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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stuart v. Whaler's Cove, Inc. (09/29/2006) sp-6051

Stuart v. Whaler's Cove, Inc. (09/29/2006) sp-6051, 144 P3d 467

     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

EVELYN L. STUART, Trustee of the )
Milton J. and Evelyn L. Stuart Trust ) Supreme Court No. S-11952
and Successors, )
)
Appellant, ) Superior Court No.
) 1JU-03-100 CI
v. )
)
WHALERS COVE, INC., RICHARD) O P I N I O N
L. POWERS, RICHARD L. POWERS,)
d/b/a WHALERS COVE LODGE, INC.,)
)
Appellees. ) No. 6051 - September 29, 2006
)
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:  Ray C. Preston, Law Offices  of
          John  M.  Rice, P.C., Juneau, for  Appellant.
          Kristen D. Pettersen, Dillon & Findley, P.C.,
          Juneau, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

I.   INTRODUCTION
          This case presents the question of whether the superior
court erred when it refrained from holding Whalers Cove, Inc., in
contempt  for allegedly failing to comply with a prior  order  of
the  court.   We  conclude that because  Whalers  Cove  had  made
significant efforts to comply with the prior order, the  superior
court  was  well  within its discretion when it refused  to  hold
Whalers Cove in contempt.
II.  FACTS AND PROCEEDINGS
          The  Milton J. and Evelyn L. Stuart Trust, with  Evelyn
Stuart  as the trustee  (Stuart), and Whalers Cove, Inc. (Whalers
Cove), the owner of the Whalers Cove Lodge, both own property  on
the eastern end of Killisnoo Island in Southeast Alaska.  A fifty-
foot-wide right-of-way runs east-west, bisecting the eastern part
of the island. One of Stuarts two parcels abuts the right-of-way;
the other parcel is connected to the fifty-foot right-of-way by a
ten-foot-wide  right-of-way.   The fifty-foot  right-of-way  runs
through  the  property  of  Whalers Cove  before  terminating  at
Killisnoo Harbor.
          In the course of operating its lodge, Whalers Cove both
constructed and improved buildings that encroached on the  right-
of-way.  Whalers Cove also expanded an existing reservoir.  After
the   expansion  was  complete,  the  reservoir  along  with  its
embankment extended twenty-nine feet into the right-of-way.
          Stuart, seeking to have the encroachments removed, sued
Whalers Cove. At the end of the ensuing trial, the superior court
determined  that  the  permanent  encroachments   .   .   .   are
unreasonable  as  a matter of law and fact.  The  superior  court
explained that the expanded reservoir and related embankment were
unreasonable   not  just  because  they  directly   impeded   the
subdivision  owners private property rights in the  right-of-way,
but  also because they made the right-of-way a largely impassable
glacier in the winter.  The superior court concluded that Whalers
Coves placement of permanent obstructions over the right of  way,
including   erection   of  a  berm/dam  and  water   reservoir[,]
constitute a nuisance and shall be removed at defendants  expense
within six months of this order.
          The   superior  court  asked  Stuart  to   prepare   an
appropriate  form  of  judgment.  That judgment,  signed  by  the
court,   stated  that  [b]ased  on  the  Findings  of  Fact   and
Conclusions  of  Law  entered  July  23,  2004,  the   defendants
placement  of  permanent  obstructions  over  the  right  of  way
constitute[s] a nuisance.  The judgment went on to  declare  that
[a]ll  permanent  obstructions over the right of  way,  including
those obstructions specifically identified in the Courts July 23,
2004  Trial  Findings of Fact and Conclusions of  Law,  shall  be
removed at defendants expense by January 23, 2005.
          After the judgment issued, Whalers Cove moved the  fuel
station and all of the buildings and ramps that had encroached on
the  right-of-way.  Whalers Cove also made three attempts to move
the  reservoir and associated embankment off of the  right-of-way
and onto Whalers Cove property.  Whalers Cove succeeded in moving
all  of  the reservoirs water off of the right-of-way.   However,
the  reservoir  embankment still extends into  the  right-of-way.
The  parties dispute the extent to which the embankment continues
to  encroach   Richard Powers, the owner of Whalers Cove,  admits
that  the embankment extends into the right-of-way, but  only  by
ten  feet, while Stuart claims that the embankment encroaches  by
fifteen  to twenty feet.  Whalers Cove contends that its work  on
the  reservoir and embankment actually improved the  right-of-way
by  preventing  it  from  serving as a  natural  drainage  ditch.
Whalers  Cove  also claims that as a result of its  efforts,  the
reservoir has been moved south and thus further onto Whalers Cove
property than it was at the time the right-of-way was created.
          Once  the  January  23, 2005 deadline  for  moving  the
encroachments had passed, Stuart filed a motion for an  order  to
show  cause  for why Whalers Cove should not be held in  contempt
for  failing  to move the encroaching embankment.  After  hearing
oral  argument on the motion, the superior concluded that Whalers
Cove  had exerted significant effort to reconstruct the reservoir
so as to make the right-of-way more passable.  The superior court
denied Stuarts motion.
          Stuart  filed a motion for reconsideration,  which  the
superior court also denied.  Stuart now appeals.
III. STANDARD OF REVIEW
