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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dwane J. Sykes v. Jay T. Lawless and Jeannie L. English (10/23/2020) sp-7487

Dwane J. Sykes v. Jay T. Lawless and Jeannie L. English (10/23/2020) sp-7487

           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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



DWANE  J.  SYKES,                                                )  

                                                                 )     Supreme  Court  No.  S-17339  

                                Appellant,                       )  

                                                                                                                                 

                                                                 )     Superior Court No. 4FA-13-02831 CI  

           v.                                                    )  

                                                                                           

                                                                 )    O P I N I O N  

                                                          

JAY T. LAWLESS and JEANNIE L.                                    )  

ENGLISH,                                                                                                       

                                                                 )    No. 7487 - October 23, 2020  

                                                                 )  

                                Appellees.                       )  

                                                                 )  



                                                                                                          

                                             

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                 

                      Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                      Judge.  



                                                                                                                   

                      Appearances: Valerie M. Therrien, Law Office of Valerie M.  

                                                                                                           

                      Therrien, PC, Fairbanks, for Appellant.  Michael C. Kramer  

                                                                                                                  

                      and  Robert  John,  Kramer  and  Associates,  Fairbanks,  for  

                      Appellees.  



                                                                                                                

                      Before:         Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                    

                      Carney, Justices.  



                                           

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                        

                      A property owner installed a locked gate across an access easement on his  



                                                                                                                                    

property and provided keys to the neighboring easement holder.  The neighbor sued,  



                                                                                                                                

alleging the gate wrongfully interfered with his easement rights. After trial the superior  



                                                                                                                                              

court determined the parties' easement rights and ruled in the property owner's favor.  


----------------------- Page 2-----------------------

The neighbor appeals, arguing the superior court erred by not applying res judicata to bar  

                                                                                                                                



the property owner's defenses; made clearly erroneous findings about the easement's  

                                                                                                                    



scope; and abused its discretion by allowing the locked gate, in procedural rulings, and  

                                                                                                                               



in its attorney's fees award.  Seeing neither error nor abuse of discretion, we affirm the  

                                                                                                                                



superior court's decision.  

                          



II.       FACTS AND PROCEEDINGS     



          A.        Facts  



                                          

                     1.       Initial sale  



                                                                                                                              

                    In 1966 Charles and Gertrude Ward conveyed a 160-acre parcel of land  



                                                                                                                          

northeast of Fairbanks to William Mattice.  In 1969 Mattice agreed to sell to Dwane  



                                                                                                                   

Sykes 120 acres of the 160-acre parcel. But Mattice refused to complete the conveyance  



                                                                                                                               

upon learning"Sykeswasbuyingother properties"becauseMatticesuspected Sykes was  



                                                                                                                            

not purchasing the land for "a family home" as Sykes previously had represented. Sykes  



                                                                                             

brought suit against Mattice in 1969 to compel conveyance.  



                                                                                                                      

                    Meanwhile  Sykes  sought  a  waiver  of  Fairbanks  North  Star  Borough  



                                                                                                                                

subdivision requirements to permit Mattice to partition his property and sell Sykes the  



                                                                                                                            

120-acre parcel.  In 1971 the Borough approved the request on the condition that Sykes  



                                                                                                                          

obtain an access easement between the property and Chena Hot Springs Road.  



                                                                                                                         

                    In 1972 Sykes purchased 40 acres of land from the State.  That 40-acre  



                                                                                                                           

parcel's northwest corner touched the southeast corner of the 120-acre parcel Sykes  



                                                                                                                

sought to purchase from Mattice.   The 40-acre parcel was subject to a 60-foot-wide  



                                                                          

public access road to Chena Hot Springs Road.  



                                                                                                                 

                    In 1973 theBorough gavefinal approval waiving subdivision requirements  



                                                                                                                          

for the Mattice sale to Sykes.  In 1974 Mattice deeded the 120-acre parcel to Sykes,  



                                                                                                                               

along with a deed of easement.  The easement included two segments; the second is at  



                    

issue in this litigation.  



                                                                -2-                                                         7487
  


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

                    2.        Wilks litigation and 1980 judgment  

                                                                         



                    In 1978 Mattice conveyed to Michael Wilks 20 acres from his remaining  

                                                                                              



40-acre parcel; this 20-acre parcel included the second segment of Sykes's easement.  

                                                                                                                                     



Wilks brought suit against Sykes in 1979, seeking to terminate the easement.  While the  

                                                                                                                               



suit was pending, Wilks conveyed  to Scott Dicks 5 acres of the 20-acre parcel; this  

                                                                                                                              



5-acre parcel included the disputed easement.  

                                                                       



                    In 1980 the superior court granted summary judgment in favor of Sykes.  

                                                                                                                                     



Recognizing that the easement was "a valid and subsisting easement across [Wilks's]  

                                                                                                                     



property," the court stated  that  Wilks's property  was "a servient tenement and  the  

                                                                                                                               



easement is a benefit to a dominant tenement consisting of property owned by defendants  

                                                                                                                    



Sykes; and the easement was granted to and runs to Dwane J. Sykes and Patricia Sykes,  

                                                                                                                          



and their heirs, assigns, devisees and successors in interest, without restriction."  

                                                                                                                           



                    3.        Current conflict  

                                             



                    In 2002 Dicks conveyed his five-acre parcel to Jay Lawless.  In January  

                                                                                                                        



2007 an attorney for Sykes's neighbors wrote to Sykes expressing concern that he was  

                                                                                                                              



"making improvements and building roads on [his] property."  The attorney reminded  

                                            



Sykes that the easement "ha[d] not been approved by the [Borough] platting board as an  

                                                                                                                                



access road to any subdivision" and informed him that the easement could not "handle  

                                                                                                                        



the increased traffic."  

                      



                    In  August  the  attorney  wrote  again,  this  time  on  Lawless's  behalf,  

                                                                                                                        



explaining  that  "increasing  vehicle  use  ha[d]  overburdened  [the]  easement"  over  

                                                                                                                            



Lawless's property.  The attorney notified Sykes that because Lawless's "rights to the  

                                                                                                                               



quiet enjoyment of his property [were] being disturbed," he planned to install a gate and  

                                                                                                                              



provide keys to Sykes and anyone to whom Sykes had "assigned a right to use the  

                                                                                                                               



easement." The attorney also stated that Lawless would keep keys at his home for other  

                                                                                                                            



"authorized users of the easement."  Lawless mailed Sykes keys in September.  

