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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Fagnani (3/5/2010) sp-6459
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
| LEE WILLIAMS, | ) |
| ) Supreme Court No. S- 13294 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-02- 12541 CI | |
| v. | ) |
| ) O P I N I O N | |
| LARRY FAGNANI, | ) |
| ) No. 6459 March 5, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Hal P. Gazaway, Anchorage, for
Appellant. Randall G. Simpson, Greg
Dorrington, Jermain Dunnagan & Owens, P.C.,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Winfree
and Christen, Justices, and Matthews, Senior
Justice pro tem.* [Eastaugh and Fabe,
Justices, not participating.]
MATTHEWS, Senior Justice pro tem.
This case is before us for a second time. In our first
decision we held that Lee Williams was entitled to an implied
roadway easement over property owned by Larry Fagnani.1 On
remand the superior court ruled that Fagnani was entitled to
maintain a locked gate across the roadway, so long as Williams
was advised of the combination.
Williamss challenge to this ruling is the main issue
now before us. We vacate the ruling and remand with instructions
that the superior court determine the facts relevant to the
inconvenience that the gate will cause Williams and to Fagnanis
justification for the gate. When these facts are determined the
court should decide whether the gate unreasonably interferes with
Williamss use of the roadway easement.
Williams also argues that the superior court should
have awarded him enhanced attorneys fees and that the amount
actually awarded was miscalculated. We conclude that the court
did not abuse its discretion in declining to award enhanced fees,
but that a minor calculation error was made that should be
addressed on remand.
I. THE GATE ISSUE
On remand the superior court entered an order
addressing the particulars of the roadway easement. At the
outset the court noted that the scope of the easement was in
dispute and had to be determined because it had not been
considered during the trial. The court then ruled as follows:
All parties seem to agree that the
existing road is a 30 foot gravel road. The
widening and graveling of the road benefitted
all of the users of the road including both
the dominant and servient estates. The Court
finds that the improvement of the road was a
part of the normal development of the
dominant estate. Although widened and
improved, the road continued to be a private
road and was never a public road.
Based on these facts, this Court finds
that Williams is entitled to an implied
easement over the disputed road. The
easement is limited to 30 feet in width. The
easement shall be maintained in its current
nature, i.e. a gravel road. Williams is not
entitled to more intensive use than he now
has. Both Williams and Fagnani have a joint
obligation to contribute jointly to the costs
reasonably incurred for repair and
maintenance of the road. Because the road is
a private road Fagnani is entitled to post
signs and to maintain a gated entrance with
locks with combinations that allows Williams
access but prevents use by the general public
to create a right of way.
Williams moved for reconsideration of this order. He
argued that when he purchased the landlocked property there was
no gate on the roadway. He argued further that no justification
for a gate existed because Fagnanis house is reached from a
different driveway, the property crossed by the roadway is not
fenced, and no buildings or personal property of value are
accessible from the roadway. Williams also argued that he and
his wife are seriously inconvenienced by the gate, noting that
they are in their late fifties and Mrs. Williams has a bad knee.
He described problems regarding the location of the gate as
follows:
The approach of the subject road to Hollywood
Road is up a steep embankment slope. After
their entry onto Hollywood Road, the Williams
must cross two lanes before they would be
able to stop. There is no pull out and a
very limited shoulder on which they may stop.
One must exercise great care traveling down
Hollywood Road. Frequently people travel the
road at speeds of over 50 miles per hour.
To open and close the gate, it will be
necessary to stop some fifty feet from the
gate, walk up the steep slope, open the gate,
walk back down the road, drive through the
gate, stop on an arterial road and walk back
across the road to shut and lock the gate.
This creates a significant safety hazard.
The gate provides no security for any
property owned by Mr. Fagnani. It only
serves to inconvenience the Williams.[2]
Fagnani opposed Williamss motion for reconsideration.
