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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Keven Windel and Marlene Windel v Matanuska-Susitna Borough (10/8/2021) sp-7560

Keven Windel and Marlene Windel v Matanuska-Susitna Borough (10/8/2021) sp-7560

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                         

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                      



KEVEN  WINDEL  and  MARLENE                                     )  

WINDEL,                                                         )     Supreme  Court  No.  S-17159  

                                                                )  

                                Appellants,                                                                                    

                                                                )     Superior Court No. 3PA-15-02151 CI  

                                                                )  

           v.                                                                             

                                                                )    O P I N I O N  

                                                                )  

MATANUSKA-SUSITNA                                                                                          

                                                                )    No. 7560 - October 8, 2021  

BOROUGH,                                                        )  

                                                                )  

                                Appellee.                       )  

                                                                )  



                                                                                                             

                                           

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

                                                                                                      

                     Judicial District, Palmer, Jonathan A. Woodman, Judge.  



                                                                                                              

                     Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,  

                                                                                                                 

                     Anchorage, and Marlene Windel and Keven Windel, pro se,  

                                                                                                        

                     Wasilla,  for  Appellants.                    John  Aschenbrenner,  Deputy  

                                                                                                      

                     Borough  Attorney,  and  Nicholas  Spiropoulos,  Borough  

                                                                                                          

                     Attorney,  Matanuska-Susitna  Borough  Attorney's  Office,  

                                         

                     Palmer, for Appellee.  



                                                                                        

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

                                                

                     and Borghesan, Justices.  



                                           

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                     Property owners sued the Matanuska-Susitna Borough, challenging the  



                                                                                                                                            

validity of easements that cross their property to give access to neighboring residences.  


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

The   superior   court   dismissed   most   of   the   property   owners'   claims   on   res   judicata  



grounds, reasoning that the claims had been brought or could have been brought in two                                                                                                                                                                                                                                                                                             



earlier suits over the same easements. The court also granted the Borough's motions for                                                                                                                                                                                                                                                                                               



summary  judgment   or   judgment   on   the   pleadings   on   the   property   owners'   claims  



involving the validity of construction permits, redactions in public records, and whether                                                                                                                                                                                                                                                                      



the Borough had acquired a recent easement through the appropriate process.                                                                                                                                                                                                                                          



                                                            One claimremained                                                                        to be tried: whether                                                                     the Borough violated the property  



owners' due process rights by towing their truck from the disputed roadway.                                                                                                                                                                                                                                                                          The court   



found in favor of the Borough on this claim as well and awarded the Borough enhanced                                                                                                                                                                                                                                                                    



attorney's fees, finding that the property owners had pursued their claims vexatiously                                                                                                                                                                                                                                                        



and in bad faith.                                                          The property owners appeal.                                                                        



                                                            We conclude that the superior court correctly applied the law and did not                                                                                                                                                                                                                                               



clearly err in its findings of fact. We therefore affirm the superior court's judgment.                                                                                                                                                                                                                                                  



II.                           FACTS AND PROCEEDINGS                                             



                              A.                            Facts  



                                                            Keven and Marlene Windel purchased three contiguous lots near Wasilla                                                                                                                                                                                                                               

in 1986, 1987, and 1998 from Robert and Evelyn Davis and their successors in interest.                                                                                                                                                                                                                                                                                                          1  

                                                                                                                                                                                                                                                                                                                                                                                                        



Davis Road, which passes through the Windels' parcels designated W1 and W2, is  

                                                                                                                                                                                                                                                                                                                                                                                          



encumbered by a 50-foot-wide public easement that preexisted the Windels' purchase  

                                                                                                                                                                                                                                                                                                              

of the property.2  The Windels have contested others' rights to use Davis Road in four  

                                                                                                  



lawsuits including this one. This suit involves two easements on the Windels' stretch of  

                                                                                                                                                                                                                                                                                                                                                                                          



                              1                             See Windel v. Mat-Su Title Ins. Agency, Inc.                                                                                                                                                             , 305 P.3d 264, 267 (Alaska                                                               



2013) (setting out, in previous appeal, relevant underlying facts).                                                                                                                                                                                                    



                              2                            Id.  



                                                                                                                                                                                            -2-                                                                                                                                                                              7560
  


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                                                                                                                 3  

Davis Road (the Davis and Smith/Johnson easements);                                                                  two easements that provide               



access from Davis Road to adjacent properties (the Mason and Vision View easements);                                                                  



and   an   easement  that  provides   a   turnaround   at   the   end   of   Davis   Road   (the   Biss  



easement).   



                           1.           The Carnahan and title company suits                                     



                                                                                                                                                    4  

                           Thomas Carnahan owned property accessible by Davis Road.                                                                                       

                                                                                                                                                        In 2004, in  



                                                                                                                                                                

the process of subdividing his property, he attempted to upgrade the road to satisfy  



                                                                                                                                     5  

                                                                                                                                                                    

conditions the Borough had placed on his subdivision application.                                                                        The Windels sued  



                                                                                                                         

Carnahan, claiming that his work on the road had damaged their property and seeking  



                                                                                                                                                                     

a declaratory judgment that the Davis Road easement was only 14 feet wide rather than  



      6  

                                                                                                                                                                 

50.       The superior court granted summary judgment to Carnahan on the Windels' claims  



                                                                                                  7  

                                                                               

regarding the scope and validity of the easement. 



                                                                                                                                                                       

                           The Windels next sued Mat-Su Title and Security Union Title, which had  



                                                                                                                                                                       

provided  title insurance for  the  Windels'  1986  purchase of W1 and  had noted  the  



                                                                           8  

                                                                                                                                                                       

existence of the Davis Road easement.                                         The Windels alleged that the title companies had  



                                                                                                                                                            

breached duties in both tort and contract by failing to evaluate the easement's potential  



             3             The   Davis   easement   has  been  variously   identified   as   the   Davis   Road  



easement   and  the   South  Davis  Road   easement   at  different  times  during  the  Windels'  

lawsuits.   We  use  the  term  "Davis  Road  easement"  to  designate  that  portion  of  the  Davis  

Road  easement  that  encumbers  W1,  and  we  use  the  term  "Smith/Johnson  easement"  to  

designate  the  portion  that  encumbers  W2.  