          Stuart  argues that when the superior court denied  her
motion  to show cause for why Whalers Cove should not be held  in
contempt,  it  accepted  all  the  facts  put  forward  as  true.
According to Stuart, we should therefore analogize this case to a
denial of summary judgment and use the de novo standard of review
when deciding this appeal.
          We  decline  to  adopt  Stuarts  proposed  standard  of
review.   In  the  course of refusing to  hold  Whalers  Cove  in
contempt,  the superior court made a number of factual  findings,
including  that  Whalers  Cove had made  significant  efforts  to
reconstruct the reservoir.  We review the superior courts factual
findings  on  the issue of contempt for clear error.1   While  we
review  de  novo  a superior courts decision to hold  someone  in
contempt pursuant to Alaska Civil Rule 90(b),2 a superior  courts
decision  not  to  hold a party in contempt is committed  to  the
courts discretion and is one to which we will accord considerable
deference.3
IV.  DISCUSSION
          The  superior court found that Whalers Cove had made  a
significant effort to reconstruct the reservoir and that  Whalers
Coves  efforts were designed to make the right-of-way  safer  and
more  passable.   The  record documents  in  detail  the  efforts
Whalers  Cove made to reconstruct the reservoir, including  using
heavy  equipment, draining the reservoir, installing a new liner,
reinforcing the embankment to keep water off of the right-of-way,
and  digging  a new overflow from the reservoir.  A  director  of
Whalers  Cove  involved in the reconstruction  process  gave  his
opinion  that the reconstructed embankment was helping to prevent
the  right-of-way from serving as a drainage channel.  Given this
evidence  in the record and the absence of any contrary evidence,
we  conclude  that the superior courts factual findings  are  not
clearly erroneous.
          Stuart  argues  that  because  Whalers  Cove  had   the
physical  capability to move the embankment off of the  right-of-
way,  the  superior  court  should  have  held  Whalers  Cove  in
contempt, even though Whalers Cove admittedly did what  it  could
to  improve the situation without sacrificing [its] water supply.
The  superior court determined that since Whalers Cove  had  made
significant efforts that appeared to have achieved the purpose of
the previous order, namely making the right-of-way more passable,
it would not hold Whalers Cove in contempt.  Indeed, the superior
          court recognized during the contempt hearing that requiring
Whalers  Cove to move the reservoir and embankment further  would
likely result in the right-of-way becoming less passable.   Given
the  superior courts weighing of the costs and benefits of strict
compliance with its previous order, we decline to hold  that  the
superior court abused its discretion.
          Stuart further argues that the superior courts decision
not  to  hold  Whalers  Cove in contempt  rested  on  the  courts
problematic  focus on the present-day rather than the  potential,
future use of the right-of-way.  Yet the superior courts decision
not  to hold Whalers Cove in contempt need not prevent the  court
from  addressing  future  problems  with  the  right-of-way.    A
decision  not to hold a party in contempt differs from a  finding
that  a  party  satisfied a judgment.  The superior  courts  past
refusal to hold Whalers Cove in contempt does not preclude Stuart
from  seeking  future court intervention if circumstances  change
and  it  becomes clear that the embankment must be moved to  make
the  right-of-way more passable or suitable for utility  or  road
construction.  Indeed, the superior court appeared to acknowledge
the possibility that further action would need to be ordered when
it  stated  that it looks as if its still not known if   if  this
[reconstruction] is going to be a fix.  Or if  if, in  fact,  the
reservoir  is  going to have to be moved further  back  or  other
steps taken just to make [the right-of-way] passable and safe.4
V.   CONCLUSION
          For  the  above  reasons we AFFIRM the superior  courts
decision not to hold Whalers Cove in contempt.
_______________________________
     1     Willoya  v. State, Dept of Corr., 53 P.3d  1115,  1120
(Alaska 2002).

     2     Anchorage Police & Fire Ret. Sys. v. Gallion, 65  P.3d
876, 879-80 (Alaska 2003).

     3     See Matanuska Elec. Assn v. Rewire the Board, 36  P.3d
685,  700-701  (Alaska 2001) (noting that the  clearly  erroneous
standard  of  review for factual findings in  contempt  cases  is
consistent  with the deferential review used by courts  in  other
jurisdictions  and citing cases employing an abuse of  discretion
standard).

     4      Stuart   further  argues  that  the  superior   court
incorrectly  believed that bad faith was a necessary  element  of
civil  contempt  and erroneously found Whalers Coves  failure  to
comply with its order to be non-willful.  We need not reach  this
argument  because the superior courts decision  to  deny  Stuarts
motion  had  a basis apart from the superior courts determination
that  the willfulness element of contempt had not been satisfied.
As  we  have explained, the superior courts finding that  Whalers
Cove  had  made  significant efforts to move the  embankment  was
sufficient  justification for its discretionary decision  not  to
hold Whalers Cove in contempt.

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