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Van Deusen v. Seavey (8/23/2002) sp-5613
Van Deusen v. Seavey (8/23/2002) sp-5613
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
MICHAEL VAN DEUSEN and )
PATRICIA VAN DEUSEN, ) Supreme Court Nos. S-
9978/10057
)
Appellants/Cross-Appellees, ) Superior Court No. 3KN-97-
623 CI
)
v. ) O P I N I O N
)
MITCH SEAVEY and JANINE ) [No. 5613 - August 23, 2002]
SEAVEY, individually and d/b/a )
IDIDARIDE SLED DOG TOURS, )
and DAN SEAVEY and SHIRLEY )
SEAVEY, )
)
Appellees/Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: James N. Reeves and Thomas A.
Dosik, Dorsey & Whitney, LLP, Anchorage, for
Appellants/Cross-Appellees. Sean Halloran,
Hartig, Rhodes, Hoge & Lekisch, P.C.,
Anchorage, for Appellees/Cross-Appellants.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
The Van Deusens sued their neighbors, the Seaveys, to
enjoin a private nuisance caused by numerous sled dogs kenneled
on the Seaveys' property. The superior court denied an
injunction. Did this denial collaterally estop the Van Deusens'
second lawsuit to enjoin the Seaveys? We hold that it does
because the Van Deusens have not demonstrated that there was any
genuine factual dispute about whether the noise the dogs caused
worsened after injunctive relief was denied in the first lawsuit.
We therefore affirm the summary judgment against the Van Deusens
in the second lawsuit. We nonetheless remand for consideration
of the Seaveys' attorney's fees request because we conclude that
the parties' dismissal stipulation did not preclude the Seaveys
from seeking attorney's fees under Alaska Civil Rule 68.
II. FACTS AND PROCEEDINGS
Daniel and Shirley Seavey have occupied their Seward
homestead since 1964.1 Michael and Patricia Van Deusen live on
property adjacent to the Seaveys' property. The Van Deusens own
"Trails North, Inc.," a seasonal tourist business that operates a
fleet of buses, maintains several guest cabins on the Van
Deusens' property, and conducts area tours.2
Mitch Seavey, the Seaveys' son, is a professional dog
musher.3 Mitch and his wife Janine operate "IdidaRide Sled Dog
Tours" on the Seaveys' property from May through September each
year. During those months up to seventy-five dogs are kenneled
on the Seaveys' property. The Van Deusens allege that the dogs'
barking prevents them from sleeping and adversely affects their
health.
The Van Deusens and Trails North first sued Daniel,
Shirley, Mitch, and Janine Seavey for private nuisance in 1995,
seeking both injunctive relief and damages. A jury heard the Van
Deusens' damages claims and Superior Court Judge Jonathan H.
Link, sitting as trier of fact, simultaneously heard their
equitable claim. The jury found a nuisance for 1995 and 1996,
awarded the Van Deusens $5,000 in damages, and rejected Trails
North's claims.4 Judge Link rejected the Van Deusens' request
for injunctive relief. The superior court rendered final
judgment in October 1997. It ruled that no party was a
"prevailing party" eligible for attorney's fees or costs.
The Van Deusens appealed the denial of injunctive
relief, and the Seaveys cross-appealed the denial of attorney's
fees.
While these appeals were pending, the Van Deusens in
1997 filed a second complaint against the Seaveys. Superior
Court Judge Harold M. Brown stayed proceedings in the 1997
lawsuit pending our resolution of the appeals in the 1995
lawsuit.
In February 1998 the Seaveys tendered a Civil Rule 68
offer of judgment to the Van Deusens to settle the 1997 lawsuit.
The Van Deusens did not accept the offer. In 1999 we affirmed the
superior court's denial of an injunction and its disallowance of
attorney's fees in the first lawsuit.5 The Seaveys then moved
for summary judgment in the 1997 lawsuit. They contended that
the Van Deusens' new damages claim was not coupled with an action
to enjoin, as AS 09.45.230 arguably requires. The Van Deusens
responded to this motion by amending their second complaint to
seek injunctive relief and damages. The Seaveys then moved for
partial summary judgment on the theory that res judicata barred
the Van Deusens' claim for injunctive relief.
