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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Whittle v. Weber (12/3/2010) sp-6526
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ORA WHITTLE, )
) Supreme Court No. S-13418
Appellant, )
) Superior Court No. 4FA-07-01876 CI
v. )
) O P I N I O N
MICHAEL WEBER, )
) No. 6526 - December 3, 2010
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen, Judge.
Appearances: Ora L. Whittle, pro se, Fairbanks, Appellant.
Zane D. Wilson, Cook Schuhmann & Groseclose, Inc.,
Fairbanks, for Appellee.
Before: Fabe, Christen, and Stowers, Justices. [Carpeneti,
Chief Justice, and Winfree, Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
Ora Whittle and Michael Weber are neighbors. Weber filed this lawsuit
against Whittle, asserting that Whittle's use of his property is a nuisance, violates
subdivision covenants, and violates borough ordinances. As part of discovery, Weber
requested an inspection of Whittle's property, and the superior court ordered Whittle to
allow a limited inspection. For about two months, Weber and Whittle disagreed on the
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date Weber would be allowed access onto Whittle's property. Weber then moved to hold
Whittle in contempt, and Whittle withdrew his consent to the inspection altogether. As
a sanction for failing to comply with its discovery order, the superior court entered
judgment against Whittle.
We affirm the superior court's order directing Whittle to allow a limited
inspection of his property as part of discovery. But litigation-ending sanctions should
be used only in extreme circumstances and were not an appropriate remedy here.
Because it was unclear that Whittle was refusing to obey the superior court's order and
that he would not obey the order in the future, it was an abuse of discretion for the
superior court to enter judgment against Whittle. Thus we reverse the superior court's
judgment entered against Whittle and remand for further proceedings consistent with this
opinion.
II. FACTS AND PROCEEDINGS
In 1984 Ora Whittle1 moved to the Green Acres Subdivision in Fairbanks;
in 1991 Michael Weber moved to the adjoining tract of land. In June 2007 Weber filed
a complaint against Whittle, alleging that Whittle was "maintaining a nuisance" and
violating subdivision covenants by "maintaining a junkyard on his property which . . .
is unreasonably obnoxious and offensive to his residential neighbors." Weber requested
injunctions prohibiting Whittle "from hauling additional junk onto his property" and
directing him "to abate the nuisance." Whittle responded that the subdivision covenants
had been violated regularly by other residents since Whittle moved there in 1984.
1 Ora Whittle died while this appeal was pending. His estate substituted for
Whittle pursuant to Appellate Rule 516. We reach the merits of this appeal because
attorney's fees are at issue. See, e.g.,Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227
P.3d 457, 460-61 (Alaska 2010) (evaluating a claim on the merits after plaintiff's death
because "this court will hear an otherwise moot case to determine who is the prevailing
party for purposes of awarding attorneys' fees") (internal quotation marks omitted).
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In November 2007 Whittle filed a motion to dismiss Weber's complaint,
arguing it was barred by relevant statutes of limitations and the doctrine of laches.
Weber opposed the motion, characterizing the situation as an ongoing nuisance and
asserting that he had tried and failed to work the problem out with Whittle. In
February 2008 Whittle moved to have his neighbors and Weber's wife joined as plaintiffs
in the lawsuit, arguing that Weber was acting as a representative for all of them and that
Whittle "should be able to defend [himself] from all these people's complaints at once,
instead of having to go through several different proceedings." Weber opposed the
motion.
In March 2008 Superior Court Judge Randy M. Olsen issued an order
denying Whittle's motion to dismiss, finding that "Weber's claim for an ongoing
nuisance is not barred by the statute of limitations." The superior court also denied
Whittle's motion to join his other neighbors as plaintiffs.
In April 2008 Weber requested permission from Whittle to enter his land
"for purposes of conducting an inspection of the items placed upon your land to
determine whether or not hazardous substances or substances of any other nature exist[]
that could present a threat to the neighbors surrounding your property and/or the ground
water beneath their property." Whittle denied the request, invoking his constitutional
rights and arguing that Weber's request was "vague, ambiguous, & unfounded, with no
adequate cause." Weber then filed a motion to compel entry upon Whittle's land.