He argued that any burden imposed on Williamss use of the roadway
by the gate was justified by the need to prevent others,
primarily owners of neighboring homesteads, from using the
roadway: the Kutils, Boyd Connolly and even Williams have not yet
internalized the distinction that this [road] is a private place
. . . . A padlocked gate on Fagnanis private road is the only
way to convey to the Kutils, Boyd Connolly and the general public
this simple fact. (First alteration in original.) (Citation
omitted.) In addition, Fagnani minimized the inconvenience that
the gate would cause Williams: With full access to the
combination on the lock of the gate, the sole burden he faces is
getting out of his vehicle, remembering the combination of the
lock, opening the gate and driving through. Williams makes
unsupported claims that stopping and opening the gate will expose
him to danger. Fagnani also observed that Williams uses the
property primarily as a recreational home and lives in Anchorage
full time.3
The superior court denied Williamss motion for
reconsideration in an order that provided: The easement
established is not a general public easement. Testimony at trial
established that members of the public did and would use the
easement although it is private. A gate as currently established
does not impose an unreasonable burden on the Williams right of
passage. In accordance with this ruling, the court entered a
final judgment granting Williams a thirty-foot easement across
Fagnanis property, requiring Williams and Fagnani to mutually
share the cost of maintaining the easement, and allowing Fagnani
to maintain a locked gate.
On appeal the parties largely repeat the arguments they
presented to the superior court. Williams contends that the gate
unreasonably restricts his use of the easement while providing no
significant benefit to Fagnani.4 Fagnani argues that the gate is
a minor burden on Williamss use and is justified by Fagnanis
interest in preventing trespassers from using the easement.
The purpose of the implied roadway easement was to
provide normal vehicular access to Williamss property.5 Fagnani,
as the owner of the servient estate, is entitled to make any use
of the easement that does not unreasonably interfere with this
purpose.6 The Restatement (Third) of Property: Servitudes,
section 4.9, provides: Except as limited by the terms of the
servitude . . . , the holder of the servient estate is entitled
to make any use of the servient estate that does not unreasonably
interfere with enjoyment of the servitude.
The commentary to section 4.9 of the Restatement makes
clear that section 4.9 serves as an aid to determining the intent
or expectations of the parties in creating a servitude.7 The
commentary goes on to explain:
Actions that make it more difficult to use an
easement, that interfere with the ability to
maintain and repair improvements built for
its enjoyment, or that increase the risks
attendant on exercise of rights created by
the easement are prohibited . . . unless
justified by needs of the servient estate.
In determining whether the holder of the
servient estate has unreasonably interfered
with exercise of an easement, the interests
of the parties must be balanced to strike a
reasonable accommodation that maximizes
overall utility to the extent consistent with
effectuating the purpose of the easement
. . . .[8]
There are numerous cases from other jurisdictions
involving questions of whether a servient easement owner can
erect and maintain a closed or locked gate across a roadway
easement.9 A treatise has summarized the general rules that can
be derived from the case law concerning gating an easement:
Absent an express arrangement for an
open way, courts generally permit a landowner
to maintain an unlocked gate if such
structure is necessary for the enjoyment of
the servient estate. For example, use of the
burdened land to raise cattle or for other
agricultural purposes might be significantly
hindered without appropriate gates to prevent
passage of animals or trespassers. On the
other hand, courts are likely to find that a
gate that serves no purpose concerning the
use of the burdened land is an unreasonable
obstruction of an easement.[10]
The right of a servient owner to erect
locked gates presents an additional issue.
Generally, courts hold that a locked gate
constitutes an unreasonable interference with
the use of the easement, even though the
dominant owner is furnished a key. A locked
gate, notwithstanding the presentation of a
key, curtails the dominant owners use by
restricting deliveries and social
visits. . . .
Each situation, however, is governed by
its particular set of facts, and courts have
permitted locked gates when such gates were
necessary for the servient owner to make
reasonable use of the servient land.[11]
As indicated by this summary, courts have recognized
that gates, especially locked gates, amount to a significant
burden on a rural homeowners right of access.12 Every time a
homeowner drives from or to his home he must stop, exit his
vehicle and open the gate, get back in his vehicle, drive
through, stop and exit again to close the gate, and then get back
in his vehicle and drive on.13 In the ice and darkness of an
Alaska winter these multiple operations can be especially trying.