             4            Mat-Su Title, 305 P.3d at 267.  

                                                                               



             5            Id.  



             6            Id. at 268.  

                                       



             7            Id.  



             8            Id.  



                                                                                    -3-                                                                            7560
  


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                  9  

invalidity.     The   superior   court   granted   summary   judgment   to   the   title   companies,  



concluding that the Davis Road, Smith/Johnson, Vision View, and Mason easements                                                    



                         10  

were all valid.              



                                                                                                                                           

                       The Windels appealed both the Carnahan and the title company cases,  

                                                             11   We affirmed the superior court's judgment in the  

                                                                                                                                                

which we consolidated for decision. 



Carnahan case that "the Davis Road easement over W1 is a valid 50-foot easement," and  

                                                                                                                                               



we affirmed the judgment in the title company case because "the representation the title  

                                                                                                                                               



companies made - that the Windels' property was subject to a 50-foot wide roadway  

                                                                                                                                      

easement - was true."12  

                                            



                       2.         The first Matanuska-Susitna Borough suit  

                                                                                                          



                       In 2014 the Windels filed suit against the Borough and Vision View Estates  

                                                                                                                                          



Owners Association,which represented thehomeownersin Carnahan'ssubdivision. The  

                                                                                                                                               



Windels sought to enjoin any further improvement of Davis Road, alleging that "[a] legal  

                                                                                                                                             



question presently exists as to whether the entire Davis Road is a private road or a public  

                                                                                                                                          



road." They accused the Borough of failing to go through the required public processes  

                                                                                                                                     



for accepting public easements and for spending money on Davis Road's maintenance.  

                                                                                                                                                       



                       The Windels also claimed that they were "in the process" of constructing  

                                                                                                                                



an   alternate   access   route   to   the   properties   reachable   via   the   Smith/Johnson  

                                                                                                                          



easement - crossing  their  parcel  W2  - which the Windels alleged  had  not been  

                                                                                                                                             



involved in the prior litigation. They asserted that as of October 2014, when the alternate  

                                                                                                                                       



access "should be [completed]," the Smith/Johnson easement would terminate by its  

                                                                                                                                                 



           9           Id.  



            10         Id.  at 269.   



            11         Id.  at 270.   



            12         Id.  at 273, 274.     



                                                                        -4-                                                                 7560
  


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

express terms. They further asserted that the potential termination of the Smith/Johnson  

                                                                                                             



easement meant that the Borough could not lawfully accept the Davis Road easement,  

                                                                                                            



because the termination provision was an encumbrance and the Borough was limited by  

                                                                                                                                



ordinance to accepting rights of way that were unencumbered.  

                                                                                                  



                    Vision View moved to dismiss the Windel's claims on res judicata grounds  

                                                                                                                        



and for failure to state a claim on which relief could be granted. The Borough joined the  

                                                                                                                               



motion, which the superior court granted in February 2015 with a handwritten notation:  

                                                                                                                                     



"No opposition filed despite [notice]."  The Windels again appealed to this court, but  

                                                                                                                               



they voluntarily dismissed their appeal before we heard it.  

                                                                                          



          B.        Current Proceedings  

                                   



                    The Windels sued the Borough again in 2015, challenging the validity of  

                                                                                                                    



the  Davis  Road,  Smith/Johnson,  Mason,  Vision  View,  and  Biss  easements.                                            They  

                                                                                                                            



challenged redactions in Borough documents they had obtained through public records  

                                                                                                                         



requests and the validity of construction permits issued for Davis Road's maintenance.  

                                                                                                                                     



They also sought reimbursement for costs they had incurred when the Borough towed  

                                                         



their truck from where it was allegedly impeding traffic on Davis Road.  

                                                                                                               



                    The superior court disposed of most of the Windels' claims before trial.  It  

                                                                                                                                  



dismissed the majority of them on res judicata grounds, reasoning that they either were  

                                                                                                                            



raised or could have been raised in the Windels' earlier suits.  The court dismissed the  

                                                                                                                               



challenge to the Borough's acceptance of the newer Biss easement for failing to state a  

                                                                                                                                  



claim upon which relief could be granted. It upheld the Borough's document redactions  

                                                                                                                    



based  on  attorney-client  privilege  and  affirmed  the  validity  of  the  challenged  

                                                                                                                  



construction permits.  On the one issue remaining - the allegedly wrongful towing of  

                                                                                                                                 



the Windels' truck - the court held a bench trial and concluded that the towing was  

                                                                                                                              



lawful and the Windels were owed no damages.  

                                                                            



                                                               -5-                                                         7560
  


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

                                The court entered                            final judgment for the Borough on all the Windels'                                                      



claims. It     then awarded the Borough "80%of                                                           [its] actual attorney's fees, or $48,620.00,"  



finding that the Windels' "claims were baseless, unreasonable, frivolous, and brought in                                                                                                                



bad faith."                The Windels appeal.              



III.	           STANDARD OF REVIEW                          



                               We review summary judgment decisions de novo, "affirming if the record                                                                                        



presents no genuine issue of material fact and if the movant is entitled to judgment as a                                                                                                                



                                    13  

matter of law."                                                                                                                                                                      

                                          We also review "the grant of a motion for judgment on the pleadings  



                       14  

                              

de novo." 



                                                                                                                                                                  

                               We review de novo whether res judicata or a privilege applies, using our  



                                                       15  

                                                                                                                                                                                                     

                                                              "We apply our independent judgment when interpreting the  

independent judgment. 



                                                                                                                                           16  

                                                                                                                         

Alaska Statutes, municipal charters, and municipal codes." 



IV.	            DISCUSSION  



                                                                                                                                                                                     

                A.	             The Superior Court Was Correct To Dismiss 13 Of The Windels'  

                                                                                              

                                Claims On Res Judicata Grounds.  



