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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beecher v. City of Cordova (1/19/2018) sp-7218
Notice: This opinion is subject to correction before publication in the P ACIFIC 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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CAROL BEECHER and )
PERRY BEECHER, ) Supreme Court No. S-16445
)
Appellants,
) Superior Court No. 3CO-02-00011 CI
)
v.
) O P I N I O N
)
CITY OF CORDOVA,
) No. 7218 - January 19, 2018
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Cordova, Daniel Schally, Judge pro tem.
Appearances: Carol Beecher and Perry Beecher, pro se,
Anchorage, Appellants. Holly C. Wells and Jack R.
McKenna, Birch Horton Bittner & Cherot, Anchorage, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Bolger, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
A city evicted commercial tenants from city-owned land and was granted
a money judgment against them for unpaid rent and sales taxes. The tenants left behind
various improvements, as well as items of personal property related to their operation of
a marine fueling facility on the land. The city pursued collection of its money judgment
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for several years before suspending its efforts; about eight years later it resumed its
attempts to collect. The tenants, contending that they had reasonably assumed by the
passage of time that the judgment had been satisfied, moved for an accounting of their
left-behind property and the amount still owing on the judgment.
The city informed the superior court that it had executed only on bank
accounts and wages and that several improvements had reverted to city ownership and
therefore did not count against the judgment. It claimed not to know what happened to
the rest of the property the tenants identified as having been left behind. The superior
court found the city's response sufficient and allowed execution to continue.
The tenants appeal, arguing that they were entitled to a better accounting
of their left-behind property and that the city is estopped from contending that the
judgment is still unsatisfied. We agree in part. We hold that it was the city's burden to
produce evidence of the property's disposition and that it failed to carry this burden. We
also hold that there are genuine issues of material fact about whether the city is estopped
from contending that the judgment remains unsatisfied. We therefore reverse the
superior court's order accepting the accounting and allowing execution to continue; we
remand for further proceedings in the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
Carol and Perry Beecher entered into a ground lease with the City of
1 They
Cordova in 1997 to operate a marine fueling facility on City-owned land.
1 The Beechers executed the lease and operated the marine fueling facility
through two closely-held corporations, Balance, Inc. and Sound Development, Inc. The
Beechers are jointly and severally liable with the corporations on the judgments at issue
on this appeal, however, and the corporations' separate existence is not relevant to our
discussion.
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eventually fell behind on the rent. In January 2002 the City delivered a notice to quit,
informing the Beechers that they owed $30,527.22 in past-due rent and had until
February 4 to bring it current. The notice warned that the lease would terminate if the
Beechers did not meet the February 4 deadline. But the Beechers did not pay the past-
due rent or vacate the property, and in March the City delivered an updated notice to
quit. This notice informed the Beechers that the lease had terminated on February 4; it
also reminded the Beechers that, pursuant to paragraph 9 of the lease, they had 90 days
from termination - until May 5 - to remove any improvements, which would
otherwise become the property of the City. The City also recorded notices of sales tax
liens against the Beechers' corporations, covering all their real and personal property in
the Cordova Recording District.
The Beechers still did not vacate the premises, and in April the City filed
a complaint against them in the superior court seeking eviction, foreclosure of the sales
tax liens, and a money judgment for both the past-due rent and unpaid sales taxes. The
court ordered an eviction and later entered a money judgment against the Beechers in the
amount of $118,759.61. The court also ruled that "by virtue of the lease" the City had
gained "color of title" to any improvements remaining on the premises. The claim for
lien foreclosure was apparently dropped; the record contains no further reference to the
tax liens.
The Beechers then vacated thepremises, but they left behind some personal
property, including fuel tanks, vehicles, trailers, parts, and appliances. Nearly a year
later, the City's attorney, in a March 2003 memo to the City manager, recommended that
the City attempt to clarify ownership of this left-behind property. In April the superior
court ordered debtor's examinations to occur in May. The City filed creditor's affidavits
stating that it would attempt to satisfy the judgment by levying against the Beechers'
bank accounts, a tug boat, a "Landing craft," two undeveloped tracts of real property, a
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"Fuel Truck," a "Backhoe," the "Marine fuel facility," and a "Gas Station." In July the
clerk of court issued writs of execution.
Of the items identified in the creditor's affidavits, the City executed only
against the Beechers' bank accounts. It eventually recovered more of the judgment from
their wages and permanent fund dividend checks. But in 2005, with the bulk of the
judgment still unpaid, the City ceased its collection efforts.