Whittle opposed the motion and requested a hearing to determine the reason for the
inspection request and to establish parameters for the inspection.
In an order dated July 30, 2008 and mailed August 5, the superior court
granted Weber's motion to compel entry and ordered Whittle to "provide a mutually
agreeable date for the conducting of an inspection within 30 days." The order specified
that "[t]he inspection will not extend to inside any residence." On August 6, one day
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after the order was mailed, Weber's lawyer drafted a letter to Whittle asking Whittle to
"advise as soon as possible when we can conduct the inspection." On August 19 Whittle
filed a motion for reconsideration, which the superior court eventually denied. On
August 18 Weber's lawyer drafted a letter to Whittle asking to conduct an inspection of
his property on August 24. According to Whittle, he did not receive the letter until
August 25.
On September 2 Whittle filed a document with the court agreeing to allow
inspection of his property "on November 14th through November 25th 2008 (excluding
weekends & holidays), for one day" and requesting "the date, time period, name of [the
expert who would be coming], & the certification of that expert." On September 5
Weber's lawyer drafted a letter to Whittle asking to conduct an investigation the week
of October 20. On September 16 Whittle sent a letter to Weber's lawyer explaining (1)
that he had not received the lawyer's August letter until the date requested for an
inspection had already passed and (2) that he would allow an inspection for one day
between November 14 through 25.
On October 1 Weber filed a motion requesting that the court order Whittle
to allow an inspection during the week of October 20 or hold Whittle in contempt if he
refused. Weber's lawyer also noted that the time period Whittle had previously offered
for the inspection would fall after the extended deadline for expert reports. On
October 14 Whittle filed an opposition to Weber's motion, asserting that he had fully
complied with the court's order by offering to allow an inspection in November but that
he now "withdraws all offers to an agreement with [Weber's lawyer]" because Whittle
"ha[d] tried to reach an agreement with the opposing party, but it was to no avail." On
November 7 the superior court held a hearing on Weber's contempt motion.
At the contempt hearing, Weber's lawyer argued the importance of the
inspection to their case and the prejudice his client had already suffered as a result of the
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delay. Whittle responded that he intended to "stand on [his] constitutional rights" and
expressed his view that the United States Constitution and Alaska Constitution protected
him against "inspections and that and seizures and searches" of his property without
evidence of some inappropriate activity. The superior court declined to hold Whittle in
contempt for his alleged noncompliance with the July 30 written order, but then orally
ordered him to allow an inspection of his property within two weeks on penalty of having
judgment entered against him. Whittle repeated that he would "stand on" his
constitutional rights, and added: "And if [the court has] the authority to write a search
and seizure warrant without my permission, then I have no control over that. But I will
not agree to let them on my property, so . . . ." Apparently viewing Whittle's statement
as a refusal to ever comply with the court's discovery order, the court directed Weber's
lawyer to draft a final judgment order.
On December 2 Weber's lawyer submitted a draft order. On December 16
Whittle filed an objection to the entry of judgment against him. On December 23 the
superior court entered final judgment against Whittle, ordering him "to bring his property
in compliance with" subdivision covenants and "to abate the nuisance his property
presents" to Weber. The superior court gave Whittle until July 15, 2009 to comply with
the order and provided that, if he did not, Weber and those hired by Weber would be
permitted to enter his property "for the purposes of removing and disposing of the
personal items stored thereon at Mr. Whittle's expense." Weber also filed a motion for
costs and enhanced attorney's fees of 50 percent of actual fees; the superior court
awarded Weber costs and 20 percent of actual attorney's fees.
