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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hansen v. Davis (11/6/2009) sp-6428
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
| HARVEY A. HANSEN and | ) |
| ANNETTE M. HANSEN, | ) Supreme Court No. S- 13210 |
| ) | |
| Appellants, | ) Superior Court No. 1KE-07-305 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MARVIN P. DAVIS and | ) No. 6428 November 6, 2009 |
| ARLENE LANI DAVIS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Christopher J. Boyette, McCarty
& Boyette, Ketchikan, for Appellants. H.
Clay Keene and Blake M. Chupka, Keene &
Currall, P.C., Ketchikan, for Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
FABE, Chief Justice.
I. INTRODUCTION
When William Rodgers sold Lot 53-A in Ketchikan to
Marvin and Arlene Lani Davis in 1984, he reserved an easement1
across that lot to access the adjacent lot, Lot 52, which he
apparently had hoped to buy at a future date. But Rodgers never
used the easement to access the adjacent property, and the
Davises planted a garden covering most of the easement area and
built a greenhouse within the easement. Harvey and Annette
Hansen purchased Lot 52 in 2006 and subsequently bought the
rights to the easement on Lot 53-A from Rodgerss widow in June
2007. The Hansens then cleared the easement, built a road, and
almost completed installing water and sewer lines. In July 2007
the Davises sued the Hansens for trespass, alleging that their
adverse use of the easement had extinguished it and that,
alternatively, Rodgerss widow had ineffectively transferred title
to the easement to the Hansens. Following a two-day trial, the
trial court determined that the easement had been extinguished by
the Davises adverse use before the Hansens purchased the adjacent
property. We conclude that although an easement can be
extinguished by prescription, the prescriptive period for adverse
use of an easement does not begin until the activity in the
easement area by the owner of the servient estate unreasonably
interferes with the easement holders use of the easement. Here,
the Davises level of activity in the easement area was not
sufficiently adverse to trigger the prescriptive period until
2003 at the earliest, an insufficient length of time to
extinguish the easement. We thus reverse the superior courts
decision that the easement was extinguished by adverse use and
remand for further proceedings on the question of whether title
to the easement was effectively transferred.
II. FACTS AND PROCEEDINGS
A. Facts
Marvin and Arlene Lani Davis and Harvey and Annette
Hansen are neighbors in Ketchikan. The Hansens own Lot 52, which
is adjacent to the Davises property, Lot 53-A. On the other side
of Lot 53-A is Lot 53-B, which is owned by Stephen and Sherilynn
Boehlert.
Lot 53-A and Lot 53-B were originally owned by Mary
Woodley-Mateu. When Woodley-Mateu subdivided Lot 53 to create
Lot 53-A and Lot 53-B in 1983, she created an access easement
across Lot 53-B. Woodley-Mateu sold Lot 53-A to William Rodgers
in January 1984, and Rodgers sold the property to the Davises in
April. The warranty deed conveying Lot 53-A to the Davises
reserved an easement across Lot 53-A to access Lot 52, which
Rodgers allegedly had hoped to buy at a future date. The deed
described this reservation as a private easement for access and
ingress and utilities and sewer across Lot 53-A, for the benefit
of Lot 52, U. S. Survey 2402. Said easement to run along the
westerly 15 feet of Lot 53-A along the joint boundary of Lot 53-A
and the unsubdivided portion of Lot S, U. S. Survey 2402. The
deeds reservation of the easement further provided that [s]aid
easement shall be only for the benefit of Grantor, his grantees,
heirs and assigns.
After purchasing Lot 53-A, the Davises sought a legal
opinion as to the validity of the easement reserved in the deed.
They were advised in a letter dated July 8, 1985 that the
easement was not legally enforceable.2 That fall the Davises
began building frames for a garden in the easement area, and by
1987 their garden covered most of the easement. The Davises
maintained this garden until the late nineties. The Davises also
built a greenhouse within the easement in 2003, but by this time
they were gardening less and their garden no longer covered most
of the easement. It is undisputed that Rodgers never used the
easement to access Lot 52, apparently because Rodgers never owned
Lot 52.
