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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krause v. Matanuska-Susitna Borough (4/23/2010) sp-6471
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
| RICHARD KRAUSE and | ) | |
| B. JEAN KRAUSE, | ) Supreme Court No. S- 13068 | |
| ) | ||
| Appellants, | ) Superior Court No. 3PA- 07-01277 CI | |
| ) | ||
| v. | ) O P I N I O N | |
| ) | ||
| MATANUSKA-SUSITNA BOROUGH, | ) | ) |
| CAROL CHRISTIANSEN, NORMA | ) No. 6471 April 23, 2010 | |
| CHRISTIANSEN, TED PERDUE, | ) | |
| JEANETTE PERDUE, CURT | ) | |
| CHRISTIANSEN, and MONIQUE | ) | |
| CHRISTIANSEN, | ) | |
| ) | ||
| Appellees. | ) | |
| ) | ||
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Vanessa White, Judge.
Appearances: Joe P. Josephson, Josephson &
Associates, P.C., Anchorage, for Appellants.
Nicholas Spiropoulos, Palmer, for Appellee
Matanuska-Susitna Borough. Patricia R.
Hefferan, Wasilla, for Appellees Carol
Christiansen, Norma Christiansen, Ted Perdue,
Jeanette Perdue, Curt Christiansen, and
Monique Christiansen.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Property owners in the Matanuska-Susitna Borough
obtained preliminary approval for a plat after agreeing to
certain conditions regarding easements and rights-of-way. They
submitted a final version of the plat that did not conform to
those conditions, but the Borough Platting Board accepted it for
recording. Other owners of property in the same subdivision
complained to Borough officials, appealed to the Borough Board of
Adjustments and Appeals, and ultimately filed a separate suit in
superior court making constitutional and statute-based claims
against the Borough and the landowners who submitted the plat.
The superior court ruled that the constitutional claims were
improper and that the remaining claims were time-barred. We
affirm dismissal of the constitutional claims for damages, but we
reverse dismissal of the constitutional claims for declaratory
relief and the statute-based claims. We remand for further
proceedings.
II. FACTS AND PROCEEDINGS
Richard and B. Jean Krause own real property in the
Finger Cove Estates subdivision of the Matanuska-Susitna Borough.
The individually named defendants also own property in the
subdivision. According to the Krauses,1 in late 2000 Carol and
Norma Christiansen applied to vacate a platted street and
connecting utility and vehicle access easement. The Krauses
objected to the application to vacate and presented their
position at a public hearing before the Mat-Su Platting Board on
December 7, 2000. At the conclusion of the hearing, the Platting
Board approved the platting changes requested by the
Christiansens, drafted a preliminary plat to reflect this
approval, and imposed several conditions regarding easements and
rights-of-way to appease the Krauses concerns. Accordingly, the
Krauses withdrew their objection. The Christiansens submitted a
final version of the plat that did not satisfy the Platting
Boards conditions. It appears that the Krauses received notice on
November 13, 2002 that the plat would be accepted for recording,
but the final plat was not recorded until November 26, 2002. The
differences in the easements and rights-of-way in the final plat
made egress from and ingress to the [Krauses] residence difficult
and dangerous.
The Krauses allege that they discovered on December 10
or 11, 2002 that the plat had been recorded. They met with the
Borough Manager and Acting Planning Director to explain their
grievances on December 18 and continued to communicate with
various members of Mat-Su Borough government regarding their
objections to the plat throughout February 2003. On March 3,
2003, they received a letter from the Borough Manager stating
that review of the platting action was closed. The Krauses
requested reconsideration of that conclusion from the Manager ten
days later and, after receiving no response, appealed to the
Borough Board of Adjustment and Appeals (BOAA) on March 24, 2003.
On April 1, 2005, the BOAA ruled that the Borough Managers letter
was not a decision from which it could properly hear an appeal.
The BOAA therefore dismissed the Krauses case. The Krauses then
appealed that dismissal order in the superior court. Superior
Court Judge Beverly Cutler affirmed on March 12, 2007, ruling
that only the BOAA, not the Borough Manager, had authority to
hear appeals of platting decisions.2 The Krauses did not appeal
Judge Cutlers ruling.
On April 25, 2007, the Krauses filed a separate
complaint in the superior court, alleging some of the facts
recited above3 and naming as defendants the Matanuska-Susitna
Borough (the Borough), Carol and Norma Christiansen (the
Christiansens), Ted Perdue, Jeanette Perdue, Curt Christiansen,
and Monique Christiansen (the individual defendants).4 The
Krauses asserted that they were entitled to institute this action
by AS 29.40.190,5 and they made three claims for relief. First,
the Krauses claimed that the actions of the Christiansens and the
Borough violated [Matanuska-Susitna Borough Ordinance (MSB)]
16.10.060(F), which requires that all conditions of approval be
met before a final plat is submitted for recording, and MSB
16.15.051(A), which requires that a final plat be submitted in
conformance with the preliminary plat as approved.6 Second, the
Krauses claimed that [b]y its singular treatment of the Krauses
and the Christiansens, the Borough deprived the Krauses of their
right to equal protection. Third, the Krauses claimed that the
Borough violated their right to due process by (1) not requiring
the Christiansens to request, and thus participate in, a hearing
regarding their proposed material changes to the approved
preliminary plat; (2) not requiring the Christiansens to submit
and have a hearing regarding a new petition for a preliminary
plat; (3) depriving the plaintiffs of their legitimate interests
in property as well as of their use of a platted subdivision
street and related public use easement which were improperly
vacated and transferred to private ownership. The Krauses sought
declaratory judgment that the final plat was not lawfully
approved or adopted, was at variance with the preliminary plat,
and is void and without force or effect. They also sought
compensatory damages from the Borough and compensatory damages
and statutory penalties from the Christiansens. The Krauses
requested entry of a permanent order and decree restoring the
status quo as it existed before the Christiansens modified the
plat and directing the defendants not to interfere with the
Krauses use and enjoyment of their easements and rights-of-way.