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III. STANDARD OF REVIEW
We review a trial court's decision to impose sanctions for discovery
violations for abuse of discretion.2 This discretion is limited, however, "when the effect
of the sanction [the trial court] selects is to impose liability on the offending party,
establish the outcome of or preclude evidence on a central issue, or end the litigation
entirely."3 Because "litigation ending sanctions are disfavored," we limit trial courts'
"discretion to impose such sanctions . . . to extreme situations."4
We review a trial court's "determination regarding the applicable statute of
limitations" de novo.5 We review a trial court's decision to permit or deny a defense
based on the doctrine of laches for abuse of discretion and will not overturn the decision
unless we have "a definite and firm conviction that a mistake has been committed."6
7
Finally, we review a trial court's procedural decisions for abuse of discretion and a trial
court's interpretation of the civil rules de novo.8
2 Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska
1993).
3 Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998).
4 Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).
5 Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319, 322-23 (Alaska
2006).
6 Young v. Williams, 583 P.2d 201, 204-05 (Alaska 1978).
7 Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).
8 Mikesell v. Waterman, 197 P.3d 184, 186 (Alaska 2008).
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IV. DISCUSSION
We begin with the central question in this appeal: whether the superior
court's entry of judgment against Whittle as a discovery sanction for not allowing an
inspection of his property was error. In order to decide this issue, we first address the
superior court's order directing Whittle to allow an inspection of his property. We then
examine Whittle's alleged violations of the superior court's discovery orders and the
court's imposition of litigation-ending sanctions. We also briefly consider Whittle's
other points on appeal.
A. Allowing An Inspection Of Whittle's Property
Under Alaska Civil Rule 34(a)
[a]ny party may serve on any other party a request . . . to
permit entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property
or any designated object or operation thereon . . . .
Any request made pursuant to Civil Rule 34 must "set forth, either by
individual item or by category, the items to be inspected, and describe each with
reasonable particularity. The request shall specify a reasonable time, place, and manner
of making the inspection and performing the related acts."9 We have explained that "[i]n
general, the civil rules are committed to a system of liberal pretrial discovery."10 A court
may, however, limit discovery under certain circumstances.
9 Alaska R. Civ. P. 34(b).
10 Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990).
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Whittle argues that the superior court's order permitting Weber to conduct
an inspection of Whittle's property violated his constitutional rights.11 We consider
whether the right to privacy might offer Whittle any protection from the discovery order.
We have considered at least one challenge to a discovery order on right-to-
privacy grounds. In Jones v. Jennings, involving a lawsuit filed against two police
officers, we affirmed a discovery order requiring production of one of the officer's
personnel records and records of citizen complaints filed against him.12 On the officer's
behalf, the Municipality of Anchorage argued that this discovery request was
"unnecessarily intrusive into the privacy of the officers involved."13 Noting that the
Alaska Constitution expressly protects Alaskans' right to privacy but that "[t]he right to
privacy is not absolute," we applied the following three-part inquiry, adopted from a
Colorado Supreme Court case, to determine whether the discovery order was appropriate:
(1) does the party seeking to come within the protection of
the right to confidentiality have a legitimate expectation that
the materials or information will not be disclosed?
(2) is disclosure nonetheless required to serve a
compelling state interest?
11 Though Whittle's focus on the Fourth Amendment is misplaced (because
it does not apply to searches or seizures conducted by a private party, see Schaffer v.
State, 988 P.2d 610, 612 (Alaska App. 1999)), we address the thrust of his argument,
which is simply that he is constitutionally protected from unreasonable inspections of his
property.
12 788 P.2d at 733, 737-39.
13 Id. at 737.
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(3) if so, will the necessary disclosure occur in that manner
which is least intrusive with respect to the right to
confidentiality?[14]
We concluded that the officer did have a legitimate expectation that the information
would not be disclosed but then emphasized that disclosure served the compelling
interest of "preserving democratic values and fostering the public's trust in those charged
with enforcing the law."15 We also noted that the trial court made the inspection as
minimally invasive as possible by protecting the officer's financial information and
family's name and address and by conducting an in camera inspection of the requested
documents.16 Thus, we affirmed the trial court's order.
