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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bradley v. Klaes (03/28/2008) sp-6242

Bradley v. Klaes (03/28/2008) sp-6242, 181 P3d 169

     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

ROBERT H. BRADLEY, )
) Supreme Court No. S- 12178
Appellant,)
) Superior Court No. 4FA- 04-1000 CI
v. )
) O P I N I O N
DANIEL L. KLAES, LYNDA K.)
KLAES, ANN CUNNINGHAM, and ) No. 6242 March 28, 2008
TOM ZACZKOWSKI, )
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:   Robert  H.  Bradley,  pro  se,
          Fairbanks.  Joseph W. Sheehan, Law Offices of
          Joseph W. Sheehan, Fairbanks, for Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          MATTHEWS, Justice.


          The  main  question  in  this  appeal  is  whether  the
superior  court  properly granted summary  judgment  establishing
user  fees for a taxiway and private airstrip.  We conclude  that
summary  judgment  was improperly granted on this  issue  because
there  was  a  genuine  issue of material fact  as  to  what  the
appropriate fee should be.
I.   FACTS AND PROCEEDINGS
          On April 20, 2004, the owners of three parcels adjacent
to  the  Bradley Sky Ranch Subdivision in North Pole  filed  suit
against  the  owners of the subdivision.  The plaintiffs,  Daniel
and Lynda Klaes, Ann Cunningham, and Tom Zaczkowski, alleged that
each  owned an easement granting access to and use of an airstrip
located on the subdivision property.  They alleged that they  had
fully paid the annual user fee for use and access to the airstrip
of  $300  to James or Leslie Bradley and that Robert Bradley  had
demanded  additional  fees and interfered  with  their  right  of
access   to  the  airstrip.   The  plaintiffs  sought  an   order
confirming  their rights to use the airstrip and a  determination
that  the  fees that they had been paying were reasonable.   They
also  sought  a preliminary and permanent injunction  prohibiting
Robert  Bradley  from making additional demands for  payment  and
from interfering with their right of access to the airstrip.
          On   May  14,  2004,  Robert  Bradley,  represented  by
counsel, filed an answer and counterclaim admitting that  he  had
attempted to block plaintiffs access across his property  to  the
airstrip and that he had demanded that plaintiffs pay him fees as
a   condition  of  obtaining  access  to  the  airstrip.   Robert
counterclaimed  for  unpaid fees and damages  in  an  unspecified
amount.   Robert  also filed a memorandum in  opposition  to  the
motion for preliminary injunction.
          In  the  memorandum Robert admitted that the plaintiffs
have a taxiway easement to the airstrip that they may use if they
pay  a reasonable fee.  He contended that the easement is limited
to noncommercial uses and is to last only as long as the airstrip
is  used  as an airstrip.  Robert explained that he had  been  in
litigation  with  his  brothers James and Leslie  concerning  the
ownership  and  control  of  the subdivision  and  that  under  a
settlement  in  that litigation James and Leslie  would  own  the
airstrip  while  Robert would own portions of the subdivision  on
which the plaintiffs taxiway easement was located.  Robert stated
that  under  the settlement agreement user fees were  payable  to
him,  that  this  had  been communicated  to  the  plaintiffs  in
November  2003,  and  that  nonetheless  plaintiffs  made   their
payments to Leslie.
          The plaintiffs filed a reply in support of their motion
for  preliminary injunction on May 24, 2004.  The reply indicated
that  Robert  was  demanding  $175 per  month  per  aircraft  and
asserted  that this fee was unreasonable.  The reply  also  noted
that  the taxiway that the plaintiffs use to gain access  to  the
airstrip  is maintained by the plaintiffs rather than Robert  and
that the easement agreement provides for a fee for the use of the
runway and does not require the payment of a separate access fee.
The  reply acknowledged three areas of dispute:  (1) what fee  is
reasonable  for access and use of the airstrip; (2)  whether  the
fee  should have been paid to Robert; and (3) whether the Klaeses
were involved in commercial operations.
          Concerning the amount of the fee, the plaintiffs argued
that  historically  the  fee had been  $300  per  user  per  year
regardless  of  the number of aircraft each user  stored  on  the
users property.  The per-user rather than per-aircraft issue  was
important because, according to his affidavit, Daniel Klaes  owns
five  aircraft and at various times throughout the  year  all  of
these  aircraft could be on his property.  Daniel Klaes indicated
