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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Briggs v. City of Palmer (9/12/2014) sp-6952

Briggs v. City of Palmer (9/12/2014) sp-6952

         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  

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RAY T. BRIGGS,                                     )  

                                                   )        Supreme Court No. S-14969  

                          Appellant,               )  

                                                   )        Superior Court No. 3PA-07-01480 CI  

         v.                                        )  

                                                   )        O P I N I O N  

CITY OF PALMER, ALASKA, a                          )  

municipal corporation,                             )  

                                                   )       No. 6952 - September 12, 2014  

                          Appellee.                )  


                 Appeal from the Superior Court of the State of Alaska, Third  


                 Judicial District, Palmer, Vanessa White, Judge.  

                 Appearances:    Ray  T.  Briggs,  pro  se,  Palmer,  Appellant.  

                 Michael  R.  Gatti  and  Mary  B.  Pinkel,  Wohlforth,  Brecht,  

                 Cartledge, & Brooking, Anchorage, for Appellee.  

                 Before:  Fabe, Chief Justice, Winfree, Stowers, and Bolger,  

                 Justices. [Maassen, Justice, not participating.]  

                 BOLGER, Justice.  


                 The owner of two lots and a residence near the Palmer Municipal Airport  

brought  an  inverse  condemnation  claim  against  the  City  of  Palmer,  arguing  that  the  

airport operation diminished his property value.  The superior court entered summary  

judgment for the City of Palmer because the property owner failed to submit any expert  


testimony regarding damages.  We reverse the superior court's decision because Alaska  


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law permits property owners to testify about their opinion of the property's value before  

and after an alleged taking.  


                   Ray  Briggs  purchased  two  parcels  of  land  from  the  Small  Business  


Administration in 1989.  Those parcels share a boundary with the Palmer Airport.  In  

1997 Briggs complained to the Matanuska-Susitna Borough, alleging that Palmer had  

committed an unconstitutional taking of his property.  Palmer subsequently annexed  


Briggs's property into its corporate boundaries.  In 2006 Briggs asked Palmer to buy his  


property, again alleging that Palmer had committed a taking.  

                   In  June  2007  Briggs  filed  a  superior  court  complaint  claiming  inverse  

condemnation.  He alleged that the noise from the Palmer Airport substantially interfered  


with the use and enjoyment of his property to such a degree that it rendered his property  


uninhabitable and entitled him to just compensation.  Briggs alleged that the noise and  

pollution created by planes landing or taking off from the Palmer Airport substantially  

diminished his property value.  

                   Palmer  filed  pretrial  motions  to  exclude  various  types  of  evidence.    In  


response to these motions, Briggs's attorney  stated  that he would not be calling any  


expert witnesses to testify to the value of Briggs's property.  He asserted that Alaska law  


allows property owners to testify as to their opinion of the value of their property.     

                   In December 2011 the superior court heard oral argument on the pending  

motions.  The court accepted Briggs's late-filed witness list, which consisted of Briggs  


and his partner, Gilbert Shea.  The court granted Palmer's motion to exclude evidence  


of the Borough's property tax assessment for Brigg's property.  In making this decision,  


the court expressed concern that Briggs might not be able to meet his "burden of proof"  

because Briggs and Shea lacked expertise in property valuation.  

                                                             -2-                                                      6952

----------------------- Page 3-----------------------

                   Palmer  filed  a  motion  for  summary  judgment  in  March  2012,  arguing  

Briggs had no admissible  evidence  to prove his damages.  Briggs's attorney did not  


oppose  Palmer's  motion.    The  superior  court  granted  Palmer's  motion,  stating  that  

"[b]ecause proof of damages is an essential element of plaintiff's inverse condemnation  

case, the court's ruling results in dismissal of plaintiff's case in its entirety."  