Judge Brown granted the Seaveys' partial summary
judgment motion in July 2000. He held that res judicata barred
the Van Deusens' injunctive relief claim; he allowed their
damages claim to proceed. The parties then entered into a
written stipulation agreeing to dismiss the damages claim.6 The
superior court issued a final judgment in November 2000. The
court awarded the Seaveys Alaska Civil Rule 82 attorney's fees,
but denied their request for an award of attorney's fees under
Civil Rule 68.
The Van Deusens appeal the dismissal of their
injunctive relief claim. The Seaveys cross-appeal the denial of
their Rule 68 attorney's fees request.
III. DISCUSSION
A. The Superior Court Correctly Determined that the First
Judgment Barred the Van Deusens' Second Action.
The Van Deusens argue that the conditions the Seaveys
created are a temporary, continuing nuisance, giving rise to a
series of causes of action. They therefore assert that res
judicata does not bar their second lawsuit because it asserts a
separate cause of action for a separate claim. They claim that
their second action is based on "different circumstances," and
that they presented evidence that conditions had changed,
altering the "balance of equities."
The Seaveys argue in response that the claims the Van
Deusens assert in their second lawsuit are the same as the claims
litigated in their first lawsuit. The Seaveys also assert that
the Van Deusens have not shown that conditions have worsened.
Res judicata bars subsequent actions between the same
parties on the same claim or claims that the parties were
required to bring in the original action.7 The closely related
but distinguishable doctrine of collateral estoppel bars
relitigation of previously decided factual or legal issues.8 We
consider first whether the alleged nuisance is temporary or
permanent because this distinction determines which, if either,
preclusion doctrine applies here.9
1. Because the claim alleges a temporary nuisance, res judicata
does not apply.
The Van Deusens argue that the Seaveys' barking dogs
create a temporary nuisance. They contend that "[t]he noise
created by the Seaveys' dogs is clearly abatable, [and] it is in
fact abated every fall when the majority of the dogs are removed
from the Seavey property."
We have not previously addressed the distinction
between a permanent and a temporary nuisance. Courts considering
the issue have labeled a nuisance permanent when there is a high
probability that the nuisance will continue and where the
nuisance is "relatively enduring and not likely to be abated,
either voluntarily or by an order of court."10 But the nuisance
allegedly created by the Seaveys' barking dogs is abatable
because the dogs are removed every year from the Seaveys'
property. Indeed, Mitch and Janine Seavey remove the dogs
annually from the property adjacent to the Van Deusens' property
in the normal course of IdidaRide's business operations.
We hold that the nuisance allegedly created by the
Seaveys' barking dogs is abatable and that as a matter of law it
is temporary.11 The doctrine of res judicata consequently does
not apply here because a temporary nuisance gives rise to a new
cause of action with each invasion or injury.12
2. Collateral estoppel bars the Van Deusens' second
claim for injunctive relief.
We next consider whether collateral estoppel bars the
Van Deusens' second claim for injunctive relief. The superior
court denied the injunction the Van Deusens sought in their first
lawsuit because the court found and concluded that the Van
Deusens "have failed to establish by clear and convincing
evidence that the noise made by the IdidaRide dogs would, under
similar circumstances, have disturbed a reasonable person and
substantially interfered with a reasonable person's use or
enjoyment of his property."
Collateral estoppel bars the relitigation of an issue
when:
(1) the party against whom the preclusion is
employed was a party to . . . the first
action; (2) the issue precluded from
relitigation is identical to the issue
decided in the first action; (3) the issue
was resolved by a final judgment on the
merits; and (4) the determination of the
issue was essential to the final judgment.[13]
The present dispute undeniably involves the same
parties, and a final judgment was undeniably entered in the first
lawsuit. But was the issue the same, and was it necessarily
resolved by the first final judgment?