Further, a gate may bar or deter guests, visitors, delivery and
service providers, and emergency vehicles from reaching a home
served by a roadway easement.14
For these reasons, gates must serve a substantial
benefit to the servient land if they are to be maintained across
a roadway to a home.15 Typical examples of benefits found
sufficient are to prevent livestock from straying, to prevent
valuable property from being stolen or vandalized (usually in
light of a history of such conduct), or to protect personal
safety.16
Even where reasons of substance justify maintaining a
gate, they may be outweighed by the inconvenience suffered by the
owner of the dominant estate.17 In cases where there are reasons
of substance on both sides, trial courts must weigh the benefits
of a gate to the owner of the servient estate against the
detriments to the owner of the dominant estate.18 And sometimes
a weighing process results in allowing gating only during periods
when the need is most strongly justified.19
The record on appeal is insufficient for us to
determine whether the superior court struck an appropriate
balance in permitting Fagnani to maintain a closed and locked
gate across the roadway easement. At oral argument Williamss
counsel stated that the house served by the easement is the
Williamses regular residence. Although this was not then
contradicted by Fagnanis counsel, an unverified assertion filed
by Fagnani in opposition to Williamss motion for reconsideration
is contradictory.20 Likewise, absent from the record on appeal
is factual support for the particular burdens said to result from
the physical circumstances regarding the location of the gate and
the Williamses infirmities. Williamss assertion that no property
of value on the servient estate is protected by the gate is
similarly not supported by record citations. Further, the
superior court made no findings concerning any of these factual
allegations.
Accordingly this case must be remanded to the superior
court. The court should make findings as to the facts that are
relevant to the balance that must be struck to determine whether
the gate constitutes an unreasonable interference with Williamss
use of the roadway easement. When the court finds the relevant
facts it should then determine whether the gate is an
unreasonable interference in light of the facts and the
principles of law expressed in this opinion.
II. ATTORNEYS FEES ISSUES
A. Enhancements
Williams argues that the superior court erred by
failing to enhance the fees it awarded him under Alaska Rule of
Civil Procedure 82(b)(3). Williams requested fifty percent of
all his fees ($55,855.00), including the $2,000 he paid to prior
counsel. The superior court denied his request, stating that it
found no reason to order enhanced fees. Instead, it awarded him
thirty percent of calculated fees under Rule 82, excluding the
$2,000 Williams paid prior counsel. The final award totaled
$15,333.30.
Rule 82(b)(2) states that the prevailing party in a
case that goes to trial will receive, at a minimum, thirty
percent of reasonable actual attorneys fees which were
necessarily incurred.21 Rule 82(b)(3) gives the superior court
the discretion to vary the fee award based on a consideration of
various factors.22 The court must base its decision to enhance
fees on one or more of the factors listed.23 Awards made
pursuant to the schedule of Civil Rule 82(b) are presumptively
correct.24 In this case, the superior court found no reason to
order enhanced fees under Rule 82(b)(3).
Williams argues that the complexity of the litigation
in this case warrants fee enhancement because the case involved
factual disputes regarding a forty-year-old road and complex
legal theories. Williams also argues that (1) the reasonableness
of his attorneys hourly rates;25 (2) the reasonableness of the
number of attorneys he used;26 and (3) his attorneys efforts to
minimize fees27 justify fee enhancement. Williams essentially
argues that, because the superior court found Fagnanis attorneys
fees to be reasonable, he should receive enhanced fees because he
was charged less by his attorney. Williams also argues that the
[un]reasonableness of the claims and defenses pursued by Fagnani
and his vexatious or bad faith conduct warranted fee enhancement
because Fagnani provided false testimony to the court during
trial. His accusations are based primarily on affidavits filed
with a post-trial motion that allegedly refute much of Fagnanis
trial testimony. Williams finally argues that the relationship
between the amount of work performed and the significance of the
matters at stake warrant fee enhancement because [t]he potential
loss of ingress and egress for Mr. Williams property would
destroy it[]s value.
