thirty days. The order of July
22 was mailed to the parties on July 28. Meanwhile, on July 25,
2005, Robert responded to the plaintiffs response to his Rule
56(f) motion. He contended in a pleading entitled Reply to
Plaintiffs Partial Objection to Limited Discovery that thirty
days was not enough time for needed discovery and requested an
extension of six months.
On August 12, 2005, the plaintiffs filed a pleading
entitled Reply in Support of Motion for Summary Judgment. This
pleading argued that the extension of time granted by the court
for Robert to answer the motion for summary judgment expired on
August 4, 2005, even though the court only granted the extension
on July 22 and mailed it on July 28. The plaintiffs reasoned
that the normal time for the response to the motion for summary
judgment would have been on or before July 5, 2005, and thirty
days from that date was August 4, 2005.
On August 19, 2005, Superior Court Judge Charles R.
Pengilly granted the plaintiffs motion for summary judgment,
noting that it had not been opposed. The order confirmed that
the plaintiffs have the right to use the taxiway easement leading
from their property to the airstrip and that $25 per month per
lot as a user fee was reasonable and should be the fee charged by
Robert Bradley. The court ordered that the preliminary
injunction would become permanent and that the $25 per month per
lot user fee should be paid to Robert. On the same day that
summary judgment was granted the court signed a judgment in favor
of the plaintiffs in accordance with the order granting summary
judgment.
On September 6, 2005, Robert Bradley sought
reconsideration. Robert argued in his motion for reconsideration
that his request for a six-month extension was either overlooked
or ignored. Roberts motion for reconsideration was not ruled
upon and was thus denied by operation of law thirty days after it
was made.2 Robert made a Rule 60(b) motion for relief from
judgment on October 27, 2005. This motion was denied by Judge
Pengilly on November 30, 2005.
II. DISCUSSION
On appeal Robert presents six arguments captioned3 as
follows:
(1) whether there was error by the lower court in
making its decision to let the injunction stand;
(2) whether the court erred in not granting more
than thirty days to do discovery on a summary judgment
motion;
(3) whether a dismissal for want of prosecution
should have been granted to defendant Robert Bradley
since this case sat stagnant and there was no
calendaring of claim and no prehearing on discovery;
(4) whether the plaintiff appellees interfered
with property covenants for use of right of way to the
airstrip;
(5) whether plaintiff appellees can set their own
pricing for use of right of way to the airstrip; and
(6) whether co-defendants James Bradley and Leslie
Bradley can control right-of-way use of property
controlled by Robert Bradley that was awarded to him in
a prior proceeding.
Roberts first, second, and third contentions deal with
pre-summary judgment rulings. We turn to them first.
A. Was the Preliminary Injunction Properly Granted?
Robert in his first argument on appeal contends that
the preliminary injunction should not have been granted. He
argues that the plaintiffs did not show irreparable harm. The
grant or denial of a preliminary injunction is ordinarily a
matter within the discretion of the superior court.4 The
plaintiffs demonstrated that Robert had interfered and was
threatening to continue to interfere with their right of access
to the airstrip. Numerous cases hold that injunctive relief is
available to protect easement rights.5 Since plaintiffs right of
access was a legally protected property interest, injunctive
relief to protect it was appropriate. Thus this argument lacks
merit.
B. Should an Extension Longer than Thirty Days Have Been
Granted Under Civil Rule 56(f)?
The trial court granted Roberts Rule 56(f) request for
additional time on July 22, 2005. Robert in his June 27, 2005
request for such relief did not identify any potential deponents
but stated that he was requesting an extension of time to take
discovery, deposition, both video and written[,] and to obtain
[affidavits] which will be used in my opposition to plaintiffs
motion for summary [judgment]. The plaintiffs filed a Partial
Objection and Non-Objection to Roberts 56(f) motion. They noted
that Robert had not done any discovery since the filing of the
case, but did not oppose a reasonable extension so that Robert
could obtain affidavits and discovery and prepare his opposition
memorandum. They suggested that thirty (30) days should be
adequate and also submitted a proposed order granting Rule 56(f)
relief that stated that Robert is granted thirty (30) days from
date of this order within which to procure discovery, affidavits,
and file his opposition to the motion for summary judgment. The
court, however, did not use the order submitted by the
plaintiffs. Instead the court signed an order submitted by
Robert and interlineated that the date for opposition to
Plaintiffs Motion for Summary Judgment is extended 30 days. The
court signed this order on July 22, and it was mailed by the
clerks office on July 28, 2005.
