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Fernandes v. Portwine (9/20/2002) sp-5632
Fernandes v. Portwine (9/20/2002) sp-5632
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
JOAQUIM S. FERNANDES, d/b/a )
FERNANDES COMPANY, INC., ) Supreme Court Nos. S-
9990/10009
)
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 4FA-99-2636 CI
)
DANIEL and JOANNE PORTWINE, ) O P I N I O N
)
Appellees/Cross-Appellants. ) [No. 5632 -
September 20, 2002]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Ralph R. Beistline, Judge.
Appearances: John J. Connors, Law Office of
John J. Connors, P.C., and Robert John, Law
Office of Robert John, Fairbanks, for
Appellant/Cross-Appellee. Craig B. Partyka,
Cook, Schuhmann & Groseclose, Inc.,
Fairbanks, for Appellees/Cross-Appellants.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
Joaquim Jack Fernandes appeals the following aspects of
the superior courts decision in a nuisance case brought against
him by Daniel and Joanne Portwine: (1) the courts use of the
preponderance of the evidence standard; (2) the use of a six-year
statute of limitations; (3) the denial of his request for a jury
view of the premises; (4) the courts finding that the Portwines
use of their premises was grandfathered; (5) the courts finding
that he was not the prevailing party; and (6) the finding that he
did not better his offer of judgment. The Portwines cross-
appeal, challenging the superior courts determination that: (1)
they are not the prevailing parties; and (2) they did not better
their offer of judgment. Because the superior court did not err,
we affirm the decision in its entirety.
II. FACTS AND PROCEEDINGS
Fernandes and the Portwines own adjoining multi-lot
properties on Alaska Way in Fairbanks. Both families own rental
units on their properties. The Portwines claim that Fernandes
and his tenants, over the course of ten years, kept incessantly
barking dogs penned or staked outdoors. They claim that from
1989 to 2000 Fernandes used an open-bed truck, parked in front of
one of his rental units, to collect and store his tenants
garbage, that the truck was infrequently emptied, that the stench
of rotten garbage would enter the Portwine property, and that
animals would strew the garbage onto the ground and into the
street. They complained that Fernandess tenants were exceedingly
noisy, played car and home stereos at excessive volumes, that
there was often suspicious activity around the apartments, and
that Fernandess tenants and the tenants pets routinely trespassed
on their property.
The Portwines brought suit, claiming that Fernandes had
created a public and private nuisance and seeking to permanently
enjoin Fernandes and his tenants from keeping barking dogs,
trespassing on the Portwines property, storing garbage in an open
truck, or loudly playing home or car stereos.1 They further
sought to enjoin Fernandes from adding to his rental units, and
requested damages and reasonable costs and attorneys fees.
Fernandes counterclaimed, asserting that the Portwines engaged in
per se defamation against him. He further asserted that the
Portwines used their residentially zoned property for non-
permitted commercial/industrial uses by storing heavy equipment
and debris associated with their plumbing business, which he
sought to enjoin. He also sought damages, as well as reasonable
costs and attorneys fees. Fernandes submitted offers of judgment
pursuant to Civil Rule 68 and AS 09.30.065. The Portwines also
made offers of judgement. None of the offers was accepted.
Prior to trial, the superior court ruled that the
injuries claimed were in the nature of interference with the
Portwines real property rights and that AS 09.10.050 therefore
applied. Alaska Statute 09.10.050 imposes a six-year limitations
period for actions of trespass on real property. The court also
denied Fernandess request for a jury view of the premises under
Civil Rule 48(c).
Following trial, the jury found that Fernandes did
create a nuisance on his property. The jury found that no money
damages should be awarded, but that an injunction should issue
that no staked out or penned dogs allowed west of Alaska Way on
[Fernandess] property and current waste management practices
(commercial waste removal) shall remain in place on [Fernandess]
property. The jury further found that the Portwines did not
defame Fernandes, and that therefore no money damages were
appropriate. The superior court did not ask the jury to rule on
damages relating to loss of market or rental value or to
determine whether a permanent nuisance existed that could not be
remedied, because the court found that there was insufficient
evidence to support such findings.