On July 5, 2007, the Borough filed a motion to dismiss
under Alaska Civil Rule 12(b)(6).7 The Borough argued that the
Krauses constitutional claims lacked merit because [t]he Alaska
Supreme Court has never recognized a direct constitutional cause
of action against a municipality. Citing Lowell v. Hayes,8 the
Borough argued that this dispute did not merit the creation of
such a cause of action because the Krauses had an alternative
statutory remedy under which they also requested relief.9 And
the Borough argued that the statutory limitation imposed by the
Alaska Legislature for this entire action has run because the
applicable statute of limitations for the AS 29.40.190 claim, set
by AS 09.10.070, is two years. The Borough observed that because
the Krauses complaint alleged that the final plat made it
dangerous to enter and exit their residence and included no
allegations that the danger was generated by anything other than
the recording of the plat in November 2002, the cause of action
accrued more than two years before the complaint was filed.
The Krauses opposed the motion to dismiss. They argued
that the approval of the final plat is a continuing violation
under AS 29.40.190(b), so the two-year limitation period in
AS 09.10.070 did not bar their claims. Second, they argued that
because their claims involve real property, other statutes of
limitations ten years under AS 09.10.030 or AS 09.10.100, or
six years under AS 09.10.050 apply. Regarding the
constitutional claims, the Krauses argued that this court had
neither adopted nor rejected the doctrine the United States
Supreme Court created in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics,10 which permits, under some
circumstances, rights of action for damages arising from
constitutional violations by government agents.11
Superior Court Judge Vanessa White dismissed the
Krauses suit. The court first disposed of the Krauses equal
protection and due process claims. Relying on Lowell, the court
ruled that [t]he Borough correctly asserts that the plaintiffs
may not make a claim for infringement of a constitutional right
as long as alternative statutory remedies exist, and the Krauses
acknowledge they have a cause of action for damages associated
with the alleged violations of the Borough ordinances, as well as
a statutory remedy under AS 29.40.190.12 The court ruled that the
Krauses remaining claims are time-barred for three reasons.
First, the court reasoned that the claims under Borough
ordinances are subject to the two-year limitation of
AS 09.10.070, which governs causes of action for . . . injury to
the rights of another not arising on contract and not
specifically provided otherwise. Second, the court ruled that
the two-year statute of limitations period in AS 09.10.070 barred
claims against the Christiansens for compensatory damages and
injunctive relief.13 Third, the court ruled that the one-year
statute of limitations period in AS 09.10.090 prevented the
Krauses from bringing a claim for statutory penalties. The court
rejected the Krauses argument that they were subject to a
continuing violation, reasoning that the Krauses claims accrued
at the time the Borough platting authority approved the proposed
final plat without the easement plaintiffs expected even though
the injury was ongoing. The court noted that the Krauses had not
made allegations suggesting that the accrual was delayed by late
discovery of the change to the plat and specified that this claim
was dismissed without prejudice, so if the Krauses could assert
facts which would toll the two year statute of limitations, the
court would consider a motion to amend the complaint. The court
rejected the contention that longer limitations periods in
AS 09.10.030 (governing recovery of real property), AS 09.10.100
(the catch-all statute of limitations) or AS 09.10.050 (for
trespass and waste) applied to the Krauses claims.
On December 17, the Krauses requested leave to amend
their complaint. They asserted that the statute of limitations
period for their statutory claims was equitably tolled by their
administrative appeal, which the superior court did not resolve
until March 2007. Equitable tolling applied, they argued,
because they pursued a remedy in another forum, thereby
indicating to the defendants that they were contesting the plat.
The Krauses submitted an affidavit describing the history of
their actions after the plat was recorded, including their
communications with Borough officials and the BOAA appeal. They
also lodged an amended complaint, which contained a new paragraph
asserting that:
[t]hroughout a lengthy, multi-year, period,
the plaintiffs attempted to negotiate with
the defendants in good faith, pursuing
remedies through mediation, as well as in a
quasi-judicial forum (the [BOAA]), and in a
judicial forum (an appeal taken to the
superior court from the decision of the
[BOAA] that it lacked jurisdiction to address
the issues raised by the plaintiffs).
The Borough opposed the Krauses motion to amend,
offering four reasons the elements of equitable tolling were not
met: (1) the Krauses previous case was an appeal of the Borough
Managers letter rather than an appeal of the approval of the
plat; (2) collateral estoppel bars the Krauses from arguing that
the Borough Manager is a judicial or quasi-judicial forum, and,
in the alternative, the Borough Manager is not such a forum; (3)
the Krauses administrative appeal of the BOAA decision (assigned
to Judge Cutler) did not put the Borough or the individual
defendants on notice of all of the claims asserted in the second
superior court case; and (4) the Krauses initial attempt to
secure a remedy via private meetings with the Borough Manager was
not a reasonable way to pursue a legal claim. The Borough
attached four documents from the BOAA appeal to its opposition:
the Boroughs motion to dismiss the BOAA appeal, the Krauses
opposition to that motion, the Boroughs reply, and Judge Cutlers
decision on appeal.
