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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
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.
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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.
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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
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----------------------- 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
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----------------------- 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).
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----------------------- 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.
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----------------------- 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...)
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----------------------- 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)).
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----------------------- 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).
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----------------------- 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...)
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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)).
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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).
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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.
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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.").
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