Following return of the verdict, the superior court
issued an order for injunctive relief prohibit[ing] [Fernandes]
from permitting his tenants to have dogs that are penned or
staked outside of the residence other than for short periods
during the day time, i.e. more than two hours, and requiring
Fernandes to maintain a commercial waste removal service such as
currently in place. Although the judge opined that the signs on
the side of Fernandess four-plex should be removed, he explicitly
did not enter an order to that effect. He also found that
Fernandes was not disturbed by the plumbing business carried on
from the Portwines property, and accordingly did not issue an
injunction against the Portwines.
Both sides moved to be declared the prevailing parties
and for costs and attorneys fees. The superior court found that
[b]oth parties . . . prevailed on some issues and lost on others.
Viewing the matter as a whole, the Court concludes that neither
party can be considered the prevailing party for purposes of Rule
82. The judge further found that neither party had bettered its
offers of judgment, and therefore held that each party should
bear its own costs and fees. Both parties appeal.
III. STANDARD OF REVIEW
Whether the trial court used the appropriate burden of
persuasion presents a question of law to which this court applies
its independent judgment, adopting the rule of law that is most
persuasive in view of precedent, reason and policy.2 Similarly,
we will apply our independent judgment when interpreting and
applying statutes of limitation.3 We review a trial courts
decision to deny a request for a jury view for abuse of
discretion.4 We review a trial courts factual findings under a
clearly erroneous standard. A factual finding is clearly
erroneous when we are left with a definite and firm conviction on
the entire record that a mistake has been made.5 The question of
whether an offer of judgment is more favorable to the offeree
than the judgment is a question of law which we review de novo.6
We review awards of costs and attorneys fees for abuse of
discretion, which exists if an award is arbitrary, capricious,
manifestly unreasonable, or improperly motivated. We interpret
our civil rules de novo . . . .7 A trial courts prevailing-party
decision is reviewed for abuse of discretion.8
IV. DISCUSSION
A. The Superior Court Did Not Err in Not Requiring the
Portwines To Prove Nuisance by Clear and Convincing
Evidence.
Fernandes argues that the superior court erred in not
requiring the Portwines to prove the existence of a nuisance by
clear and convincing evidence, and instead allowing them to use
the preponderance of the evidence standard.9 Fernandes cites to
Spenard Action Committee v. Lot 3, Block 1 Evergreen Subdivision10
for the proposition that clear and convincing evidence is the
correct standard for statutory nuisance cases. However, the
statutes at issue in Spenard Action are quasi-criminal nuisance
statutes.11 Spenard Action itself points to the quasi-criminal
nature of the statutes at issue in the case, and the heavy
sanctions imposed under those statutes, in deciding that the
standard of proof should be one which lies between the civil
standard of a preponderance of the evidence and the criminal
standard of beyond a reasonable doubt, that is, clear and
convincing evidence.12 The Portwines were not suing under the
nuisance abatement statutes at issue in Spenard Action, and
therefore the case is not applicable.
Preponderance of the evidence is the general burden of
persuasion in civil cases.13 Other states use the preponderance
of the evidence standard in nuisance cases.14 We conclude that it
is the correct burden of proof in this case. We therefore uphold
the superior courts use of the preponderance of the evidence
standard.
B. The Superior Court Did Not Err in Applying a Six-Year
Rather than a Two-Year Statute of Limitations.
Alaska Statute 09.10.050 provides for a six-year period
of limitations for an action for waste or trespass upon real
property. Fernandes argues that trespass as used in this section
should be limited to claims resulting from a physical invasion of
real property. The Portwines counter that trespass has a broader
meaning that encompasses [a]n unlawful interference with ones
person, property, or rights.15 They argue that all of the
nuisances proved by them constituted an invasion of their right
to use and peacefully enjoy their land.