                                                                                                       



                                                               -3-                                                         7487
  


----------------------- Page 4-----------------------

                          Sykes responded by letter a few weeks later, demanding that Lawless not                                                                



 install a gate. Lawless replied that the gate would not restrict the easement's scope, only                                                                   



the "unauthorized use of the easement."                  



             B.           Proceedings  



                          Sykes filed suit against Lawless in October 2013, asserting that the locked  

                                                                                                                                                          



 gate violated  the easement and the 1980 judgment.   Sykes sought partial summary  

                                                                                                                                                     



judgment in April 2014, asserting that the legal issues were governed by res judicata  

                                                                                                                                                        



based on the 1980 judgment and that Lawless should be required to remove the gate.  

                                                                                                                                                                     



                          Sykes filed a second partial summary judgment motion in July 2015 and  

                                                                                                                                                                



requested oral argument. The superior court issued a partial summary judgment decision  

                                                                                                                                                       



 in March 2016 but later vacated the decision in light of Sykes's request for argument.  

                                                                                                                                                                         



 Sykes  filed  two  additional  partial  summary  judgment  motions  in  July  2017,  again  

                                                                                                                                                            



requesting oral argument; the court heard arguments in August.  Sykes again requested  

                                                                                                                                                     



 oral argument in May 2018.  

                                            



                          The superior court held a five-day trial in May.  Sykes began by arguing  

                                                                                                                                                        



 for  partial  summary  judgment.                                 The  court  immediately  denied  summary  judgment  

                                                                                                                                                    



because there were remaining factual questions, and the case proceeded to trial.  

                                                                                                                                                           



                          The superior court first heard Sykes's testimony.  He testified that when  

                                                                                                                                                            



Mattice deeded the easement, the parties intended it for access to the 40-acre parcel  

                                                                                                                                                           



 Sykes had purchased from the State.   During trial opposing counsel questioned the  

                                                                                                                                          



 authenticity of Sykes's exhibits, leading the court to explain to Sykes that because  

                                                                                                                                                       

 another court previouslyfoundthat heforgeddocuments,1 and because theBorough does  

                                                                                                                                                               



not allow him to view documents "because they don't trust [him]," the court would give  

                                                                                                                                                               



his testimony "no weight, unless there's something else to corroborate it."  

                                                                                                                                                 



             1            See  generally Berkshires, L.L.C. v.  Sykes,  127  P.3d  1243  (Utah  App.  2005).   



                                                                                 -4-                                                                               7487  


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

                                                                                                                 

                    Mattice then testified that Sykes said he was purchasing the property "to  



                                                                                                                        

build a new home" for his family.  Mattice stated his intent that the easement provide  



                                                                                                                         

"[Sykes] and his family and, presumably, guests" access but that Mattice did not "intend  



                                                                                                                         

for the general public to have a right of access on [the] easement" because he "didn't  



                                                                                                                              

want that kind of traffic with kids and dogs and everybody running by [his] house." And  



                                                                                                                               

Mattice testified that Sykes never mentioned using the easement other than to access the  



                                                                                                                    

120 acres that Mattice conveyed to Sykes.  But Mattice indicated he did not remember  



                                                                             

a number of facts about events between 1969 and 1974.  



                                                                                                                              

                    Finally, the superior court heard testimony from Lawless. He testified that  



                                                                                                                         

he was concerned about increased traffic on the easement and the "hazard" of having  



                                                                                                                               

four-wheelers and snowmachines driving outside its boundaries.   He stated that the  



                                                                                          

easement use put his "house and property at risk" and that the gate was "necessary for  



                                                                                              

the health and safety" of his family and "the integrity of [his] property."  



                                                                                                                                 

                    The superior court made oral findings on the record.  It reiterated that it  



                                                                                                                      

would not grant Sykes's motion for partial summary judgment because factual questions  



                                                                                                                            

remained about Mattice's and Sykes's intent when they created the easement. The court  



                                                                                                                                     

found Sykes was not credible and his statements "ha[d] little, if any, probative value."  



                                                                                                                               

                    The superior court determined the deed was ambiguous because it did not  



                                                                                                                             

identify which parcels were included in the dominant estate.                                      The court found that  



                                                                                                                    

Sykes's 40-acre parcel was not part of the dominant estate because the only supporting  



                                                                                                                    

evidence that the 40 acres were included was Sykes's own testimony.  The court then  



                                                                                                                     

addressed the easement's scope.  It relied heavily on Mattice's "very clear" testimony  



                                                                                                                          

that Sykes had represented that the "entire 120 acres" was a homestead "where his family  



                                                                                                                                 

could  live."          The  court  found  a  "prima  facie  case  of  fraud"  as  "[t]here  was  a  



                                                                                                                                 

misrepresentation of intention, made for fraudulent purpose, to induce . . . Mattice to  



                                                                                                                         

enter into [theagreement],"andthecourt recognized the"well-known rule" that a litigant  



                                                               -5-                                                         7487
  


----------------------- Page 6-----------------------

"cannot use the courts to perpetrate a fraud."                                                                                                                                             The court therefore determined that the                                                                                                                



"easement may only be used by the single owner of that 120-acre parcel."                                                                                                                                                                                                                                      



                                                      The   superior  court   also   ordered   that   Sykes   could   no   longer   represent  



himself or appeal pro se in the Fourth Judicial District.                                                                                                                                                                     Lawless then asked the court to                                                                                          



rule on the legality of installing locked gates across the easement. He indicated he would                                                                                                                                                                                                                                            



like to maintain the current gate and install an additional gate on the east end of the                                                                                                                                                                                                                                                          



easement.   The court authorized both gates.                                                                                                                                       



                                                      In late May Lawless filed proposed findings of fact and conclusions of law                                                                                                                                                                                                                



and sought enhanced attorney's fees; that same day Sykes's new counsel entered an                                                                                                                                                                                                                                                                   



appearance. The superior court ruled on the attorney's fees and entered judgment in June                                                                                                                                                                                                                                                    



but did not distribute its orders.                                                                 



                                                      In July Sykes requested an extension of time to oppose the fee request and                                                                                                                                                                                                                



proposed findings.                                                            The superior court denied Sykes's motion, noting: "The service of                                                                                                                                                                                                       



the entry of appearance and the motion and proposed findings delivery to the other party                                                                                                                                                                                                                                                  



crossed in the mail."  Sykes filed the motion 26 days past the deadline for objecting to                                                                                                                                                                                                                                                              

                                                                                        2  and 22 days past the deadline for opposing the motion for fees.3  

the proposed findings                                                                                                                                                                                                                                                                                                                                              



The  court  rejected  Sykes's  argument  that  an  extension  was  warranted  because  his  

                                                                                                                                                                                                                                                                                                                                                



attorney had not been served, noting that under Alaska Civil Rule 5(b), "[s]ervice by  

                                                                                                                                                                                                                                                                                                                                                    



mail is complete upon delivery"; Lawless therefore completed service in late May.  The  

                                                                                                                                                                                                                                                                                                                                              



court also noted that Sykes should have provided the documents to his attorney after  

                                                                                                                                                                                                                                                                                                                                           



receiving them or his attorney should have found the documents on the online court  

                                                                                                                                                                                                                                                                                                                                         



docket.  