that he had been paying $300 for the use of the airstrip for more
than   ten   years.   Tom  Zaczkowski  also  filed  an  affidavit
indicating  that he owned two aircraft and that he too  had  been
paying  $300 for access and use of the airstrip for the past  ten
years.
          With  respect  to  who  should receive  the  fees,  the
plaintiffs  claimed that they did not receive notice that  Robert
had  the  right  to  receive  the  fees  until  April  30,  2004.
Regarding   the   Klaeses   commercial  operations,   the   reply
acknowledged  that the Klaeses own a corporation, Bettles  Lodge,
Inc.,  to which they lease their aircraft.  Bettles Lodge,  Inc.,
is,  in part, an air service, but it operates out of Bettles, not
out  of the Klaeses North Pole property.  Nonetheless, the  reply
confirms that during the winter months the aircraft are parked on
the  Klaeses property and that all the aircraft return there  for
maintenance.
          A  hearing on the motion for preliminary injunction was
held  on  May  27, 2004.  At the close of the hearing  the  court
granted a preliminary injunction.  The injunction enjoined Robert
from  interfering with the plaintiffs access to the airstrip  and
also enjoined him from demanding or collecting any fees from  the
plaintiffs  in  conjunction with their use  of  the  taxiway  and
airstrip.
          Roberts  attorney withdrew on November  30,  2004,  and
Robert  thereafter represented himself.  On May 5,  2005,  Robert
moved  to  dismiss  the case for want of prosecution  relying  on
Civil  Rule 41(e).  Robert relied on Civil Rule 41(e)(1)(B) which
provides that a case may be dismissed for want of prosecution  if
the case has been pending for more than one year and no trial  or
mandatory  pretrial scheduling conference has been  scheduled  or
held.  Roberts motion to dismiss was set for oral argument to  be
held on June 27, 2005.
          On  June  17,  2005, the plaintiffs moved  for  summary
judgment.    They  requested  an  order  making  the  preliminary
injunction permanent and confirming that the present user fee  of
$300 per year or $25 per month is reasonable.  In support of  the
motion  the  plaintiffs  quoted  the  language  of  the  easement
contained in the deeds to their property.  The easement  language
grants plaintiffs a non-exclusive right of private use . .  .  as
an  easement  .  .  .  of the existing private  airstrip  .  .  .
including  the  right of access thereto from the herein  conveyed
real  estate  .  .  .  subject to a  right  in  the  owners,  for
themselves and their heirs and assigns . . . to hereafter levy or
impose  reasonable  landing or use fees upon  any  user  of  said
airstrip,  and as a condition of the continuing use of  the  same
. . . .
          Plaintiffs argued that although Robert had the right to
collect  user  fees  he  did not have  the  right  to  set  them.
Plaintiffs relied on the order of settlement in the case  between
the  Bradley brothers for this assertion.  The paragraph on which
they  relied  states:  Other landowners who may  have  rights  of
access to the airstrip will pay user fees (that the owners of the
airport  may have previously had the right to collect) to  Robert
Bradley.1   The  plaintiffs also argued that Roberts  attempt  to
charge  a  fee  of $175 per aircraft per month was  unreasonable.
          They cited charges made by other airstrips in the area, none of
which exceeded $40 per month.
          The  plaintiffs each submitted an affidavit in  support
of  the  motion  for summary judgment.  Each affidavit  confirmed
that  another private airstrip in the area charged $30 per  month
per  lot,  a second charged $35 per month per lot, and  Fairbanks
International  Airport charged $40 per month for a  standard  tie
down.  The plaintiffs also supported their motion with affidavits
of  James and Leslie Bradley.  They affied, identically, that the
$25 per month user fee is more than reasonable, without regard to
the  number  of  aircraft, given the limited  services  provided.
Each  stated, I am aware generally that the fee charged . . .  is
consistent  with  the fee being charged by other local  privately
owned airstrips.
          On  the  same  day  that they filed  their  motion  for
summary judgment, the plaintiffs stipulated with James and Leslie
Bradley  to  dismiss them as defendants.  They were dismissed  on
August 19, 2005.
          On  June  27,  2005, Robert Bradley moved  pursuant  to
Civil Rule 56(f) to extend the time to respond to the motion  for
summary  judgment so that he could conduct discovery in order  to
obtain  information  needed  to oppose  the  motion  for  summary