                                                                                                                                                                                                       

                                The superior court applied res judicata to 13 of the Windels' claims, all of  



                                                                                                                                                                                           

which consisted of either procedural or substantive attacks on the validity of the various  



                                                                                                                                                                                                      

Davis Road easements.  The res judicata doctrine prevents a party from reasserting "a  



                13             Ebli v. State, Dep't of Corr.                                   , 451 P.3d 382, 386-87 (Alaska 2019) (quoting                                            



Olson v. City of Hooper Bay                                        , 251 P.3d 1024, 1030 (Alaska 2011)).                                                        



                14             Anderson v. State, Dep't of Admin., Div. of Motor Vehicles , 440 P.3d 217,  

                                                                                                                                                                                                  

219 (Alaska 2019) (quoting Cornelison v. TIG Ins., 376 P.3d 1255, 1267 (Alaska 2016)).  

                                                                                                                                                                                                              



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

                                                                                                                                                                                            

(res  judicata);  Griswold  v.  Homer  City  Council,  428  P.3d  180,  185  (Alaska  2018)  

                                                                                                                                                                                             

(privilege).  



                16             Municipality of Anchorage v. Holleman, 321 P.3d 378, 381 (Alaska 2014).  

                                                                                                                                                                                             



                                                                                                   -6-	                                                                                         7560
  


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

                                                                                                                        17  

 cause of action that has already been litigated and decided."                                                               "A judgment is given res                     



judicata effect . . . when it is (1) a final judgment on the merits, (2) from a court of                                                                                   



 competent jurisdiction, (3) in a dispute between the same parties (or their privies) about                                                                         

                                                           18      Privies  include  non-parties  who  "(1)  substantially  

the   same   cause   of   action."                                                                                                                   



participated  in  the  control  of  a  party's  presentation  in  the  adjudication  or  had  an  

                                                                                                                                                                          



 opportunity to do so; (2) agreed to be bound by the adjudication between the parties; or  

                                                                                                                                                                            

 (3) [were] represented by a party in a capacity such as trustee, agent, or executor."19                                                                                    If  

                                                                                                                                                                            



the res judicata doctrine applies, "it precludes relitigation between the same parties not  

                                                                                                                                                                         



 only of claims that were raised in the initial proceeding, but also of those relevant claims  

                                                                                                                                                                   

that could have been raised then."20  

                                                         



                           The Windels argue that their 13 dismissed claims satisfy neither the privity  

                                                                                                                                                                  



requirement nor the same cause of action requirement of the res judicata doctrine.  But  

                                                                                                                                                                        



we agree with the superior court's decision that the doctrine applies.  

                                                                                                                            



                            1.           The privity requirement is met for all 13 claims.  

                                                                                                                                  



                           We first address whether this suit and the two on which the superior court  

                                                                                                                                                                     



relied for res judicata - the 2005 Carnahan suit and the 2014 Borough suit - involved  

                                                                                                                                                              



              17            Conitz v. Alaska State Comm'n for Human Rights                                                           , 325 P.3d 501, 507               



 (Alaska 2014) (quoting                         Smith v. CSK Auto, Inc.                         , 132 P.3d 818, 820-21 (Alaska 2006)).                           



              18           Patterson, 303 P.3d at 497 (quoting Angleton v. Cox , 238 P.3d 610, 614  

                                                                                                                                                                        

 (Alaska 2010)).  

                                  



              19           Strong v. Williams, 435 P.3d 872, 875 (Alaska 2018) (quoting State, Dep't  

                                                                                                                                                                    

 of Health & Soc. Servs., Office of Children's Servs. v. Doherty, 167 P.3d 64, 73 (Alaska  

                                                                                                                                                                

 2007)).  

                 



              20           Patterson, 303 P.3d at 497 (quoting Calhoun v. Greening, 636 P.2d 69, 72  

                                                                                                                                                                           

 (Alaska 1981)).  

                                  



                                                                                     -7-                                                                             7560
  


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

                                                          21  

"the   same   parties   (or   their   privies)."                The   Borough   was   not   a   party   to   the   2005  



                      22  

Carnahan suit,                                                                                                                

                         as the Windels point out. But in the 2014 Borough suit - involving the  



                                                                                                                     

same parties as this case - the court concluded that res judicata barred the Windels'  



                                                                                                                  

claims because of the final judgment in the Carnahan suit; this conclusion necessarily  

                                                                                            23  The Windels appealed  

                                                                                                                     

included a finding that the privity requirement was satisfied. 



that order but voluntarily dismissed their appeal.  This means that privity between the  

                                                                                                                              



parties to the Carnahan suit and those to the 2014 Borough suit was established by  

                                                                                                                               



res judicata.  The parties to this suit are the same as they were in the 2014 suit.  The  

                                                                                                                             

"same parties (or their privies)"24   element of res judicata is thus established, as the  

                                                                                                                              



superior court correctly concluded.  

                                                       



                    2.        The same cause of action requirement is met for all 13 claims.  

                                                                                                                                   



                    We next address the same cause of action requirement: whether the claims  

                                                                                                                         



raised in this case are the same claims raised in the Carnahan suit and the 2014 Borough  

                                                                                                                      



          21        Id.  



          22        See  Windel  v.  Mat-Su  Title  Ins.  Agency,  Inc.,  305  P.3d  264,  268-70  (Alaska  



2013).  



          23        The  summary  judgment  order  in  the  2014  Borough  case  did  not  explain  the  



court's  reasoning  other  than  to  note  the  absence  of  opposition,  but  "  '[w]hen  a  trial  court  

grants  summary  judgment  without  stating  its  reasons,'  we  'presume[]  that  the  court  ruled  

in   the  movant's   favor   on   all   of   the   grounds stated.'   "    Guerrero   ex   rel.   Guerrero   v.  