                                



                           2                          See   Alaska   R.   Civ.   P.   78(b)   (requiring   parties   objecting   to   proposed  



findings of fact to file and serve objections within five days of service).                                                                                                                                                                                    



                           3                          See  Alaska R. Civ. P. 77(c)(2) (requiring parties to file oppositions to  

                                                                                                                                                                                                                                                                                                                                                     

motions within ten days of service, barring enumerated exceptions).  

                                                                                                                                                                                                                                  



                                                                                                                                                                          -6-                                                                                                                                                              7487
  


----------------------- Page 7-----------------------

                                                                                                                           

                    In December the superior court issued its written rulings. The court denied  



                                                                                                                      

summary  judgment,  recognizing  there  were  remaining  questions  of  fact,  including  



                                                                                                                               

whether  "the 40[-a]cre [p]arcel and 120[-a]cre  [p]arcel are dominant estates of the  



                                                                                                                           

easement" and "by whom, and to what extent, an easement crossing" Lawless's 5-acre  



                                                                                                                        

parcel could be used.   It also determined the action was not barred by res judicata  



                                                                                                                               

because it addressed an ambiguity in the 1980 judgment, namely, which property was  



                                

the dominant estate.  



                                                                                                                                  

                    In the superior court's written findings of fact and conclusions of law, it  



                                                                                                                                  

found that when Sykes and Mattice negotiated in 1969 Sykes had expressed an intent to  



                                                                                                                                  

use the land "for his own personal homestead" and that it was reasonable for Mattice to  



                                                                                                                       

believeSykes's statement. Butit found"Sykesintentionally misrepresentedhisintention  



                                                                                                                            

to Mattice," and thus "[t]he easement was obtained fraudulently."  The court also found  



                                                                                                                               

the deed of easement was ambiguous and did not reference the 40-acre parcel, and "no  



                                                                                                                       

credible evidence" demonstrated that Sykes and Mattice mutually intended the easement  



                                                                                                                             

"to include access to any lot within the 40 acres."  With respect to credibility, the court  



                                                                                                                                

found Mattice credible, noting he "is not a party and ha[d] not been involved with the  



                                                                                                                                

property for many years."  On the other hand, it found Sykes not credible based on his  



                                                                                                                               

history of forging and altering documents.  The court therefore found that it could rely  



                                                                                                                      

on Sykes's statements only "if they [were] corroborated by other evidence."  



                                                                                                                             

                    The superior court then moved to its conclusions of law.  It found by clear  



                                                                                                                                 

and  convincing  evidence  that  "Sykes  intentionally  misrepresented  his  intentions  to  



                                                                                                                       

Mattice concerning the use of the property at the time of purchase" and that "Mattice  



                                                                                                                                

would  not  have  sold  the  property  to  Sykes  if  Sykes  [had]  been  truthful  about  his  



                                                                                                                            

intentions."  The court determined:  "[T]he easement is appurtenant only to the 120[- 



                                                                                                                

a]cre [p]arcel.  The scope of use of the easement described in the [d]eed of [e]asement  



                                                                -7-                                                         7487
  


----------------------- Page 8-----------------------

 is for one single family dwelling located on the 120[-a]cre [p]arcel.                                                                                                                             And such easement             



 is not appurtenant to the 40[-a]cre [p]arcel."                                                                                    



                                       Thesuperiorcourtgranted Lawless                                                                      enhanced attorney's fees,increasingthe                                                                  



 award   from   30%   to  75%.     The   court   noted   that   the   "litigation   was   not   inherently  



 complex" but that Sykes made it unnecessarily complex. The court found that Sykes had                                                                                                                                                            



 used "bad faith litigation tactics" and that he "attempt[ed] to use the court as a vehicle                                                                                                                                      



 to perpetrate his prior misrepresentation." It noted Sykes had committed fraud and likely                                                                                                                                                  



 introduced   altered   documents   into   evidence   during   the   trial.     Sykes   had   also   filed  



 "repetitive motions" that the court described as "convoluted and difficult to read."                                                                                                                                                          The  



 court entered final judgment awarding Lawless slightly over $53,000.                                                                                                             



                                        Sykes appeals.                              



 III.               DISCUSSION  



                                                                                                                                                            

                    A.                  This Litigation Is Not Barred By Res Judicata.  



                                                                                                                                                                                                                                             

                                        Sykes asserts that "res judicata bars Lawless from re-litigating the 1974  



 [d]eed of [e]asement in front of a different court over 38 years after judgment in 1980  



                                                                                                                                                                                                                                 

 was rendered regarding the same easement." "Whether res judicata applies is a question  



                                                                                                4  

                                                                            

 of law that we review de novo."                                                                       We also "review de novo whether the elements of  

                                                                                                                                                                                                                                                     



                                                                                 5  

 [issue preclusion] are met." 

                                                                 



                                        1.                 Claim preclusion  

                                                                                



                                       The doctrine of res judicata, or claim preclusion, "provides that a final  

                                                                                                                                                                                                                                              



judgment in a prior action bars a subsequent action if the prior judgment was (1) a final  

                                                                                                                                                                                                                                             



judgment on the merits, (2) from a court of competent jurisdiction, (3) in a dispute  

                                                                                                                                                                                                                                      



                    4                  Patterson v. Infinity Ins. Co.                                                      , 303 P.3d 493, 497 (Alaska 2013) (quoting                                                              



 Smith v. CSK Auto, Inc.                                              , 132 P.3d 818, 820 (Alaska 2006)).                                                



                    5                  Allstate Ins. Co. v. Kenick , 435 P.3d 938, 944 (Alaska 2019) (alteration in  

                                                                                                                                                                                                                                                      

 original) (quoting Lane v. Ballot, 330 P.3d 338, 341 (Alaska 2014)).  