Other jurisdictions have used similar balancing tests and considered similar
factors when reviewing discovery requests for entry onto private property. Overall, to
determine whether an inspection is appropriate, courts "must balance the respective
interests by weighing the degree to which the proposed inspection will aid in the search
for truth against the burdens and dangers created by the inspection."17 Most courts focus
on the second Jones factor: the "compelling interest" element. To determine whether a
compelling interest exists, courts scrutinize the relevance of the proposed inspection to
the issue in the legal action. The Kentucky Supreme Court, looking to federal courts'
14 Id. at 738 (quoting Martinelli v. District Court, 612 P.2d 1083, 1091 (Colo.
1980)).
15 Id. at 738.
16 Id. at 739.
17 Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation
marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy,
Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where
"any benefit from the inspection . . . is outweighed by the burdens that such inspection
will impose").
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practices, observed that "[i]n each case, the place to be inspected is somehow 'at issue'
in the underlying law suit."18 Thus, other jurisdictions have concluded that the property
or item to be inspected must be directly connected with the main issue of the legal action;
some have determined that this "nexus" must appear on the face of the discovery order.19
Besides focusing on the nexus between the location and the legal cause of action, courts
may also consider additional factors that connect the inspection to the lawsuit; for
example, whether a legal action has begun,20 or whether the inspection is necessary (i.e.,
the information cannot be obtained through other avenues).21
Based on our decision in Jones v. Jennings and the approaches of other
jurisdictions to this question, we conclude that the superior court did not abuse its
discretion in ordering Whittle to allow a limited inspection of his property as part of
discovery. First, legal action had begun in this case, and that action directly concerned
the property to be inspected pursuant to the superior court's discovery order. Second, we
18 Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see
alsoBelcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) ("Most
cases involving on-site inspections concern a given object on the premises which is the
subject matter of the action . . . ."); Welzel, 233 F.R.D. at 186 ("In cases in which a site
inspection has been allowed, the rationale has often been because the specific location
relates to the subject matter of the cause of action.").
19 See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a "nexus between
the premises to be inspected and the underlying cause of action" and that "this nexus
must appear on the face of the order").
20 See, e.g.,Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624
So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry
on land before suit was filed).
21 See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel
entry where "the defendant [had] offered plaintiffs access to its premises under
reasonable terms" and "alternative and reasonably adequate methods of discovery" were
available).
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note that, in line with Civil Rule 34's requirements, Weber's request was specific about
what information he seeks: he wants to know whether "hazardous substances or
substances of any other nature exist[] that could present a threat to the neighbors
surrounding [Whittle's] property and/or the ground water beneath their property."
Moreover, the superior court endeavored to protect the privacy of Whittle's home by
explicitly excluding "any residence" from the inspection order.22
B. Entering Judgment Against Whittle As A Discovery Sanction
Alaska Civil Rule 37 "affords trial courts broad power to enforce discovery
orders by the use of sanctions."23 In relevant part, Civil Rule 37(b)(2) provides:
If a party . . . fails to obey an order to provide or permit
discovery, . . . the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following:
. . . .
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient
party[.]
22 We view this limitation as important not only because of the third Jones
factor (least intrusive means of inspection) but because we have recognized "the
distinctive nature of the home as a place where the individual's privacy receives special
protection" and explained that "[t]he privacy amendment to the Alaska Constitution was
intended to give recognition and protection to the home." Ravin v. State, 537 P.2d 494,
503-04 (Alaska 1975). We have cautioned, however, that "[w]e do not mean . . . a person
may do anything at anytime as long as the activity takes place within a person's home."
Id. at 504. Rather, the right to privacy in one's home "must yield when it interferes in
a serious manner with the health, safety, rights and privileges of others or with the public
welfare." Id.
23 Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).
