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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Keenan v. Wade (05/09/2008) sp-6257
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
| MICHAEL J. KEENAN, | ) |
| ) Supreme Court No. S- 12437/S-12446 | |
| Appellant/ | ) |
| Cross-Appellee, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-12554 CI |
| ) | |
| HUGH G. WADE, | ) O P I N I O N |
| ) | |
| Appellee/ | ) |
| Cross-Appellant. | ) No. 6257 - May 9, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Donna C. Willard, Law Offices of
Donna C. Willard, Anchorage, for
Appellant/Cross-Appellee. Hugh G. Wade, pro
se, Anchorage.
Before: Fabe, Chief Justice, Eastaugh, and
Carpeneti, Justices. [Bryner and Matthews,
Justices, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. Two tenants in common partitioned their property.
After completing partition, they disagreed as to the amount of
owelty1 that was due. The superior court determined the amount
owed, and one co-owner appeals, arguing that the superior court
overvalued his property. The other co-owner cross-appeals,
arguing that the superior court erred in (1) failing to designate
a date for valuation of each parcel, (2) using an improper
formula to determine owelty, (3) entering a money judgment in the
final order, and (4) determining that appellant was the
prevailing party for purposes of attorneys fees. Because the
superior courts valuation of the property was not clearly
erroneous and the court did not err in making various other
decisions which are challenged by the parties on appeal, we
affirm the superior courts decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
Attorneys Hugh Wade and Michael Keenan co-owned
property near Seldovia on the MacDonald Spit. They owned the
property as tenants-in-common beginning in 1991, when Keenan
purchased the interest of Wades initial partner, Barrie White.
They did not enter into a written agreement concerning their
joint ownership.
The property initially consisted of an approximately
five-acre tract, on which there was one cabin that had been built
in 1978. In 1993 the property was subdivided, and Keenan and
Wade sold approximately two and one half acres to third parties.
Throughout the first few years of co-ownership, Wade and Keenan
shared the cabin that was on the remaining two acres of land.
They had agreed in 1991 to construct a guest cabin, but they
disagreed on its location. Wade insisted on building the cabin
below a bluff, but Keenan believed the location was too close to
the high-water mark. Wade had a foundation constructed for the
guest cabin below the bluff, but a storm in November 1994
destroyed it.
In 1995 Keenan proceeded to build a separate guest
cabin. This cabin has become known to the parties as the Keenan
cabin. Keenan first occupied the new cabin in spring 1995.
Thereafter, he never personally used the original cabin, which
each party recognizes as the Wade cabin. From 1991 to the fall
of 1999, Keenan maintained a checking account for the tenants-in-
common to pay for the mortgage, improvements, and repairs on
their property. However, Keenan testified that he personally
paid for many of the construction costs for the Keenan cabin. As
of May 7, 1999, the parties de facto separation date,
approximately $15,000 of joint funds had been used in
construction of the Keenan cabin. Keenan concedes that Wade is
entitled to a credit of $7,500 based on those construction costs.
Beginning in 1998 Keenan made various additional improvements to
the new guest cabin at his own expense.
On May 7, 1999, the parties separated their interests
and entered into a de facto partition of the subject property.
Utilities were separated, and each party became responsible for
the expenses of his respective cabin.
Both before and after the May 7, 1999 de facto
separation, the parties struggled to determine the best way to
settle their remaining disputes and terminate the partnership.
This struggle continued until 2003, when Wade wrote to Keenan
stating that he wanted to resolve the matter. Keenan sought the
help of Superior Court Judge Mark C. Rowland and requested that
he mediate the dispute. At the meeting with Judge Rowland, the
parties decided to pursue a formal partition of the property.
After the Rowland mediation, the single most important issue was
the valuation of the two parcels and payment of any difference.
In April 2004 the parties formally agreed to partition
and subdivide the property. Keenan retained the services of
McLane Engineering to assist with the partition. McLane
officially surveyed and divided the property into two separate
lots, with Wade designated the owner of Lot 3A-1 (which includes
the Wade cabin) and Keenan designated the owner of Lot 3A-2
(which includes the Keenan cabin). The Wade lot is approximately
49,827 square feet. The Keenan lot is approximately 41,575
square feet. The parties could not agree on the value of those
lots or the parties individual contributions to each lot.
The parties agreed that the lots are not of equal
value and that some provision for owelty would be appropriate.