                                                                                                                                                                                  



                                                                                                                          -8-                                                                                                                7487
  


----------------------- Page 9-----------------------

                                                                                                                                                                                                                6  

 between the same parties (or                                                    their   privies)   about the same cause of action."                                                                                  The  



 superior court found the first two elements were met; the 1980 judgment was a "final                                                                                                                            



judgment on the merits" rendered by "a court of competent jurisdiction," but Sykes could                                                                                                                            



 not satisfy the third element because this litigation involved a different cause of action                                                                                                                       



 and was not between the same parties or their privies.  Sykes argues the court erred in   



 reaching that determination.                                                



                                   The third element - that a dispute be "between the same parties (or their                                                                                                           

                                                                                                        7  - covers both "claims that were raised in the  

privies) about the same cause of action"                                                                                                                                                                                  

 initial proceeding . . . [and] those relevant claims that could have been raised."8  We have  

                                                                                                                                                                                                                      



 recognized:  



                                   The claims extinguished by the first judgment include "all  

                                                                                                                                                                                      

                                   rights of the plaintiff to remedies against the defendant with  

                                                                                                                                                                                    

                                   respect to all or any part of the transaction . . . out of which  

                                                        

                                   the   action   arose,"   [and]   a   mere   change   in   the   legal  

                                                                                                                                                                                

                                   theory asserted as a ground for recovery will not avoid the  

                                                                                                                                                                                       

                                   preclusive effect of the judgment.[9]  

                                                                                                 



 And we have relied on the Restatement (Second) of Judgments in holding:  "A final  

                                                                                                                                                                                                                      



judgment extinguishes all claims 'with respect to all or any part of the transaction, or  

                                                                                                                                                                                                                             

 series of connected transactions' out of which the previous action arose."10  The "factual  

                                                                                                                                                                                                              



                  6                Plumber v. Univ. of Alaska Anchorage                                                                 , 936 P.2d 163, 166 (Alaska 1997).                                        



                  7                Id.  



                  8  

                                                                                                                                                               

                                    Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981).  



                  9                DeNardo v. State                               , 740 P.2d 453, 456 (Alaska 1987) (citation omitted)                                                                     



                                                                                                                                                                                                            

 (quoting State v. Smith, 720 P.2d 40, 41 (Alaska 1986)); accord Donnelly v. Eklutna,  

Inc., 973 P.2d 87, 91 (Alaska 1999).                                           



                  10                Tolstrup  v.   Miller,   726  P.2d  1304,   1306  (Alaska  1986)   (quoting  

                                                                                                                                                                                                          

                                                                                                                                                                                               (continued...)  



                                                                                                              -9-                                                                                                    7487
  


----------------------- Page 10-----------------------

grouping [that] constitutes a 'transaction' is determined by 'whether the facts are related                                                                



                                                                                                                                                                    11  

in time, space, origin, or motivation,' and 'whether they form a convenient trial unit.' "                                                                               



But claim preclusion "does not act as a bar when the conduct giving rise to the second  

                                                                                                                                      



                                                                                             12  

suit occurs after the conclusion of the first suit."                                               

                                                                                    



                          We also have cited the Restatement (Second) of Judgments in discussing  

                                                                



the effect of judgments on successors to real property, stating: "A judgment in an action  

                                                                                                                                                            



that determines interest in real or personal property . . . [h]as preclusive effects upon a  

                                                                                                                                             



person who succeeds to the interest of a party to the same extent as upon the party  

                                                                                                                                                             

himself."13              A Comment to that Restatement indicates:   "[T]he judgment precludes  

                                                                                                                                                     



relitigation not only of claims concerning the property that were actually litigated but  

                                                                                                                                                                 

also claims that might have been litigated."14  

                                                                 



                          Lawless is a successor in interest to Wilks and therefore is bound by the  

                                                                                                                                                                  



 1980 judgment.   But claim preclusion does not bar Lawless from defending against  

                                                                                                                                                          



Sykes's  claims.                    Wilks  sought  only  to  terminate  the  easement;  the  superior  court  

                                                                                                                                                             



determined the easement was valid. But the judgment was ambiguous regarding whether  

                                                                                                                                                         



the dominant estate included the separate 40-acre parcel Sykes had purchased from the  

                                                                                                                                                                  



State and did not address the specific scope of the easement. And the conduct giving rise  

                                                                                                                                                                 



             10           (...continued)  



RESTATEMENT  (SECOND) OF  JUDGMENTS   § 24 (A                                                  M. L    AW  INST . 1982)).   



             11           Plumber, 936 P.2d                   at 167 (quoting R               ESTATEMENT (SECOND) OF JUDGMENTS  



§ 24(2) (A           M. L    AW  INST . 1982)).   



             12           Id.  



             13           Donnelly,   973   P.2d   at  92  n.24   (quoting   RESTATEMENT   (SECOND)   OF  



                         

JUDGMENTS  § 43 (A                     M. L     AW  INST . 1982)).   



             14  

                                                                                                        

                          RESTATEMENT (SECOND) OF JUDGMENTS § 43 cmt.                                                    b (A    M.L     AW INST. 1982).   



                                                                                -10-                                                                          7487
  


----------------------- Page 11-----------------------

to this suit - increased traffic on the easement and Lawless's installation of a gate -   



                                                             15  

occurred after the 1980 judgment.                                                                                                                 

                                                                 Lawless's defenses therefore could not have been  



                                                                                                         

brought in the initial litigation and are not barred by claim preclusion.  



                                               

                        2.          Issue preclusion  



                                                                                                                                       

                        The superior court also analyzed Sykes's argument under the doctrine of  



                                                                                                                                                           

collateral estoppel, or issue preclusion.  Sykes briefly mentions this doctrine on appeal.  