Eight years went by; then in January 2013 the City obtained and recorded
a renewal judgment. After learning that the City was again garnishing their wages, the
Beechers sent the City a letter asking for an accounting of the judgment and the City's
collection activities to date, specifically requesting "bill(s) of sale," public
advertisements, and "dates of sales [of] any and all property seized and sold by the City."
The City did not respond, so the Beechers retained a lawyer and repeated their request.
Their second letter to the City described the Beechers' "equipment located at the Marine
Fuel facility [as] including fuel trucks, tanker trailers, . . . assorted parts, tools, a Cat 235
excavator, and other pieces of equipment," and asked, "What happened to these items?
Were they sold? Was the amount of the sale deducted from the judgment?" The record
again shows no response from the City.
B. Proceedings
The Beechers next filed a motion in superior court for an accounting of the
City's collection efforts and the outstanding amount of the judgment. The City
responded with an affidavit from its finance director, Jon Stavig. Stavig stated that the
City had executed on the Beechers' bank accounts and wages, and he submitted a record
of those amounts, which added up to over $34,000. He averred "[u]pon information and
belief" that the City had sold certain "improvements" fromthe Beechers' fueling facility,
"which included the floating fuel dock and gangway ramp," but that improvements
belonged to the City pursuant to paragraph 9 of the lease and therefore their sale did "not
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reduce the amount owed under the [j]udgment." Stavig reported that the City had not
executed on the tug and landing craft identified in its 2003 creditor's affidavit as possible
subjects for execution; instead, the two vessels had been foreclosed upon and sold at
auction by a ships' mortgage lender. And Stavig also reported that two parcels of real
property listed in the creditor's affidavit had been foreclosed upon by other lenders.
Finally, Stavig attested that "the City remains open to examining any evidence or
documentation [the Beechers] may have demonstrating thesaleofequipment or property
by the City as the City's accounting has been limited [to] its own records."
In response, the Beechers filed a list of all the personal property they
alleged had been left behind on the leased property - including fuel trucks, parts vans,
trailers, tanks, a "Jitney boat," and other "[p]arts and supplies," all of which they valued
at $75,000 - and argued that the City must have sold it without crediting the proceeds
toward the judgment. The Beechers also submitted photographs, which their attorney
represented as showing "a tank and office retained by the City but not credited towards
the judgment." The City responded by reiterating that it had seized and sold only
"improvements" and that it had no legal obligation to execute against any particular item
of the Beechers' personal property.
The superior court, finding that a hearing on the Beechers' motion was
unnecessary, ruled largely in favor of the City. The court concluded that the finance
director's affidavit "provided a satisfactory accounting of[theCity's]collectionefforts,"
agreed that the Beechers were "not entitled to a credit for the value of the marine fuel
facility improvements," and lifted a temporary stay on the City's collection efforts. The
Beechers moved for reconsideration, arguing that any "proper accounting . . . must
include" the specific items of property they had identified as left behind, highlighting
those items of personal property identified in the 2003 memorandumto the City manager
and including a picture of a fuel tanker they claimed was in current use by the City. But
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the superior court denied reconsideration and awarded attorney's fees and costs to the
City.
The Beechers appeal.
III. STANDARD OF REVIEW
2
We review questions of law using our independent judgment.
We review
3
findings of fact for clear error. We will find clear error only if "after a review of the
record as a whole, we are left with a definite and firm conviction that a mistake has been
4
made."
IV. DISCUSSION
The Beechers urge us to hold that the City did not provide an adequate
accounting because it failed to directly address the disposition of the personal property
left behind at the marine fueling facility. According to the Beechers, some of this
property did not qualify as "improvements" that would revert to the City under the terms
of the lease, and the City had an obligation to follow through on the implication of its
2003 creditor's affidavits that it would execute on the listed property and apply the
proceeds to the judgment. The Beechers claimthat the City unjustly enriched itself when
it took possession of these items without crediting the Beechers for their value.
We agree that the City's accounting was inadequate. The Beechers
produced evidence tending to show that the City took possession of their personal
property; it was then the City's burden to produce evidence accounting for it.
2 State v. Schmidt , 323 P.3d 647, 655 (Alaska 2014).
3
Resurrection Bay Auto Parts, Inc. v. Alder, 338 P.3d 305, 307 (Alaska
2014) (quoting Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 883-84 (Alaska
2004)).
4
Id. (quoting Fred Meyer of Alaska, Inc., 100 P.3d at 883-84).