The Van Deusens argue that the underlying legal issue
is different because the conditions may worsen and circumstances
have changed since the superior court denied injunctive relief in
the first action. They assert:
More dogs may be added to the lot. Louder
dogs may be added to the lot. Environmental
conditions may change over the years.
Mitigation efforts once thought to be
effective may fail. The parties' ability to
obtain legal recourse may change. All these
are factual circumstances which must be
weighed by the trial court, not summarily
dismissed.
The Seaveys dispute the Van Deusens' claim and argue
that conditions have not worsened.
The record does not support the Van Deusens'
assertions. The Seaveys erected a sixteen-foot barrier in 1997
in an attempt to reduce the noise entering the Van Deusens'
property. The Van Deusens claim that this mitigation effort by
the Seaveys is ineffective. But assuming it is ineffective, the
Van Deusens would still have to show that conditions have
worsened since entry of the judgment in the first lawsuit;
otherwise the legal issue in this case would be no different, and
the Van Deusens' claim would be barred by collateral estoppel.14
The Van Deusens made no showing of worsened conditions in
opposing the Seaveys' motion for summary judgment. They have not
demonstrated that a reasonable fact finder, taking all
permissible factual inferences in favor of the Van Deusens, could
find that conditions worsened since entry of the 1997 final
judgment.15 There is no indication in their joint affidavit
supporting their opposition to the Seaveys' motion for summary
judgment that conditions worsened since their first suit was
resolved. The affidavit does not assert or permissibly imply
that the noise has worsened, only that the Van Deusens' ability
to bear the noise has lessened and that mitigation efforts have
been unsuccessful. In comparison, the Seaveys point to passages
in the record in which the Van Deusens testified that there has
been some noise reduction due to the erection of the wall since
the first trial and admitted to the superior court that "the
conditions that created the nuisance have not changed."
The 1997 final judgment denying injunctive relief to
the Van Deusens in their first lawsuit was expressly based on
Judge Link's findings and conclusions that the Van Deusens failed
to prove either a nuisance or their entitlement to an injunction.
Thus, absent a demonstration that conditions had changed, the
critical issue in the second lawsuit - whether there is a
nuisance entitling the Van Deusens to an injunction - is
identical to the issue decided against them in the first lawsuit.
It also means that the issue was resolved by a final judgment and
that resolution of the issue was essential to the final judgment.
Collateral estoppel therefore bars the Van Deusens'
second attempt to enjoin the Seaveys. Because there were no
genuine issues of material fact about whether circumstances had
changed, the superior court did not err in granting summary
judgment to the Seaveys.16
B. The Van Deusens' Remaining Arguments Do Not Require
Reversal.
The Van Deusens argue that oral comments made by Judge
Link in April 1997 indicate that the superior court did not
intend the denial of injunctive relief to preclude the Van
Deusens from bringing a future suit seeking an injunction. The
Seaveys respond that the superior court's statements were
"nothing more than . . . off-hand remarks."
Judge Link orally stated in April 1997: "If you were to
think that this decision . . . prevents this thing from being
relitigated, you'd have the wrong thought." But Judge Link's
September 1997 findings of fact and conclusions of law and his
October 1997 final judgment are controlling. The September 1997
written findings and conclusions denied the Van Deusens' request
for injunctive relief. As we noted in Part III.A.2, the Van
Deusens offered no evidence permitting them to avoid the
resulting bar against relitigating the nuisance issue and the
request for a injunction. The superior court's April 1997 oral
comments do not alter this conclusion.
The Van Deusens also argue that they are left with no
legal remedy if preclusive effect is given to the first action,
because AS 09.45.230 requires that damage suits in private
nuisance actions be accompanied by a request for an injunction.17
But AS 09.45.230 does not preclude the Van Deusens from
requesting damages. It only requires that they include with
their request a claim for injunctive relief. The statute does
not require that the action for injunctive relief be successful.