                                                                                                                                           

Issue  preclusion  "bars  the  relitigation  of  issues  actually  determined  in  [earlier]  



                        16  

proceedings"                                                

                           and requires four elements:  



                                                                                                                                 

                        (1) the party against whom the preclusion is employed was a  

                                                                                                                             

                        party to or in privity with a party to the first action; (2) the  

                                                                                                                         

                        issue  precluded  from  relitigation  is  identical  to  the  issue  

                                                                                                                       

                        decided in the first action; (3) the issue was resolved by the  

                                                                                                                             

                        first action by a final judgment on the merits; and (4) the  

                                                                                                                         

                        determination   of   the   issue   was   essential   to   the   final  

                       judgment. [17]  



The court determined issue preclusion did not apply because "[i]dentification of the  

                                                                                                                                                    



dominant  estate  [was]  not  an  issue  that  ha[d]  been  litigated."                                                      The  court  was  

                                                                                                                                                  



correct:  Issue preclusion requires that "the issue precluded . . . is identical to the issue  

                                                                                                           

decided in the first action."18   And the relevant issues in this case - which parcels were  

                                                                                                                                                  



included in the dominant estate, the easement's scope, and whether Lawless may install  

                                                                                                                                                



            15          See Plumber           , 936 P.2d at 167.         



            16         Latham v. Palin              , 251 P.3d 341, 344 (Alaska 2011) (alteration in original)                             



(quoting  Jeffries v. Glacier State Tel. Co.                              , 604 P.2d 4, 8 n.11 (Alaska 1979)).                



            17         Id. (quoting Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1110  

                                                                                                                                      

(Alaska 2002)).  

                



            18         Id. (quoting Midgett, 53 P.3d at 1110).  

                                                                                  



                                                                         -11-                                                                    7487
  


----------------------- Page 12-----------------------

gates - were not resolved in the Wilks litigation. Lawless's defenses to Sykes's claims                                                                                                     



therefore are not barred by issue preclusion.                                 



                B.	            The Superior Court Did Not Clearly Err By Finding That Only The                                                                                                   

                                120-AcreParcelWasTheDominant EstateAndTheEasement's                                                                                                         Scope  

                               Was For A Single-Family Home.                                     



                               "The touchstone of deed interpretation is the intent of the parties and where                                                                                 



                                                                                                                                      19  

possible the intention of the parties will be given effect."                                                                               Courts must apply a three- 



                                                                                   20  

                                                                                                                                                                                                    

step approach in interpreting deeds.                                                     The first step "is to look at the four corners of the  



                                                                                                                                                      21  

                                                                                                                                     

document to see if it unambiguously presents the parties' intent."                                                                                                                                       

                                                                                                                                                            "Whether a deed . . .  



                                                                                                                                       22  

                                                                                                                                                                                                 

is ambiguous is a question of law that we review de novo."                                                                                  "If the deed is open to only  



                                                                                                                                 23  

                                                                                                                  

one reasonable interpretation, our analysis ends there." 



                                                                                                                                                                                                      

                               "[I]f the document is ambiguous, the court considers extrinsic evidence of  



                                                                                                    24  

                                                                                                                                                                                           

the surrounding facts and circumstances."                                                                   In this second step, the "inquiry can be  



                                                                                                                                                                                                

broad, looking at 'all of the facts and circumstances of the transaction in which the deed  



                                                                                                                                                                                          25  

                                                                                                                                                                                               "We  

was executed, in connection with the conduct of the parties after its execution.' " 



                                                                                                                                                                                 

review  the  superior  court's  findings  regarding  the  parties'  intent  after  examining  



                19             HP Ltd. P'ship v. Kenai River Airpark, LLC                                                               , 270 P.3d 719, 727 (Alaska                      



2012) (quoting                      Estate of Smith v. Spinelli                                  , 216 P.3d 524, 529 (Alaska 2009)).                                 



                20	            Id.  



                21             McCareyv.Kaylor, 301 P.3d559,563(Alaska2013) (quoting Spinelli,216  

                                                                                                                                                                                                   

P.3d at 529).  

                  



                22	            Reeves v. Godspeed Props., LLC, 426 P.3d 845, 849 (Alaska 2018).  

                                                                                                                                                                                



                23              Offshore Sys.-Kenai v. State, Dep't of Transp. & Pub. Facilities, 282 P.3d  

                                                                                                                                                                                                 

348, 354 (Alaska 2012).  

                                          



                24             HP Ltd. P'ship, 270 P.3d at 727.  

                                                                                                  



                25             Id. (quoting Spinelli, 216 P.3d at 529).  

                                                                                                              



                                                                                                 -12-	                                                                                         7487
  


----------------------- Page 13-----------------------

                                                                   26  

extrinsic evidence for clear error."                                   Clear error "occurs when a review of the entire                                   



                                                                                                                                                                27  

record leaves us with a definite and firm conviction that a mistake has been made."                                                                                   



Finally, "[i]f no intent can be ascertained after examining both the document itself and  

                                                                                                                                                             



the extrinsic evidence," a court will reach the third step, which requires "resort[ing] to  

                                                                                                                                         

rules of construction."28  

                



                         The  superior  court  concluded  that  the  1974  deed  of  easement  was  

                                                                                                                                                           



ambiguous.                 We  agree;  the  deed  addressed  neither  the  40-acre  parcel  Sykes  had  

                                                                                                                                                            



purchased from the State nor the easement's specific scope.  

                                                                                                                   



                         The superior court then looked to "extrinsic evidence of the surrounding  

                                                                                                                                             

facts and circumstances."29  The court found Mattice's testimony credible and Sykes's  

                                                                                                                                             



testimony not credible.  It thus relied heavily on Mattice's trial testimony in finding that  

                                                                                                                                                             



Sykes's "easement was obtained fraudulently" because Sykes "expressed that his only  

                                                                                                                                                           



intent was to use the 120 acres for his own personal homestead."   Based on these  

                                                                                                                                                          



findings, the court ultimately determined that "[t]he easement is appurtenant only to the  

                                                                                                                                                              



 120[-a]cre [p]arcel for the purposes of providing access to a single family residence" and  

                                                                                                                                                             



that the parties' intent was for the easement to not include access to the 40-acre parcel  

                                                    



or allow a scope of use outside a single-family home.  