The individual defendants also opposed the Krauses
motion to amend. They argued that the Krauses should have made an
equitable tolling argument before Judge White ruled on the motion
to dismiss and that leave to amend is not permitted when the
purpose is to reargue what has been decided. They also denied
that they were involved in any proceedings with respect to their
property between the filing of the plat in November 2002 and the
filing of the current suit in 2007.
The Krauses replied that the Borough had notice the
Krauses were prepared to litigate regarding the plat, that
granting leave to amend the complaint would not cause prejudice
to the Borough, that they acted reasonably and in good faith by
trying to negotiate and then actively litigating their case,
that collateral estoppel did not bar them from bringing the
claims in their amended complaint, and that the Borough should be
equitably estopped from relying on the statute of limitations.
In an order issued February 12, 2008, Judge White
denied the Krauses motion to amend their complaint. The court
wrote that there were two strong bases for denying Plaintiffs
requests: (1) Plaintiffs may not argue that pursuit of
negotiations with the Borough Manager constitutes an effort to
seek relief in a quasi-judicial forum, and (2) Plaintiffs attempt
to seek quasi-judicial relief through the BOAA also was untimely.
The Krauses filed a motion for reconsideration, which
the court denied. Judge White concluded that the elements needed
to satisfy equitable tolling are not met because (1) the Borough
Manager is not a quasi-judicial forum; (2) the prior case did not
put the Borough on notice of the claims and remedies sought here;
and (3) the Krauses have never alleged how the other defendants
were placed on notice of any claims whatsoever.
The Krauses appeal the dismissal of their complaint as
well as the denials of their motions for leave to amend and for
reconsideration.
III. STANDARD OF REVIEW
We review questions of law with independent judgment.14
We also review with independent judgment which statute
of limitations applies to a claim.15
The decisions of trial courts regarding motions to
dismiss involve legal issues which we review de novo.16 To
survive a motion to dismiss filed under Alaska Civil Rule 12, it
is enough that the complaint set forth allegations of fact
consistent with and appropriate to some enforceable cause of
action.17 This lenient standard means that [i]f, within the
framework of the complaint, evidence may be introduced which will
sustain a grant of relief to the plaintiff, the complaint is
sufficient.18 We must presume all factual allegations of the
complaint to be true and [make] all reasonable inferences . . .
in favor of the non-moving party.19
We review a superior courts denial of a motion to amend
a complaint for abuse of discretion.20 It is within a trial
courts discretion to deny such a motion where amendment would be
futile because it advances a claim or defense that is legally
insufficient on its face.21 We use our independent judgment to
review a conclusion that an amendment meets that description.22
IV. DISCUSSION
A. The Krauses Constitutional Claims for Money Damages
Were Properly Dismissed, but Their Requests for
Declaratory and Injunctive Relief Based on Those Claims
Were Not.
We reiterated in Lowell v. Hayes that we will not allow
a constitutional claim for damages, except in cases of flagrant
constitutional violations where little or no alternative remedies
are available. 23 The Krauses argue that Lowell does not control
their case because the Borough and the individual defendants did
not show that the Krauses had alternative remedies. They contend
that they do not have alternative statutory remedies if their
potential statutory claims are time-barred, and they assert that
the case at bar is a good opportunity for the Supreme Court of
Alaska to recognize Bivens-type claims.
Contrary to the Krauses assertion, the procedural
unavailability of alternative remedies does not negate the
existence of those remedies. As we wrote in Lowell:
Surely the inadequacy of alternative
remedies for alleged constitutional
violations cannot be measured per se by
the dismissal or defeat of those
remedies. If that were so, the perverse
result would be that the more frivolous
or unjustifiable a claim, the more it
would merit an implied constitutional
cause of action for damages.[24]
The Krauses could, and did, bring other claims under AS 29.40.190
and Borough ordinances. Thus, the narrow circumstances described
in Lowell flagrant constitutional violations where little or no
alternative remedies are available do not exist here.25 We
therefore affirm the superior courts ruling dismissing the
Krauses constitutional claims for damages.
But we reverse the superior courts ruling as it relates
to the Krauses constitutional claims for declaratory and
injunctive relief. We have held that although damages are not
available, declaratory or injunctive relief is traditional and
particularly appropriate26 with respect to unconstitutional
statutes. We believe the same rule should apply here. The
Krauses are not entitled to money damages for the alleged
violations of their constitutional rights, but they may seek
declaratory and injunctive relief.
B. The Krauses May Pursue Their Statute-Based Claims.
1. The two-year limitation of AS 09.10.070 and the
one-year limitation of AS 09.10.090 apply to this
action.
The Krauses argue that their claims relate to interests
in real property and contend that any of the three statutes of
limitations provided by AS 09.10.030 (actions regarding interests
in land), AS 09.10.050 (actions for waste or trespass upon real
property), or AS 09.10.100 (actions not otherwise provided for)
should apply.