Because the parties could not agree as to the appropriate amount
of owelty, Keenan filed this lawsuit in November 2004.
B. Proceedings
Keenans complaint alleged that Wade refused to
cooperate regarding the partition of the land and the payment of
owelty. Keenan requested that the court exercise its equitable
jurisdiction and enter a judgment partitioning the property as
agreed by the parties, awarding a monetary sum to one party or
the other that is fair and equitable under the circumstances,
costs, including reasonable attorney fees, and any other relief
as to this court deems just. Wade responded by admitting that
the parties agreed to partition the property but denying (1) that
the parties agreed to a particular formula for calculating the
owelty that should be paid by the party receiving the property of
greater value and (2) that the parties agreed to hire a real
estate appraiser to appraise the properties and determine the
necessary amount of owelty. Wade also filed a counterclaim,
which appears to seek the same determination as Keenans complaint
and explicitly seeks a provision for owelty in accordance with
A.S. 09.45.590. The counterclaim also seeks resolution of
Keenans claim for compensation for labor and materials or
increased value.
Keenan moved for partial summary judgment on the
partition issue, and Wade conceded that the motion should be
granted. The superior court entered an order affirming the above-
mentioned partition, awarding Lot 3A-2 to Keenan and Lot 3A-1 to
Wade.
Upon hearing Keenans unopposed motion to establish the
law of the case, the superior court ordered:
the measure for valuing property subject to
partition shall be determined on the basis of
Fair Market Value, and that for purposes of
determining the amounts due plaintiff, the
Court shall determine:
1. The present FMV of the Lot 3A-1
land and structure, and
2. The present FMV of the Lot 3A-2
land,
3. The amount of any credit the
defendant would be entitled to as a
result of contribution of
partnership funds to the plaintiffs
cabin, as offset by the amount of
personal funds expended by the
plaintiff for partnership expenses.
The most significant determination in this order was the courts
decision not to consider the value of the Keenan cabin in its
determination of owelty. Instead, the court decided to compare
the value of Wades land and cabin with the value of Keenans lot
without his cabin and simply provide Wade with a credit for the
portion of partnership funds expended on Keenans cabin.
A bench trial commenced on February 7, 2006, and
evidence was again taken on February 9, 2006. Both parties
testified. Keenan introduced the deposition testimony and
appraisal reports of appraiser Mark Webb. In an official
appraisal, Webb estimated that the Wade property with the cabin
was worth $227,500 as of April 25, 2004. Webb estimated that the
value would increase by at least five percent annually, and that
it likely had increased by ten percent at the time of trial.2 In
his deposition, Webb also testified about his letter of opinion
regarding the Keenan lot, in which he concluded that the lot,
without consideration of the cabin, was worth $75,000, based on
other sales of vacant sites in the City of Seldovia, near the
MacDonald Spit.
Keenan testified that he believed Wades property with
the cabin was worth $260,000, based on [c]omparable sales, the
appraisal, the testimony of . . . Mr. Webb and the testimony of
Mr. Wade. He estimated that the value of his own property,
without the cabin, was $75,000. Keenan explained his calculation
of owelty as follows: $260,000 (value of Wades property,
including the cabin) minus $75,000 (value of Keenans property,
not including the cabin he built) = $185,000, divided by two =
$92,500 (the amount of owelty Wade would owe Keenan). Keenan
explained that he did not seek costs for disproportionate labor,
maintenance, or upkeep of his property.
Wade conceded in his testimony that his property,
including the cabin, was worth $260,000 at the time of trial. He
testified that he believed Keenans lot, without the cabin, was
worth not less than $150,000. He based his estimate on recent
sales in the Seldovia/MacDonald Spit community. Wade did not
review the Multiple Listing Service for comparable sales on the
MacDonald Spit, but he testified that he was intimately familiar
with every sale that occurred there in the last year, and he
described two such sales. In his deposition, Wade had testified
that his lot, without the cabin, was worth between $100,000 and
$125,000 and that it was bigger and sexier than Keenans lot.
When asked how, given Wades own testimony regarding the size and
attractiveness of his lot, Keenans lot could be worth 25 to
$50,000 more than Wades lot, Wade responded that the conversation
was about apples and oranges.