                                                                                                       



                         The superior court did not clearly err in its factual findings.  It relied on  

                                                                                                                                                               



Mattice's testimony, which it found credible, and "[w]e give deference to the superior  

                                                                                                                     



court's credibility assessments, especially when such assessments are based on oral  

                                                                                                                                                            



             26          Id.  



             27          Offshore Sys.-Kenai                    , 282 P.3d at 354.         



             28          HP Ltd. P'ship               , 270 P.3d at 727.         



             29          See id.   



                                                                              -13-                                                                        7487
  


----------------------- Page 14-----------------------

                                        30  

testimony."                                    We therefore affirm the court's decisions identifying the dominant estate                                                                                                                                                              



and the easement's scope.                                           



                       C.	                    The Superior Court Did Not Abuse Its Discretion By Determining                                                                                                                                              

                                              Lawless Could Install Locked Gates.                                                                            



                                              Sykes argues the superior court erred by ruling that Lawless could install                                                                                                                                                             



and maintain two locked gates over the easement.                                                                                                                                Sykes asserts that the gates are an                                                                              



"unreasonable interference" on his use of his property and "provide[] no security for any                                                                                                                                                                                                     



property owned by Lawless" but instead merely "inconvenience Sykes." Alternatively,                                                                                                                                                                       



 Sykes claims "[t]he record is insufficient to determine whether Lawless'[s] justifications                                                                                                                                                                   



to the locked gate[s] outweigh the inconvenience suffered by Sykes." Sykes also asserts                                                                                                                                                                                            



that the court's decision allowing the gates would prejudice him in a future claim for                                                                                                                                                                                                         



termination of the easement by prescription.                                                                                                              



                                              In   Williams   v.   Fagnani   we   addressed   a   locked   gate   installed  on   an  



                                   31  

easement.                                                                                                                                                                                                                                           

                                             We quoted the Restatement (Third) of Property in noting that "the holder  



                                                                                                                                                                                                                                                                                              

of the servient estate is entitled to make any use of the servient estate that does not  



                                                                                                                                                                                                 32  

                                                                                                                                                                                                                                                                                                   

unreasonably interfere with enjoyment of the servitude."                                                                                                                                                  We further explained that in  



                                                                                                                                                                                                                                                                                                  

deciding whether there is unreasonable interference, "the interests of the parties must be  



                                                                                                                                                                                                                                                                                              

balanced to strike a reasonable accommodation that maximizes overall utility to the  

                                                                                                                                                                                                                         33  With respect to gates,  

                                                                                                                                                                                                                                                                                      

extent consistent with effectuating the purpose of the easement." 



                       30                     Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                                                     



Servs., 310 P.3d 943, 949 (Alaska 2013).                                                                                



                       31                     228 P.3d 71 (Alaska 2010).  

                                                                                                                       



                       32                     Id. at 74 (quoting RESTATEMENT  (THIRD)  OF  PROPERTY: S                                                                                                                                            ERVITUDES  § 4.9   

                                                                                                          

(AM. L                  AW  INST . 2000)).   



                       33                     Id.  (quoting R                               ESTATEMENT  (THIRD) OF  PROPERTY:S                                                                                               ERVITUDES  § 4.9 cmt. c                                                   



                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                              -14-	                                                                                                                                      7487
  


----------------------- Page 15-----------------------

we noted that courts generally "hold that a locked gate constitutes an unreasonable                                                                                            



interference with the use of the easement, even though the dominant owner is furnished                                                                                                   



a key" but that "courts have permitted locked gates when such gates were necessary for                                                                                                                   

the servient owner to make reasonable use of the servient land."34  Noting that "courts  



have recognized that gates, especially locked gates, amount to a significant burden on a  

                                                                                                                                                                                                             



rural homeowner's right of access" we concluded that "gates must serve a substantial  

                                                                                                                                                                                     



benefit to the servient land if they are to be maintained across a roadway to a home";  

                                                                                                                                                                                             



examples of benefits justifying gates included enclosing livestock, protecting valuable  

                                                                                                                                                                                           

property, and protecting personal safety.35  

                                                                                  



                                We  must  decide  whether  the  superior  court  abused  its  discretion  by  

                                                                                                                                                                                                         

determining Lawless could install two locked gates.36                                                                                    And we hold that it did not.  

                                                                                                                                                                                                                  

Lawless cannot be said to have "unreasonably interfered with exercise of an easement"37  

                                                                                                                                                                                    



by erecting a gate that interferes with activities outside the easement's scope.   The  

                                                                                                                                                                                                    



burden on Sykes's personal use is minimal, as he does not have a single-family residence  

                                                                                                                                                                                          



                33              (...continued)  



(AM. L           AW  INST . 2000)).   



                34              Id.   at 75 (quoting J                           AMES   W. E                 LY, J       R. & J          ON   W. B             RUCE, T             HE   LAW   OF  



EASEMENTS & LICENSES IN LAND  § 8:28 (2009)).                                                      

                                                                   



                35              Id.  



                36  

                                                                                                                                                                                                           

                                 Cf. Green v. Parks, 338 P.3d 312, 315 (Alaska 2014) (applying abuse of  

                                                                                                                                                                                                  

discretion standard in reviewing superior court's balancing decision); Brause v. State,  

Dep't of Health &Soc. Servs.                                          , 21 P.3d 357, 360 (Alaska 2001) (same);                                                         Ross v. Ross                 , 496   

P.2d 662, 664 (Alaska 1972) (same).                                     



                37              SeeWilliams, 228 P.3dat 74 (quoting RESTATEMENT (THIRD) OF PROPERTY:  

                                                                                                                        

 SERVITUDES  § 4.9 cmt. c (A                                        M. L      AW  INST . 2000)).   



                                                                                                   -15-                                                                                             7487
  


----------------------- Page 16-----------------------

on the property.                      And the benefit for Lawless is substantial, as it protects his property                                                                   



from trespassers and traffic outside the easement's scope.                                                          



                              Sykes's argument that the gates subject him to a potential future claim of                                                                                      



termination oftheeasement                                     by prescription is unconvincing. "An                                              easement is terminated  



by prescription if the party claiming prescription can 'prove continuous and open and                                                                                                      



notorious   use   of   the   easement   area   for   a   ten-year   period   by   clear   and   convincing  

                           38   The period begins when "use of the easement 'unreasonably interfere[s]'  

evidence.' "                                                                                                                                                             

with the current or prospective use of the easement by the easement holder."39   The gates  

                                                                                                                                                                                        



are not an "unreasonable interference" because they were approved by the court; the  

                                                                                                                                                                                            



gates  therefore  could  not  be  evidence  in  a  future  claim  that  the  easement  was  

                                                                                                                                                                                         



extinguished by prescription.  

                                      



               D.	            TheSuperiorCourt DidNot Substantially PrejudiceSykesBy Holding  

                                                                                                                                                                                

                              Oral Argument On Summary Judgment The Same Day As Trial.  

                                                                                                                                                                              



                              Under Alaska Civil Rule 77(e) the superior court must hold oral argument  

                                                                                                                                                                              

on motions for summary judgment when requested.40  The argument must be held "no  

        



more than 45 days from the date the request is filed or the motion is ripe for decision,  

                                                                                                                                                                               

whichever is later."41   But even if the court's scheduling were contrary to Rule 77(e)(3),  

                                                                                                                                                                               



               38             Reeves   v.   Godspeed   Props.,   LLC,   426   P.3d   845,   851   (Alaska   2018)  



(quoting  Hansen v. Davis                                 , 220 P.3d 911, 916 (Alaska 2009)).                              