Alaska  Hous.  Fin.  Corp.,  123  P.3d  966,  974  (Alaska  2005)  (second  alteration  in  original)  

(quoting  Reed  v.  Municipality  of  Anchorage,  741  P.2d  1181,  1184  (Alaska  1987)).   The  

Borough  had  argued  that  it  was  in  privity  with  Carnahan  because  he  sought  to  establish  

the  easement's  validity  on  behalf  of  the  public,  which  included  the  Borough.   



          24        Patterson, 303 P.3d at 497 (quoting Calhoun, 636 P.2d at 72).  

                                                                                                             



                                                               -8-                                                        7560
  


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

suit or are "relevant claims that could have been raised then."25  In the 2005 Carnahan                                                            



suit the superior court determined that the Davis Road easement, the Smith/Johnson                                                                 



easement,   the   Vision   View   easement,   and   the   Mason   easement   were   all   valid;   we  

                                                                                 26   In 2014 the superior court presumably relied  

affirmed the superior court's judgment.                                                                                                                                



on the Carnahan case when it dismissed the Windels' challenges on res judicata grounds.  

                                                                                                                                                                                    



And the superior court in this case relied on both the 2005 and 2014 cases in disposing  

                                                                                                                                                               



of the Windels' claims, again on res judicata grounds. We must therefore decide whether  

                                                                                                                                                                  



the claims here involve the same causes of action as the 2005 Carnahan and 2014  

                                                                                                                                                                        



Borough cases.  

                                   



                            Counts 1, 2, 3, 4, 10, and 11 of the Windels' complaint challenge the  

                                                                                                                                                                            



validity  of  the  Davis  Road  and  Mason  easements.                                                           The  superior  court  found  both  

                                                                                                                                                                         

                                                                                                                                                  27     In the 2014  

easements to be valid  in the 2005 Carnahan case, and we affirmed.                                                                                                      

                                                                                                                               



Borough case the superior court dimissed a challenge to the continuing validity of the  

                                                                                                                                                                            



Smith/Johnson easement on res judicata grounds. As counts 1, 2, 3, 4, 10, and 11 either  

                                                                                                                                                                       



were raised or could have been raised in the 2005 case, the superior court correctly  

                                                                                                                                



concluded that they were barred again on res judicata grounds.  

                                                                                                                



                            Counts 6, 7, and 8 of the Windels' complaint contend that the Borough  

                                                                                                                                                                



should never have accepted jurisdiction over Davis Road, cannot lawfully spend public  

                                                                                                                                                                      



money on its maintenance, and, even if it accepts the road, cannot maintain it to Vision  

                                                                                                                                                                     



View, which the Windels argue is an illegal subdivision. The superior court determined  

                                                                                                                                                            



              25           Id.  (quoting  Calhoun, 636 P.2d at 72).                                



              26           Mat Su Title              , 305 P.3d at 273.                    The appeal in the Carnahan case involved                             



only the width of the Davis Road easement, Carnahan's responsibilities for maintenance,                                                                 

and attorney's fees; the Windels did not appeal issues specific to the other easements.  

                                                                                                                                                                                    

Id.  at 270.   



              27           Id. at 273.  

                                        



                                                                                      -9-                                                                               7560
  


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

                                                                                                        

that these claims were raised or could have been raised in the 2014 case.  That lawsuit  



                                                                                                                              

directly  challenged  both  the  Borough's  acceptance  of  Davis  Road  as  a  public  use  



                                                                                                                               

easement and its maintenance of the road leading to the Vision View subdivision.  We  



                                                                                                                            

therefore agree with the superior court's conclusion that counts 6, 7, and 8 were or could  



                                                                         

have been raised in 2014 and are barred by res judicata.  



                                                                                                                                 

                     Count 12 of the Windels' complaint challenges Borough maintenance of  



                                                                                                                              

the roads for Vision View.  Count 15 alleges that the Borough has plans to illegally take  



                                                                                                                                  

the Windels' property in the process of "accepting" Davis Road.   Count 16 seeks a  



                                                                                                                         

general declaratory judgment that the Borough has unclean hands because of its alleged  



                                                                                                                      

violations of regulatory requirements.   And count 17 alleges that all of the previous  



                                                                                                                                     

counts of the complaint allege an ongoing nuisance that must be abated by court order.  



                                                                                                                            

All these claims were raised, or could have been raised, in 2014; the superior court  



                                                                                                                

correctly ruled that res judicata prevented the Windels from raising them again.  



                                                                                                                     

          B.         The Windels' Unpled Claim Regarding Alternate Access Is Waived.  



                                                                                                                     

                    We now turn to a claim that the Windels did not include in their complaint  



                                                                                                                     

but which appeared for the first time in their opposition to the Borough's summary  



                                                                                                                     

judgment motion.   Because the superior court arguably mentioned it in its summary  



                                                                                                                               

judgment order and the Windels brief it on appeal, we discuss it as well, though we  



                                                                 

conclude it was waived due to inadequate briefing.  



                                                                                                                            

                    In their opposition to summary judgment the Windels pointed to the terms  



                                                                                                                       

of  the  Smith/Johnson  easement,  which  stated  that  the  easement  would  "endure  



                                                                                                                               

perpetually or until such time as further subsequent development or subdivision of the  



                                                                                                                                

remainder of [the Windels' property] shall providealternate legal and physical access to"  



                                                                                                                       

the property to which the Smith/Johnson easement gave access.  The Windels asserted  



                                                                                                                                 

that they had recently constructed "alternate legal and physical access" in the form of  



                                                                                                                    

"[a] ten (10) foot private access driveway" along the edge of their property.  According  



                                                               -10-                                                        7560
  


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

to a document the Windels signed and recorded a few months earlier, "[t]he right to use                                                                                                                                                                                                                                                                                                                                                                                              



this private access driveway [was] limited to the                                                                                                                                                                                                                         right of property owners and their guests                                                                                                                                                   



to travel over, across and upon the driveway." In their opposition to summary judgment,                                                                                                                                                                                                                                                                                                                                                         



the Windels contended that their creation of this driveway automatically terminated the                                                                                                                                                                                                                                                                                                                                                                                                



 Smith/Johnson easement according to its express terms.                                                                                                                                                                                                                                                                       



                                                                            The Windels had made a similar claim in 2014, although at the time their                                                                                                                                                                                                                                                                                                                          



claim was only prospective.                                                                                                                                   They contended not that they had already built an alternate                                                                                                                                                                                                                               



 access route, but that they planned to do so; that when they built the alternate route the                                                                                                                                                                                                                                                                                                                                                                                            



 Smith/Johnson   easement   would   terminate   by   its   terms;   and   that   the   impending  



termination was an encumbrancethat preventedtheBoroughfromlawfully                                                                                                                                                                                                                                                                                                                                                             accepting the   



 Smith/Johnson easement as a public right of way.                                                                                                                                                                                                                                          The Borough argued that this claim                                                                                                                                            



 for prospective termination was barred by res judicata, and the superior court apparently                                                                                                                                                                                                                                                                                                                                                   



 agreed.   



