You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brooks Range Exploration Co. v. Gordon (5/3/2002) sp-5561
Notice: This opinion is subject to correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA BROOKS RANGE EXPLORATION ) COMPANY, INC., ) Supreme Court No. S-9600 ) Appellant, ) Superior Court No. 3AN-95- 10566 CI ) v. ) O P I N I O N ) WALLACE GORDON, THELMA ) [No. 5561 - May 3, 2002] PETERSON, and the GORDON ) FAMILY TRUST, ) ) Appellees. ) ________________________________) Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge. Appearances: Jay D. Durych, Jones & Colver, LLC, Anchorage, for Appellant. Teresa S. Ridle, Koval & Featherly, P.C., Anchorage, for Appellees. Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices. EASTAUGH, Justice. I. INTRODUCTION I. In a settlement agreement, Brooks Range Exploration Company, Inc. (BREXCO) agreed to transport Wallace Gordons property to Anchorage, unless transporting it would violate state law. The superior court enforced this agreement without holding an evidentiary hearing, notwithstanding BREXCOs assertion that transporting the property would violate the Alaska Historic Preservation Act (AHPA). Because there were genuine factual issues about whether transporting items found by Gordon would violate the AHPA, we hold as to the found items that it was error to enforce the agreement without conducting an evidentiary hearing. We therefore reverse and remand as to those items that Gordon claimed he found. We affirm the enforcement order as to those items Gordon claims he purchased or received as gifts or in trade. II. FACTS AND PROCEEDINGS Until July 13, 1998, Wallace Gordon, Thelma Peterson, and the Gordon Family Trust were shareholders of Brooks Range Exploration Company, Inc. (BREXCO). BREXCO is an Alaska corporation engaged in exploring and developing hard-rock mining claims in Alaska. Gordon, Peterson, and the Gordon Family Trust were also shareholders of Brooks Range Ventures, Inc. (BREVCO), which engaged in placer mining in the Brooks Range. In 1995 BREXCO filed a superior court complaint against Gordon, Peterson, the Gordon Family Trust, and others; as amended, the complaint alleged numerous causes of action, including breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duties, and usurpation of corporate opportunities and interests. BREVCO intervened as a plaintiff in 1996. On July 13, 1998 BREXCO and BREVCO each executed separate settlement agreements with the defendants, including Gordon, Peterson, and the Gordon Family Trust. Especially pertinent to this appeal is paragraph five of the BREVCO settlement agreement, which provides: WALLACE E. GORDON has identified certain personal property [mining equipment] now located at the mining claims of BREVCO . . . . BREVCO shall transport said personal property to WALLACE E. GORDON from its present location to Anchorage, Alaska at BREVCOs cost and expense in its as is condition on or before April 15, 1999. Until delivery BREVCO agrees to bear any risk associated with the loss or damage to said personal property. In the event BREVCO fails to deliver the personal property on or before April 15, 1999, and WALLACE E. GORDON institutes suit to enforce this provision of the Settlement Agreement and prevails, BREVCO agrees to pay WALLACE E. GORDONs reasonable, actual attorneys fees. The responsibility of BREVCO to transport said personal property is contingent upon the transportation of said property not constituting a violation of any state, federal or local law, statute or ordinance. (Emphasis added.) BREXCO and BREVCO merged in June 1999. BREVCOs agreement consequently binds BREXCO. We refer to BREXCO and BREVCO collectively as BREXCO. In an April 1999 letter, BREXCO informed counsel for Gordon, Peterson, and the Gordon Family Trust (collectively the Gordon Family Trust or the trust) that it would not transport Wallace Gordons mining equipment to Anchorage. BREXCO asserted that transporting the mining equipment would violate the Alaska Historic Preservation Act,1 and that the settlement agreement therefore did not require BREXCO to transport the equipment. In late April 1999 the Gordon Family Trust filed a motion in the 1995 proceeding to enforce the settlement agreement; it asked the superior court to order BREXCO to immediately transport Mr. Gordons personal property to Anchorage.2 In May BREXCO filed a complaint for declaratory judgment, seeking a declaration that: a) the property items are historic artifacts, b) title to the property rests with the State of Alaska, c) the property does not belong to Gordon, [and] d) [BREXCO] is not obligated to transport the property to Gordon or to otherwise remove it