                   Briggs  filed  motions  seeking  to  proceed  pro  se  and  requesting  oral  

argument; the superior court denied his motions and a final judgment in favor of Palmer  

was distributed on June 15, 2012.  Briggs requested reconsideration and again sought to  

proceed pro se.  Briggs's attorney then moved to withdraw, and the court granted that  

motion.    Briggs,  now  proceeding  pro  se,  moved  to  set  aside  the  judgment,  but  on  

November 7 the court denied his request.  Briggs filed this appeal on December 3, over  


five months after final judgment was distributed and well beyond the 30 days allowed  


under  the  Appellate  Rules.            We  accepted  the  late  filing  and  now  consider  Briggs's  




                   "We review a grant of summary judgment de novo, affirming the summary  

judgment when there is no genuine issue of  material fact and the prevailing party is  


entitled to judgment as a matter of law."1  

                   "When the admissibility of evidence turns on a question of fact, we review  


a  trial  court's  decision  on  admissibility  for  an  abuse  of  discretion.    However,  when  

admissibility turns on a question of law, we use our independent judgment in reviewing  


the trial court's ruling."2  

          1        Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)  

(citing Alaska R. Civ. P. 56(c); Preblich v. Zorea , 996 P.2d 730, 733 (Alaska 2000)).  

          2        Sowinski v. Walker, 198 P.3d 1134, 1159 (Alaska 2008) (citing                            Turner v.  

Municipality of Anchorage , 171 P.3d 180, 184 (Alaska 2007); Laidlaw Transit, Inc. v.  

Crouse ex rel. Crouse, 53 P.3d 1093, 1097 (Alaska 2002)).  

                                                           -3-                                                       6952  

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                    "[W]e consider pro se pleadings liberally in an effort to determine what  

legal claims have been raised."3  



          A.	       Briggs's  Late  Appeal  Of  The  Superior  Court's  Judgment  May  Be  

                    Accepted Because He Had An Obvious Misunderstanding Of Court  


                    Alaska Appellate Rule 204(a)(1) provides that the appealing party must file  


a notice of appeal within 30 days of the distribution of the judgment.  But the time limit  


for filing a notice of appeal is not jurisdictional, and the "requirements of that rule may  


be  relaxed  or  dispensed  with  where  a  strict  application  would  be  unfair."4  


Appellate Rule 502(b)(2) specifically gives us discretion "to validate an act done after  

the expiration of the time period"5 upon "a showing of good cause for an out-of-time  


application for extension of time."                                       

                                                     And we may relax procedural requirements for pro  


se litigants in situations that do not involve gross neglect or bad faith.      

                    In the present case, the superior court entered summary judgment on the  


issue of damages on March 26, 2012.  The court distributed its final judgment on      

          3         Toliver   v.  Alaska   State   Comm'n   for   Human  Rights,  279  P.3d  619,  622  

(Alaska 2012) (citing Clemensen v. Providence Alaska Med. Ctr.                                  , 203 P.3d 1148, 1150  

(Alaska 2009)).  



                    Radich  v.  Fairbanks  Builders,  Inc.,  399  P.2d  215,  217  (Alaska  1965);  

accord Gilbert v. State Farm Ins. Co., Mem. Op. & J No. 1178, 2004 WL 1701109, at  


*2 n.6 (Alaska July 28, 2004) ("Though State Farm is correct that technically this appeal  

is  late  under  Alaska  Appellate  Rule  204(a)(1)  and  Alaska  Civil  Rule  77(k),  given  


Gilbert's  pro  se  status  and  the  plausible  reasons  she  presents  for  the  delay,  we  will  

consider the appeal.").  

          5	        Alaska R. App. P. 502(b)(2).  



                    Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1028  

(Alaska 2009).  



                    Brandner v. Municipality of Anchorage , 327 P.3d 200, 203 (Alaska 2014).  

                                                              -4-                                                           6952  

----------------------- Page 5-----------------------

June 15.  Both before and after that date, Briggs filed several motions to proceed pro se,         

claiming that he was not being adequately represented by his attorney.                                                                 On July 11 and   

August 22, Briggs also filed requests for reconsideration. After the superior court denied                                    

the motions for reconsideration, Briggs filed a motion to set aside the judgment, claiming   

that his counsel had not represented him adequately.  The superior court's order denying   

this  motion  was  distributed  on  November  7.    Briggs  filed  a  notice  of  appeal  on 

 December 3, 2012.   