The Hansens bought Lot 52 in July 2006. The Davises
gave the Hansens limited access across their property in January
and February 2007 to remove logs from Lot 52. In early February
the Hansens offered the Davises $5,000 to access their property
through the Davises property. But the Davises turned down the
offer and asked the Hansens to remove all of the equipment for
the logging operation from Lot 53-A. The Hansens removed the
equipment and the next contact with the Davises appears to have
been in June 2007.
That month the Hansens purchased from Rodgerss widow,
Christine Riegler, the easement that Rodgers had reserved when he
sold Lot 53-A to the Davises. Rodgers had died in Ohio in 2002.
In his will, Rodgers appointed Riegler as the executrix of his
estate and made her the beneficiary of the rest and residue of
his estate. Rodgerss will did not specifically devise the
easement reserved in the 1984 deed for Lot 53-A.
The Hansens informed the Davises that they had
purchased the easement across Lot 53-A, that they planned to
access their property using the easement, and that they wanted
the Davises to clear the easement. After the Hansens learned
that the Davises did not intend to remove anything from the
easement area, the Hansens disassembled and removed the garden
frames and greenhouse themselves and then cleared the area using
a weed-eater.3 The Hansens also built a road and nearly
completed installation of water and sewer lines.
B. Proceedings
The Davises sued the Hansens in early July 2007,
alleging trespass and damage to their property. In their
complaint, the Davises claimed that their adverse use of the
easement had extinguished it. The Davises also asserted that the
Hansens had a defective claim of title to the easement across
their property, arguing that Rodgerss widow had not successfully
transferred the easement to the Hansens because the deed failed
to comply with the Alaska Probate Code. The Hansens filed an
answer and counterclaim, seeking a judgment quieting title to the
easement in their favor and an order enjoining the Davises from
interfering with their use and enjoyment of the easement.
In February 2008 the Davises sought summary judgment on
their claim that the Hansens claim of title to the easement
across their property was defective, arguing that Rodgerss widow
failed to file an ancillary probate proceeding in Alaska before
transferring the easement to the Hansens. In asking the superior
court to determine the validity of [the Hansens] title to the
alleged easement across Lot 53[-]A benefiting Lot 52, the Davises
noted that [t]he threshold issue in this dispute is [the Hansens]
right to access Lot 52 by means of the easement across Lot 53-B
and an alleged easement across Lot 53-A. The Hansens opposed the
motion and cross-moved for summary judgment on the claim, arguing
that the technical legal defect in transferring title to the
easement had been cured and that they thus held legal title to
the easement.
Superior Court Judge Michael A. Thompson denied the
Davises summary judgment motion, reasoning that the deed
transferring Lot 53-A from Rodgers to the Davises expanded the
existing easement appurtenant benefitting Lot 53-A across
Lot 53-B and that the Davises took ownership of Lot 53-A with
notice that the easement could be developed later. The superior
court also ruled that [t]he related motion regarding the status
of the Ohio deed seems mooted by this decision. Finally, the
superior court ruled that [t]o the extent that plaintiffs assert
trespass to Lot 53-B, they lack standing because they do not own
Lot 53-B.
A bench trial was held on May 15 and 16, 2008. At the
conclusion of the trial, the superior court issued an oral
decision, ruling that the Davises had proved by clear and
convincing evidence that they adversely possessed the easement
before it was bought by the Hansens. Thus, there was no longer
an easement for [the Hansens] to acquire from Mrs. Riegler, . . .
making the facts of that transfer, or proposed transfer[,] from
Ms. Riegler moot. Finding that the Hansens trespassed on the
Davises property, the superior court awarded the Davises $13,345
in restoration damages.
The superior court issued a written decision in July
2008. The superior court clarified that the Davises adverse use
of the easement had the effect of rendering said easement to be
null and void as of 1995. The superior court entered judgment in
the amount of $13,345.00 and awarded the Davises $30,158.85 in
attorneys fees.
The Hansens appeal.
III. STANDARD OF REVIEW
We review questions of law de novo, adopting the most
persuasive rule of law upon examination of precedent, reason, and
policy.4
IV. DISCUSSION
A. It Was Error To Hold that the Hansens Easement Was
Extinguished by Prescription.