from its current location . . . . The superior court consolidated BREXCOs declaratory judgment action with the 1995 proceeding. On October 12, 1999 the superior court granted the trusts motion to enforce the settlement agreement and ordered BREXCO to transport Gordons mining equipment to Anchorage before November 15, 1999. The superior court did not conduct an evidentiary hearing before ruling on the trusts motion to enforce. BREXCO unsuccessfully moved for reconsideration. The superior court entered a final judgment ordering BREXCO to transport Gordons mining equipment to Anchorage. BREXCO appeals. III. DISCUSSION A. Standard of Review We review a ruling on a motion to enforce a settlement agreement for abuse of discretion.3 The superior court may not summarily enforce a settlement agreement without conducting an evidentiary hearing, unless there are no genuine issues of material fact regarding the existence or terms of the agreement.4 We review de novo the question whether there are genuine issues of fact material to a motion to enforce a settlement agreement.5 B. It Was Error To Grant the Trusts Motion To Enforce the Settlement Agreement Without Conducting an Evidentiary Hearing. 1. The Alaska Historic Preservation Act (AHPA) Whether it was error to grant the Gordon Family Trusts motion to enforce the settlement agreement without conducting an evidentiary hearing depends in part on our interpretation of the Alaska Historic Preservation Act.6 The legislature enacted the AHPA in 19717 to preserve and protect the historic, prehistoric, and archaeological resources of Alaska from loss, desecration, and destruction so that the scientific, historic, and cultural heritage embodied in these resources may pass undiminished to future generations.8 To that end, AS 41.35.020 provides: The state reserves to itself title to all historic, prehistoric, and archeological resources situated on land owned or controlled by the state, including tideland and submerged land, and reserves to itself the exclusive right of field archeology on state-owned or controlled land. Alaska Statute 41.35.230(2) defines historic, prehistoric and archeological resources to include deposits, structures, ruins, sites, buildings, graves, artifacts, fossils, or other objects of antiquity which provide information pertaining to the historical or prehistorical culture of people in the state as well as to the natural history of the state. Alaska Statute 41.35.200(b) states that [a] person may not possess, sell, buy, or transport within the state, or offer to sell, buy, or transport within the state, historic, prehistoric, or archeological resources taken or acquired in violation of [the AHPA] . . . . (Emphasis added.) Finally, AS 41.35.210 provides that a person who is convicted of violating a provision of the AHPA is guilty of a class A misdemeanor, and AS 41.35.220 states that a person who violates a provision of the AHPA is subject to a maximum civil penalty of $100,000 for each violation. When are historic, prehistoric, and archeological resources situated on land owned or controlled by the state for purposes of AS 41.35.020(a)? Websters New World Dictionary of the American Language defines situated as placed as to site or position; located.9 Thus, under a literal interpretation of the statute, the mere presence, even if temporary, of a historic, prehistoric, or archeological resource on land owned or controlled by the state would be sufficient to vest title to the item in the state, and to trigger the provisions of the AHPA. But where the literal interpretation of a statute would lead to absurd results, courts can interpret the words of the statute to agree with the intention of the legislature.10 Here, a literal interpretation of the phrase situated on in AS 41.35.020(a) could lead to absurd results. For example, it seems unlikely that the legislature intended that title to personal property that qualifies as a historic, prehistoric, or archeological resource under AS 41.35.230(2) would pass to the state simply because its owner transported the property across state-owned or controlled land, and the property was only temporarily located on state land. We therefore interpret the AHPA to apply only to abandoned historic, prehistoric, or archeological resources situated on land owned or controlled by the state. Indeed, even BREXCOs brief states: BREXCO suspects . . . that when the Alaska Historic Preservation Act was adopted the Alaska legislature intended that the Act be construed in harmony with existing law, including the statutory and common law pertaining to abandoned property and escheat. Abandoned property is property whose owner has manifested an