We conclude that AS 09.10.070 and AS 09.10.090 are the
controlling statutes here. The Krauses request relief for injury
arising from the inappropriate recording of a plat; nearly all of
their claims are properly described as claims for personal injury
. . . or injury to the rights of another not arising on contract
and not specifically provided otherwise.27 Alaska
Statute 09.10.070(a)(5) specifically exempts statutory penalties,
which are instead governed by AS 09.10.090,28 so the Krauses
request for statutory penalties falls under that statute. The
Krauses are not seeking the recovery of real property, so the
limitations period in AS 09.10.030 does not apply. And the
Krauses cause of action is not based on trespass or waste, so
AS 09.10.050 does not apply. Alaska Statute 09.10.100 governs
only claims for which no other statute of limitation controls; it
does not apply here because we conclude that other statutes
provide time limitations for the Krauses claims.
Significantly more than two years passed between the
recording of the plat in November 2002 and the filing of the
complaint in April 2007. Based on the allegations set forth in
the complaint, the superior courts initial ruling dismissing
these claims as untimely was correct.
2. The Krauses were not subject to a continuing
violation.
The Krauses argue that the applicable limitations
period was tolled because the action complained of constitutes a
continuing violation.29
We review the legal question of what constitutes a
continuing violation de novo.30 We have explained that [t]he
continuing violations doctrine allows plaintiffs to establish an
ongoing tort through incidents that occurred before the statute
of limitations period and that continued into the limitations
period.31 Here, because no action occurred after the plat was
recorded, the continuing violations doctrine does not apply. We
also note that though the continuing violations doctrine prevents
claims that initially accrued outside the relevant limitations
period from being time-barred, it only permits plaintiffs to
collect damages caused by acts that occurred within the
limitations period.32 Even if the law permitted the Krauses to
rely on this doctrine, they would not be able to recover the full
remedy they seek.
3. It was error to deny the Krauses motion for leave
to amend their complaint.
Alaska Civil Rule 15(a) provides that a party seeking
leave to amend a complaint to which a responsive pleading has
been filed must receive permission from the court. Leave shall
be freely given when justice so requires.33 But we have held that
if an amendment would be futile because it advances a claim or
defense that is legally insufficient on its face, it is
appropriate for a superior court to deny leave to amend.34
We consider with independent judgment whether a
proposed amended complaint could survive dismissal; if we
conclude that it could not, we will hold that the superior court
did not abuse its discretion by denying the motion for leave to
amend.35
As presented in their complaint, the Krauses claims
were time-barred; their amended complaint could only make out a
viable claim if it sufficiently supported an argument that the
applicable statute of limitations was tolled. The Krauses argue
that they should have been granted leave to amend their complaint
because [t]he equitable tolling doctrine should have been
recognized and applied, or at a minimum, the superior court
should have conducted an evidentiary hearing at which testimony
pertinent to the tolling issue could have been received, and
because the defendants should be equitably estopped from
asserting the statute of limitations as a defense.
a. Drawing factual inferences in the Krauses
favor, the doctrine of equitable tolling may
apply to their claims.
We have explained the circumstances under which a
statute of limitations period may be equitably tolled:
The equitable tolling doctrine applies to
relieve a plaintiff from the bar of the
statute of limitations when he has more than
one legal remedy available to him. The
statute is equitably tolled if (1) pursuit of
the initial remedy gives defendant notice of
plaintiffs claim, (2) defendants ability to
gather evidence is not prejudiced by the
delay, and (3) plaintiff acted reasonably and
in good faith. The statute is tolled only
when the initial remedy is pursued in a
judicial or quasi-judicial forum.[36]
We consider each requirement in turn.
i. The Krauses sufficiently allege that the
defendants had notice of their claims.
The Borough and the individual defendants argue that
the Krauses fail to satisfy the notice requirement for equitable
tolling. We are not persuaded by their reasoning.
The Borough argues that it was not on notice of the
claims in the Krauses complaint because the claims in this case
are distinct from those the Krauses made in their prior case.
Specifically, the Borough argues that the Krauses appeal to the
BOAA included neither a demand for damages nor an argument
regarding a change to an easement. The Borough also asserts the
case was not an appeal of the approval of the plat. But
equitable tolling does not require that the initial and current
relief sought be identical.37 The Krauses two cases are based on
the same underlying facts and issues, all of which involve the
Boroughs approval of the Christiansens plat. Moreover, the
Krauses claims for declaratory and injunctive relief against the
Borough are very similar to claims they raised in unsuccessful
efforts to obtain relief elsewhere. We conclude that the
differences between this case and the prior one are not
sufficient to defeat the notice requirement of the equitable
tolling doctrine.
The individual defendants reason that they were not on
notice of the prior case because they were not parties to it.
This argument cannot defeat the motion to amend because when
considering whether an amendment is futile, our court must
presume all factual allegations of the complaint to be true and
[make] all reasonable inferences . . . in favor of the non-moving
party.38 The Krauses alleged in their amended complaint that they
attempted to negotiate with the defendants. We must read the
complaint as alleging that all of the defendants, including the
individual property owners, were engaged in negotiations and were
aware of the pending case before the BOAA. Because the complaint
allows the inference that the Krauses gave notice to all of the
defendants, the law requires that the Krauses be given the chance
to prove this allegation.39
ii. There is no indication that delay has
prejudiced the defendants such that the
Krauses claims cannot be equitably
tolled.
No party argues that the delay in filing the current
case prejudiced any of the defendants. Therefore, we must assume
for purposes of reviewing dismissal of the complaint and denial
of the motion to amend the complaint that the Krauses could meet
the second requirement for equitable tolling.
iii. The defendants did not show that the
Krauses failed to act reasonably and in
good faith.