judgment.    On  July  11,  2005,  the  plaintiffs  filed   their
nonopposition to Roberts Rule 56(f) motion to extend,  suggesting
that Robert be allowed an additional thirty days within which  to
conduct discovery and file his opposition.  On July 22, 2005, the
court granted Roberts motion for additional time so that he could
conduct discovery, extending the time for opposing the plaintiffs
motion  for summary judgment for thirty days.  The order of  July
22  was mailed to the parties on July 28.  Meanwhile, on July 25,
2005,  Robert responded to the plaintiffs response  to  his  Rule
56(f)  motion.   He  contended in a pleading  entitled  Reply  to
Plaintiffs  Partial  Objection to Limited Discovery  that  thirty
days  was  not enough time for needed discovery and requested  an
extension of six months.
          On  August  12, 2005, the plaintiffs filed  a  pleading
entitled  Reply in Support of Motion for Summary Judgment.   This
pleading  argued that the extension of time granted by the  court
for  Robert to answer the motion for summary judgment expired  on
August  4, 2005, even though the court only granted the extension
on  July  22  and mailed it on July 28.  The plaintiffs  reasoned
that  the normal time for the response to the motion for  summary
judgment  would have been on or before July 5, 2005,  and  thirty
days from that date was August 4, 2005.
          On  August  19, 2005, Superior Court Judge  Charles  R.
Pengilly  granted  the  plaintiffs motion for  summary  judgment,
noting  that  it had not been opposed.  The order confirmed  that
the plaintiffs have the right to use the taxiway easement leading
from  their property to the airstrip and that $25 per  month  per
lot as a user fee was reasonable and should be the fee charged by
Robert   Bradley.    The  court  ordered  that  the   preliminary
injunction would become permanent and that the $25 per month  per
lot  user  fee  should be paid to Robert.  On the same  day  that
summary judgment was granted the court signed a judgment in favor
of  the  plaintiffs in accordance with the order granting summary
judgment.
          On   September   6,   2005,   Robert   Bradley   sought
reconsideration.  Robert argued in his motion for reconsideration
that  his request for a six-month extension was either overlooked
or  ignored.   Roberts motion for reconsideration was  not  ruled
upon and was thus denied by operation of law thirty days after it
was  made.2   Robert  made a Rule 60(b) motion  for  relief  from
judgment  on October 27, 2005.  This motion was denied  by  Judge
Pengilly on November 30, 2005.
II.  DISCUSSION
          On  appeal Robert presents six arguments captioned3  as
follows:
          (1) whether there was error by the lower court  in
     making its decision to let the injunction stand;
          (2)  whether the court erred in not granting  more
     than  thirty days to do discovery on a summary judgment
     motion;
          (3)  whether  a dismissal for want of  prosecution
     should  have  been granted to defendant Robert  Bradley
     since   this  case  sat  stagnant  and  there  was   no
     calendaring of claim and no prehearing on discovery;
          (4)  whether  the  plaintiff appellees  interfered
     with property covenants for use of right of way to  the
     airstrip;
          (5)  whether plaintiff appellees can set their own
     pricing for use of right of way to the airstrip; and
          (6) whether co-defendants James Bradley and Leslie
     Bradley   can  control  right-of-way  use  of  property
     controlled by Robert Bradley that was awarded to him in
     a prior proceeding.
          Roberts first, second, and third contentions deal  with
pre-summary judgment rulings.  We turn to them first.
     A.   Was the Preliminary Injunction Properly Granted?
          Robert  in  his first argument on appeal contends  that
the  preliminary  injunction should not have  been  granted.   He
argues  that the plaintiffs did not show irreparable  harm.   The
grant  or  denial  of a preliminary injunction  is  ordinarily  a
matter  within  the  discretion  of  the  superior  court.4   The
plaintiffs  demonstrated  that  Robert  had  interfered  and  was
threatening to continue to interfere with their right  of  access
to  the airstrip.  Numerous cases hold that injunctive relief  is
available to protect easement rights.5  Since plaintiffs right of
access  was  a  legally  protected property interest,  injunctive
relief  to protect it was appropriate.  Thus this argument  lacks
merit.
     B.   Should  an Extension Longer than Thirty Days Have  Been
          Granted Under Civil Rule 56(f)?
          