               39             Hansen, 220 P.3d at 916 (alteration in original) (quoting RESTATEMENT  

                                                                                                                                                                  

(THIRD) OF  PROPERTY:    SERVITUDES   § 4.9 (A                                                        M. L     AW  INST . 2000)).   



               40             Alaska R. Civ. P. 77(e)(1)-(2).          



               41             Alaska R. Civ. P. 77(e)(3).  

                                                                       



                                                                                             -16-	                                                                                      7487
  


----------------------- Page 17-----------------------

Sykes must "not only show error, but as a second step 'substantial prejudice' must also                                                       

be demonstrated."              42  



                       Sykes asserts that the superior court's decision to allow him to argue his  

                                                                                                                                               



summary judgment motions on the first day of trial "substantially prejudiced [his] ability  

                                                                                                                                          



to fully and fairly present his case" at trial.  But Sykes argued his motions before the  

                                                                                                                                               



court in August 2017; and even had the May 2018 trial been his only opportunity, he  

                                                                                                                                                



provides no indication of specific prejudice affecting the outcome of this case.  Even if  

                                                                                                                                                  



it were error for the court to delay oral argument on summary judgment until the first day  

                                                                                                                                              



of trial, we see nothing to suggest this delay substantially prejudiced Sykes.  

                                                                                                                                   



           E.	         The Superior Court Did Not Abuse Its Discretion By Denying Sykes's  

                                                                                                                                       

                       Motion For An Extension Of Time For Post-Trial Motions.  

                                                                                                                   



                       Sykes also appeals the superior court's denial of his motion for extension  

                                                                                                                                    



of time to object to the proposed findings and to oppose the attorney's fees motion.  As  

                                                                                                                                                



discussed above, the superior court denied Sykes's motion, which was filed over 20 days  

                                                                                                                                             

past the deadline.43  "We apply the abuse of discretion standard when reviewing superior  

                                                                                                                                      

courts' rulings on motions for extension of time."44  

                                                                                                                                    

                                                                                       "We will find an abuse of discretion  



                                                                                                   45  

                                                                          

when the decision on review is manifestly unreasonable." 



           42	         See  McCracken  v.  Davis,  560  P.2d  771,  774  (Alaska  1977)  (quoting  Sloan  



v.  Atl.  Richfield  Co.,  541  P.2d  717,  722  (Alaska  1975));  see  also  Bennett  v.  Hedglin,  995  

P.2d  668,  674  (Alaska  2000) ("A  party  on  appeal  who  alleges t  hat  oral  argument  was  

improperly  denied  must  show  both  that  the  denial  was  in  error  and  that  the  error  caused  

substantial  prejudice."  (quoting  Cleary  Diving  Serv.,  Inc.  v.  Thomas,  Head  &  Greisen,  

688  P.2d  940,  942  (Alaska   1984))).  



           43          See Alaska R. Civ. P. 77(c)(2), 78(b).  

                                                                              



           44          Erica G. v. Taylor Taxi, Inc., 357 P.3d 783, 786 (Alaska 2015).  

                                                                                                                         



           45          Id. at 786-87 (quoting Ranes & Shine, LLC v. MacDonald Miller Alaska,  

                                                                                                                                        

                                                                                                                             (continued...)  



                                                                      -17-	                                                                7487
  


----------------------- Page 18-----------------------

                         A request for enlargement of time must be made before the filing deadline                                                  



                                                                                                                        46  

unless "the failure to act was the result of excusable neglect."                                                                                 

                                                                                                                              To prove excusable  

                                                                                                                                                   47  Sykes  

neglect, "a party must show both neglect and a valid excuse for that neglect." 



argues that his failure to meet the deadline was "the result of excusable neglect" because  

                                                                                                                                                     



his attorney "was waiting for the court's distribution of a judgment triggering the time  

                                                                                                                                 



to file a motion and opposition to fees" and because "Lawless had an obligation to serve  

                                                                                                                                                          



 [Sykes's attorney] a copy of his motion once he received her entry of appearance, but  

                                                                                                                                                              



failed to do so."  

                                 



                         The superior court correctly determined that Lawless was not required to  

                                                                                                                                                                



serve Sykes's newly appearing attorney because he already had completed service to  

                                                                                                                                                                



Sykes  under  Alaska  Civil  Rule  5(b).                                     And  the  two  "excuses"  Sykes  provided  are  

                                                                                                                                          



unconvincing.   First, Sykes's attorney claimed that Sykes did not advise her of the  

                                                                                                                                                              



motions  because  he  was  traveling  abroad.                                             As  the  court  noted,  this  excuse  was  

                                                                                                                                                           



"insufficiently supported for the court to conclude that he was not able to communicate";  

                                                                                                                                        



further, "it is not unreasonable to require a litigant to make some arrangements for  

                                                                                                                                                              



monitoring litigation mail."  The second excuse was that Sykes's attorney "did not see  

                                                                                                                                                              



the motion" on the court's online systemdespite checking it "occasionally." This excuse  

                                                                                                                                                       



is unconvincing because the attorney's fees motion and proposed findings were listed in  

                                                                                                                                                                 



the online docket more than a month before Sykes's motion for an extension of time was  

                                                                                                                                                             



filed.  The court therefore did not abuse its discretion by denying the motion.  

                                                                                                                                    



             45          (...continued)  



                                                              

Inc., 355 P.3d 503, 508 (Alaska 2015)).  



             46          Alaska R. Civ. P. 6(b).  

                                                            



             47  

                                                                                                                                                          

                         Erica G., 357 P.3d at 787 (quoting Coppe v. Bleicher, No. S-13631, 2011  

WL 832807, at *5 (Alaska Mar. 9, 2011)).                           



                                                                              -18-                                                                        7487
  


----------------------- Page 19-----------------------

            F.	         The   Superior   Court   Did   Not   Abuse   Its   Discretion   By   Awarding  

                        Enhanced Attorney's Fees.                  