This may seem a circuitous route for recovering damages for a
temporary nuisance in a civil action, but it does not leave the
Van Deusens without "an adequate remedy at law." Moreover,
evidence of a genuine change in circumstances would overcome the
bar against relitigation because the underlying dispute would no
longer be "identical to the issue decided in the first action."18
C. The Seaveys' Civil Rule 68 Attorney's Fees Request Must Be
Considered on Remand.
The superior court awarded the Seaveys attorney's fees
of $8,499.40 under Civil Rule 82(b)(2), but the Seaveys argue in
their cross-appeal that the court erred by failing to grant their
request for attorney's fees under Civil Rule 68 (because they
made a successful offer of judgment), or for enhanced attorney's
fees under Civil Rule 82(b)(3).19
After the superior court granted partial summary
judgment against the Van Deusens on their injunctive relief
claim, the parties entered into a stipulation to dismiss the Van
Deusens' remaining claims. The stipulation stated that "the
Seaveys should timely file any motion they may bring for an award
of costs and fees in accordance with the law." The superior
court read the stipulation to allow for an award of attorney's
fees. But it noted that the stipulation did not mention Rules 37
or 68, that Rule 82 is the "most common mechanism" for awarding
fees, and that the agreed-upon final judgment form characterized
the Seaveys as "the prevailing parties" (a prerequisite only for
awards under Rule 82). It therefore read Sanders v. Barth20 to
deny it authority to consider the Seaveys' request for fees under
Rules 37 or 68.21 We held in Sanders that "[a]n agreement's
silence as to fees . . . may be seen as a meaningful part of the
parties' overall bargain which we should not disturb."22
The Seaveys argue that Sanders does not apply because
the Seaveys and Van Deusens never entered into a settlement
agreement. They contend instead that they "won this case" on
summary judgment, that they then stipulated to dismissal of the
remaining claims, and that the final judgment was based on their
summary judgment. They assert alternatively that the stipulation
did not preclude them from seeking a fee award under any
applicable procedural rule, including Rule 68. The Van Deusens
respond that Sanders applies because: (1) the parties settled the
claims covered by the Rule 68 offer of judgment; (2) Rule 68
applies to claims, not cases; (3) the stipulation is silent about
Rule 68; and (4) the final judgment form refers to "prevailing
parties," indicating that the parties only contemplated an award
under Rule 82, not Rule 68.23
The superior court appropriately looked to Sanders in
deciding whether the stipulation - which agreed to dismiss the
Van Deusens' remaining claims - foreclosed or limited the
Seaveys' potential claims for attorney's fees. But in Sanders,
the parties' silence on the topic of fees precluded any fees
claim. That is not the situation here. The parties agreed in
the stipulation that "[f]inal judgment should be entered in favor
of the Seaveys, and the Seaveys should timely file any motion
they may bring for an award of costs and fees in accordance with
law."
Applying our independent judgment in interpreting the
stipulation and the agreement it contains, we conclude that it
did not expressly or impliedly limit the type of claim the
Seaveys might make for an award of attorney's fees. The
stipulation does not mention any procedural rule, including Rule
82. The reference in the proposed final judgment to the Seaveys
as "the prevailing parties" is not determinative, and would not
have prevented the court from awarding enhanced attorney's fees
under Rule 82(b)(3) had it chosen to do so in its discretion.
Further, assuming that no waiver occurred, the court
would have been required to award fees under Rule 68 because the
rule's requirements are not discretionary.24 Whether the rule
applies in a given case is a matter of law, even though we review
the amount of a Rule 68 award for abuse of discretion. We
therefore do not read the stipulation to have foreclosed the
Seaveys from attempting to demonstrate that they made a
successful offer of judgment entitling them to fees under Rule
68.
The Seaveys have demonstrated potential prejudice.
Their February 1998 Rule 68 offer of judgment "allow[ed] judgment
to be entered against [the Seaveys] in complete satisfaction of
all claims of any type what-so-ever, in the amount of $20,000."