The superior court agreed with the Portwines, noting
that it must look to the type of injuries claimed, as opposed to
the causes of action pled, to determine which statute of
limitations is appropriate . . . . Observing that in McDowell v.
State this court stated that trespass includes actions that
allege an interference with the possessors property rights16 and
that the Portwines nuisance action alleged an interference with
their property right in the private use and enjoyment of their
land, the court stated:
Therefore, under the Alaska Supreme
Courts jurisprudence in McDowell, there is
little question that the six-year term under
AS 09.10.050 applies. There might be
situations where a plaintiffs injuries in a
private nuisance action would not allege an
interference with the possessors property
rights as McDowell, 957 P.2d at 970, requires
for AS 09.10.050 to apply. But here, where
Plaintiff alleges (remember, the Court looks
to the injury), the inability to quietly
enjoy their property because of loud barking
dogs, improperly contained garbage, and what
this Court will characterize as obnoxious
traffic, such injuries clearly fall within
McDowells definition of trespass.
We agree with the superior court that the six-year
statute of limitations governs this case. Trespass has both a
narrow and a broad meaning. The narrow meaning refers to an
unlawful entry upon the land of another.17 The broad meaning
encompasses, as we recognized in McDowell in a statute of
limitations context, any unlawful interference with ones person,
property, or rights.18 The broader definition here, as in
McDowell, determines the meaning of AS 09.10.050. Using this
definition, the Portwines nuisance claims were encompassed by AS
09.10.050.
The superior courts application of AS 09.10.050 is
bolstered by the rule of construction providing that where two
statutes might reasonably apply to a claim, the statute that
provides for the longer period is to be preferred. We applied
this rule in McDowell: [T]he defense of the statute of
limitations is a legitimate, but disfavored, defense. We
therefore have expressed a policy of applying the longer of two
limitations periods if two limitations statutes apply to a claim.19
We have applied the rule in a number of other cases.20
We therefore affirm the superior courts use of the six-
year statute of limitations in this case.
C. The Superior Court Did Not Err in Denying Fernandess
Request for a Jury View under Civil Rule 48(c).
Fernandes contends that the superior court abused its
discretion in refusing to grant his motion for a jury view of the
premises. He argues that because the trial judge chose to view
the premises himself, he should have allowed the jury to do so.
Civil Rule 48(c) provides in pertinent part:
When the court deems proper, it may
order a proper officer to conduct the jury in
a body to view the property which is the
subject of the litigation or the place where
a material fact occurred and to show such
property or place to it.
The language of the rule is permissive and implies broad
discretion, stating that the court may order a jury view and
leaving the decision up to what the court deems proper. In his
order denying Fernandess request for a jury view of the premises,
the judge wrote that his decision
was based on the Courts belief that a view of
the scene would not assist the jury in
resolving the disputes before it. There are
adequate pictures available and the testimony
has been extensive to illustrate the
neighborhood. Further, the Court notes that
there have been numerous changes over the
years and the present appearance of the
neighborhood is different than it was during
much of the period complained of.
Given the broad discretion entrusted to the trial court under
Civil Rule 48(c) and the reasoned decision of the superior court
in denying the motion, we find that the superior court did not
abuse its discretion in refusing to grant a jury view of the
premises.
D. The Superior Court Did Not Err in Refusing To Enjoin
the Portwines Plumbing Business.
Fernandes argues that the Portwines commercial use of
their property does not comply with Fairbanks North Star Borough
Code of Ordinances 18.56.030, which governs grandfather rights
for non-conforming uses, and that the superior court therefore
erred in holding that the Portwines were entitled to grandfather
rights to conduct their plumbing business from their
residentially zoned property. In his counterclaims, Fernandes
argued that the Portwines use of their property violated zoning
ordinances and created a private nuisance. After trial, the
superior court found that the Portwines use of the property was
grandfathered, that Fernandes was not actually disturbed by the
Portwines use of their property, that the Portwines had improved
the property over the years, and that no witnesses had found
fault with the way they kept their property.