                        "We   review   an   award   of   attorney's   fees   under   Alaska   Civil   Rule   82,  



                                                                                                                                  48  

including an award of enhanced attorney's fees, for abuse of discretion."                                                                                

                                                                                                                                      We "find an  



                                                                                                                                    

abuse of discretion [only] if an award is 'arbitrary, capricious, manifestly unreasonable,  



                                                                       49  

                                                                                                                                      

or the result of an improper motive.' "                                      "But because an enhanced fee award under  



                                                                                                                                             

Rule 82(b)(3)(G) 'calls into question [a party's] litigation conduct and the potential  



                                                                                      

merits of [the party's] underlying . . . motions, we assess de novo the legal and factual  



                                                                                                                                                          50  

                                                                                                                                                         

viability of [the party's] motions and review relevant findings of fact for clear error.' " 



                                                                                                                                                     

                        Rule 82 allows a court to "vary an attorney's fee award" based on "the  



                                                                                                                    51  

                                                                                                                                                  

complexity of the litigation" and "vexatious or bad faith conduct."                                                      As discussed above,  



                                                                                                                                       

the superior court granted Lawless enhanced attorney's fees, increasing the presumptive  



                                                                                                                                                         

award from 30% to 75%.  The court noted that Sykes had "added unnecessary levels of  



                                                                                                                                           

complexity," used "bad faith litigation tactics," and "filed multiple repetitive motions,"  



                                                                                                      

many of which "were convoluted and difficult to read."  



                                                                                                                                           

                        Sykes argues that the superior court erred by awarding enhanced attorney's  



                                                                                                                                                        

fees. He asserts that the court and Lawless made the litigation more complex, noting the  



                                                                                                                                                        

multiple requests for time extensions Lawless filed. Sykes also argues that he did not act  



                                                                                                                                                 

in bad faith; he  claims that the court can consider the party's conduct only during  



                                                                                                                                                        

litigation to determine whether there was bad faith and that the court thus erred by  



            48	         Herring v. Herring                 , 373 P.3d 521, 528 (Alaska 2016).                  



            49          Keenan v. Meyer                , 424 P.3d 351, 356 (Alaska 2018) (quoting                                       Johnson v.   



Johnson, 239 P.3d 393, 399 (Alaska 2010)).                          



            50          Herring, 373 P.3d at 528 (first and second alterations in original) (quoting  

                                                                                                                                              

Johnson, 239 P.3d at 399).  

                                        



            51          Alaska R. Civ. P. 82(b)(3)(A), (G).  

                                                                                 



                                                                           -19-	                                                                   7487
  


----------------------- Page 20-----------------------

considering his conduct in the transaction with Mattice.                                                                        Sykes finally argues that the                             



courtimproperly                       granted enhanced attorney's fees "asasubstitutefor punitivedamages."                                                                                         



                              The   superior  court   did   not   abuse   its   discretion   by   granting   enhanced  



attorney's fees.                    As discussed above, the court did not clearly err by finding that Sykes                                                                         



committed   fraud   with   respect   to   the   easement's   scope.    Sykes   is   correct   that   an  



enhancement must rely on "bad faith conduct . . . [that] occurr[ed] during the litigation,                                                                                  

                                                                                                                                                               52   But the court  

not during the underlying transaction that is the subject of the litigation."                                                                                                         



did not rely on Sykes's fraud in the underlying transaction as justification for finding bad  

                                                                                                                                                                                          



faith; it instead relied on Sykes's "attempt to use the court as a vehicle to perpetrate his  

                                                                                                                                                                                           



prior  misrepresentation."                                   It  was  not  error  for  the  court  to  conclude  that  bringing  

                                                                                                                                                                             



litigation "to expand the scope of a fraudulently obtained easement" was itself bad faith  

                                                                                                                                                                                       



conduct.                 It  also  was  not  error  for  the  court  to  determine  that  filing  numerous  

                                                                                                                                                                          



"convoluted and difficult to read" motions made the litigation unnecessarily complex.  

                                                                                                                                                                                                   



There is no indication that the court granted enhanced attorney's fees as a substitute for  

                                                                                                                                                                                           



punitive damages; the court explained the reasons it granted enhanced attorney's fees.  

                                                                                                                                                                                                   



These reasons did not include any separate punitive purposes, "and we will not infer such  

                                                                                                                                                                                       

an intent when the [enhanced] fee award was itself well supported."53                                                                                              We therefore  

                                                                                                                                                                             



affirm the enhanced fee award.  

                                                       



               G.             Sykes's New Allegations Of Incapacity Are Waived.  

                                                                                                                                      



                              Sykes  argues  that  the  judgment  is  void  because  of  his  alleged  mental  

                                                                                                                                                                                 



incapacity  during  trial.                                  He  asserts  that  "the  court  should  have  examined  [his]  

                                                                                                                                                                                     



competency to represent himself and appoint[ed] a guardian if necessary."   But that  

                                                                                                                                                                                        



               52             Keenan, 424 P.3d at 361 (alterations in original) (quoting                                                                      Cole v. Bartels                   ,  



4 P.3d 956, 961 n.24 (Alaska 2000)).                               



               53             See id. at 363.  

                                                    



                                                                                            -20-                                                                                      7487
  


----------------------- Page 21-----------------------

argument is not properly before us.                                                              Sykes did not ask for a guardian ad litem before the                                                                                



superior court, and the court never made an adjudication regarding his competency.                                                                                                                                                             



Lawless once requested in a filing that Sykes be appointed a guardian, but Sykes failed                                                                                                                                       



to respond to the issue.                                         Sykes was required to first raise this argument in a Rule 60(b)                                                                                              

                                                                                         54 he may not raise it for the first time on appeal.55   This  

motion before the superior court;                                                                                                                                                                                                



argument is therefore waived.  

                                                             



IV.               CONCLUSION  



                                     We AFFIRM the superior court's decision.  

                                                                                                                                   



                  54                 Cf. Stinson v. Holder                                     , 996 P.2d 1238, 1240-43 (Alaska 2000) (reviewing                                                               



superior court's denial of Rule 60(b) motion arguing party's incompetence).                                                                                            



                  55                See  Adkins  v.  Collens,  444  P.3d  187,  195  (Alaska  2019)  (noting  that  

                                                                                                                                                                                                                                  

"[a]rguments raised for the first time on appeal are generally waived"); Hoffman Constr.  

                                                                                                                                                                                                                         

Co. of Alaska v. U.S. Fabrication &Erection, Inc., 32 P.3d 346, 355 (Alaska 2001) ("As  

                                                                                                                                                                                                                                 

a general rule, we will not consider arguments for the first time on appeal.").  

                                                                                                                                                                                        



                                                                                                                 -21-                                                                                                           7487
  

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