In response, Fagnani argues that complexity is a poor
reason to justify enhancement in cases where fees are calculated
on an hourly basis. Fagnani also argues that the reasonableness
of the number of attorneys, hourly rates, and efforts to minimize
fees are more properly used to decrease fees in cases where the
prevailing party has expended an unreasonable amount of resources
on the case. He argues that there was no finding of bad faith by
the superior court that would warrant fee enhancement because
Williams submitted the affidavits after the trial, when they were
not subject to cross-examination. Finally, he argues that the
significance of the matter at stake only warrants fee enhancement
where the winning party litigates a case with unusual efficiency
for important stakes, or the losing party does so inefficiently
for insignificant issues.
Our review of the record does not show the existence of
compelling reasons to overcome the presumption of correctness
that is afforded to attorneys fees awards under Rule 82(b).28
Williams presents no reason why the complexity of this case is
such that it was an abuse of discretion not to award enhanced
fees. The fact that Williams employed fewer attorneys who
charged less per hour and minimized fees does not, by itself,
warrant enhancement. Williams has already benefitted from his
frugal use of legal resources because his total bill on the
remaining seventy percent of fees was reduced. Furthermore, the
superior court did not find that Fagnanis behavior was in bad
faith or excessively litigious. The superior court is in the
best position to determine such questions.29 Finally, although
this court has previously affirmed an award of enhanced fees
based purely on the importance of the subject matter and not
because of any efficiency in the litigation of the case,30
whether the loss of value in Williamss land was so important as
to justify enhanced fees was a question committed to the
discretion of the superior court.31
None of Williamss arguments persuade us that the
superior courts refusal to award enhanced fees was an abuse of
discretion.
B. Calculations
Williams argues that the superior courts deduction of
$2,744 from his baseline fees because it was attributable to
work on appeal was erroneous.32 He argues that the superior
court did not specify how it calculated the deduction; instead,
the court adopted Fagnanis proposed deductions that were
unsupported by the billing statements.33
Fagnani argues that the invoices show that there was
work attributable to the appeal. However, he does not show
exactly how he arrived at the $2,744.31 amount for fees incurred
from December 2007 to May 2008. He identifies some specific
charges for work billed in November 2007 and April 2008, but the
listed charges do not add up to $2,744.31. Williams argues that
the charges listed by Fagnani were for work before the superior
court on remand, and not part of work done for the appeal.
Our review of the bills for December 2007 to May 2008
shows that support in the record for the deduction of the full
$2,744 is doubtful. While Fagnani points out some items in the
bill that arguably could be for work done on the appeal, there
are several items on these bills that are most likely related to
the case on remand. For instance, there are four itemized
billings for work at least partially done on a motion for
attorney fees. No such motion was made on appeal. These charges
total $1,054.5034 out of total charges of $3,350.95. Thus, even
if we assume that all the other charges from December 2007 to May
2008 were attributable to the appeal, the excludable amount would
only be $2,296.45.
It was an abuse of discretion to deduct $2,744 from
calculated attorneys fees. On remand, the superior court should
examine the relevant bills and determine which charges should be
properly excluded from attorneys fees incurred in the superior
court.
III. CONCLUSION
For the reasons expressed in this opinion, the judgment
of the superior court is vacated insofar as it permits appellee
to maintain a closed and locked gate across the roadway easement.
On remand the superior court should determine the facts relevant
to the question whether the gate is an unreasonable interference
with appellants use of the easement and decide that question in
light of the facts and the law. The judgment is also vacated
with respect to the award of attorneys fees. On remand, based on
the evidence, the superior court should determine the amount of
the fees that should be deducted from appellants baseline fees
under Civil Rule 82(b). The court should then revise the award
of fees in accordance with this determination. The court is
authorized to conduct a supplementary evidentiary hearing as to
either issue if the court believes that such a hearing will be
necessary or useful.