The trial court held that the Davises proved by clear
and convincing evidence that they had adversely possessed the
easement that Rodgers had reserved when he transferred Lot 53-A
to them and that this had the effect of extinguishing the
easement as of 1995. The Hansens argue that this holding is
erroneous because an easement cannot be extinguished by
prescription in Alaska. They argue alternatively that even if an
easement can be extinguished by prescription, the prescriptive
period in this case would not have run for a sufficient length of
time to extinguish the easement.
The Hansens challenge presents two questions of first
impression. First, can an easement be extinguished by
prescription in Alaska? And second, if it can, when does the
prescriptive period begin to run for adverse use of an easement?
We hold that an easement can be extinguished by prescription and
that the prescriptive period for adverse use of an easement
commences when the conduct of the servient estate owner
unreasonably interferes with the current or prospective use of
the easement by the easement holder. Here, the prescriptive
period for termination of the Hansens easement ran, if at all,
for less than the requisite ten years. Therefore it was error to
hold that the Hansens easement was extinguished.
1. An easement may be extinguished by prescription.
Alaska Statutes govern the acquisition of rights in
anothers property by adverse possession and the establishment of
an easement by prescription.5 In both cases, a person must use
the land for a period of ten years absent color of title before
bringing a claim.6 But no statute speaks to the questions raised
here: whether and to what extent an easement can be extinguished
by prescription.
The Hansens ask us to hold that easements may never be
extinguished by prescription. They cite 2003 legislative
amendments curtailing adverse possession in arguing that
[t]ermination of an easement by prescription is contrary to the
public policy of the State of Alaska. We find this argument
unpersuasive. In amending the statutes governing adverse
possession, the Alaska Legislature increased the burden that a
litigant bears in proving adverse possession of anothers land.7
But it did not eliminate adverse possession and prescriptive
easement claims altogether. We find no support for such a
categorical rule allowing easement holders to seek redress for
violations of their rights in an easement in perpetuity.
Instead, we follow the approach adopted by the Restatement
(Third) of Property8 and many jurisdictions9 and hold that an
easement can be extinguished by prescription.
2. The prescriptive period begins to run when the use
of the easement by the servient estate owner
unreasonably interferes with use of the easement
by the easement holder.
As with a claim that an easement was created by
prescription,10 a party claiming that an easement was extinguished
by prescription must prove continuous and open and notorious use
of the easement area for a ten-year period by clear and
convincing evidence. The more difficult question is what level
of activity in the easement area by the servient estate owner is
sufficiently adverse and hostile to trigger the prescriptive
period. In contrast to a claimant for adverse possession or a
prescriptive easement, a party claiming termination of an
easement by prescription already has the right to use the area in
question. Indeed, so long as the use is consistent with the
rights granted in the easement, the owner of a servient estate
may make substantial use of the easement area.11 At what point,
then, does use of the easement area by the owner of the servient
estate cross the line from permissible to hostile and adverse so
as to trigger the prescriptive period?
We hold that the prescriptive period is triggered where
the use of the easement unreasonably interfere[s] with the
current or prospective use of the easement by the easement
holder.12 When satisfied, the various requirements of adverse
possession, and similarly prescription,13 serve to put [the
property owner] on notice of the hostile nature of the possession
so that he, the owner, may take steps to vindicate his rights by
legal action.14 Use of the easement that unreasonably interferes
with the easement owners enjoyment of the easement is adequate to
give notice that the easement is under threat.15 Moreover, such
extensive use constitutes a distinct and positive assertion by
the servient estate owner that his or her use of the easement is
hostile to the rights of the easement holder and is not merely a
permissive use.16 This rule balances the rights of the servient
estate owner to make use of the easement area consistent with the
scope of the easement, encouraging productive use of easement
areas, with the rights of the easement holder to enjoy the
benefits of a recorded easement, providing assurance that minor
activities in the easement area will not result in the
termination of the easement.