intention to relinquish all title, possession, or claim to the property.11 2. Genuine issues of material fact could not be resolved without an evidentiary hearing. In deciding whether to enforce an alleged settlement agreement without conducting an evidentiary hearing, courts treat the motion to enforce as a summary judgment motion.12 Thus, the question [on appeal] is whether the evidence presented to the trial court indicated that there was no genuine issue of material fact and that as a matter of law the parties had entered into a valid compromise agreement.13 A party seeking summary judgment must demonstrate the absence of a genuine material factual dispute and entitlement to judgment as a matter of law.14 In support of its motion to enforce the settlement agreement, the trust submitted the affidavit of Wallace Gordon. In his affidavit, Gordon stated: I purchased most of the items [of mining equipment located on BREVCOs mining claims] and other items were loaned to me. Only a few of the items on the list were found by me and I found them on my own mining claims. (Emphasis added.) Gordon also attached to his affidavit a handwritten document which listed all of the items and described the source of each item. Because Gordons affidavit and his attached list indicated that he had found some of the items,15 the trust did not meet its initial burden of demonstrating the absence of a genuine factual dispute about whether transporting those items would violate the AHPA. As to the other items, Gordons affidavit and list made out a prima facie showing that they were not subject to the AHPA. Even if a summary judgment movant has made out a prima facie showing that there is no genuine issue of material fact, the non-moving party may avoid summary judgment by producing competent evidence establishing that a genuine factual dispute exists.16 BREXCO responded to Gordons affidavit with the affidavit of Naomi Costello. Costello affied: When I first visited [BREVCOs mining operation], Gordon was living in an old cabin. I noticed that there were old mining tools, lanterns, utensils, pots, buckets, an anvil, and other items spread around the yard and leaning against the old cabin. The items were obviously very old. They were worn, weathered, and rusted, and many of them had old-fashioned wooden handles. Costellos affidavit also stated: Gordon told me that he had gathered the items from various drift mines in the area. . . . On occasion when I visited, [Gordon] would show me new items that he had gathered and he would tell me which old mining site he had collected them from. (Emphasis added.) Costellos affidavit tended to support Gordons statement that he had found some of the items he kept in and around his cabin. As to items Gordon said he had found, Costellos affidavit demonstrates that there is a genuine factual dispute about whether the found items fall within the AHPA. Costellos affidavit does not assert that Gordon actually found the items that he had described as having purchased or received. Costellos affidavit therefore creates a genuine, material factual dispute only as to items Gordon admitted he found or Costello expressly claimed Gordon found. Because Costellos affidavit did not create a genuine factual dispute about whether the AHPA applied to items Gordon claimed he received by gift, trade, or purchase, the court did not err in enforcing the transportation agreement as to those items. But because there was a genuine factual dispute about whether transporting the found items would violate the AHPA, it was error to enforce the transportation agreement without conducting an evidentiary hearing as to the found items.17 The Gordon Family Trust argues that Costellos affidavit is irrelevant and thus inadmissible18 because (1) there is nothing in her Affidavit to indicate that the items she describes are the same items BREXCO agreed to transport in the Settlement Agreement; (2) there is nothing in Ms. Costellos Affidavit to show that the pieces of mining equipment are items covered by the Alaska Historic Preservation Act. The trust also argues that the Court was free to disregard her opinion testimony because BREXCO presented no evidence that Ms. Costello is a mining expert or that she is competent to testify as to the age and ownership of these items. These arguments are not well taken. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.19 Costellos affidavit was relevant because it tended to establish that at least some of the disputed items were abandoned when Gordon found them. That proposition in turn was relevant to determining whether the items were protected by the AHPA. Costellos affidavit did not specifically indicate whether the items it listed were the same as the items contemplated by the settlement agreement; but her affidavit was nonetheless germane as to those items that Gordon conceded he found. Moreover, because Costellos affidavit did not rely on scientific, technical, or other specialized knowledge,20 it did not require a foundation establishing Costello as a mining expert. Indeed, the most relevant portions of Costellos affidavit simply described Gordons statements regarding the source of the old mining equipment. The trust argues that the language in paragraph five of the settlement agreement concerning the legality of transporting the mining equipment is a condition precedent which is unenforceable because the condition is simply not sufficiently unambiguous to be construed as a condition precedent.21 We are unpersuaded by this argument. Paragraph five expressly states that BREXCOs performance is contingent upon the transportation of [the mining] property not constituting a violation of any state, federal or local law, statute or ordinance. (Emphasis added.) This provision is not ambiguous in context of this case. We conclude that there are genuine issues of material fact about whether the AHPA prohibits transporting the found items. We therefore reverse the enforcement order with respect to the found items and remand for an evidentiary hearing to determine whether transporting those items would violate the AHPA. But because there is no genuine issue of material fact regarding the legality of transporting the rest of Gordons items, we affirm the enforcement order with respect to the equipment Gordon did not find. C. Attorneys Fees Paragraph five of the settlement agreement provides for an award of reasonable, actual attorneys fees [i]n the event BREVCO fails to deliver the personal property on or before April 15, 1999, and WALLACE E. GORDON institutes suit to enforce this provision of the Settlement Agreement and prevails. The superior courts 1999 final judgment and 2000 corrected final judgment included an award of $8,789.72 to the Gordon Family Trust, apparently for attorneys fees. BREXCO argues that if we reverse the order enforcing BREXCOs obligation under the settlement agreement to transport Wallace Gordons mining equipment to Anchorage, we must also vacate the attorneys fees award based thereon. We agree. Having partially reversed the order granting the trusts second motion to enforce the settlement agreement, we must vacate the award of attorneys fees incurred in bringing that motion.22 We follow the procedure we recently outlined in Gamble v. Northstore Partnership23 and award nominal fees in this appeal,24 leaving it to the superior court on remand to award reasonable, actual fees per the contract. BREXCO also urges us to vacate the superior courts March 10, 2000 award of reasonable, actual attorneys fees incurred as a result of the Gordon Family Trusts third motion to enforce the settlement agreement.25 BREXCO argues that the March 10, 2000 award is dependent on, and would not have been entered absent the superior courts order granting the trusts second motion to enforce the settlement agreement. But the trusts third motion sought an order enforcing BREXCOs obligation under the settlement agreement to pay the trust $38,089.28 annually. The third motion was thus unrelated to the second motion, which sought to enforce BREXCOs obligation to transport Gordons mining equipment. We therefore decline to vacate the March 10, 2000 award of reasonable, actual attorneys fees incurred in bringing the third motion to enforce the settlement agreement. IV. CONCLUSION For these reasons, we REVERSE the order requiring BREXCO to transport Gordons found mining equipment to Anchorage, and REMAND for further proceedings in accordance with this opinion. We also VACATE the award of attorneys fees granted in the transportation dispute. We AFFIRM the enforcement order to the extent it required BREXCO to transport Gordons other items, and AFFIRM the trusts award of attorneys fees in the dispute about annual payments. _______________________________ 1 AS 41.35.010 - .240. 2 The Gordon Family Trust called this motion the Second Motion to Enforce Settlement Agreement. 3 Dickerson v. Williams, 956 P.2d 458, 462 (Alaska 1998) (citing Rice v. Denley, 944 P.2d 497, 499 (Alaska 1997)). 