The Van Deusens did not accept the offer. The summary judgment
rejected the Van Deusens' claim for injunctive relief and the
final judgment dismissed all claims; this ended the litigation
without giving the Van Deusens any relief or damages. It
therefore appears that the final judgment was at least five
percent less favorable to the Van Deusens than the Seaveys' Rule
68 offer.25 Because the stipulation clearly contemplated an award
of attorney's fees, did not specify that fees could only be
recovered under Rule 82, and did not preclude recovery under Rule
68, we hold that it was error not to consider the Seaveys' Rule
68 fees request.26 We remand for consideration of that claim.
IV. CONCLUSION
Because the Van Deusens have not demonstrated that
there is a genuine factual dispute about whether the conditions
changed since judgment in their first lawsuit, collateral
estoppel bars their second lawsuit. We therefore AFFIRM the
superior court's grant of summary judgment to the Seaveys. We
REMAND for consideration of the Seaveys' application for Rule 68
attorney's fees.
_______________________________
1 Trails North, Inc. v. Seavey, Mem. Op. & J. No. 944, at
2 (Alaska, December 1, 1999).
2 Id.
3 Id.
4 Id. at 3.
5 Id. at 19.
6 The Van Deusens assert on appeal that they voluntarily
dismissed their damages claim "to more rapidly appeal the court's
ruling that their claim for an injunction was barred by res
judicata."
7 Alaska Contracting & Consulting, Inc. v. Alaska Dep't
of Labor, 8 P.3d 340, 344 (Alaska 2000) (citation omitted).
8 Id.
9 We will affirm the superior court's grant of summary
judgment to the Seaveys if there are no genuine issues of
material fact and if the Seaveys are entitled to judgment as a
matter of law. Holland v. Union Oil Co. of California, Inc., 993
P.2d 1026, 1029 (Alaska 1999). The Van Deusens, as the summary
judgment opponents, are entitled to have the record reviewed in
the light most favorable to them and to have all reasonable
factual inferences drawn in their favor. Id.
10 Kentucky-Ohio Gas Co. v. Bowling, 95 S.W.2d 1, 5 (Ky.
App. 1936). See also 9 RICHARD POWELL & MICHAEL ALLAN WOLF,
POWELL ON REAL PROPERTY 64.04[2], at 64-22 to 64-23 (2001)
(citations omitted). The noise created by a gas company's
pumping activities has been held to be a permanent nuisance to an
adjacent homeowner. Kentucky-Ohio Gas, 95 S.W.2d at 4-6.
Nuisances are more likely to be labeled permanent if "the
invasion is the kind of thing an equity court would refuse to
abate by injunction because of its value to the community."
Beatty v. Washington Metro. Area Transit Auth., 860 F.2d 1117,
1123 (D.C. Cir. 1988) (citing D. DOBBS, REMEDIES 5.4, at 338
(1973)); see also Kentucky-Ohio Gas, 95 S.W.2d at 5 (holding gas
company's pumping activities contribute to the local economy and
provide utility services to local residents). But even nuisances
created by activities providing substantial public benefits, such
as operating a railway system, may be abatable if changes in
operating procedures alleviate the nuisance without terminating
service. Beatty, 860 F.2d at 1123-24. Because we hold that the
nuisance complained of is temporary, we do not reach this factual
inquiry in this case.
11 Citing AS 09.10.070, the Seaveys also argue that the
Van Deusens' action is barred by the two-year statute of
limitations. They argue that the nuisance complained of was
created in 1993 and that any claim after 1995 is barred. The
Seaveys' argument is based on the theory of permanent nuisance.
Because we hold that the claimed nuisance is temporary and not
permanent, claims after 1995 are not necessarily barred by AS
09.10.070.
12 Beatty, 860 F.2d at 1122.
13 Alaska Contracting, 8 P.3d at 344-45 (citations
omitted).
14 Andrews v. Wade & De Young, Inc., 875 P.2d 89, 92 &
n.9 (Alaska 1994).