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A. It Was Error To Find The City's Accounting Satisfactory.
A motion for an accounting seeks a kind of discovery or "compulsory
disclosure"; if granted, the motion requires an adverse party to account for and surrender
5
money or property that belongs to the moving party. Because a request for an
accounting assumes that the "party seeking relief" cannot determine on its own "how
much - or, in fact, whether - any money is being held" by the nonmoving party, the
burden of production does not "rest upon [the moving party], but . . . shift[s] to the
[nonmoving party] once facts giving rise to a duty to account have been alleged and
6
admitted."
To shift this burden, the moving party must show that "a relationship exists"
between itself and the nonmoving party "that requires an accounting, and that some
7 Once these elements
balance is due . . . that can only be ascertained by an accounting."
are established, the burden is on the nonmoving party to produce the requested
information, money, or property.8
As with other discovery devices, an accounting is not
proper when a party engages in "a fishing expedition, and alleges facts that are mere
5 Garcia v. Koch Oil Co. of Tex. , 351 F.3d 636, 641 (5th Cir. 2003) (quoting
Rosenak v. Poller , 290 F.2d 748, 750 (D.C. Cir. 1961)); see also Bradshaw v. Thompson ,
454 F.2d 75, 79 (6th Cir. 1972) ; Teselle v. McLoughlin , 92 Cal. Rptr. 3d 696, 715-16
(Cal. App. 2009); Failor v. MegaDyne Med. Prods., Inc. , 213 P.3d 899, 905 (Utah App.
2009).
6 Garcia, 351 F.3d at 641 (quoting Rosenak, 290 F.2d at 750).
7 Teselle, 92 Cal. Rptr. 3d at 715 (citing Brea v. McGlashan, 39 P.2d 877,
ITKIN, C ALIFORNIA PROCEDURE § 819 (5th ed.
880 (Cal. Dist. App. 1934); 5 B. E. W
2008)).
8
Garcia, 351 F.3d at 641.
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9
speculation." But "the fact that it may be a considerable burden to render a proper
10
accounting does not eliminate the need to account where a duty to account exists."
The Beechers established the elements necessary to shift the burden of
production to the City. The City does not dispute that it had a creditor-debtor
relationship with the Beechers, and the Beechers submitted evidence that tended to show
that the City held their personal property without accounting for its value. The City has
not disputed that the Beechers left behind the property identified in their motion for an
accounting; in fact the March 2003 memo from the City attorney listed a number of vans,
trailers, trucks, and tanks that were then "located on the site."11 The City claims,
however, that it "should not be made to track down and account for every item that the
Beechers abandoned on the property," and it argues that the Beechers have not shown
"that the City ever sold [their] property or that any proceeds should be applied to the
judgment."
But this argument misplaces the burden of production. "An action for
accounting is not amenable to . . . summary adjudication upon a showing that [the
moving party] does not possess and cannot reasonably obtain the evidence needed to
9 1A C.J.S. Accounting § 6 (2017) (citing In re Wilson , 442 B.R. 10, 19
(Bankr. D. Mass. 2010)).
10 Id. (citing Andrikopoulos v. Broadmoor Mgmt. Co. , 670 P.2d 435, 439-40
(Colo. App. 1983); 2416 Corp. v. First Nat'l Bank of Chi., 415 N.E.2d 420, 434 (Ill.
App. 1980)).
11 There are some inconsistencies among the various itemizations of the
personal property at issue. For example, the City attorney's memo lists "Five fuel tanker
trailers," whereas the Beechers' submission in support of their motion for an accounting
lists only four: two "tanker truck[s]," a "fuel truck," and a "tanker trailer." The
Beechers' list includes an air compressor, a "Jitney boat," and winches that have no
apparent counterparts on the City attorney's list.
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----------------------- Page 9-----------------------
[obtain an] accounting, because the very purpose of the accounting is to obtain such
evidence."12
While "it may be a considerable burden" for the City "to render a proper
accounting" given the passage of time since the original judgment, the burden is
nonetheless on the City to explain what happened to the Beechers' personal property
13
after the City took possession of the leased premises.
B. The City Has No Legal Obligation To Execute Against The Beechers'
Personal Property.