          The  trial court granted Roberts Rule 56(f) request for
additional  time on July 22, 2005.  Robert in his June  27,  2005
request  for such relief did not identify any potential deponents
but  stated that he was requesting an extension of time  to  take
discovery,  deposition, both video and written[,] and  to  obtain
          [affidavits] which will be used in my opposition to plaintiffs
motion  for summary [judgment].  The plaintiffs filed  a  Partial
Objection and Non-Objection to Roberts 56(f) motion.  They  noted
that  Robert had not done any discovery since the filing  of  the
case,  but  did not oppose a reasonable extension so that  Robert
could  obtain affidavits and discovery and prepare his opposition
memorandum.   They  suggested that thirty  (30)  days  should  be
adequate and also submitted a proposed order granting Rule  56(f)
relief  that stated that Robert is granted thirty (30) days  from
date of this order within which to procure discovery, affidavits,
and  file his opposition to the motion for summary judgment.  The
court,   however,  did  not  use  the  order  submitted  by   the
plaintiffs.   Instead  the court signed  an  order  submitted  by
Robert  and  interlineated  that  the  date  for  opposition   to
Plaintiffs Motion for Summary Judgment is extended 30 days.   The
court  signed  this order on July 22, and it was  mailed  by  the
clerks office on July 28, 2005.
          After  the  plaintiffs filed their  partial  objection,
Robert  on July 25 responded that thirty days would not be enough
time  and  asked for six months.  This pleading did  not  specify
whom  Robert  wished to depose or on what issue their depositions
would  be  relevant, but Robert did indicate that some people  he
wished  to depose are out of town and won[]t be back for  awhile.
By  the  time  Robert filed this pleading the court  had  already
ruled  and never revisited the subject.  The question is  whether
the  court erred in refusing to grant Robert an extension  longer
than thirty days.
          Civil Rule 56(f)
          permits a party opposing summary judgment  to
          request additional time to gather and  submit
          evidence     to    support     the     partys
          opposition. . . .  [R]equests made under Rule
          56(f)  should be granted freely because  [the
          rule]  provides a safeguard against premature
          grants of summary judgment. . . .
          