15 See D.J. v. P.C., 36 P.3d 663, 669 (Alaska 2001)
(stating that non-movant in summary judgment motion is "required,
in order to prevent entry of summary judgment, to set forth
specific facts showing that [non-movant] could produce admissible
evidence reasonably tending to dispute or contradict the movant's
evidence, and thus demonstrate that a material issue of fact
exists") (internal quotations and citations omitted).
16 Our affirmance on this ground makes it unnecessary for
us to reach the Seaveys' alternative arguments for affirming.
17 AS 09.45.230 states in part:
(a) A person may bring a civil action to
enjoin or abate a private nuisance. Damages
may be awarded in the action.
. . . .
(e) Notwithstanding other provisions of the
law, . . . a person may not bring a civil
action to enjoin or abate a private nuisance
or to recover damages for a private nuisance
unless the action is authorized by this
section.
18 Alaska Contracting, 8 P.3d at 344.
19 The Seaveys also claim that the court should have
granted their request for Civil Rule 37 fees, but they have not
demonstrated on appeal any facts potentially justifying a Rule 37
award as a discovery sanction against the Van Deusens. They have
therefore not demonstrated that they were prejudiced by any error
in declining to consider their Rule 37 fees request.
20 12 P.3d 766, 767 (Alaska 2000) (holding absence of
attorney's fees provision in settlement agreement barred party
from receiving fees). But see DeSalvo v. Bryant, 42 P.3d 525,
530 n.21 (Alaska 2002) (declining to apply Sanders rule where
party bypassed opposing party's counsel in reaching settlement).
21 The superior court stated:
Considering the lack of mention of Rules 68
or 37 in the stipulation, the role of Rule 82
as the most common mechanism for awarding
fees, and the parties' agreement that the
Seaveys are the prevailing party . . . , the
court interprets the parties' stipulation as
an agreement to an award of Rule 82 fees and
a settlement and waiver of all other theories
upon which fees could be awarded.
22 Sanders, 12 P.3d at 769-70 (citation omitted).
23 We review the superior court's award of attorney's fees
for an abuse of discretion. Thorstenson v. ARCO Alaska, Inc.,
780 P.2d 371, 376 (Alaska 1989). We apply our independent
judgment in reviewing the superior court's interpretation of the
stipulation and the final judgment to determine the parties'
intentions. Jackson v. Barbero, 776 P.2d 786, 788 (Alaska 1989)
("Interpretation of a contract is a question of law, for which
the reviewing court uses independent judgment." (citation
omitted)).
24 Civil Rule 68, as it read at times relevant to this
appeal, stated in part:
. . . (b) If the judgment finally rendered by
the court is at least 5 percent less
favorable to the offeree than the offer, . .
. the offeree, whether the party making the
claim or defending against the claim, shall
pay all costs as allowed under the Civil
Rules and shall pay reasonable actual
attorney fees incurred by the offeror from
the date the offer was made . . . .
Alaska R. Civ. P. 68(b). The Van Deusens' Anchorage counsel
mailed their complaint to Kenai Superior Court on about August
13, 1997. The quoted version of Rule 68(b) applies to cases
filed after August 7, 1997. Alaska Supreme Court Order No. 1281
17 (August 7, 1997).
25 Id.
26 We are unpersuaded by the Seaveys' additional claim
that it was error not to consider their request for enhanced
attorney's fees under Rule 82(b)(3). The superior court treated
the stipulation as permitting a Rule 82 award; it treated the
stipulation as barring a Rule 68 fees request, but there is no
indication it thought the stipulation precluded consideration of
a request seeking fees under Rule 82(b)(3). The reasons it gave
for its ruling suggest that it did not consider the stipulation
to foreclose an enhanced fee award. A trial court has discretion
to apply the presumptive standard of Rule 82(b)(2); it does not
abuse its discretion if it awards fees under subpart (b)(2)
without giving reasons for not awarding enhanced fees under
subpart (b)(3). Moody-Herrera v. State, Dep't of Natural Res.,
967 P.2d 79, 90 (Alaska 1998).