The Borough argues that the Krauses initial pursuit of
an alternative remedy was not reasonable. Specifically, the
Borough contends that by approaching non-judicial Borough
officials, the Krauses attempted to influence the outcome of a
judicial determination by involving the legislative and executive
branches of government. The Krauses contend that they acted in
good faith.
After the Krauses learned that the final plat had been
recorded without the conditions they had insisted upon, the
Krauses contacted the Borough Manager and other members of the
executive branch about their concerns.40 The Krauses met with the
Borough Manager on December 18, 2002 to voice their objections to
the recorded plat. In response to their complaints, the Borough
Manager told them he would have the Acting Planning Director, Ron
Swanson, look into their concerns. Swanson promptly met with
them and requested additional documents, which they provided.
The Krauses believed that the investigation was ongoing until
they received a letter from Borough Manager Duffy dated March 3,
2003, stating that the plat met all of the conditions required
for Platting Board approval and declaring the administrative
review of this platting action is closed.
Jean Krause addressed the Borough Assembly the next
day. The joint affidavit the Krauses filed in support of their
motion to amend states that Mayor Tim Anderson and Assembly
Member Talis Colberg heard Ms. Krauses presentation and stated
that they wanted to meet with the Krauses to discuss their
concerns. On March 6, 2003, the Krauses met with the Mayor, the
Borough Manager, Mr. Swanson, Mr. Colberg and the Deputy Borough
Attorney. According to the Krauses, the Borough representatives
proposed negotiations, and the Krauses agreed to participate. On
March 13, 2003, the Krauses wrote two letters. The first asked
Borough Manager Duffy to reconsider his March 3, 2003, decision
to close the administrative review of their concerns. The
Krauses never received a response to this request. In the second
letter, the Krauses reiterated their willingness to engage in
negotiations with the Borough.
The Krauses appealed the Borough Managers decision to
the BOAA on March 24, 2003, but the Krauses and the Borough both
requested stays of that appeal so they could continue with their
negotiation, mediation, and settlement efforts. On July 3, 2003,
the Borough and the Krauses signed a negotiated settlement
agreement. According to the Krauses, that agreement fell through
when the Christiansens objected to some of its terms, calling it
a bogus settlement agreement and declaring, [t]his settlement has
been stopped as of now in correspondence directed to the Platting
Board dated on or about September 17, 2003.
Despite the Christiansens rejection of the settlement
agreement, the Krauses wrote Borough Manager Duffy about the
Boroughs failure to fulfill its obligations under that agreement.
He offered the Krauses two options: proceed with the BOAA
hearing or attempt mediation. On November 13, 2003, the Krauses,
the Christiansens and the Borough all signed an agreement to
mediate. The mediation continued through January 2004 and
culminated in a second settlement agreement but the parties again
encountered difficulty when they attempted to execute it, and
further mediation efforts reached an impasse. The BOAA entered
its decision on April 1, 2005, concluding that it lacked
jurisdiction to hear the Krauses appeal of the Borough Managers
letter. The Krauses appealed the BOAAs decision to the superior
court on April 27, 2005, and the superior court affirmed the
BOAAs decision on March 12, 2007.
On this record, we cannot conclude that the Krauses
acted inappropriately or in bad faith by contacting local
officials or accepting offers to negotiate and mediate this
dispute. Furthermore, though the BOAA dismissed the Krauses
appeal on jurisdictional grounds and Judge Cutler affirmed that
decision, there was no suggestion in either opinion that the
Krauses arguments were frivolous or malicious.41
iv. The Krauses made the necessary showing
of pursing relief in a quasi-judicial
forum.
The fourth requirement for equitable tolling is that
the plaintiff initially sought relief in a judicial or quasi-
judicial governmental forum.42 Judge White concluded that the
Krauses claims were time-barred for two reasons relating to this
factor. First, Judge White seems to have agreed with the
Boroughs argument that collateral estoppel bars the Krauses from
asserting that the Borough Manager is a quasi-judicial forum.43
The Boroughs collateral estoppel argument stems from Judge
Cutlers decision denying the Krauses BOAA appeal. In order to
establish an issue, the doctrine of collateral estoppel requires
that the parties and the issues litigated in the second action to
be identical to those involved in the first action.44 Judge
Cutlers decision did not address the equitable tolling doctrine;
it considered whether the BOAA had jurisdiction over an appeal of
the Borough Managers letter, and concluded that it did not. The
decision does observe that the Borough Manager has no authority
to act as a judge or quasi-judicial officer, but those
observations support Judge Cutlers conclusion that the Borough
Managers letter was not an appealable order; she did not decide
whether the Borough Manager was a quasi-judicial forum for
equitable tolling purposes.
The issue to be decided in the second action whether
the Borough Manager is a quasi-judicial forum for purposes of
equitable tolling is different than the issue in the first
action whether the BOAA had jurisdiction to hear an appeal from
the Borough Managers letter. Therefore, the Boroughs collateral
estoppel argument is unavailing.