               . . . .
          
          [A] party must satisfy three requirements  to
          receive a continuance under Rule 56(f):   the
          party  (1) must unambiguously request  relief
          on  those  grounds, (2) must  not  have  been
          dilatory  during  discovery,  and  (3)   must
          provide adequate reasons why additional  time
          is needed.[6]
          
          Roberts  July  25  request  for  additional  time   was
unambiguous  and thus he met the first of the stated grounds  for
Rule  56(f)  relief.   But Robert was dilatory  with  respect  to
discovery.  We do not reach this conclusion because Robert failed
to  conduct discovery before the motion for summary judgment.  No
party  took  any  action after the preliminary  injunction  until
Robert moved to dismiss on Civil Rule 41(e) grounds.  His motion,
in  turn,  appears to have prompted the plaintiffs  to  file  the
motion  for  summary judgment.  But after the motion for  summary
          judgment was filed and Robert realized that additional discovery
was  needed,  he could have begun taking depositions  within  the
thirty-eight-day  period  between  the  filing  of  the   summary
judgment  motion and his July 25 request for a six-month  delay.7
During this period Robert was dilatory.
          We  also  do not believe that Robert supplied  adequate
reasons  why  time  in addition to the thirty-day  extension  was
needed.   He supplied neither the names of the witnesses whom  he
wished  to  depose (or from whom he wished to obtain  affidavits)
nor  any verifying details as to who was unavailable, nor did  he
indicate  the issues on which their testimony was thought  to  be
germane.   We  conclude therefore that Robert  has  not  supplied
adequate reasons why additional time was needed.  He thus  failed
to  meet  both the second and third requirements for  Rule  56(f)
relief.  For these reasons we conclude that the court did not err
in  declining  to  grant more than a thirty-day  extension  under
Civil Rule 56(f).8
     C.   Should  the  Case  Have  Been  Dismissed  for  Want  of
          Prosecution?
          Turning   to  Roberts  third  contention,   whether   a
dismissal  for  want  of prosecution should  have  been  granted,
Robert  relies on Civil Rule 41(e)(1)(B), which permits dismissal
for  want of prosecution in a case that has been pending for more
than  one  year  where no trial or mandatory pretrial  scheduling
conference  has been scheduled or held.  Under this rule  when  a
case has been pending for more than a year and the conditions  of
subsection (1)(B) are met, the court (or the clerk of  court)  is
not  to dismiss the case automatically but must request a showing
as  to why the case should not be dismissed.  Thus in response to
Roberts  motion  to  dismiss  the  court  could  have  asked  the
plaintiffs  to  show cause why the case should not be  dismissed.
But  this was not necessary because shortly after Robert made his
motion  to  dismiss  the plaintiffs moved for  summary  judgment.
Once  that  motion  was  made it would  have  been  an  abuse  of
discretion to enter a Rule 41(e) dismissal.
     D.   Was Summary Judgment Appropriate?
          Roberts fourth and fifth arguments on appeal pertain to
whether   the  court  erred  substantively  in  granting  summary
judgment for the plaintiffs.
          The  rules governing our review of judgments  based  on
the  grant  of summary judgment were recently expressed  by  this
court in Greywolf v. Carroll:
               Summary  judgment  is  granted  if   the
          pleadings,  depositions, or other  admissible
          evidence  along  with  affidavits  show  that
          there  is  no genuine issue of material  fact
          and that a party is entitled to judgment as a
          matter  of law.  We review a grant of summary
          judgment  de  novo and in so doing  draw  all
          reasonable   inferences  in  favor   of   the
          nonmoving  party  to  determine  whether  the
          parties  genuinely dispute any facts material
          to a viable legal theory and, if not, whether
          the  undisputed facts entitle the  movant  to
               judgment as a matter of law.
          
               A  complete  failure of proof concerning
          an  essential element of the nonmoving partys
          case  necessarily  renders  all  other  facts
          immaterial.   The movant has  the  burden  of
          showing that there is an absence of a factual
          dispute  on  a  material fact and  that  this
          absence of a dispute constitutes a failure of
          proof  on an essential element.  If  a  prima
          facie case is established by the movant, then
          the  nonmoving party must set forth  specific
          facts  showing that admissible evidence could
          be  produced that reasonably tends to dispute
          or  contradict the moving partys evidence  in
          order  to  demonstrate  the  existence  of  a
          dispute of material fact and prevent entry of
          summary judgment.  Any admissible evidence in
          favor  of  the  nonmoving party concerning  a
          material fact is sufficient to render summary
          judgment inappropriate.[9]
          