In May 2006 the superior court rendered its written
decision and order in the case. The court found that [t]he best
evidence provided at trial establishes the value of Lot 3A-1
(Wades property) at $260,000. The court then addressed the value
of Keenans lot:
The appraisers opinion was that the value of
Lot 3A-2, without consideration of the guest
cabin improvement just referred to, to be
$75,000. Mr. Wade opined that the property,
without building was worth $150,000. The
court finds that Mr. Wades opinion is the
better evidence on this subject. It is true
that he is not an appraiser and has contempt
for them, but his own appraisal though
subject to the risk of bias seems well based
on recent like property transactions.
The court next addressed whether Wade would receive a portion of
the value of Keenans cabin: Based on the courts ruling on the
unopposed motion for a determination of the law of the case Mr.
Wade doesnt share in the value of the Lot 3A-2 improvement. The
court did, however, provide Wade with a $7,500 credit for his
contribution to the cabin based on Keenans use of approximately
$15,000 of partnership funds. The court calculated the total
amount of owelty due to Keenan as $49,454.09.3
In June 2006 the court entered judgment in favor of
Keenan for $49,454.09. The court denied Keenans motion for
reconsideration. Wade then filed a motion to alter or amend the
judgment. He argued that the form of judgment was inappropriate
because a money judgment is not appropriate in an action for
partition; the money judgment was not in the form required by
Alaska Civil Rule 58; the judgment failed to address and resolve
material issues before the court; the final judgment should
incorporate the March 24, 2005 order granting partial summary
judgment; the judgment should resolve and formalize the parties
stipulations and the courts determinations relating to utilities
and easements; and the judgment should provide an award of owelty
or equitable compensation for disproportionate improvement to the
property. Keenan responded and submitted his own proposed
amended final judgment.4 The court accepted Keenans proposed
judgment and officially entered a final judgment of $66,405.13,
including pre-judgment interest, attorneys fees, and costs, on
August 23, 2006.
Keenan appeals, arguing that the superior courts
decision to substitute Wades valuation of the Keenan lot for that
of the appraiser was clearly erroneous. Wade cross-appeals,
arguing that the superior court erred in (1) failing to determine
the appropriate date for valuation, (2) using an improper formula
to determine owelty, (3) entering a money judgment in the final
order, and (4) determining that Keenan was the prevailing party
for the purpose of awarding attorneys fees.
III. STANDARD OF REVIEW
I. Under Alaska Civil Rule 52(a), factual findings shall not be
set aside unless they are clearly erroneous. Valuation of
property is a factual determination that will be reversed only if
clearly erroneous.5 Under this standard, we will reverse only if
we are left with a definite and firm conviction that a mistake
has been made.6 When reviewing factual findings, we view the
evidence in the light most favorable to the prevailing party
below.7
We review questions of law using our independent
judgment and will adopt the rule of law that is most persuasive
in light of precedent, reason, and policy.8
We review an award of attorneys fees under Alaska Civil
Rule 82 for abuse of discretion.9
IV. DISCUSSION
A. The Superior Courts Decision To Use Wades Estimate of the
Value of Keenans Lot Was Not Clearly Erroneous.
Keenan argues that the superior courts valuation of the
Keenan lot was clearly erroneous because it relied on Wades
estimate rather than an expert appraisers valuation. Wade
responds that it is not error to accept a property owners
determination of the value of his or her own property.
Keenan reasons that an objective determination of the
fair market value of partnership assets is necessary when the
parties relationship is being dissolved, relying on Disotell v.
Stiltner.10 In Disotell, we held that it was error to permit a
buyout of partnership assets without requiring some objective
determination of the value of all of the partnership assets.11 We
emphasized that [n]either party introduced evidence of any
appraisal or any other evidence of the value of partnership
assets.12 We concluded: Because a buyout is appropriate only if
it is for fair market value, and there was no admissible evidence
of fair market value, we must remand.13 Wade responds that
Disotell did not create the requirement that the market value of
property be proved by formal appraisal or even address whether
it is error to reject a professional appraisers opinion regarding
the value of real property in favor of the owners opinion. We
agree with Wade.
Keenans discussion of Disotell fails to recognize that
in that case there was no evidence of the value of partnership
assets, whereas in this case there was competing evidence of
value, including Wades testimony regarding prices for comparable
land sales. In Disotell, we simply emphasized the need for
objective evidence of the fair market value of partnership
assets.14 We have also held that [o]wners may express their
opinions of an assets value, but must use a principled method of
valuation.15
Here, Wades opinion of the value of Keenans lot is
based on his knowledge of comparable sales of property on the
MacDonald Spit. Although Wade did not review the Multiple
Listing Service or examine tax appraisal records, he discussed
the prices for comparable property sales in the area. First, he
testified that the nearby Carr-Agni lot sold for $92,000 in 1997.