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We have cautioned, however, that only extreme circumstances warrant use
of litigation-ending sanctions:
[S]ince the law disfavors litigation ending sanctions, the
superior court has the discretion to impose such sanctions
only in extreme circumstances. We have held that a party
should not be barred from his or her day in court where an
alternative remedy would suffice to make the adverse party
whole.[24]
To order litigation-ending sanctions for discovery violations, a trial court must find that
(1) the noncompliant party willfully violated the order at issue, (2) nondisclosure of that
information will prejudice the opposing party, and (3) the dismissal is sufficiently related
to the violation at issue.25 In addition, before a trial court may impose litigation-ending
sanctions for discovery violations, "the record must clearly indicate a reasonable
exploration of possible and meaningful alternatives to dismissal."26
In its final judgment, the superior court concluded that Whittle's "open
court refusal to allow [Weber] or his experts to enter upon his property is willful." The
superior court also stated that Whittle "has been given every opportunity to correct this
refusal, but fails and refuses to do so." Whittle maintains on appeal that he complied
with the superior court's original written order and that the superior court itself
acknowledged this by declining to find him in contempt. He also argues that if the
superior court had ordered the inspection during the hearing, he "would [have] had to
comply." He insists that he could not "voluntarily agree" to Weber's inspection of his
24 Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647 (Alaska 1992) (internal
citations and quotation marks omitted).
25 See Alaska R. Civ. P. 37(b)(3)(A)-(C); Hughes, 875 P.2d at 752-53.
26 Hughes, 875 P.2d at 753; see also Alaska R. Civ. P. 37(b)(3)(D).
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property, however, because he believes an inspection would violate his constitutional
rights; therefore, "asking [him] to agree to it would be asking him to lie to the court."
To address whether sanctions were appropriate here, we must initially
determine whether Whittle willfully failed to obey a discovery order. Deciding whether
Whittle failed to comply requires us to examine two orders, one written and one oral,
regarding the inspection of Whittle's property.
1. The superior court's written order
The written order, which was dated July 30, 2008 but not mailed until
August 5, directed Whittle to "provide a mutually agreeable date for the conducting of
an inspection within 30 days from the date of this order." On August 19 Whittle filed a
motion for reconsideration. On September 2, before the superior court had ruled on that
motion, Whittle agreed to an inspection of his property, informing Weber that he would
allow the inspection "on November 14th through November 25th 2008 (excluding
weekends & holidays), for one day" and requesting that Weber provide "the date, time
period, name of [the expert who would be coming], & the certification of that expert."
The question before us, then, is whether Whittle complied with the superior court's order
by providing within 30 days of the court's written order acceptable dates for the
inspection or whether the order required him to schedule the inspection for a date that fell
within the 30-day period.
In his opposition to Weber's motion to hold him in contempt, Whittle
asserted that he "has tried to provide a mutually agreeable date for the conducting of an
inspection, & it has been done within the 30 days specified in the court's order." He
argued that "[i]f the court would have meant to have the inspection within the 30 days
period of time, then it would surely have said just that." During the contempt hearing,
Whittle repeated that he understood "within 30 days" to refer to the act of providing a
date for the inspection and further explained, "I [have] done it way - exactly the way
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that I understood it." Weber's lawyer explained that he understood "within 30 days" to
refer to the date of the inspection itself and argued that his was the only interpretation
consistent with the September 29 deadline for expert reports. As Weber acknowledged
in a previous court filing, however, the language of the order, on its face, permits both
Whittle's and Weber's interpretations. The superior court declined to hold Whittle in
contempt, presumably because it was persuaded that Whittle had an honest, alternative
interpretation of the order. Thus, Whittle did not willfully fail to comply with the
superior court's written order.