Judge Whites second reason for denying the Krauses
motion to amend was that their attempt to seek quasi-judicial
relief through the BOAA . . . was untimely. The court did not
elaborate on this reason, and we believe it is susceptible to two
meanings. First, the Borough and the individual defendants
argued in the superior court that the Krauses waived their
equitable tolling argument by failing to raise it in response to
the motion to dismiss their complaint. If the courts reference
to timeliness referred to the argument that the Krauses should
have raised the doctrine of equitable tolling when the motion to
dismiss was being decided, it overlooks that the courts order
stated, [i]f Plaintiffs can assert facts which would toll the two-
year statute of limitations, the court will consider a motion to
amend Plaintiffs complaint.
The other possible interpretation of Judge Whites order
is that the reference to timeliness reflects the courts
conclusion that the Krauses could not rely on the doctrine of
equitable tolling because they did not file their BOAA appeal
within fifteen days from the date they learned of the Platting
Boards decision.45 If this was the courts reasoning, it reflects
a misapplication of the equitable tolling doctrine. Equitable
tolling is available in situations where plaintiffs have
multiple legal remedies available to them.46 Rather than require
a plaintiff to simultaneously pursue separate remedies, this
doctrine tolls the statute of limitations on one remedy while the
plaintiff pursues an alternate remedy.47 If the plaintiffs first
attempt to obtain relief fails, the plaintiff can pursue the
other remedy based on the same right or claim.48 The statute of
limitations is thus tolled during the pendency of the initial
defective action. A plaintiffs second action is certainly timely
when, as in this case, it is filed before the un-tolled time
exceeds the applicable statute of limitations period.49
The Krauses equitable tolling argument does not depend
upon whether their appeal to the BOAA was timely filed or
successful. The issue is whether the Krauses efforts to obtain
relief from the BOAA tolled the one-year or two-year limitation
periods for the claims in their amended complaint. As already
explained, we believe the Krauses amended complaint alleges facts
that, if proven, satisfy the first three elements of the
equitable tolling doctrine notice of claims, lack of prejudice,
and good faith.50 As for the requirement that the Krauses pursued
their initial relief in a judicial or quasi-judicial governmental
forum, the Borough, the Christiansens, and individual defendants
only argue that the Borough Manager is not a quasi-judicial
governmental forum; they do not contest the BOAAs status as a
quasi-judicial governmental forum. The Krauses pursued their
appeal with the BOAA long before the statute of limitations
expired on any of the claims in their amended complaint.51 If the
Krauses ultimately prove the elements of equitable tolling, then
the statute of limitations was tolled during the pendency of
their action before the BOAA and the claims in their amended
superior court complaint are not time-barred.52
Because the doctrine of equitable tolling may toll the
statute of limitations on the claims in the Krauses amended
complaint, it was an abuse of discretion to deny them leave to
amend.
b. The superior court did not rule on the
Krauses equitable estoppel argument.
The Krauses motion for leave to amend their complaint
also argued that the doctrine of equitable estoppel prevented the
appellees from relying on the statute of limitations to dismiss
their claims. They cite Gudenau & Co. Inc. v. Sweeney Insurance,
Inc.,53 in support of this argument.
In Gudenau, we affirmed the superior courts ruling that
the plaintiff failed to satisfy the elements of equitable
tolling.54 But we also said that the courts inquiry does not end
with that conclusion; a plaintiff who is aware of the elements of
his or her cause of action, but fails to file suit within the
limitations period, may still be protected if he or she was
induced by defendants words or conduct to postpone filing suit
until the limitations period has expired.55
Here, the superior courts order did not address the
Krauses argument that misrepresentation(s) by the Borough should
equitably estop it from relying on the statute of limitations.
We are unable to assess the merits of this argument because it
entails questions of fact.56 The Krauses are entitled to an
opportunity to prove this defense to the statute of limitations.
V. CONCLUSION
We AFFIRM the dismissal of the Krauses constitutional
claims for damages but REVERSE the courts order dismissing the
Krauses constitutional claims for declaratory and injunctive
relief. We also REVERSE the order denying the Krauses motion for
leave to amend their complaint and REMAND for further proceedings
consistent with this opinion.
_______________________________
1 Because the superior court granted a motion to dismiss
the Krauses complaint, we accept all factual allegations in the
complaint as true. See Catholic Bishop of N. Alaska v. Does 1-6,
141 P.3d 719, 722 (Alaska 2006) (citing Guerrero v. Alaska Hous.
Fin. Corp., 6 P.3d 250, 253 (Alaska 2000)).
2 Matanuska-Susitna Borough Ordinance 15.39.030(A) grants
the BOAA authority to hear appeals from decisions of the Platting
Board.
3 The Krauses complaint did not include information
regarding their communications with the Borough Manager and other
Borough officials or their prior appeals to the BOAA and superior
court.
4 Although, as described below, the Krauses complain only
of actions taken by the Borough and Carol and Norma Christiansen,
they apparently included the other four individual defendants
because they own their respective described properties as
grantees from [the Christiansens] and their properties abut the
Krauses property.
5 AS 29.40.190 provides, in relevant part, that an
aggrieved person may institute a civil action against a person
who violates a provision of this chapter, a subdivision
regulation adopted under this chapter, or a term, condition, or
limitation imposed by a platting authority.
6 We refer to these claims and the Krauses reliance on
AS 29.40.190 as the statute-based claims.
7 The individual defendants did not oppose the Boroughs
motion. Their answer to the complaint included the affirmative
defense that the complaint failed to state a claim on which
relief could be granted.
8 117 P.3d 745 (Alaska 2005).