After the plaintiffs filed their partial objection,
Robert on July 25 responded that thirty days would not be enough
time and asked for six months. This pleading did not specify
whom Robert wished to depose or on what issue their depositions
would be relevant, but Robert did indicate that some people he
wished to depose are out of town and won[]t be back for awhile.
By the time Robert filed this pleading the court had already
ruled and never revisited the subject. The question is whether
the court erred in refusing to grant Robert an extension longer
than thirty days.
Civil Rule 56(f)
permits a party opposing summary judgment to
request additional time to gather and submit
evidence to support the partys
opposition. . . . [R]equests made under Rule
56(f) should be granted freely because [the
rule] provides a safeguard against premature
grants of summary judgment. . . .
. . . .
[A] party must satisfy three requirements to
receive a continuance under Rule 56(f): the
party (1) must unambiguously request relief
on those grounds, (2) must not have been
dilatory during discovery, and (3) must
provide adequate reasons why additional time
is needed.[6]
Roberts July 25 request for additional time was
unambiguous and thus he met the first of the stated grounds for
Rule 56(f) relief. But Robert was dilatory with respect to
discovery. We do not reach this conclusion because Robert failed
to conduct discovery before the motion for summary judgment. No
party took any action after the preliminary injunction until
Robert moved to dismiss on Civil Rule 41(e) grounds. His motion,
in turn, appears to have prompted the plaintiffs to file the
motion for summary judgment. But after the motion for summary
judgment was filed and Robert realized that additional discovery
was needed, he could have begun taking depositions within the
thirty-eight-day period between the filing of the summary
judgment motion and his July 25 request for a six-month delay.7
During this period Robert was dilatory.
We also do not believe that Robert supplied adequate
reasons why time in addition to the thirty-day extension was
needed. He supplied neither the names of the witnesses whom he
wished to depose (or from whom he wished to obtain affidavits)
nor any verifying details as to who was unavailable, nor did he
indicate the issues on which their testimony was thought to be
germane. We conclude therefore that Robert has not supplied
adequate reasons why additional time was needed. He thus failed
to meet both the second and third requirements for Rule 56(f)
relief. For these reasons we conclude that the court did not err
in declining to grant more than a thirty-day extension under
Civil Rule 56(f).8
C. Should the Case Have Been Dismissed for Want of
Prosecution?
Turning to Roberts third contention, whether a
dismissal for want of prosecution should have been granted,
Robert relies on Civil Rule 41(e)(1)(B), which permits dismissal
for want of prosecution in a case that has been pending for more
than one year where no trial or mandatory pretrial scheduling
conference has been scheduled or held. Under this rule when a
case has been pending for more than a year and the conditions of
subsection (1)(B) are met, the court (or the clerk of court) is
not to dismiss the case automatically but must request a showing
as to why the case should not be dismissed. Thus in response to
Roberts motion to dismiss the court could have asked the
plaintiffs to show cause why the case should not be dismissed.
But this was not necessary because shortly after Robert made his
motion to dismiss the plaintiffs moved for summary judgment.
Once that motion was made it would have been an abuse of
discretion to enter a Rule 41(e) dismissal.
D. Was Summary Judgment Appropriate?
Roberts fourth and fifth arguments on appeal pertain to
whether the court erred substantively in granting summary
judgment for the plaintiffs.