2. The superior court's oral order
The superior court also issued an oral order at the contempt hearing. Early
in the hearing, Whittle expressed his view that the United States Constitution and the
Alaska Constitution protected him against "inspections and that and seizures and
searches" of his property without evidence of some inappropriate activity. The superior
court tried to explain that Whittle has those protections only against the government, not
against a private individual, and then returned to Whittle's previous statement that he
would allow an inspection in November. Whittle reminded the superior court that he had
withdrawn that offer when Weber moved to hold him in contempt. Then, after declining
to hold Whittle in contempt for violating discovery, the superior court had the following
exchange with Whittle:
C: Mr. Whittle, what I am going to order is that you make
your property available for the inspection and . . . if it doesn't
get done within two weeks, you make it available. I don't
care if you have anybody there, but you have to let their
expert on . . . if you don't and you stand on your right to
refuse to let that happen, then I will say that they
automatically win that claim. Because that's the way - that
is going to be sanction.
. . . .
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W: Anyway, I'm going to stand on my constitutional
rights.
C: Okay.
W: And if you have the authority to write a search and
seizure warrant without my permission, then I have no
control over that. But I will not agree to let them on my
property, so . . .
C: Okay. With that - if that's your position, then, I am
going to enter the order that Mr. Weber has won that issue.
(Emphasis added.)
We consider two points as to whether Whittle's response to the superior
court's oral order rises to the level of willful noncompliance with a discovery order.
First, Whittle argued at the contempt hearing and maintains on appeal that he believed
the superior court did not have the authority to order an inspection of his property
without first having some proof of inappropriate activity, and that he believed agreeing
to an inspection would allow the court to circumvent that constitutional requirement.
Consistent with this belief, after Weber moved to hold Whittle in contempt, Whittle
wanted Weber to present proof of inappropriate activity and withdrew his agreement to
the inspection of his property. But Whittle's remarks seemed to recognize that if the trial
court had the "authority to write a search and seizure warrant without [Whittle's]
permission, then [Whittle had] no control over that." Although Whittle maintained that
he could not "agree" to let Weber on his property, the exchange, read as a whole, is
certainly susceptible of more than one interpretation. Taken as a whole, Whittle's actions
could be interpreted as indicating that he would only allow the inspection if ordered by
the court to do so over his objection.
When Whittle indicated to the superior court during the contempt hearing
that he would not allow an inspection of his property, the court interpreted this statement
to mean that Whittle would not comply with any further discovery orders and assumed
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that Whittle would not change his mind. We have upheld findings of willful
noncompliance where the plaintiff "made no effort to comply" with the superior court's
discovery orders and had demonstrated "no intention of ever complying with the court's
orders."27 In this case, by contrast, Whittle did make an initial effort to comply with the
superior court's written order by proposing inspection dates. Morever, it does not seem
clear from the contempt hearing exchange that Whittle had no intention of complying
with the court's order; in fact, Whittle seemed to be waiting for the superior court to
order the inspection over his objection. In any event, it was incumbent on the superior
court to clarify whether Whittle would comply with the court's inspection order if
entered over his objection before imposing any sanctions, much less litigation-ending
sanctions. We therefore reverse the sanction and vacate the judgment entered against
Whittle.
C. Alleged Errors By The Superior Court In Not Barring This Case
We briefly consider Whittle's contentions on appeal that the superior court
committed error in refusing to bar this case under relevant statutes of limitations and the
doctrine of laches. We conclude that the superior court did not err in denying Whittle's
motion to dismiss the suit on these grounds.
1. Statute of limitations
On November 14, 2007, Whittle filed a motion to dismiss Weber's lawsuit
on the ground that it was barred by the statute of limitations for contract actions and by
the doctrine of laches. Weber responded that his claim was for ongoing nuisance and
was therefore not time-barred. The superior court denied Whittle's motion to dismiss,
27 DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 923-24 (Alaska 2002);
Hart v. Wolff, 489 P.2d 114, 118 (Alaska 1971) (holding plaintiff willfully refused to
obey discovery order where he admitted making no efforts to comply during the 30 days
the trial court gave him).
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concluding that Weber's nuisance claim was not barred by the statute of limitations.28
On appeal, Whittle repeats that statutes of limitations bar Weber's nuisance and violation
of covenants claims against him.