At trial, a former employee of the Department of
Community Planning at the Fairbanks North Star Borough provided
general testimony regarding grandfather rights and confirmed that
he had never received a complaint about the plumbing business
conducted from the Portwines property. He expressed no opinions,
however, about whether or not the Portwines use of their property
enjoyed grandfather rights. It does not appear that any other
expert testified as to whether the Portwines were in compliance
with local zoning ordinances, and if not, whether they were
entitled to grandfather rights. Daniel Portwine testified as to
the various uses of his property over time, but did not go into
much detail. In his own testimony, the only references Fernandes
made to the Portwines use of their land were to say that they
have a lot of junk over there, parts and a lot of junk there, and
I dont care about Portwines doing this [their plumbing business]
on property. I never - - I never pay any attention what they do
on his property.
We will only overturn the superior courts factual
findings if they are clearly erroneous. Given the scant
testimony regarding the Portwines use of their land, the superior
court did not err in finding that Fernandess claim against the
Portwines was not established at trial.
E. The Superior Court Did Not Err in Denying Both Parties
Attorneys Fees under Civil Rule 82.21
Following trial both parties moved to be declared the
prevailing party and for costs and attorneys fees under Civil
Rule 82. The superior court found that [b]oth parties . . .
prevailed on some issues and lost on others. Viewing the matter
as a whole, the Court concludes that neither party can be
considered the prevailing party for purposes of Rule 82. The
court concluded that [t]he jury seems to have viewed this matter
as ending in a draw and the Court certainly concurs. Under the
circumstances, therefore, justice requires that each party bear
its own costs and fees. Both parties appeal, claiming to be the
prevailing party.
We have held that the trial courts discretion under
Rule 82 is broad enough to warrant denial of attorneys fees
altogether, so long as [w]hen the trial court departs from the
Rules schedule of fees, the reasons for the nonadherence . . .
appear in the record.22 Similarly, we have held that where
neither party can be characterized as the prevailing party, we
have concluded that the superior court did not abuse its
discretion in refusing to award either party attorneys fees.23
The superior courts order regarding costs and fees states that
both the jury and the court found for the Portwines on some
claims for injunctive relief and for Fernandes on others, they
found for the Portwines on the issue of defamation, and they did
not award damages to either party. It therefore concludes that
there is no prevailing party, and each party should bear its own
costs and attorneys fees. The superior courts position that
neither party prevailed is reasonable. We conclude therefore
that it did not abuse its discretion in not awarding fees to any
party.
F. The Superior Court Did Not Err in Denying Both Parties
Attorneys Fees under Civil Rule 68.24
Prior to trial, Fernandes submitted offers of judgment
pursuant to Civil Rule 68 and AS 09.30.065, offering to accept
judgment in favor of the Portwines for $500 each, inclusive of
prejudgment interest, costs and attorneys fees, in settlement of
all legal claims and remedies pled by the Portwines, and
including dismissal with prejudice of Fernandess defamation
claim. The Portwines made offers of judgment suggesting that
judgment be entered in their favor in the amount of $2,500 each,
inclusive of prejudgment interest, costs and attorneys fees, in
settlement of any and all legal claims and remedies pled by
either the Portwines or Fernandes, and including the dismissal
with prejudice of both of Fernandess counterclaims.25 Neither
party accepted the others offer.
Following trial, both parties moved to be declared the
prevailing party and for costs and attorneys fees. The superior
court found:
Given the lack of a money judgment, [the
Portwines] did not beat their offers of
judgment and did not prevail at trial on this
issue. While [Fernandes] did better than the
$500 offered in his offer of judgment, [his]
offer of judgment did not address the
equitable claims against him or Count 2 of
his counterclaim and was therefore not a
comprehensive offer. Injunctive relief was
entered against [Fernandes] that he did not
formally acquiesce to prior to trial and
[Fernandes] did not prevail with regard to
Count 2 of his counterclaim. Therefore, the
Court cannot conclude that [Fernandes] beat
his offer of judgment at trial.