9 The Borough also contended that the Krauses had an
additional alternative remedy under 42 U.S.C. 1983, which allows
any plaintiff to obtain relief from governmental wrongs denying
due process or equal protection.
10 403 U.S. 388 (1971).
11 The Krauses also seemed to argue that the court could
not appropriately determine that remedies under 42 U.S.C. sec.
1983 are available and adequate.
12 The court ruled that AS 29.40.190(a) only permits civil
actions against individuals, not a governmental entity such as
the Borough.
13 The court noted that even if the Krauses could
properly convert their claim into an action under 42
U.S.C. 1983, it still would be time barred under the two-year
personal injury statute of limitations codified at
AS 09.10.070(a)(2).
14 Jacob v. State, Dept of Health & Soc. Servs., 177 P.3d
1181, 1184 (Alaska 2008) (citing Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)) (citing Alyeska Pipeline Serv. Co. v. DeShong,
77 P.3d 1227, 1231 (Alaska 2003)).
15 Brannon v. Contl Cas. Co., 137 P.3d 280, 284 (Alaska
2006) (citing Alderman v. Iditarod Props., Inc., 104 P.3d 136,
140 (Alaska 2004)).
16 Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006) (citing Nunez v. Am. Seafoods, 52 P.3d 720,
721(Alaska 2002); Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d
250, 253 (Alaska 2000)).
17 Carlson v. Renkes, 113 P.3d 638, 641 (Alaska 2005)
(quoting Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999))
(internal quotation marks omitted).
18 Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d
1009, 1014 (Alaska 1999) (quoting Kollodge v. State, 757 P.2d
1024, 1026 (Alaska 1988)) (internal quotation marks omitted).
19 Id. (quoting Kollodge, 757 P.2d at 1026) (alterations
in original) (internal quotation marks omitted).
20 Miller v. Safeway, Inc., 102 P.3d 282, 288 (Alaska
2004) (citing Bauman v. Day, 942 P.2d 1130, 1132 (Alaska 1997)).
21 Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287
(Alaska 2004) (quoting Taylor v. Johnston, 985 P.2d 460, 464
(Alaska 1999)).
22 See Hallam, 91 P.3d at 287-88; Taylor, 985 P.2d at 464-
66.
23 Lowell v. Hayes, 117 P.3d 745, 753 (Alaska 2005)
(quoting Dick Fischer Dev. No. 2 v. Dept of Admin., 838 P.2d 263,
268 (Alaska 1992)).
24 Id. at 754.
25 The Krauses also make an argument regarding whether the
superior court could have properly found that the alleged
constitutional violations were not flagrant. Because the
availability of an alternative remedy disposes of the damages
claims, we need not consider that issue.
26 Robison v. Francis, 777 P.2d 202, 204 & n.3 (Alaska
1989).
27 AS 09.10.070(a) (Except as otherwise provided by law, a
person may not bring an action . . . (2) for personal injury or
death, or injury to the rights of another not arising on contract
and not specifically provided otherwise . . . unless the action
is commenced within two years of the accrual of the cause of
action.).
28 See AS 09.10.090 (A person may not bring an action upon
a statute for the penalty given in whole or in part to the person
who will prosecute for the same unless the action is commenced
within one year after the commission of the offense.).
29 The Krauses also argue that AS 29.40.190 (b) expresses
a policy of liberally treating the acts alleged in claims made
under that statute as continuing wrongs because it provides that
[e]ach day that an unlawful act or condition continues
constitutes a separate violation. But that provision is intended
to provide a way to calculate penalties described in subsection
(a); it does not create a special tolling rule.
30 Cf. In re Adoption of Erin G., 140 P.3d 886, 888
(Alaska 2006) (citing State v. Dupier, 118 P.3d 1039, 1044
(Alaska 2005)).
31 Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25-26
(Alaska 2002) (The continuing violations doctrine allows a
plaintiff to establish the elements of a hostile work environment
claim by relying on incidents that predate the statutory
limitations period to prove that a hostile environment continued
into the limitations period.).
32 Oaksmith v. Brusich, 774 P.2d 191, 200 n.10 (Alaska
1989) (Under theories of continuing trespass or nuisance, each
harmful act constitutes a new cause of action for statute of
limitations purposes and, therefore, the accrual of a cause of
action is not measured from the date of the initial trespass so
as to bar the entire action. However, while later continuing
acts may prevent the running of the statute of limitations on the
claim, damages cannot be recovered for the initial time-barred
acts.) (internal citations omitted).
33 Alaska R. Civ. P. 15(a). See also Ruckle v. Anchorage
Sch. Dist., 85 P.3d 1030, 1039 (Alaska 2004) ([W]e have long held
that leave to amend a pleading should be freely given and that,
absent a showing that the amendment would have resulted in
injustice, a trial court will be found to have abused its
discretion in denying a motion to amend. (citing Estate of
Thompson v. MercedesBenz, Inc., 514 P.2d 1269, 1271 (Alaska
1973))).
34 Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 287
(Alaska 2004) (quoting Taylor v. Johnston, 985 P.2d 460, 464
(Alaska 1999)).
35 See Hallam, 91 P.3d at 283, 287-88 (affirming denial of
leave to amend as not an abuse of discretion because the claims
in the amended complaint were preempted by federal law); Taylor,
985 P.2d at 464-66 (affirming denial of leave to amend as not an
abuse of discretion where we determined that plaintiff could not
make out a tort claim).
36 Smith v. Thompson, 923 P.2d 101, 105 (Alaska 1996)
(quoting Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1087
(Alaska 1989)).