Determining what constitutes unreasonable interference,
and thus triggers the prescriptive period, will be heavily fact
dependent. Where the easement holder has not used the easement
for some time, or at all, the servient estate owner enjoys wide
latitude with respect to use of the easement area, and a showing
of extensive activity will be required to demonstrate adversity.17
As a general guideline, temporary improvements to an unused
easement area that are easily and cheaply removed will not
trigger the prescriptive period; permanent and expensive
improvements that are difficult and damaging to remove will
trigger the prescriptive period.18 The burden on the servient
estate owner to prove unreasonable interference with an unused
easement is high, consistent with the policy of the 2003
legislative amendments that curtailed but did not abolish
claims of adverse possession.19
We decline the Hansens invitation to adopt as a general
rule the even more restrictive test for termination of an unused
easement by prescription first set forth in Castle Associates v.
Schwartz that use by the owner of a property burdened by an
easement is not hostile, even if it might prevent the easement
holder from using the easement, until the easement holder has
attempted to use the easement or a demand to use the easement has
been refused.20 While this rule has been adopted in other
jurisdictions,21 we do not find it to be most persuasive in light
of precedent, reason, and policy.
Our jurisprudence concerning adverse possession and
creation of easements by prescription imposes no analogous
requirement that the property owner retake the property or
unsuccessfully demand cessation of the claimants use before the
statutory period commences. In fact, any interruption in the
claimants possession or use could instead toll the running of the
statutory period.22 Furthermore, such a restrictive rule would
allow an easement holder to maintain an easement in perpetuity by
simply ignoring all communications from a servient estate owner
wishing to purchase a release of an unused easement in order to
build permanent improvements on the easement area. The rule we
have adopted today best balances the rights of the interested
parties.
In this case, it is undisputed that the easement was
unused by an easement holder from its creation until 2007.
Beginning in 1985, the Davises built frames for and maintained a
garden in the easement area, covering most of the easement by
1987. In 2003 the Davises built a greenhouse within the easement
area. As a matter of law, the maintenance of a garden on the
easement area did not constitute an improvement sufficiently
adverse to commence the prescriptive period.23 We need not decide
whether construction of the greenhouse triggered the prescriptive
period because ten years have not yet elapsed since it was built.
Therefore, we conclude that the Hansens easement was not
extinguished by prescription.
B. We Decline To Rule on the Quiet Title Question as a
Matter of Law.
The Davises urge us to affirm the trial courts decision
on an alternative ground, ruling as a matter of law that Riegler
never effectively transferred ownership of the easement to the
Hansens. The trial court, however, did not address this issue,
reasoning that it was mooted by its decision that the easement
had been extinguished before the Hansens bought Lot 52.
Questions concerning a propertys chain of title are often fact-
intensive,24 and the trial court is in the best position to
address questions of fact.25 We therefore decline to decide this
issue as a matter of law and remand for a hearing on the quiet
title action under AS 09.45.010.26
V. CONCLUSION
The prescriptive period for termination of an easement
by adverse use is not triggered until the servient estate owners
use unreasonably interferes with use of the easement by the
easement holder. Assuming that Riegler effectively transferred
ownership of the easement to the Hansens, the prescriptive period
in this case did not commence until 2003 at the earliest and this
precludes the Davises from satisfying the ten-year adverse use
requirement for extinguishing an easement by prescription. We
therefore REVERSE the superior courts decision that the easement
was extinguished by adverse use and REMAND for an evidentiary
hearing on the easements chain of title.27
_______________________________
1 An easement creates a nonpossessory property right to
enter and use land in the possession of another [the servient
estate owner] and obligates the possessor [of the burdened land]
not to interfere with the uses authorized by the easement.
Restatement (Third) of Property: Servitudes 1.2(1) (2000).
2 Although there was testimony about the letter at the
trial, the letter was not offered or admitted into evidence.
3 We point out that easement holders should not engage in
such self-help remedies where the owner of the servient estate in
good faith disputes the validity of the easement. The proper
remedy for the holder of a disputed easement that has been
blocked is to file a quiet title action to establish the validity
of the easement and to seek an injunction requiring the clearing
of the easement and damages where appropriate. See Restatement
(Third) of Property: Servitudes 8.3 (2000) (A servitude may be
enforced by any appropriate remedy or combination of remedies,
which may include declaratory judgment, compensatory damages, . .
. [and] injunctions . . . .). Where the easement is not in
dispute, easement holders must still be cautious when clearing
the easement themselves. See Jewell v. Kroo, 517 P.2d 657, 659
(Or. 1973) (en banc) (The owner of the dominant estate may enter
on the servient estate for the purpose of doing anything
reasonably necessary to the proper exercise of his easement.