_______________________________
* Sitting by assignment under article IV, section 11 of
the Alaska Constitution and Administrative Rule 23(a).
1 Williams v. Fagnani, 175 P.3d 38 (Alaska 2008).
2 Williamss allegations concerning the easement, its
relationship to Fagnanis property, and the details of the
inconvenience it caused the Williamses were presented in an
unverified memorandum without record citations.
3 Fagnanis assertion on this point was unverified and not
accompanied by record citations.
4 Williams also argues that the superior court erred in
defining the scope of use of the easement on the grounds that
doing so violated the mandate of this court and violated the law
of the case doctrine. Neither contention has merit. Our opinion
left open the scope of the implied easement. Williams, 175 P.3d
at 42 (We will therefore not address the scope of the implied
easement here.). Although Fagnani filed a petition for rehearing
in this court asking that issues as to the scope of the easement
be considered, this petition was denied without comment. The
denial of a petition for rehearing establishes no law binding on
the trial court after remand. Ruggles ex rel. Estate of Mayer v.
Grow, 984 P.2d 509, 513 (Alaska 1999). Thus the denial of the
petition for rehearing did not establish the law of the case, and
the superior court did not violate the law of the case doctrine
by addressing the easements scope.
5 Williams, 175 P.3d at 40-41.
6 Labrenz v. Burnett, 218 P.3d 993, 1002 (Alaska 2009)
([T]he owner of the servient estate may utilize the easement area
in any manner and for any purpose that does not unreasonably
interfere with the rights of the easement holder.) (quoting Jon
W. Bruce & James W. Ely, Jr., The Law of Easements and Licenses
in Land 8.20, at 8-60 (2009)).
7 Restatement (Third) of Property: Servitudes 4.9 cmt.
a (2000).
8 Id. cmt. c.
9 See cases collected in the Reporters note to 4.9 of
the Restatement, pp. 588-91.
10 James W. Ely, Jr. and Jon W. Bruce, The Law of
Easements & Licenses in Land 8:26 (2009).
11 Id. 8:28.
12 See, e.g., Crawford v. Butler, 924 So. 2d 569, 575
(Miss. App. 2005); Van Klompenburg v. Berghold, 23 Cal. Rptr. 3d
799, 801 (Cal. App. 2005).
13 See, e.g., Van Klompenburg, 23 Cal. Rptr. 3d at 802
(noting difficulty in using gate).
14 See, e.g., id. (noting problems that locked gates can
cause dominant owners, guests, and agents).
15 An example in the Restatement illustrates the need for
demonstrating a tangible detriment to a servient estate before
gates may be maintained across an easement that provides access
to a home:
After repeated problems with vandalism,
O, the owner of Blackacre, installed a locked
gate at the entrance to the drive crossing
Blackacre that leads from the public highway
to Whiteacre. The drive is maintained
pursuant to an easement appurtenant to
Whiteacre. O furnished A, the owner of
Whiteacre, with a key for the gate.
Whiteacre is undeveloped property that A uses
infrequently for recreational purposes. In
the absence of other facts or circumstances,
O is entitled to maintain the locked gate
because the gate is needed for the security
of Blackacre, and the lessened convenience to
Whiteacre is not unreasonable.
Restatement (Third) of Property: Servitudes 4.9 illus. 4
(2000).
16 See, e.g., Watson v. Banducci, 973 P.2d 395, 401-02
(Or. App. 1999) (gate necessary for livestock); Ericsson v.
Braukman, 824 P.2d 1174, 1178 (Or. App. 1992) (gate necessary
where trespassers stole trees from Christmas tree farm). We have
uncovered no case in which the risk of unauthorized use of a
roadway easement in a rural area unaccompanied by substantial
personal property or personal safety concerns has been held to
justify gating a roadway easement that leads to a residence.
17 See, e.g., Strahan v. Bush, 773 P.2d 718, 721 (Mont.
1989) (gate to prevent cattle from straying and to prevent
vandalism was an unreasonable burden on residents because it
presented snow removal and maintenance difficulties, one of the
residents could not open the gate without assistance, and a
cattle guard could be installed to prevent cattle from straying).
