Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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,


PATRICIA  VAN  DEUSEN,           )     Supreme  Court   Nos.   S-
     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     )
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.


          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.


          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


          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


          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


          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.


     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


          (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
          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


          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


          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


          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.


          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

     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

     12    Beatty, 860 F.2d at 1122.

     13     Alaska  Contracting,  8  P.3d  at  344-45  (citations

     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
     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

     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).