He stated, it had a very small A-frame which . . . has since been
destroyed and . . . it sold just for the lot. At a modest five
percent annual appreciation, the Carr-Agni lot would be worth
approximately $142,722 by the time of trial in 2006. Second,
Wade testified about a lot with two small cabins that sold for
$200,000 in 2005. According to Wade, the two cabins were
[unheated], uninsulated shacks, no running water, no utilities,
no septic. Assuming a modest five percent annual appreciation,
the value of the lot would be approximately $210,000 at the time
of trial in 2006. These sales, adjusted as necessary for
purposes of comparison to the Keenan property, afford an
evidentiary basis for Wades valuation. Thus, the superior courts
decision to accept that the value of Keenans lot in 2006 was
$150,000 rather than $75,000 was not clearly erroneous.
Keenan also argues that Wades opinions of value are
inadmissible under Rule 701 of the Alaska Rules of Evidence
because they do not meet the standards of being based on the
perception of the witness and helpful to a clear understanding of
his testimony or the determination of a fact in issue. This
argument is unavailing, however, because we have held that a
property owners testimony regarding the value of his own land is
admissible.16
For these reasons, Wades testimony regarding the value
of Keenans lot is admissible, and the superior court could
validly rely on this testimony in determining that Keenans lot is
worth $150,000. The superior court found that Mr. Wades opinion
is the better evidence on this subject because though subject to
the risk of bias the valuation seems well based on recent like
property transactions. Because we do not have a definite and
firm conviction that a mistake has been made,17 we affirm the
superior courts finding that Keenans lot is worth $150,000.
B. The Superior Court Correctly Considered the Trial Date as
the Appropriate Date for Valuation of the Properties.
Wade argues that the superior court erred in failing to
determine an appropriate date for valuation of the properties; he
also appears to argue that the trial date (February 2006) is the
appropriate date. He argues that if February 2006 was selected
as the date for valuation, then no owelty should have been
assessed because he alleges that the parties agreed that the lots
were each worth $260,000 as of the time of trial.18 Keenan
responds that the trial court accepted valuations as of the date
of trial.
Keenan is correct that the court valued the property as
of the time of trial. In its Order Granting Motion to Establish
Law of the Case, the superior court explained that the amount due
to the plaintiff would be based on the present FMV [fair market
value] of each lot. The superior court stated in its order that
[t]he best evidence provided at trial establishes the value of
[Wades property, including the cabin] at $260,000. The finding
that Keenans lot was worth $150,000 was also based on trial
testimony about the value of the lot at the time of trial. Thus,
although the superior court did not explicitly state the date of
valuation, it is clear that the values were determined as of the
time of trial. The superior court did not err by using the time
of trial as the valuation date.
C. Wade Waived His Argument that the Superior Court Used an
Improper Formula To Determine the Appropriate Amount of Owelty
Because He Failed To Raise the Issue Before the Superior Court.
Wade argues that the superior court adopted an improper
formula to determine owelty. He argues that the formula was
simplistic and not supported by authority or precedent.
Specifically, Wade argues that the formula is improper because it
credited Keenan with one hundred percent of the value of the
improvements which had been made on his lot regardless of the
source and because it did not require any accounting by Mr.
Keenan of the joint funds which he controlled and which were
expended on his cabin during the five-year period from 1994 to
1999. Keenan responds that the superior court did not err in
adopting a formula for resolution which excluded the value of
Keenans improvements. Specifically, Keenan argues that the
superior court credited Wade with one-half of the amount of
partnership funds that had been expended on the Keenan cabin and
that the court possesses the power to enter any order necessary
to accomplish a just and equitable partition.
