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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

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 corrections@appellate.courts.state.ak.us.


            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.