                         Palmer argues that this procedural history shows that Briggs's appeal was  


not timely, and that neither Briggs's requests for reconsideration nor his motion to set  

aside the judgment met the requirements to toll the running of time for filing an appeal.8  


But Briggs is a pro se litigant who seems to have misunderstood court procedure.   The  

record shows Briggs repeatedly asked to represent himself after his attorney neglected  

to respond to the motion for summary judgment,  and he also repeatedly sought relief  

from the superior court's order granting summary judgment.  Based on this showing, we  


are satisfied there is good cause to accept this appeal.  

             B.	         Alaska            Law         Allows            Property             Owners              To       Testify          About            The  


                         Diminution In Value Of Their Property.  

                         Briggs argues he can provide credible testimony about the diminution in  


value of his property.  In response, Palmer argues the superior court's decision should  


be affirmed because an inverse condemnation case requires expert testimony to prove the  

value of damages.  Palmer relies on Wernberg v. Matanuska Electric Ass'n, which states:  


"While the property owner is permitted to testify as to the market value of his land, it is  


clear that the amount of damage to property in trespass as in eminent domain cases is  


more appropriately the subject of expert testimony measured by an objective standard of  



                         But  in  our  more  recent  decisions,  we  have  reemphasized  Wernberg's  

             8	          See Alaska R. App. P.  204(a)(3).  

             9           494 P.2d 790, 795 (Alaska 1972).  

                                                                                -5-                                                                              6952  

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prefatory statement that a "property owner is permitted to testify as to the market value  


of his land" and have clarified that this rule is based on the premise that an owner is  


informed about a property's value, both before and after an event that diminished that  


                     In Fairbanks North Star Borough v. Lakeview Enterprises, Inc ., an inverse  


condemnation case involving a neighboring landfill, we stated that "[a]n owner's opinion  


on the topic of property value is normally admissible in Alaska."10  

                                                                                                  Likewise, in Osborne  


v. Hurst , a case where a fire set on neighboring property destroyed a cabin, we held that  


lay testimony offered by the property owners about the value of their property before and  


after the fire was admissible because of the owners' presumed knowledge about the value  

of their property.11  

                             We reaffirmed this position more recently in Maddox v. Hardy when  

we stated that "Alaska allows lay testimony from the owner of property as to the value  

of the property before and after a damaging event."12  


                    We conclude it was error to rule that Briggs could not testify about damages  



based on the value of his property before and after the alleged taking.                                  We thus reverse  

the superior court's order granting summary judgment that relied on this ruling.  

          10        897 P.2d 47, 55 n.14 (Alaska 1995) (citing Schymanski v. Conventz                                     , 674  

P.2d 281, 286 (Alaska 1983)).  

          11        947 P.2d 1356, 1361 (Alaska 1997).  

          12        187 P.3d 486, 495 (Alaska 2008).  



                    Nothing  in  the  record  before  us  indicates  that  Shea  is  an  owner  of  the  


property.  As such this ruling does not affect the superior court's order regarding his  


                                                              -6-                                                            6952  

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V.             CONCLUSION  

                             We REVERSE the superior court's order granting summary judgment and  


REMAND for further proceedings.14  

               14            In view of this disposition, we are not required to address any other issues                          

raised in this appeal.  But we note certain issues may arise on remand with respect to the  

court's award of fees and costs.  Palmer concedes that the superior court should not have   

enhanced the attorney's fee award under Alaska Civil Rule 82.  Palmer also concedes   

that the court should not have awarded expert witness costs under Alaska Civil Rule   

79(a) because the expert never testified at trial.  And neither the court nor the parties   

considered whether the court's fee and cost awards could be affected by the statute that   

governs constitutional claims.  See AS 09.60.010(c)(2).  Even if the court concluded  

Briggs had "sufficient economic incentive" to bring the suit, he would still be entitled to  


abatement of an award that "would inflict a substantial and undue hardship."  See AS  


                                                                                           -7-                                                                                          6952  

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