Fernandess offer of judgment was not comprehensive,
definite and unconditional; it did not encompass any of the
equitable claims in this case and it failed to include one of his
own two counterclaims. The goal of Civil Rule 68 is to encourage
settlement and avoid litigation.26 It would have served little
purpose for the Portwines to accept Fernandess offers of $1,000
damages without also settling the injunction claims. Both legal
and equitable claims were based on the same set of facts, and
settling only the legal claims would not have avoided litigation.
The Portwines contend that they did better than their
offer of judgment, and are entitled to seventy-five percent of
their reasonable and actual attorneys fees from the date the
offer of judgment was made. The Portwines offer of judgment
included total damages of $5,000. They received no damages.
Therefore they did not obtain a result more favorable than their
offer of judgment. We accordingly affirm the superior courts
denial of Rule 68 attorneys fees to both parties.27
V. CONCLUSION
Because the superior court did not err in deciding any
of the challenged aspects of this case, we AFFIRM the decision in
its entirety.
_______________________________
1 Eventually the Portwines also complained about signs on
Fernandess four-plex advising tenants where to put their garbage.
2 Spenard Action Comm. v. Lot 3, Block 1 Evergreen
Subdivision, 902 P.2d 766, 774 (Alaska 1995).
3 Pedersen v. Flannery, 863 P.2d 856, 857 n.1 (Alaska
1993).
4 Alaska R. Civ. P. 48(c); Hampton v. State, 623 P.2d
318, 319 (Alaska 1981).
5 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
6 Andrus v. Lena, 975 P.2d 54, 57 n.1 (Alaska 1999).
7 Kellis v. Crites, 20 P.3d 1112, 1113 (Alaska 2001).
8 Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996).
9 Fernandes mentions in an argument caption that the
court made no specific findings that would support a finding of
nuisance. This point is not further developed in his brief and
is therefore waived. See Petersen v. Mutual Life Ins. Co. of New
York, 803 P.2d 406, 410 (Alaska 1990) (an issue given only
cursory treatment in a brief will be treated as abandoned). In
his reply brief, Fernandes objects to the jury verdict because
the jury was asked whether he had created or permitted a private
or public nuisance on his property. Fernandes claims that the
public nuisance issue was disposed of on directed verdict, and
that therefore the finding of nuisance is erroneous, because the
jury verdict does not explain which type of nuisance is found.
Fernandes did not raise this issue in his opening brief and
therefore the argument is waived. See Kellis, 20 P.3d at 1114-15
(an argument not raised before trial court or in opening brief is
waived).
10 902 P.2d 766 (Alaska 1995).
11 Spenard Action involved a nuisance claim under AS
09.50.170-.240. Id. at 774.
12 Id. at 775.
13 Addington v. Texas, 441 U.S. 418, 423 (1979) (the
burden in typical civil cases is preponderance of the evidence);
Spenard Action Comm., 902 P.2d at 775 (the general civil standard
is preponderance of the evidence); Cavanah v. Martin, 590 P.2d
41, 42 (Alaska 1979) (The standard of proof in civil cases is
proof by a preponderance of the evidence.).
14 E.g., Mangini v. Aerojet-General Corp., 912 P.2d 1220,
1225 (Cal. 1996); Bilodeau v. City of Bristol, 661 A.2d 1049,
1051 (Conn. App. 1995); Hartzler v. Town of Kalona, 218 N.W.2d
608, 610 (Iowa 1974); Tenn v. 889 Assocs., Ltd., 500 A.2d 366,
371 (N.H. 1985); State v. Fermenta ASC Corp., 630 N.Y.S.2d 884,
892 (N.Y. Sup. 1995); Arnoldt v. Ashland Oil, Inc., 412 S.E.2d
795, 804 (W. Va. 1991).
15 Blacks Law Dictionary 1502 (6th ed. 1990) quoted in
McDowell v. State, 957 P.2d 965, 970 (Alaska 1998).