The rules governing our review of judgments based on
the grant of summary judgment were recently expressed by this
court in Greywolf v. Carroll:
Summary judgment is granted if the
pleadings, depositions, or other admissible
evidence along with affidavits show that
there is no genuine issue of material fact
and that a party is entitled to judgment as a
matter of law. We review a grant of summary
judgment de novo and in so doing draw all
reasonable inferences in favor of the
nonmoving party to determine whether the
parties genuinely dispute any facts material
to a viable legal theory and, if not, whether
the undisputed facts entitle the movant to
judgment as a matter of law.
A complete failure of proof concerning
an essential element of the nonmoving partys
case necessarily renders all other facts
immaterial. The movant has the burden of
showing that there is an absence of a factual
dispute on a material fact and that this
absence of a dispute constitutes a failure of
proof on an essential element. If a prima
facie case is established by the movant, then
the nonmoving party must set forth specific
facts showing that admissible evidence could
be produced that reasonably tends to dispute
or contradict the moving partys evidence in
order to demonstrate the existence of a
dispute of material fact and prevent entry of
summary judgment. Any admissible evidence in
favor of the nonmoving party concerning a
material fact is sufficient to render summary
judgment inappropriate.[9]
As implied by the quoted language, when a summary judgment movant
does not make a prima facie case showing the absence of a factual
dispute on a material fact, it is error to grant summary
judgment, and the grant of summary judgment may be reviewed on
appeal even if the nonmoving party did not file opposition to the
motion in the trial court:
The moving party has the entire burden of
proving that it is entitled to summary
judgment. That is, unless the moving party
points to undisputed facts or admissible
evidence establishing a prima facie case
entitling it to summary judgment as a matter
of law, the opposing party has no obligation
to produce evidence supporting its own
position.[10]
Roberts fourth argument complains that payments of the
fees were made to his brothers James and Leslie. Prospectively,
at least, this is not an issue because the judgment provides that
each of the plaintiffs must pay Robert a user fee so long as they
use the taxiway and airstrip. But there is an issue as to when
the plaintiffs should have begun paying Robert user fees. The
question of retrospective payments to Robert was not resolved by
the judgment or the order granting summary judgment, nor was it
addressed in the motion for summary judgment. The plaintiffs
therefore have not carried their burden as summary judgment
movants of showing an absence of a factual dispute on this point.
Since they did not make a prima facie case as to this issue,
Roberts lack of opposition to the motion for summary judgment
does not preclude him from raising the point on appeal.11 On
remand the court should determine the date after which user fees
should have been paid by the plaintiffs to Robert. If the fees
were not paid to Robert, he is entitled to judgment for them on
his counterclaim.
In his fifth point on appeal Robert argues that the
plaintiffs should not be able to set their own fees as distinct
from the rightful rent that Robert seeks to charge. Fairly
construed this argument raises the issue as to whether the court
was correct in determining that the appropriate user fee for the
taxiway and airstrip was $25 per month.
There is an underlying legal issue here, namely whether
Robert rather than James and Leslie have the authority to set the
user fee. The language of the settlement agreement between the
brothers does not, as the plaintiffs contend, establish that
Leslie and James have the authority to set the user fee. Absent
extrinsic evidence and based solely on the language of the
agreement, we believe that Robert rather than his brothers should
have fee-setting authority. Otherwise, his brothers could
substantially reduce the value of Roberts rights simply by
setting the fees at low levels. Pending possible resolution of
this question to the contrary on remand, we assume for the
purposes of the discussion that follows that Robert has the right
to set the fees.
Based on this assumption, and given that there is a
range of fees that may be reasonable, Robert should have the
right to charge fees at the top of the range. Robert, in other
words, may charge the highest reasonable fee.