As implied by the quoted language, when a summary judgment movant
does not make a prima facie case showing the absence of a factual
dispute  on  a  material  fact, it  is  error  to  grant  summary
judgment,  and the grant of summary judgment may be  reviewed  on
appeal even if the nonmoving party did not file opposition to the
motion in the trial court:
          The  moving  party has the entire  burden  of
          proving   that  it  is  entitled  to  summary
          judgment.   That is, unless the moving  party
          points  to  undisputed  facts  or  admissible
          evidence  establishing  a  prima  facie  case
          entitling it to summary judgment as a  matter
          of  law, the opposing party has no obligation
          to   produce  evidence  supporting  its   own
          position.[10]
          
          Roberts fourth argument complains that payments of  the
fees  were made to his brothers James and Leslie.  Prospectively,
at least, this is not an issue because the judgment provides that
each of the plaintiffs must pay Robert a user fee so long as they
use  the taxiway and airstrip.  But there is an issue as to  when
the  plaintiffs should have begun paying Robert user  fees.   The
question of retrospective payments to Robert was not resolved  by
the  judgment or the order granting summary judgment, nor was  it
addressed  in  the motion for summary judgment.   The  plaintiffs
therefore  have  not  carried their burden  as  summary  judgment
movants of showing an absence of a factual dispute on this point.
Since  they  did  not make a prima facie case as to  this  issue,
Roberts  lack  of  opposition to the motion for summary  judgment
does  not  preclude him from raising the point  on  appeal.11  On
remand the court should determine the date after which user  fees
should  have been paid by the plaintiffs to Robert.  If the  fees
were  not paid to Robert, he is entitled to judgment for them  on
          his counterclaim.
          In  his  fifth point on appeal Robert argues  that  the
plaintiffs  should not be able to set their own fees as  distinct
from  the  rightful  rent that Robert seeks  to  charge.   Fairly
construed this argument raises the issue as to whether the  court
was  correct in determining that the appropriate user fee for the
taxiway and airstrip was $25 per month.
          There is an underlying legal issue here, namely whether
Robert rather than James and Leslie have the authority to set the
user  fee.  The language of the settlement agreement between  the
brothers  does  not,  as the plaintiffs contend,  establish  that
Leslie  and James have the authority to set the user fee.  Absent
extrinsic  evidence  and  based solely on  the  language  of  the
agreement, we believe that Robert rather than his brothers should
have   fee-setting  authority.   Otherwise,  his  brothers  could
substantially  reduce  the  value of  Roberts  rights  simply  by
setting  the fees at low levels.  Pending possible resolution  of
this  question  to  the contrary on remand,  we  assume  for  the
purposes of the discussion that follows that Robert has the right
to set the fees.
          Based  on  this assumption, and given that there  is  a
range  of  fees  that may be reasonable, Robert should  have  the
right  to charge fees at the top of the range.  Robert, in  other
words, may charge the highest reasonable fee.
          Much  of  the  evidence  submitted  by  the  plaintiffs
pertained  to  the  question  of whether  $25  per  month  was  a
reasonable fee and did not address the issue of whether  $25  per
month  was the highest reasonable fee.  But both James and Leslie
testified in affidavits that the $25 fee is more than reasonable,
without  regard  to  the number of aircraft,  given  the  limited
services provided.  This testimony, if offered at trial by a live
witness,  would  be  admissible to  establish  that  the  highest
reasonable fee was $25 per month.  Nonetheless, there  was  other
evidence  in  the  record  that when favorably  construed  toward
Robert  indicated  a  fee  higher than $25  per  month  would  be
reasonable.    We   refer  here  to  the  plaintiffs   affidavits
indicating  that another private airstrip charges $30  per  month
per  lot  and a third charges $35 per month.  Drawing  reasonable
inferences in favor of Robert from this evidence suffices, in our
view, to establish a genuine issue of material fact as to whether
$25  per month per lot is the highest reasonable fee that may  be
charged.  As a result, the plaintiffs did not show the absence of
a  factual dispute on this issue.  They thus did not establish  a
prima  facie case entitling them to summary judgment  as  to  the
appropriate fee that Robert may charge.12  The judgment  on  this
point must therefore also be reversed.
     E.   Can  Roberts  Claim Against His Brothers Be  Raised  in
          this Case?
          Roberts  sixth  point on appeal is  a  claim  that  his
brothers  James  and Leslie have unlawfully interfered  with  his
property.   But  since Robert did not plead cross-claims  against
them this argument is not properly presented in this case.
III. CONCLUSION
          Summary  judgment and judgment against  Robert  Bradley
enjoining  him  from  interfering with plaintiffs  use  of  their
taxiway  easement was appropriate and the court properly required
the  plaintiffs to pay a fee for the use of the taxiway  easement
and  the airstrip to Robert prospectively.  But the court did not
determine  the prejudgment date from which such fees should  have
been paid to Robert and the court erred in determining on summary
judgment that the user fee should be $25 per month.  The judgment
therefore  must  be  vacated with respect  to  these  issues  and
further  proceedings  on  remand will be  required  in  order  to
determine them.
          For  the  reasons stated the judgment  is  AFFIRMED  IN
PART,  REVERSED  IN PART, and this case is REMANDED  for  further
proceedings consistent with this opinion.
_______________________________
     1     The  order of settlement was signed by Superior  Court
Judge Randy M. Olsen on March 19, 2004.