Whether the acts of the defendants were reasonably necessary to
the exercise of their easement or whether their self-help
exceeded these bounds is a question of fact which is dependent
upon the circumstances.) (citations omitted).
4 Kazan v. Dough Boys, Inc., 201 P.3d 508, 513 (Alaska
2009).
5 See AS 09.10.030(a); AS 09.45.052; see also McGill v.
Wahl, 839 P.2d 393, 396 (Alaska 1992) (AS 09.10.030 establishes
the method by which a claimant may establish title through
adverse possession and constitutes a method for establishing an
easement through prescription.).
6 Interior Trails Pres. Coal. v. Swope, 115 P.3d 527, 529-
30 (Alaska 2005).
7 To prevail under the amended adverse possession law,
claimants must now show that they believed in good faith that the
disputed land lies within the boundaries of their property in
addition to proving, as they had been required to prove prior to
the 2003 legislative amendments, that their use of the land was
continuous, open and notorious, exclusive and hostile to the true
owners for the statutory period. Compare ch. 147, 3, SLA 2003
(amending Alaskas adverse possession statutes to include the
additional requirement that litigants asserting ownership of real
property by adverse possession absent color of title have a good
faith but mistaken belief that the real property lies within the
boundaries of adjacent real property owned by the adverse
claimant), with Vezey v. Green, 35 P.3d 14, 20 (Alaska 2001)
(listing the requirements of adverse possession absent color of
title under Alaskas adverse possession statutes prior to the 2003
legislative amendments).
8 Restatement (Third) of Property: Servitudes 7.7
(2000).
9 See, e.g., Landgray Assocs. v. 450 Lexington Venture,
L.P., 788 F. Supp. 776, 785 (S.D.N.Y. 1992) (holding that the
plaintiffs light and air easement was extinguished by
prescription to the extent that the defendants maintenance of a
conveyor structure for the prescriptive period had obstructed the
easement); Faulconer v. Williams, 964 P.2d 246, 253 (Or. 1998)
(holding that the plaintiffs adverse use of the easement area for
the prescriptive period extinguished the easement across the
plaintiffs land); Norman v. Belcher, 378 S.E.2d 446, 449 (W. Va.
1989) (holding that even if the defendant had acquired an
easement by prescription, it was subsequently extinguished by the
plaintiffs use of the easement area for the prescriptive period).
10 See Interior Trails Pres. Coal., 115 P.3d at 530.
11 See 7 Thompson on Real Property 60.08(b)(7)(i) (David
A. Thomas ed., 2004) (The servient owner already has the right to
use the servient tenement in any way that does not obstruct the
easement . . . .).
12 Restatement (Third) of Property: Servitudes 4.9; see
also Jon W. Bruce & James W. Ely, Jr., The Law of Easements and
Licenses in Land 10:25 (2008) (The general standard [for
determining adversity] is that the servient estate owners conduct
must unequivocally and substantially interfere with the easement
holders use of the servitude.). The prescriptive period may also
be triggered where the use of the easement violates an express
term in the easement, an issue not relevant to the facts of this
case.
13 See McDonald v. Harris, 978 P.2d 81, 83 (Alaska 1999)
(The elements of a prescriptive easement are essentially the same
as the elements of adverse possession, except that adverse
possession focuses on possession rather than use. (footnote
omitted)).
14 Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d
826, 832 (Alaska 1974).
15 7 Thompson on Real Property, supra note 11,
60.08(b)(7)(i).
16 McDonald, 978 P.2d at 85 (stating that in the case of
prescriptive easement claims, a claimant must overcome the
presumption that use of anothers property was permissive).
17 Bruce & Ely, supra note 12, 10:25.
18 Of course, an owner of a servient estate makes
permanent and expensive improvements to a valid easement area at
his or her peril. A servient estate owner is not entitled to
unreasonably interfere with use of the easement by the easement
holder by making such improvements. Cf. Kelley v. Matanuska
Elec. Assn, Mem. Op. & J. 12488, 2008 WL 4367550, at *7 (Alaska,
September 24, 2008) (agreeing that the owner of land burdened by
an easement held by a utility company was entitled to the use of
his property as long as it does not unreasonably interfere with
[the utility companys] use of its easement (citations omitted)).