Much of the evidence submitted by the plaintiffs
pertained to the question of whether $25 per month was a
reasonable fee and did not address the issue of whether $25 per
month was the highest reasonable fee. But both James and Leslie
testified in affidavits that the $25 fee is more than reasonable,
without regard to the number of aircraft, given the limited
services provided. This testimony, if offered at trial by a live
witness, would be admissible to establish that the highest
reasonable fee was $25 per month. Nonetheless, there was other
evidence in the record that when favorably construed toward
Robert indicated a fee higher than $25 per month would be
reasonable. We refer here to the plaintiffs affidavits
indicating that another private airstrip charges $30 per month
per lot and a third charges $35 per month. Drawing reasonable
inferences in favor of Robert from this evidence suffices, in our
view, to establish a genuine issue of material fact as to whether
$25 per month per lot is the highest reasonable fee that may be
charged. As a result, the plaintiffs did not show the absence of
a factual dispute on this issue. They thus did not establish a
prima facie case entitling them to summary judgment as to the
appropriate fee that Robert may charge.12 The judgment on this
point must therefore also be reversed.
E. Can Roberts Claim Against His Brothers Be Raised in
this Case?
Roberts sixth point on appeal is a claim that his
brothers James and Leslie have unlawfully interfered with his
property. But since Robert did not plead cross-claims against
them this argument is not properly presented in this case.
III. CONCLUSION
Summary judgment and judgment against Robert Bradley
enjoining him from interfering with plaintiffs use of their
taxiway easement was appropriate and the court properly required
the plaintiffs to pay a fee for the use of the taxiway easement
and the airstrip to Robert prospectively. But the court did not
determine the prejudgment date from which such fees should have
been paid to Robert and the court erred in determining on summary
judgment that the user fee should be $25 per month. The judgment
therefore must be vacated with respect to these issues and
further proceedings on remand will be required in order to
determine them.
For the reasons stated the judgment is AFFIRMED IN
PART, REVERSED IN PART, and this case is REMANDED for further
proceedings consistent with this opinion.
_______________________________
1 The order of settlement was signed by Superior Court
Judge Randy M. Olsen on March 19, 2004.
2 Alaska R. Civ. P. 77(k)(4).
3 We have slightly edited Roberts argument headings.
4 Brandon v. Dept of Corrections, 865 P.2d 87, 88-89
(Alaska 1993).
5 See, e.g., Stuart v. Whalers Cove, Inc., 144 P.3d 467
(Alaska 2006); McGill v. Wahl, 839 P.2d 393 (Alaska 1992); 25 Am.
Jur. 2d, Easements and Licenses 110 (2007).
6 Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005)
(quotations & citations omitted).
7 Even after the July 25 request Robert initiated no
discovery.
8 We note that the plaintiffs in their Reply in Support
of Motion for Summary Judgment filed August 12, 2005 which was
simply a request that the court rule on their motion for summary
judgment calculated that the thirty-day extension granted by the
court expired on August 4, 2005. This would be correct if the
extension was directly tacked on to the original time for
opposing the motion. It would not be correct if the intent of
the court was to grant thirty days from the July 22 date of the
courts order. The courts order itself is ambiguous as to the
date from which it was intended to run. The plaintiffs
interpretation is a defensible, if ungenerous, reading of the
order. But we do not believe the ambiguity in the July 22 order
was significant in the context of this case. Robert gave no
indication that he would have filed an opposition to the motion
for summary judgment within thirty days after July 22. His post-
summary judgment pleadings his motion to reconsider summary
judgment of September 6, 2005, and his motion for 60(b) relief of
October 27, 2005 do not suggest that Robert expected to file an
opposition to the motion for summary judgment within the thirty-
day period as so calculated.
9 151 P.3d 1234, 1240-41 (Alaska 2007) (quotations &
citations omitted).
10 B.R. v. State, Dept of Corrections, 144 P.3d 431, 433
(Alaska 2006) (citations omitted).
11 Id.
12 We note that the permanent injunction order from which
Robert appeals established the amount to be paid by the
plaintiffs so long as they access and use the Bradley Sky Ranch
Airstrip. However, the highest reasonable fee that Robert can
charge probably will increase as time passes and the market
changes. A permanent injunction setting the highest reasonable
fee Robert can charge should not be read to prohibit Robert from
raising the fee in the future with prior court approval.
Further, because it is unlikely that todays highest reasonable
fee will remain so indefinitely, the superior court on remand
should impose a reasonable time deadline after which the
injunction will expire.
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