     2    Alaska R. Civ. P. 77(k)(4).

     3    We have slightly edited Roberts argument headings.

     4     Brandon  v.  Dept of Corrections, 865 P.2d  87,  88-89
(Alaska 1993).

     5     See, e.g., Stuart v. Whalers Cove, Inc., 144 P.3d  467
(Alaska 2006); McGill v. Wahl, 839 P.2d 393 (Alaska 1992); 25 Am.
Jur. 2d, Easements and Licenses  110 (2007).

     6     Hymes  v.  Deramus, 119 P.3d 963,  965  (Alaska  2005)
(quotations & citations omitted).

     7     Even  after  the July 25 request Robert  initiated  no
discovery.

     8     We  note that the plaintiffs in their Reply in Support
of  Motion for Summary Judgment filed August 12, 2005  which  was
simply  a request that the court rule on their motion for summary
judgment  calculated that the thirty-day extension granted by the
court  expired on August 4, 2005.  This would be correct  if  the
extension  was  directly  tacked on  to  the  original  time  for
opposing  the motion.  It would not be correct if the  intent  of
the  court was to grant thirty days from the July 22 date of  the
courts  order.  The courts order itself is ambiguous  as  to  the
date   from  which  it  was  intended  to  run.   The  plaintiffs
interpretation  is a defensible, if ungenerous,  reading  of  the
order.  But we do not believe the ambiguity in the July 22  order
was  significant  in the context of this case.   Robert  gave  no
indication  that he would have filed an opposition to the  motion
for summary judgment within thirty days after July 22.  His post-
summary  judgment  pleadings  his motion  to  reconsider  summary
judgment of September 6, 2005, and his motion for 60(b) relief of
October 27, 2005  do not suggest that Robert expected to file  an
opposition to the motion for summary judgment within the  thirty-
day period as so calculated.

     9     151  P.3d  1234, 1240-41 (Alaska 2007)  (quotations  &
citations omitted).

     10     B.R. v. State, Dept of Corrections, 144 P.3d 431, 433
(Alaska 2006) (citations omitted).

     11    Id.

     12    We note that the permanent injunction order from which
Robert  appeals  established  the  amount  to  be  paid  by   the
plaintiffs so long as they access and use the Bradley  Sky  Ranch
Airstrip.   However, the highest reasonable fee that  Robert  can
charge  probably  will  increase as time passes  and  the  market
changes.   A  permanent injunction setting the highest reasonable
fee  Robert can charge should not be read to prohibit Robert from
raising  the  fee  in  the  future  with  prior  court  approval.
Further,  because  it is unlikely that todays highest  reasonable
fee  will  remain so indefinitely, the superior court  on  remand
should  impose  a  reasonable  time  deadline  after  which   the
injunction will expire.

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