                                                                            In this case, although not explicit about its reasoning for rejecting this                                                                                                                                                                                                                                                                                                                            



unpled claim, the superior court apparently included it in its res judicata ruling.                                                                                                                                                                                                                                                                                                                                                                                              On  



 appeal the Windels simply repeat their                                                                                                                                                                                                argument that the easement terminated                                                                                                                                                                                                     and  



contend that their right to terminate the easement by creating an alternate access route   



"was an issue remaining in this case." Neither party substantively addresses what we see                                                                                                                                                                                                                                                                                                                                                                                               



 as  a   determinative question:                                                                                                                                          whether the prospective claim filed in 2014 (that the                                                                                                                                                                                                                                                      



 alternate route was going to be built, terminating the easement) and the ostensibly riper                                                                                                                                                                                                                                                                                                                                                                                    



claim filed in 2015 (that the alternative route                                                                                                                                                                                                              had  been built, terminating the easement)                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                   28               The Windels' failure to  

 are "the same cause of action" for purposes of res judicata.                                                                                                                                                                                                                                                                                                                                                                                                                                



 engage with the basis of the superior court's decision is reason enough for us to treat this  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                      28                                    See  Patterson,  303  P.3d  at  497.  



                                                                                                                                                                                                                                          -11-                                                                                                                                                                                                                                                           7560  


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

                                                                                29  

unpled claim as waived.                                                               



                                                                                                                                                                                                                                                                               

                      C.	                   TheSuperiorCourt Properly DismissedTheWindels' ClaimThat The  

                                                                                                                                                                 

                                            Biss Easement Was An Unlawful Dedication.  



                                                                                                                                                                                                                                                                        

                                            The Biss easement is a turnaround point at the end of Davis Road, which  



                                                                                                                                                                                                                                                              

the Bisses gave the Borough in consideration of a single dollar. Count 5 of the Windels'  



                                                                                                                                                                                                                                                                                   

complaint challenges this easement, contending that the Borough failed to go through the  



                                                                                                                                                                                                                                                            

lawful process for acquiring it and it is therefore invalid.  The superior court dismissed  



                                                                                          30  

                                                                                                  

this claim on the pleadings. 



                                                                                                                                                                                                                                                                     

                                            The Borough's Code provisions authorize it to acquire property in several  



                                                                                                                                                                                                                                                                   

different ways, including by dedication and by donation.  The Borough may acquire  



                                                                                                                                                                                                                                                                               

property by dedication "if the dedication will benefit the borough and the public and  



                      29                    See Windel v. Carnahan                                                            , 379 P.3d 971, 980 (Alaska 2016) (stating that                                                                                                  



"where a point is given only a cursory statement in the argument portion of a brief, [it]                                                                                                                                                                                         

will not be considered on appeal" (quoting                                                                                                      Burts v. Burts                                 , 266 P.3d 337, 344 (Alaska                                        

2011))).    



                                            The unpled claim was never developed in the superior court, either legally                                                                                                                                                

or factually.                               The Windels first produced the document by which the easement was                                                                                                                                                                 

granted while the Borough's summary judgment motion was already pending, and the   

Borough responded in a short memorandum indirectly citing AS 29.40.140(b).                                                                                                                                                                                                   The  

statute provides, in part, that "[v]acation of a street in the borough area outside all cities                                                                                                                                                                             

may not be made without the consent of the assembly."                                                                                                                                      The Borough thus raised the                                                            

legal   question   whether,   once   it  has  accepted   a   public   right   of   way   and   assumed  

responsibility for its maintenance, a private party can terminate the public's rights by                                                                                                                                                                                           

unilateral action.                                       The Windels did not address this legal issue in the superior court, nor                                                                                                                                                 

do they do so on appeal.                                                          Their argument simply assumes that the Borough is required                                                                                                                    

to accept their proffered 10-foot-wide "driveway," open only to property owners and                                                                                                                                                                                             

their guests, as equivalent to the 50-foot-wide Smith/Johnson public easement.                                                                                                                                                                                        



                      30                    The superior court relied on the allegations of the Windels' complaint to  

                                                                                                                                                                                                                                                                                     

conclude that the Biss easement was not subject to res judicata because it was created  

                                                                                                                                                                                                                                                                    

after the 2014 Borough suit was filed.  

                                                                                                                               



                                                                                                                                        -12-	                                                                                                                               7560
  


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

                                                                       31  

meets the borough subdivision regulations,"                               which in turn require that the acquisition             

of a public use easement be subject to a public hearing.                                 32  An acquisition by donation,  



                                                                                                                                         

on the other hand, involves less formal process:  the Borough may acquire an interest in  



                                                                                                                                       

real property by donation "if the donation will benefit the borough and is accepted by the  



                                     33  

                                         

assembly or manager." 