We have explained that "[u]nder theories of continuing trespass or nuisance,
each harmful act constitutes a new cause of action for statute of limitations purposes."29
A nuisance is continuing if it "can be discontinued or abated"; classic examples include
"an ongoing or repeated disturbance, such as a disturbance caused by noise, vibration or
foul odor, that may vary over time."30 As Weber points out, his action is for ongoing
nuisance and ongoing violations. Weber's complaint asserts that the way Whittle
currently maintains his property is violating subdivision covenants and is a nuisance. In
addition, Weber's affidavit asserts that the situation giving rise to his complaint "is not
static" and that Whittle "continues to haul junk/garbage at the rate of one to two trailer
loads per day." Weber's complaint and affidavit support his contention that his claims
are for continuing nuisance, and so are not barred by relevant statutes of limitations.
28 Weber characterized his lawsuit only as a tort suit and did not separately
discuss his contract claim for violation of covenants or separately respond to Whittle's
argument that the suit violated the statute of limitations for contract suits. Perhaps
following this lead, the superior court did not address the contract claim.
29 Oaksmith v. Brusich, 774 P.2d 191, 200 n.10 (Alaska 1989); see also Van
Deusen v. Seavey, 53 P.3d 596, 600 n.11 (Alaska 2002) (concluding that a nuisance claim
was not subject to the relevant statute of limitations where the court held that it was
temporary and abatable rather than permanent); 58 AM. JUR. 2D Nuisances § 26 ("Every
continuance of the nuisance is a fresh nuisance for which a new action will lie.").
30 Bartleson v. United States, 96 F.3d 1270, 1275 (9th Cir. 1996) (internal
citations and quotation marks omitted); see also Van Deusen, 53 P.3d at 600 (labeling
an alleged nuisance caused by seasonally-located barking dogs "temporary" and
"abatable" because it was not "relatively enduring" and was "likely to be abated, either
voluntarily or by an order of the court").
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2. Doctrine of laches
Whittle also argues that Weber's lawsuit should have been barred by the
doctrine of laches. Weber responds that "[i]t was only after [he] was unable to obtain an
amicable resolution through his neighbors and contact with the defendant that this
lawsuit was filed." In its order denying Whittle's motion to dismiss, the superior court
did not directly address this issue but presumably concluded that this aspect of Whittle's
argument was also unavailing.
The doctrine of laches "creates an equitable defense when a party delays
asserting a claim for an unconscionable period. To bar a claim under laches, a court must
find both an unreasonable delay in seeking relief and resulting prejudice to the
defendant."31 We have previously declined to infer prejudice from delay and have
rejected a defendant's defense of laches where he "ha[d] not attempted to show that he
was materially prejudiced by such delay."32 Here, Whittle has not indicated what
prejudice he may have suffered as a result of Weber's delay in bringing this lawsuit. For
that reason, it was not error for the superior court to reject Whittle's laches defense.
D. Other Alleged Errors
Whittle makes a number of other claims on appeal. Among others, Whittle
alleges that the superior court should not have accepted Weber's late-filed disclosures
of the areas of expertise in which Weber intended to call experts and erroneously denied
Whittle's motion to join his other neighbors as plaintiffs. Because Whittle died during
the appellate proceeding,33 it is unclear whether this litigation will continue beyond this
31 State, Dep't of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351,
358-59 (Alaska 2000) (internal citations and quotation marks omitted).
32 Young v. Williams, 583 P.2d 201, 204-05 (Alaska 1978).
33 See supra note 1.
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appeal. Thus, we leave it to the superior court to determine whether these issues have
become moot.
V. CONCLUSION
Because the superior court did not abuse its discretion by ordering Whittle
to allow a limited inspection of his property as part of discovery, we AFFIRM the
superior court's discovery order. The superior court's entry of judgment against Whittle
as a discovery sanction, however, was error. We REVERSE and VACATE the entry of
judgment against Whittle and REMAND to the superior court for further proceedings
consistent with this opinion.
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