Wade failed to oppose the formula at issue when it was
introduced by Keenans pre-trial motion to establish the law of
the case. The courts order on that motion determined that Wade
would not share in the value of the improvements to Keenans lot
and that Wades improvements to his own cabin would not entitle
him to a credit. Wade did not object to the order or seek
reconsideration in a timely manner. Generally, a partys failure
to file a timely opposition to a motion results in waiver of the
right to object on appeal unless there is plain error.19 Plain
error exists where an obvious mistake has been made which creates
a high likelihood that injustice has resulted.20 Here, Wade
failed to file any opposition to the motion to establish the law
of the case. Further, the formula the court adopted took into
account both the credit [Wade] would be entitled to as a result
of contribution of partnership funds to [Keenan]s cabin and the
amount of personal funds expended by the plaintiff for
partnership expenses. Thus, the superior court did not make an
obvious mistake in adopting the formula. Wades argument that the
formula is improper is therefore waived.
D. The Superior Court Did Not Err in Entering a Money Judgment
Against Wade.
The superior court accepted Keenans proposed amended
final judgment and entered an order on the judgment on August 23,
2006. The amended final judgment ordered the parties to engage
the services of a title insurance company for the purpose of
conducting a real estate closing, to execute grants of easement
and a water rights agreement in the form submitted by the
plaintiff attached to his opposition to the defendants Motion to
Alter or Amend the Judgment, and to execute the appropriate
conveyancing documents. The judgment also ordered the defendant
to deposit the total amount of judgment ($66,405.13) in escrow
before all the documents were recorded. After recordation, the
funds were to be disbursed to the plaintiff.
Wade argues that the form and substance of the judgment
are fatally flawed. Specifically, he argues that the judgment
does not partition the property, but rather improperly directs
the parties to engage a title insurance company and create an
escrow of funds. Wade also argues that the judgment fails to
confirm the agreement regarding easements and utilities and
constitutes a money judgment, which he alleges is improper.
Keenan responds that partition was performed by the parties
agreement, that the cases cited by Wade do not support his
argument for an alternative to a money judgment, that there was
already agreement on the easements and utilities issue, and that
Wades argument against use of an escrow agent is left
unexplained.
Wades argument that the superior court failed to
partition the property ignores the courts Order on Motion for
Partial Summary Judgment of March 24, 2005. In that order, the
court partitioned the property in accordance with Plat 2004-6,
awarding the plaintiff Lot 3A-2 and awarding the defendant Lot 3A-
1. Thus, transfer of title was the only remaining act that had
to be completed in order to effectuate the partition. The use of
a title insurance company assists with the title transfer process
(conducting a real estate closing). Wade fails to indicate why
the use of a title insurance company is improper, so we do not
consider this argument.21
Wades argument that a money judgment is inappropriate
in this case presents an issue of first impression in Alaska.
There is no definitive rule as to whether a money judgment can be
granted for owelty or whether owelty may only be awarded by
charging a lien on the share of greater value.22 To support his
argument that a money judgment is inappropriate, Wade cites
Updike v. Adams23 and Pino v. Sanchez.24 In Updike, the Supreme
Court of Rhode Island held that payment of owelty may not be so
imposed upon a party as to be unreasonably burdensome,
considering both the condition of the property and the party.25
The Updike court also stated, [w]here one is unable to make
payment at the time of division, it should be a charge or lien
upon his share, and a reasonable time should be given for the
payment.26 In Pino, the New Mexico Supreme Court held that the
trial court had erred in allowing a deferral of owelty payment
until an indeterminate future date, and explained that a
reasonable time for payment must be set by the trial court.27 The
rule in Updike provides a sound approach to the issue of whether
owelty should be imposed as a money judgment or a lien on the
property of greater value because it takes into account the
difficulty co-owners may have in satisfying large money
judgments. The Pino rule is also wise because it ensures that co-
owners who are entitled to owelty will receive their fair share
within a reasonable time.
Here, Wade filed a Motion to Alter or Amend Judgment
and attached an affidavit in which he described why he believed
it would be unreasonably burdensome to impose owelty as a money
judgment. He stated:
The existing judgment orders immediate
payment of [$49,454.09]. The ten day stay of
execution will expire on June 30, 2006 and
comes at a time when I am short of liquid
assets. I recently bought a new condominium
and have just moved to it. My former
residence, a condo is listed for sale, but
has been on the market for just a few days.
I have no mortgage on either condo, and also
have no mortgage on the subject property in
Seldovia. However, I did just negotiate an
unsecured bridge loan from FNBA to purchase
the new condo and I do not expect that the
bank will loan me addition [sic] money on an
unsecured basis at this time.