                      The  superior  court  ruled  that  the  Borough  properly  treated  the  Biss  

                                                                                                                                    



easement as a donation, acquired simply with the Borough manager's approval. We note  

                                                                                                                                     



that acquisition by dedication and acquisition by donation are similarly described in the  

                                                                                                                                       



Code and are not further defined; the Bisses' grant of a right of way in exchange for  

                                                                                                                                       

nominal consideration could be categorized as either or both.34                                       We give "considerable  

                                                                                                                      



deference" to local authorities' interpretations of their zoning ordinances and planning  

                                                                                                                              

                   35  Furthermore, as the superior court observed, we are required to give "[a]  

documents.                                                                                                                           



liberal construction . . . to all powers and functions of a municipality conferred in"  

                                                                                                                                      

                   36 which include "planning, platting, and land use regulation on an areawide  

AS Title 29,                                                                                                                 

                



           31         Matanuska-Susitna  Borough  Code  (MSB)  23.05.030(B)(3)  (2019).  



           32         MSB  43.10.060(A)  (2017).  



           33         MSB  23.05.030(B)(2).   



           34         Commonly,   a   "donation"   is   a   "gift."     See   Donation,   BLACK 'S   LAW  



DICTIONARY  (11th  ed.  2019).   A  donation  may  be  a  type  of  dedication.   See  Dedication,  

BLACK 'S  LAW  DICTIONARY  (11th  ed.  2019)  (defining  "dedication"  as  "[t]he  donation  of  

land  or  creation  of  an  easement  for  public  use").  



           35        Native   Vill.   of   Eklutna   v.   Bd.   of   Adjustment  for   the   Municipality   of  



Anchorage ,  995  P.2d  641,  643  (Alaska  2000).  



           36         AS 29.35.400; see also AS 29.04.030 (identifying "first class boroughs"  

                                                                                                                           

as one class of "[g]eneral law municipalities").  

                                                 



                                                                  -13-                                                             7560
  


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

          37  

basis."         



                                                                                                                   

                   The law does not plainly require the Borough to hold a hearing to consider  



                                                                                                                           

whether to acquire a right of way like the Bisses', and the Borough's interpretation of the  



                                                                                                                       

undefined terms in its ordinance is a reasonable one consistent with the statutory grant  

                                                                    38  We therefore agree with the superior  

of broad authority over planning and land use.                                               



court's determination that the easement was acquired by donation, not dedication, and  

                                                                                                         



that no further process was required.  It was not error to grant the Borough judgment on  

                                                                                                                           



the pleadings on this count of the Windels' complaint.  

                                                                 



          D.        The Superior Court Did Not Err By Granting Summary Judgment To  

                                                                                                                           

                    The Borough On The Construction Permit Allegations.  

                                                                                        



                    Count 14 of the Windels' complaint challenged the construction permit the  

                                                                                                                           



Borough issued Vision View and Carnahan for upgrading Davis Road.  The Windels  

                                                                                                                   



contended that such permits may be issued only to adjacent property owners, and Vision  

                                                                                                                     



View and Carnahan - although they owned property reachable by Davis Road - did  

                                                                                                                          



not own property adjacent to the road where it passed over the Windels' property.  The  

                                                                                                                         



Borough  moved  for  summary  judgment  on  this  issue,  relying  on  an  ordinance  

                                                                                                               



authorizing generally the performance of maintenance activities within the Fairview  

                                                                                                                  

Road Service Area, which includes Davis Road.39                             The court accepted this argument,  

                                                                                                                



          37       AS  29.40.010(a).  



          38       See  Balough  v.  Fairbanks  N.  Star  Borough,   995  P.2d  245,  254   (Alaska  



2000)  ("[W]here  the  agency's  expertise  or  questions  of  fundamental  policy  are  involved,  

an   agency's   interpretation   of   a   zoning  ordinance   should   be   reviewed   under   the  

deferential   'reasonable  basis'  standard  and  should  be  accepted  whenever  reasonable."  

(quoting  S.  Anchorage  Concerned  Coal.,  Inc.  v.  Coffey,  862  P.2d  168,  173  n.12  (Alaska  

1993))).   



          39       MSB 05.25.018(A) (including Township  17 North, Range  1 West in the  

                                                                                                                          

                                                                                                          (continued...)  



                                                            -14-                                                       7560
  


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

noting in its order that the Windels did not provide any support for their assertion that                                                    



construction permits were limited by law to adjacent property owners.                                                                                                                                                                                        



                                                The Windels make the same argument on appeal, relying only on a portion                                                                                                                                                                



of the permit application                                                                     that asks                             the   applicant to "[g]ive the legal description of                                                                                                                     



property owned by applicant adjacent to construction." But as the superior court pointed                                                                                                                                                                                                  



out, there is no indication on the form that this "is a required field in the application                                                                                                                                                                                  



process," nor did the Windels provide any support for the proposition that the form's                                                                                                                                                                                                       



instruction reflects an actual policy or legal requirement.                                                                                                                                                    We agree with the superior                                              



court that the Borough was entitled to summary judgment on this issue.                                                                                                                                                                     



                        E.                      The Superior Court Did Not Err By Upholding The Borough's Claims                                                                                                                                                                          

                                                Of Attorney-Client Privilege In Its Document Redactions.                                                                                                                       



                                                In response to the Windels' public records requests, the Borough produced                                                                                                                                                           



documents that had been partially redacted on grounds of attorney-client privilege.                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                               40  

Documents covered by the privilege are excepted from the Alaska Public Records Act.                                                                                                                                                                                                                                   



A court considering whether the privilege applies to public records should conduct an  

                                                                                                                                                                                    



in  camera review and invite arguments from the holder of the privilege as  to  why  

                                                                                                                                                                                                                                                                              

portions of the material should be considered privileged.41  

                                                                                                                                                                                                                   



                                                The superior court in this case did exactly what was required of it, and as  

                                                                                                                                                                                                                                                                                                             



a result it upheld the Borough's redactions, finding that the redacted material "relate[d]  

                                                                                                                                                                                                                                                                                  



                        39                      (...continued)  



                                                                                    

Fairview Road Service Area description), (B) (stating that "[s]ervices provided within  

                                                                                                                                                                                                                                                                                                    

 [the  Fairview  Road  Service  Area]  include  the  construction,  reconstruction  and  

                                                                                                                                                                                                                                                                      

maintenance of roads, streets, sidewalks and related drainage facilities").  