16 957 P.2d at 970.
17 See Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995
P.2d 657, 664 (Alaska 2000), where we stated, but not in
connection with a statute of limitations: Trespass is an
unauthorized intrusion or invasion of anothers land, including
subsurface areas.
18 McDowell, 957 P.2d at 970 (quoting Blacks Law
Dictionary 1502 (6th ed. 1990)).
19 Id. at 971.
20 E.g., Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d
848, 855 (Alaska 1991) ([D]oubts as to which of two statutes is
applicable in a given case should be resolved in favor of
applying the statute containing the longer limitations period.);
Bibo v. Jeffreys Rest., 770 P.2d 290, 296 (Alaska 1989)
([P]reference given to the longer period of limitations when two
periods reasonably may apply.); Jenkins v. Daniels, 751 P.2d 19,
22 n.6 (Alaska 1988); Safeco Ins. Co. v. Honeywell, Inc., 639
P.2d 996, 1001 (Alaska 1981) (Where two constructions as to the
limitations period are possible, the courts prefer the one which
gives the longer period in which to prosecute the action.).
21 Civil Rule 82 reads in pertinent part:
(a) Except as otherwise provided by law or
agreed to by the parties, the prevailing party in
a civil case shall be awarded attorneys fees
calculated under this rule.
22 Haskins v. Shelden, 558 P.2d 487, 495-96 (Alaska 1976).
23 City of Valdez v. Valdez Dev. Co., 523 P.2d 177, 184
(Alaska 1974). See also Shepherd v. State, Dept of Fish & Game,
897 P.2d 33, 44 (Alaska 1995) (citing Tobeluk v. Lind, 589 P.2d
873, 877 (Alaska 1979) (Where each party prevails on a main
issue, the court retains the discretion to not award any
attorneys fees.)).
24 Civil Rule 68 reads in part:
(a) At any time more than 10 days before
the trial begins, either the party making a
claim or the party defending against a claim
may serve upon the adverse party an offer to
allow judgment to be entered in complete
satisfaction of the claim for the money or
property or to the effect specified in the
offer, with costs then accrued. The offer
may not be revoked in the 10 day period
following service of the offer. . . .
(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 . . . .
25 Portwines counsel submitted a letter that same day
supplementing the Portwines offers of judgment, and purporting to
end the entire current litigation, including both equitable and
legal issues. The letter suggested that it was for purposes of
settlement, and suggested terms to be included in an overall
settlement. These suggestions included eliminating the dogs
housed outdoors, use of regular covered dumpsters, removal of
signs outside rental units, an agreement that one of Fernandess
lots would revert to a two-unit occupancy upon transfer of the
property from Mr. Fernandes to a successor in interest, an
agreement by the Portwines not to object to completion of an
addition on the Fernandes home, and the Portwines accepting
$2,000 (instead of $5,000) from Fernandes if he removed a mobile
home from his property.
26 Hayes v. Xerox Corp., 718 P.2d 929, 937 (Alaska 1986).
27 Fernandes further argues that the injunctions the court
entered against his property constitute an unconstitutional
taking and deny him equal protection of the laws. Fernandes did
not raise these constitutional issues in his trial brief, and
therefore waived the issues. See Hoffman Constr. Co. of Alaska
v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska
2001) (As a general rule, we will not consider arguments for the
first time on appeal.). Although our precedent allows for
consideration of arguments not raised explicitly below if the
issue is 1) not dependent on any new or controverted facts; 2)
closely related to the appellant's trial court arguments; and 3)
could have been gleaned from the pleadings, Fernandess
constitutional arguments do not fit within this exception.
Hoffman, 32 P.3d at 355 (quoting McConnell v. State, 991 P.2d
178, 183 (Alaska 1999) (internal quotations and citations
omitted)). We have also held that waiver will not be found where
an issue raises plain error. Hoffman, 32 P.3d at 355 n.29. But
the courts decision was not plain error.