37 See Beegan v. State, Dept of Transp. & Pub. Facilities,
195 P.3d 134, 142 (Alaska 2008) (citing with approval a case in
which the Ninth Circuit concluded that litigants need not seek
the same remedies before both forums in order for equitable
tolling to apply) (citing Daviton v. Columbia/HCA Healthcare
Corp., 241 F.3d 1131, 1133, 1141 (9th Cir. 2001)); cf. Solomon v.
Interior Regl Hous. Auth., 140 P.3d 882, 885 (Alaska 2006) (Where
a claim with essentially the same facts is being litigated . . .
in the federal courts between the same parties, the defendant
cannot claim not to be on notice [for purposes of equitable
tolling].).
38 Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d
1009, 1014 (Alaska 1999) (quoting Kollodge v. State, 757 P.2d
1024, 1026 (Alaska 1988)) (alterations in original).
39 We note that the record on appeal includes
correspondence from the Christiansens dated August 28, 2003 and
March 2, 2005 reflecting their awareness of the Krauses attempts
to get relief from the Borough and from the BOAA. It also
includes correspondence from the Perdues dated November 12, 2003
reflecting their awareness of upcoming mediations and purporting
to grant to the Christiansens the right to make decisions
regarding the Perdues property.
40 We do not believe this was unreasonable. As Judge
Cutler noted, once the plat had been recorded, the Borough had
authority to petition the platting authority to alter the plat.
AS 29.40.120 provides in relevant part: A recorded plat may not
be altered or replatted except by the platting authority on
petition of the state, the borough, a public utility, or the
owners of a majority of the land affected by the alteration or
replat.
41 Cf. Solomon, 140 P.3d at 885.
42 See id. at 884 ([T]he statute of limitations is tolled
only for those who initially pursue their rights in a judicial or
quasi-judicial governmental forum. (quoting Gudenau & Co. v.
Sweeney Ins., Inc., 736 P.2d 763, 768 (Alaska 1987))).
43 The courts order denying the Krauses leave to amend
their complaint stated that the Krauses, may not argue that
pursuit of negotiations with the Borough Manager constitutes an
effort to seek relief in a quasi-judicial forum. (emphasis
added).
44 Smith v. Stafford, 189 P.3d 1065, 1075 (Alaska 2008)
(quoting McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003)).
45 Matanuska-Susitna Borough Ordinance 15.39.140 creates
a fifteen-day deadline for filing appeals of Platting Board
decisions to the BOAA.
46 Gudenau & Co., Inc. v. Sweeney Ins., Inc., 736 P.2d
763, 768 (Alaska 1987).
47 Id.
48 Fred Meyer of Alaska v. Bailey, 100 P.3d 881, 886
(Alaska 2004).
49 See Solomon v. Interior Regl Hous. Auth., 140 P.3d
882, 885-86 (Alaska 2006) (Noting our equitable tolling cases
have uniformly given plaintiffs second limitations period to
file second claim, but declining to decide whether plaintiffs
will always have second full limitations period for second
claim); Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 887
(Alaska 2004) (plaintiff had full statutory period to file his
second claim); Dayhoff v. Temsco Helicopters, Inc., 772 P.2d
1085, 1088 n.6 (Alaska 1989) (employee entitled to benefit of
full statutory period after circumstances which justified
equitable tolling abated).
50 Gudenau, 736 P.2d at 768.
51 At most, one hundred four days passed between the
Krauses discovery of the recording of the plat (December 10 or
11, 2002) and their filing of an appeal with the BOAA (March 24,
2003). Twenty-six days passed between the date the BOAA issued
its decision (April 1, 2005) and the date the Krauses filed
their appeal to the superior court (April 27, 2005). Forty-four
days passed between the date the superior court affirmed the
BOAAs decision (March 12, 2007) and the date the Krauses filed
their complaint in this case (April 25, 2007). The total of
those periods is one hundred seventy-four days, far less than
one year the shortest statute of limitations period applicable
to the claims the Krauses filed in superior court.
52 The fact that the Krauses appeal of the Borough
Managers letter to the BOAA was ultimately unavailing is
irrelevant. The applicability of the doctrine of equitable
tolling does not depend on the outcome of the Krauses appeal to
the BOAA. Beegan v. State, Dept of Transp. & Pub. Facilities,
195 P.3d 134, 142-43 (Alaska 2008) (The applicability of the
equitable tolling doctrine does not depend upon the successful
pursuit of an alternative remedy; it is enough that an initial
action be unavailing with respect to a certain form of relief).
Whether the superior court dismissed the BOAA appeal on
timeliness, jurisdictional, or other grounds, the Krauses may
rely on equitable tolling if the record satisfies the elements
of the doctrine. Beegan, 195 P.3d at 142-43; Solomon v.
Interior Regl Hous. Auth., 140 P.3d 882, 884-85 (Alaska 2006);
Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 885-86
(Alaska 2004).
53 736 P.2d 736 (Alaska 1987).
54 Id. at 768.
55 Id.
56 Groseth v. Ness, 421 P.2d 624, 632 n.23 (Alaska 1966)
(To establish an equitable estoppel it is generally necessary
that the party seeking to assert it show that the other party
made some misrepresentation, or false statement, or acted
fraudulently and that he reasonably relied on such acts or
representations of the other party, and due to such reliance did
not institute suit timely.).
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