. . . I can and will, if necessary, draw
money to pay the owelty from a retirement
account, but that will have adverse tax
consequences. I think that, under the
appropriate authority the court should fix a
time for payment not less than six months
from this date, or should provide for terms
such as I have suggested in my proposed form
of judgment.
Wades affidavit fails to show that it is unreasonably burdensome,
considering the condition of the property and the party, to
impose owelty as a money judgment. Wade appears to have various
assets, including real property and a retirement account that
could be used to satisfy the judgment. It is not unreasonably
burdensome to require him to make a one-time payment. Thus, the
superior court did not err by entering a money judgment against
Wade.28
Finally, Wade argues that the superior court erred by
failing to confirm the agreement regarding easements and
utilities. Aside from this cursory statement, Wade provides no
argument on this point in his brief. Thus, we do not consider
the argument on appeal.29 Even if we did consider the argument,
it has no merit because Wade and Keenan already agreed to an
access easement, view easement, and shared water rights, and the
court had no duty to confirm their agreement.
E. The Superior Court Correctly Determined that Keenan Was the
Prevailing Party for Purposes of Alaska Civil Rule 82 Attorneys
Fees.
Wade argues that the superior court erred by
determining that Keenan was the prevailing party for purposes of
attorneys fees. Wade argues that he should have been designated
as the prevailing party because he prevailed on what he considers
the most important issue at trial: valuation of the property. He
also reasons that Keenan cannot be designated as the prevailing
party because the judgment he was awarded is substantially less
than the amount of his Alaska Civil Rule 68 settlement offer.
Alaska Civil Rule 82(a) provides that the prevailing
party shall receive attorneys fees.30 The trial judge has wide
discretion as to whether attorneys fees should be awarded.31 We
may find an abuse of discretion only if the trial courts
determination as to attorneys fees was manifestly unreasonable.32
The prevailing party is the party who has successfully
prosecuted or defended against the action, the one who is
successful on the main issue of the action and in whose favor the
decision or verdict is rendered and the judgment entered. The
determination of who is the prevailing party is within the broad
discretion of the trial court.33 Furthermore, a plaintiff can be
the prevailing party though not receiving the full recovery
sought if the plaintiff prevailed on the basic liability question
and received an affirmative recovery based on its successful
litigation of that question, which was substantial in amount. 34
The superior courts decision to award Keenan attorneys
fees in the amount of $8,243.6735 is not manifestly unreasonable.
The main issues in this action were the amount of owelty owing to
Keenan and the property values considered in the owelty
calculation. As the superior court stated in its order of May
22, 2006, [t]he heart of the parties dispute is whether Mr. Wade
is to share in the value [of] the structure built as the guest
cabin [Keenans cabin]. Keenan was successful on this issue
because the court determined that Wade would not share in the
value of the improvements to Keenans lot. Although Keenan did
not receive the full recovery he sought,36 he still prevailed on
the issue that was the heart of the parties dispute and received
a substantial recovery of $57,436.61 (including pre-judgment
interest). Thus, it was well within the superior courts wide
discretion to determine that Keenan was the prevailing party and
award him Rule 82 attorneys fees.
V. CONCLUSION
For the reasons stated above, we AFFIRM the superior
courts judgment in all respects.
_______________________________
1 Owelty is defined as [e]quality as achieved by a
compensatory sum of money given after an exchange of parcels of
land having different values or after an unequal partition of
real property. Blacks Law Dictionary 1137 (8th ed. 2004).
2 A ten percent increase would result in a value of
$250,250 at the time of trial.
3 The calculation was as follows: $260,000 (Lot 3A-1 with
improvements) minus $150,000 (Lot 3A-2 without improvements)
equals $110,000 (difference in value). As half of the difference
in value, $55,000 was the amount needed to equalize division.
The court then subtracted $7,500 for Wades contribution to the
cabin, which resulted in $47,500. Finally, the court added
$1,954.09 for the amount Wade owed for taxes and insurance, for a
total award to Keenan of $49,454.09.
4 The amended final judgment required the parties to
engage the services of a title insurance company for the purpose
of conducting a real estate closing . . . execute grants of
easement and a water rights agreement . . . [and] execute the
appropriate conveyancing documents . . . . It also required Wade
to deposit the total amount of the judgment in escrow for the
purpose of disbursement to [Keenan] before the above referenced
documents shall be recorded. After recordation the funds were to
be disbursed to [Keenan]. The amended final judgment also
included pre-judgment interest, attorneys fees, and costs.