                        40                      Griswold  v.  Homer  City  Council,  428  P.3d  180,  188  (Alaska  2018);  

                                                                                                                                                                                                                                                                                           

AS 40.25.100-40.25.295.  

                                                                                             



                        41                      Griswold, 428 P.3d at 188 (citing In re Mendel, 897 P.2d 68, 75 (Alaska  

                                                                                                                                                

 1995)).  

                            



                                                                                                                                                   -15-                                                                                                                                            7560
  


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

to requests for legal advice outside the ordinary course of business."  The court further  

                                                                                                                         



noted that "[a]t oral argument, the Borough identified each recipient of the document as  

                                                                                                                                 



an  individual  falling  within  the  privilege;  the  Windels  offered  no  evidence  to  the  

                                                                                                                              



contrary."  

                 



                    The Windels' argument on appeal takes issue with the superior court's  

                                                                                                                         



factual findings; they dispute that the recipients could all have been covered by the  

                                                                                                                               



privilege, as the court found, and they contend that it is "improbable that every word or  

                                                                                                                                 



sentence in the emails pertains to the actual communications between the Attorney and  

                                                                                                                              



the client," as the court also found.  But their generalized attack identifies no specific  

                                                                                                                        



documents or individuals that were wrongly categorized as covered by the privilege. We  

                                                                                                                               



see no reason to conclude that the superior court erred in granting summary judgment  

                                                                                                                     



to the Borough on this claim.  

                                    



          F.	       The Windels Were Not Deprived Of Due Process When Their Truck  

                                                                                                                          

                    Was Removed From Davis Road.  

                                                                  



                    Only one of the Windels' claims survived the motion practice and went to  

                                                                                                                                 



trial: their claim that the Borough violated due process by towing their truck from Davis  

                                                                                                                           



Road.  The court concluded that the Borough was authorized to tow the Windels' truck,  

                                                                                                                           



and it found that the Borough gave appropriate notice before doing so.  The Windels  

                                                                                                                       



dispute these conclusions.  They concede that "[p]rior to towing, the Windels' truck  

                                                                                                                            



remained parked within the Davis easement for weeks," but they argue that Davis Road  

                                                                                                                            



is a private road, meaning that they had every right to park there, and they dispute that  

                                                                                                                              



the Borough adequately notified them of its intention to tow the truck away.  

                                                                                                                      



                    The superior court made findings of fact on these issues.  The court found  

                                                                                                                           



that the truck was parked in the roadway of Davis Road and partially blocked access.  

                                                                                                                                     



It found that a Borough employee first noticed the truck in late September 2013, flagged  

                                                                                                                         



it with ribbons, and left a card asking that it be moved.  When he returned over a month  

                                                                                                                           



                                                              -16-	                                                        7560
  


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

later the truck was still there, but the ribbons and card had been removed.                                                                                The Borough   



employee then tagged the truck for towing, put ribbons on it again, and left an impound                                                                               



notice indicating that the truck would be towed on November 4.                                                                              On November 6 the                     



notice and ribbons were still there; on November 9 the truck was towed away and                                                                                                 



impounded.    The Borough sent the Windels a certified letter notifying them of the                                                                                              



impoundment.    



                            TheBoroughCodeallowstheBoroughtoremoveabandoned                                                                                 vehicles from  

                                             42    Abandoned vehicles include vehicles that have been left on a  

public rights of way.                                                                                                                                                                 

public right of way for more than 72 hours without Borough consent.43                                                                                        The superior  

                                                                                                                                                                       



court concluded that the Windels' truck had been "parked and unattended on Davis  

                                                                                                                                                                            



Road, a public right-of-way, for significantly longer than [72] hours, triggering the  

                                                                                                                                                                                 



presumption of abandonment."  The court determined that there was no due process  

                                                                                                                                                                        



violation under these circumstances.  

                                                                               



                            The evidence amply supports the court's conclusion.   Davis Road is a  

                                                                                                                                                                                      

                                         44  Instead of immediately towing the Windels' truck, which had been  

public right of way.                                                                                                                                                           

                                



left in the public right of way for far longer than 72 hours, the Borough repeatedly  

                                                                                                                                                                  



              42            MSB   10.12.030(A).  



              43            MSB   10.12.020.  



              44            The Windels  point to the 2005  Carnahan suit to argue that Davis Road is  



a  private  road,  noting  that t  he  superior  court i  n  that  case  concluded  as a     matter  of  law  

"that   [Davis   Road]   is  a   private   road   over   which   the   Borough   has   not   exercised  

dominion."   But  this  finding  was  in  a  different  legal  context;  the  question  was  whether  

Borough  drainage  standards  applied  to  a  road  that  had  so  far  been  used  only  for  private  

purposes  and  undergone  only  minor  improvements.   The  road  was  subsequently  used  as  

a  public  right  of  way  and  underwent  "public  maintenance"  performed  by  Carnahan.   The  

superior  court  determined  that  the  Davis  Road  easement  was  a  valid  public  right  of  way  

in  2008,  and  we  affirmed  its  judgment  on  appeal.   The  superior  court  again,  in  this  case,  

deemed  Davis  Road  to  be  a  public  right  of  way.   



                                                                                        -17-                                                                                 7560
  


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

flagged it and posted notices of its impending removal.                                                                Although the Windels contend                      



both that they did not see the notices left on their truck and that the notices were too                                                                                          



ambiguously worded to spur them to action, the superior court was not required to credit                                                                                      

                                  45   Because the court properly applied the law and did not clearly err in  

their testimony.                                                                                                                                                                     



its findings of fact, we affirm its decision of this issue.  

                                                                                                         



              G.	            The Superior Court Did Not Abuse Its Discretion In Its Award Of  

                                                                                                                                                                                   

                             Attorney's Fees.  