The Beechers argue that AS 09.35.030, along with the City's 2003
creditor's affidavits identifying particular property as subject to execution, required the
City to execute against the items it identified. The statute provides that if a court issues
a writ of execution "against the property of the judgment debtor," and if "the judgment
directs particular property to be sold," the judgment creditor must "sell the particular
14
[personal] property and apply the proceeds [to the] judgment." The writs of execution
in this case, however, did not "direct[] particular property to be sold." They instead
simply authorized the City to "satisfy the judgment" with any "personal property subject
to execution." The City acted within this grant of authority when it executed on the
12 Teselle, 92 Cal. Rptr. 3d at 716.
13
See 1A C.J.S. Accounting § 6 (2017) (citing Andrikopoulos , 670 P.2d at
440; 2416 Corp., 415 N.E.2d at 439-40). The City correctly asserts that it had title to
improvements and was not required to credit their value to the Beechers' judgment. But
accounting for the improvements does not satisfy the City's burden to account for
personal property.
The City also claims that the Beechers' motion for an accounting is barred
by laches. The City did not raise the issue of laches in the superior court, however, and
we therefore do not consider it.
14 AS 09.35.030(1).
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Beechers' bank accounts. We reject the Beechers' argument that the City was legally
required to execute against their personal property.
The Beechers also claim, however, that they reasonably and detrimentally
relied on the implication of the City's 2003 creditor's affidavits that it intended to
execute on the listed property, and the City should therefore be estopped from claiming
it had no obligation to do so. The superior court made no findings of fact relevant to
estoppel, and we cannot decide this claim as a matter of law. But the Beechers have
raised genuine issues of material fact about their reliance on the City's statements and
conduct.
We have recognized two forms of estoppel that may be relevant: equitable
estoppel and quasi-estoppel. Equitable estoppel requires proof of three basic elements:
(1) "assertion of a position by conduct or word," (2) "reasonable reliance thereon," and
15 In addition, equitable estoppel "will be enforced only to the
(3) "resulting prejudice."
16 This latter consideration "should play an important role
extent that justice so requires."
17 "[E]ven where reliance has been
when considering estoppel against a municipality."
foreseeable, reasonable, and substantial, the interest of justice may not be served by the
application of estoppel because the public interest would be significantly prejudiced."18
15 Jamison v. Consol. Utils., Inc. , 576 P.2d 97, 102 (Alaska 1978).
16 Municipality of Anchorage v. Schneider , 685 P.2d 94, 97 (Alaska 1984)
(citing Glover v. Sager, 667 P.2d 1198, 1202 (Alaska 1983)).
17 Id.
18 Id.
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Quasi-estoppel requires only that a party "assert[] a position so inconsistent" with one
19
previously taken in the same litigation "as to make the present claim unconscionable."
There is evidence to support a finding that the City "asserted a position"
through both statements and conduct. In its creditor's affidavits it said it would "attempt
. . . to satisfy the judgment by levying against" certain property, including the "Marine
fuel facility" and a "Gas Station," terms which could be broadly construed to include all
associated movable property. As for its conduct, the City - after executing on bank
accounts and wages - ceased all collection attempts for nearly eight years, which could
lead a reasonable debtor to conclude that the remainder of the judgment had been
satisfied through sale of the Beechers' personal property. It is also unclear from the
sparse record before us whether the sales tax liens on the personal property played any
role in the litigation and collection efforts.
And if the City did in fact retain the Beechers' property for its own use
without accounting for its value, as the Beechers allege, it may have been unjustly
enriched to the Beechers' detriment; such evidence could be relevant to the prejudice,
interests of justice, and unconscionability elements of the estoppel doctrines.
While some evidence in the record thus tends to support the Beechers'
position, we cannot resolve the estoppel claims as a matter of law. The superior court
on remand should consider whether the Beechers have established the necessary
elements of either equitable estoppel or quasi-estoppel.20
19 Jamison, 576 P.2d at 102 (quoting Fast v. Fast , 496 P.2d 171, 175 (Kan.
1972)).
20 The Beechers also appeal the superior court's award of attorney's fees and
the court's decision to lift a temporary stay on collection activities. Because we reverse
the superior court's order on the Beechers' motion for accounting, we vacate the award
of attorney's fees. And because the stay on collection activities was contingent on
(continued...)
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V. CONCLUSION
We REVERSE the superior court's order granting in part and denying in
part the Beechers' motion for an accounting. We REVERSE the superior court's order
lifting a temporary stay on the City's collection activities, VACATE the award of
attorney's fees, and REMAND to the superior court for further proceedings consistent
with this opinion.
20(...continued)
resolving the Beechers' motion for an accounting, we also reverse the superior court's
decision to lift the stay.
-12- 7218
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