19 See supra note 7 and accompanying text.
20 407 N.Y.S.2d 717, 723 (N.Y. App. Div. 1978) (applying
test where servient estate owner erected fence blocking use of
easement).
21 See, e.g., Sabino Town & Country Estates Assn v. Carr,
920 P.2d 26, 30 (Ariz. App. 1996); Vandeleigh Indus., LLC v.
Storage Partners of Kirkwood, LLC, 901 A.2d 91, 105-06 (Del.
2006); Kolouch v. Kramer, 813 P.2d 876, 879-80 (Idaho 1991);
Halverson v. Turner, 885 P.2d 1285, 1290 (Mont. 1994); City of
Edmonds v. Williams, 774 P.2d 1241, 1244 (Wash. App. 1989);
Mueller v. Hoblyn, 887 P.2d 500, 508-09 (Wyo. 1994).
22 See Swift v. Kniffen, 706 P.2d 296, 303 (Alaska 1985);
Alaska Natl Bank v. Linck, 559 P.2d 1049, 1052 (Alaska 1977).
23 See, e.g., Smith v. Muellner, 932 A.2d 382, 393 (Conn.
2007) ([C]ourts routinely reject that vegetation on an easement,
both cultivated and natural, constitutes adverse use adequate to
extinguish the easement.).
24 See, e.g., Capener v. Tanadgusix Corp., 884 P.2d 1060,
1074 (Alaska 1994) (holding that genuine issues of material fact
precluded summary judgment in a quiet title action involving an
occupier of land that had been conveyed to a corporation under
the Alaska Native Claims Settlement Act); Wickwire v. McFadden,
576 P.2d 986, 987 (Alaska 1978) (reversing a summary judgment
order in an action to quiet title to a lot in a subdivision
because there was a genuine issue of material fact concerning
whether the seller could convey good title to the buyer in a
timely manner).
25 See Kirby v. State, 649 P.2d 963, 970 (Alaska App.
1982) ([T]he trial court is in a better position than is this
court to rule upon the factual aspects of the case . . . .); see
also Veselsky v. Veselsky, 113 P.3d 629, 634 n.16 (Alaska 2005)
(We have held that the trial court, not this court, is in the
best position to judge witnesses credibility and evaluate their
testimony.).
26 In hearing the quiet title action on remand, it may be
wise to include all parties, including third parties such as
Riegler, who have had or may have an interest in the easement
across Lot 53-A. On remand, the Davises allegation of trespass
to their neighbors property is not an issue. Although we have
broadly interpreted the concept of standing in favor of
increasing accessibility to the courts, a litigant is still
required to have a sufficient personal stake in the outcome of
the controversy to have standing to sue. Hoblit v. Commr of
Natural Res., 678 P.2d 1337, 1340 (Alaska 1984); Moore v. State,
553 P.2d 8, 23 (Alaska 1976). The purpose of requiring a
personal stake is to guarantee that there is adversity, which is
fundamental to judicial proceedings. Hoblit, 678 P.2d at 1340.
Here, the Boehlerts own Lot 53-B, and they are the ones directly
affected by the Hansens using their land to access Lot 52. To
achieve the necessary adversity for a trespass action for Lot 53-
B, the Boehlerts are the proper plaintiffs to bring this claim.
Thus, we affirm the trial courts decision that [t]o the extent
that [the Davises] assert trespass to Lot 53-B, they lack
standing because it is not a cause of action accruing to [them],
and this court is without jurisdiction to adjudicate the rights
of the Boehlerts, parties not before it.
27 Our disposition requires us to vacate the superior
courts award of damages and attorneys fees to the Davises, which
makes it unnecessary to consider the Hansens argument that the
attorneys fee award should be reduced. See Holta v. Certified
Fin. Servs., Inc., 49 P.3d 1104, 1111 n.22 (Alaska 2002) (noting
that consideration of the sufficiency of the attorneys fee award
is unnecessary because the decision to reverse the judgment on
its merits requires that the award be vacated).
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