4 Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987) (Where material facts concerning the existence or terms of an agreement to settle are in dispute, the parties must be allowed an evidentiary hearing.); see also Miller v. Manuel, 828 P.2d 286, 291-92 (Haw. App. 1992) (holding that motions to enforce disputed compromise agreements are treated as motions for summary judgment); cf. Rice, 944 P.2d at 499 (In ruling upon a motion to enter judgment on the record, the superior court has discretion to deny the motion if the court determines that material issues of fact exist as to the existence of the settlement agreement or to a material term of the settlement. (quoting Pavek v. Curran, 754 P.2d 1125, 1126 (Alaska 1988))); Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997) (holding that evidentiary hearing is not required in judicial proceeding in absence of genuine issue of material fact). 5 See Miller, 828 P.2d at 291-92 (holding that motions to enforce disputed compromise agreements are treated as motions for summary judgment); Mathis v. Sauser, 942 P.2d 1117, 1120 (Alaska 1997) (holding that grants of summary judgment are reviewed de novo). 6 AS 41.35.010-.240. 7 Ch. 130, 1, SLA 1971. 8 AS 41.35.010. 9 Websters New World Dictionary of the American Language 1332 (2d ed. 1978). 10 Sherman v. Holiday Constr. Co., 435 P.2d 16, 18-19 (Alaska 1967); see also 2A Norman J. Singer, Statutes and Statutory Construction 46:07, at 196-97 (6th ed. 2000). 11 Smith v. State, 510 P.2d 793, 795 (Alaska 1973) (stating that abandonment of property is demonstrated by an intention to relinquish all title, possession, or claim to [the] property, accompanied by some type of activity or omission by which such intention is manifested. (quoting Edward G. Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff. L. Rev. 399, 400-01 (1970))); see also Kile v. Belisle, 759 P.2d 1292, 1295-96 (Alaska 1988) (Abandonment is the intentional relinquishment of a mining claim. It is a voluntary act on the part of a claimant and consists of a subjective intent to abandon coupled with an external and objective act by which that intent is carried into effect. (citations omitted)); cf. King v. Petroleum Servs. Corp., 536 P.2d 116, 119 (Alaska 1975) (The elements of abandonment of real property are an intent to abandon and conduct carrying out that intention.); D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973) ([I]t may well be that a subjective intent is determinative when dealing with abandonment of personal property, over which the owner exercises an absolute property right . . . .); 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property 1 (1994) (defining abandoned property as that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and with the intention of not reclaiming any future rights therein . . . .). 12 E.g., Miller, 828 P.2d at 291. 13 Id. 14 Alaska Travel Specialists, Inc. v. First Natl Bank of Anchorage, 919 P.2d 759, 762 (Alaska 1996). 15 For example, the list attached to Gordons affidavit stated: [Grizzly gold pan] I found about 4 miles down Wild River after a flood on a gravel bar and [Large dump bucket arm] - was located at mine site with other items scattered around. 16 Lane v. City of Kotzebue, 982 P.2d 1270, 1272 (Alaska 1999). 17 BREXCO argues that Don Cloyds affidavit also raised genuine issues of material fact precluding the summary enforcement of the settlement agreement. The Gordon Family Trust responds that because the Cloyd affidavit was submitted in support of BREXCOs motion for reconsideration, which, the trust argues, did not contain any legal proposition that differed from those originally raised in opposition to the motion for summary judgment, BREXCO may not rely on the affidavit on appeal. We agree with the trust. The new factual material submitted with the reconsideration motion cannot be the basis for claiming the superior court erred. Alaska R. Civ. P. 77(k). 18 See Alaska R. Civ. P. 56(e) (Supporting and opposing affidavits . . . shall set forth such facts as would be admissible in evidence . . . .). 19 Alaska R. Evid. 401. 20 Alaska R. Evid. 702. 21 Norton v. Herron, 677 P.2d 877, 882 (Alaska 1984) (holding that conditions precedent will not be enforced unless they are expressed in plain, unambiguous language or arise by clear implication (citations omitted)). 22 Wood v. Collins, 812 P.2d 951, 957 (Alaska 1991). 23 28 P.3d 286, 293 (Alaska 2001) (Where appeals are not dispositive on the merits but merely stepping stones to an as-yet- unknown final result, and where there is a statutory or contractual provision calling for an award of full attorneys fees to the party who ultimately prevails, full fees for work on appeal can best be assessed in the trial court at the conclusion of the case.). 24 Appellate Rule 508(e) (Attorneys fees may be allowed in an amount to be determined by the court.). 25 The superior court awarded the Gordon Family Trust reasonable, actual attorneys fees of $9,344 incurred in enforcing BREVCOs settlement obligations for a third time.