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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
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
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.
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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.
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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.
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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.
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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).
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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)).
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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
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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.
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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
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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.
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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.
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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").
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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...)
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----------------------- 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)).
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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
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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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