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


JOAQUIM S. FERNANDES, d/b/a        )
FERNANDES  COMPANY,  INC.,       )     Supreme  Court   Nos.   S-
          Appellant/Cross-Appellee,          )
                                   )    Superior Court No.
     v.                            )    4FA-99-2636 CI
          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.


          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.


          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.


          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


     A.   The  Superior  Court Did Not Err in Not  Requiring  the
          Portwines  To  Prove Nuisance by Clear  and  Convincing
          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


     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


          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


     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


     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


          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

     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

     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.