                                                       



                             Finally, the Windels challenge the superior court's award to the Borough  

                                                                                                                                                                       



of 80% of its actual, reasonable attorney's fees, an enhanced award based on the court's  

                                                                                                                                                                           



findingthat "Plaintiffs' claimswerebaseless,unreasonable,frivolous, andbrought in bad  

                                                                                                                                                                                  



faith." The Windels contend that the enhanced award was improper; they argue that they  

                                                                                                                                                                                 



tried to resolve their issues without litigating, reiterate their arguments on the merits, and  

                                                                                                                                                                                  



assert that they are public interest litigants.  

                                                                                              



                             Attorney's fee awards are presumptively based on the schedules set out in  

                                                                                                                                                                                     

Alaska Civil Rule 82(b)(1) and (2).46                                               But a court has discretion to vary an award on  

                                                                                                                                                                                    



consideration                    of       various              factors,            including                the       litigation's                complexity,                   "the  

                                                                                                                                               



reasonableness of the claims and defenses pursued by each side," and "vexatious or bad  

                                                                                                                                                                                  



              45             See Williams v. Barbee                             , 243 P.3d 995, 1000 (Alaska 2010) ("[I]t is the                                                  



function of the trial court, not of this court, to judge witnesses' credibility and to weigh                                                                                

conflicting evidence.").   



              46             The Windels' reliance on AS 09.60.010(c) to claim constitutional litigant  

                                                                                                                                                                          

status is precluded by the superior court's finding that their claims were frivolous.  See  

                                                                                                                                                                                  

AS 09.60.010(c)(2) (stating that unsuccessful constitutional claimant is protected from  

                                                                                                                                                                               

attorney's fees award only if, among other things, "the action or appeal asserting the  

                                                                                                                                                                                   

right was not frivolous").  

                              



                                                                                        -18-	                                                                                 7560
  


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

                              47  

 faith conduct."                   " '[T]he superior court [is] in the best position to evaluate the [parties']                                               

 demeanor and credibility' in the fee-award context."48  We have upheld awards of full  



                                                                                                                                                                        

 attorney's fees when the superior court has found that "the action was 'frivolous and  



                                                                        49  

                                                                              

                                                                       

brought to harass the defendants.' " 



                           Of  the  Windels'  17  claims,  all  but  one  were  dismissed  on  summary  

                                                                                                                                                            



judgment  or  on  the  pleadings;  the  remaining  claim - based  on  the  towing  of  the  

                                                                                                                                                                         



Windels' truck - went to trial and resulted in a finding that the Borough had acted  

                                                                                                                                                                     



 appropriately.  Most of the Windels' claims had been raised before and decided against  

                                                                                                                                                                 



them at least once, sometimes twice.  Under the circumstances, we cannot say that the  

                                                                                                                                                                         



 superior court abused its discretion by making an enhanced award of attorney's fees.  

                                                                                                                                                                   



V.            CONCLUSION  



                           The judgment of the superior court is AFFIRMED.  

                                                                                                         



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



              48           Blackv. WhitestoneEstatesCondo. Homeowners' Ass'n                                                              , 446 P.3d 786,796             



 (Alaska2019) (second                         alteration in original)                    (quoting  Cookv.Mortenson-Neal                                     , 727     P.2d  

 297, 306 (Alaska 1986)).  

                                     



              49           Id. (quoting Garrison v. Dixon, 19 P.3d 1229, 1235 (Alaska 2001)).  

                                                                                                                                                       



                                                                                    -19-                                                                             7560
  


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

             In the Supreme Court of the State of Alaska
  



  Keven Windel and Marlene Windel,                                           Supreme Court No.             S-17159  



                                       Appellants,                                         Order  



                                                                                 Petition for Rehearing
  

                    v.                                                                              



  Matanuska-Susitna Borough,                       



                                                                              Date of Order: 10/08/2021
  

                                       Appellee.                                                      



Trial Court No. 3PA-15-02151CI  

                         



          Before:	             Winfree, Chief Justice, Bolger, Senior Justice, Maassen, Carney,  

                                                                                                                     

                              and Borghesan, Justices.  [Henderson, Justice, not participating.]  

                                                                                                            



          On consideration of the Petition for Rehearing filed on 9/7/2021, and the  

                                                                                                                     

response filed on 9/21/2021,  

                            



          It  is  Ordered:  



          1.         The  Petition  for  Rehearing  is  GRANTED.  



          2.        Opinion No. 7546 issued on 7/30/2021, is WITHDRAWN.  

                                                                                      



          3.        Opinion No. 7560 is issued on this date in its place.  

                                                                                          



          Footnote 46 at page 18 is inserted in the opinion as follows:  

                                                                                             



                              The Windels' reliance  on AS  09.60.101(c) to claim  

                                                                                                   

                    constitutional  litigant  status  is  precluded  by  the  superior  

                                                                                                  

                    court's  finding  that  their   claims  were   frivolous.                            See  

                                                                                                        

                    AS 09.60.010(c)(2) (stating that unsuccessful constitutional  

                                                                                           

                    claimant  is  protected  from  attorney's  fees  award  only  if,  

                                                                                                            

                    among other things, "the action or appeal asserting the right  

                                                                                                        

                    was not frivolous").  

                                  


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

Kevin Windel and Marlene Windel v. Matanuska-Susitna Borough                                              

Supreme Court No. S-17159            

Order of 10/8/21     

Page Two   



            Entered at the direction of the court.                  



                                                            Clerk  of  the  Appellate  Courts  



                                                                  /s/  Meredith  Montgomery  

                                                            _______________________________  

                                                                                                       

                                                            Meredith Montgomery  



                                         

cc:	        Supreme Court Justices  

                                               

            Judge Jonathan A. Woodman  

            Publishers  



Distribution:  



                          

            Keven Windel
  

                                              

            3200 South Davis Road
  

                                     

            Wasilla, AK 99654
  



                             

            Marlene Windel
  

                                              

            3200 South Davis Road
  

                                     

            Wasilla, AK 99654
  



                          

            John L Aschenbrenner
  

                                                 

            Matanuska-Susitna Borough
  

                                      

            350 E Dahlia Ave
  

                                    

            Palmer, AK 99645
  

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