5 Krize v. Krize, 145 P.3d 481, 487 (Alaska 2006).
6 Municipality of Anchorage v. Gregg, 101 P.3d 181, 186
(Alaska 2004).
7 Fuller v. City of Homer, 113 P.3d 659, 662 (Alaska
2005).
8 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
9 See Ashley v. Baker, 867 P.2d 792, 796 (Alaska 1994)
(stating that determination of which party is prevailing party is
within broad discretion of trial court and must not be disturbed
unless manifestly unreasonable).
10 100 P.3d 890 (Alaska 2004).
11 Id. at 894.
12 Id.
13 Id.
14 Id.; see also Martin v. Martin, 52 P.3d 724, 730-31
(Alaska 2002) (emphasizing the importance of examining a partys
motives for valuing a piece of property at a particular amount).
15 Krize v. Krize, 145 P.3d 481, 487 (Alaska 2006).
16 Gregory v. Padilla, 379 P.2d 951, 953 (Alaska 1963)
(owners opinion of the value of his property is competent even
though it may not be very persuasive).
17 Municipality of Anchorage v. Gregg, 101 P.3d 181, 186
(Alaska 2004).
18 Wades argument ignores the fact that the superior
courtss assessment of owelty was based on a comparison of Keenans
lot without improvements (determined to be $150,000) and Wades
lot with the original cabin (determined to be $260,000). The
basis for this comparison is the courts order establishing the
Law of the Case, which Wade failed to oppose. Because there was
a $110,000 difference in the property values considered by the
superior court, the court did not err in providing for an award
of owelty.
19 See Kenai Peninsula Borough v. Cook Inlet Region,
Inc., 807 P.2d 487, 500 (Alaska 1991); see also Carroll v.
Carroll, 903 P.2d 579, 583 (Alaska 1995).
20 Kenai Peninsula Borough, 807 P.2d at 500 (quoting
Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)).
21 See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991) (stating where a point is given only a cursory
statement in the argument portion of a brief, the point will not
be considered on appeal).
22 See 59A Am. Jur. 2d Partition 177-79 (2008).
23 52 A. 991 (R.I. 1902).
24 646 P.2d 577 (N.M. 1982).
25 52 A. at 992 (emphasis added).
26 Id.
27 646 P.2d at 578-79.
28 Wade also argues that the superior court erred by
providing for an escrow of funds. This argument is waived
because Wades brief fails to provide more than a cursory
statement explaining the basis for the argument. See Adamson v.
Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).
29 See id.
30 Wade implies that Rule 82 attorneys fees should not be
awarded in partition cases, and he cites AS 09.45.620 to support
his position. That statute does not support his argument
because it concerns the costs of partition, not attorneys fees
required by litigation. Further, the statute states that when
litigation arises between some of the parties to the partition,
the court may require the expenses of the litigation to be paid
by any or all the parties to the litigation. AS 09.45.620
(emphasis added). This language reinforces the wide discretion
the superior court possesses to award attorneys fees.
31 Cooper v. Carlson, 511 P.2d 1305, 1309 n.5 (Alaska
1973).
32 Id. at 1309 n.6 (emphasis added).
33 Day v. Moore, 771 P.2d 436, 437 (Alaska 1989)
(internal quotation omitted) (citation omitted); see also Ashley
v. Baker, 867 P.2d 792, 796-97 (Alaska 1994).
34 Ashley, 867 P.2d at 797 (quoting Hillman v.
Nationwide Mutual Fire Ins. Co., 855 P.2d 1321, 1328 (Alaska
1993)).
35 This amount is calculated based on the judgment,
including pre-judgment interest, of $57,436.61 and the contested
with trial schedule of Rule 82(b)(1). This schedule provides
for an attorneys fee award of twenty percent of the first
$25,000 of the judgment (including pre-judgment interest) and
ten percent of the next $75,000 of the judgment. Alaska R. Civ.
P. 82(b)(1).
36 Wade notes that Keenan offered to settle for $75,000
in a Rule 68 offer of judgment and thereafter sought $94,000 in
settlement. But in order to benefit under Rule 68, Wade would
have had to have made an offer that he subsequently bettered at
trial. Alaska R. Civ. P. 68(b). Morever, while obtaining less
than his offer, Keenan nonetheless obtained a substantial money
judgement and prevailed on important issues in the case.
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