18 See, e.g., Tamaka v. Sheehan, 589 A.2d 391, 396-97
(D.C. Cir. 1991).
19 Howes v. Howes, 499 So. 2d 314, 317-18 (La. App. 1986)
(holding that locked gate between 10 p.m. and 5:30 a.m. was
reasonable to prevent trespassers at night; servient owners
daughters-in-law had personal safety concerns since their
husbands worked nights); Ericsson v. Braukman, 824 P.2d 1174,
1178 (Or. App. 1992) (Servient estate, a Christmas tree farm, was
permitted to maintain locked gate from November 1 to December 25
as trees were most apt to be stolen during that period.).
20 See supra page 4.
21 Alaska R. Civ. P. 82(b)(2).
22 Alaska R. Civ. P. 82(b)(3). The listed factors are:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys
hourly rates and the number of hours
expended;
(D) the reasonableness of the number of
attorneys used;
(E) the attorneys efforts to minimize fees;
(F) the reasonableness of the claims and
defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount of
work performed and the significance of the
matters at stake;
(I) the extent to which a given fee award may
be so onerous to the non-prevailing party
that it would deter similarly situated
litigants from the voluntary use of the
courts;
(J) the extent to which the fees incurred by
the prevailing party suggest that they had
been influenced by considerations apart from
the case at bar, such as a desire to
discourage claims by others against the
prevailing party or its insurer; and
(K) other equitable factors deemed relevant.
23 See Tenala, Ltd. v. Fowler, 993 P.2d 447, 451 (Alaska
1999).
24 McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999).
25 Alaska R. Civ. P. 82(b)(3)(C).
26 Alaska R. Civ. P. 82(b)(3)(D).
27 Alaska R. Civ. P. 82(b)(3)(E).
28 We review a superior courts award of attorneys fees
under the abuse of discretion standard and will disturb an award
only if it is manifestly unreasonable. Lakloey, Inc. v. Ballek,
211 P.3d 662, 664 (Alaska 2009); Capolicchio v. Levy, 194 P.3d
373, 377 (Alaska 2008). If we were clearly convinced that the
presumption that an award under Rule 82(b) is correct had been
overcome, these standards would be satisfied.
29 See, e.g., Reid v. Williams, 964 P.2d 453, 461-62
(Alaska 1998); Wickwire v. McFadden, 633 P.2d 278, 281 n.6
(Alaska 1981).
30 State v. Jacob, 214 P.3d 353, 362 (Alaska 2009)
(holding enhanced fees were appropriate in part because [t]he
placement of children and the involvement of grandparents in
their grandchildrens lives are not matters to be taken lightly,
and thus fees were reasonable in light of the significance of the
case).
31 We note that this court has never vacated a superior
courts decision refusing to enhance fees under Rule 82(b)(3).
Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d 20, 45
(Alaska 1998); see also Wasser & Winters Co. v. Ritchie Bros.
Auctioneers (Am.), Inc., 185 P.3d 73 (Alaska 2008); Gibson v.
GEICO Gen. Ins. Co., 153 P.3d 312 (Alaska 2007).
32 At issue here is $823 (.3 x $2,744) in attorneys fees
that Williams claims should have been awarded.
33 Williams also argues that the total attorneys fees
should have included $2,000 that he paid to another attorney
before retaining his current counsel. But Williams did not
provide the superior court with a receipt for fees paid his first
attorney. Although we will not overturn a fee award solely
because it was not based on itemized statements, we have stated
that trial courts should base their awards on itemized
statements. Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d
1123, 1138 (Alaska 1989). The superior court did not abuse its
discretion by failing to include the $2,000 fee when the court
was not provided a receipt or statement for the charge.
34 The charges are $74.00 (billed on 2/18), $370.00
(billed on 2/23), $462.50 (billed on 3/14), and $148.00 (billed
on 4/10).
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