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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Keenan v. Wade (05/09/2008) sp-6257

Keenan v. Wade (05/09/2008) sp-6257, 182 P3d 1099

     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
          
MICHAEL J. KEENAN, )
) Supreme Court No. S- 12437/S-12446
Appellant/ )
Cross-Appellee, )
) Superior Court No.
v. ) 3AN-04-12554 CI
)
HUGH G. WADE, ) O P I N I O N
)
Appellee/ )
Cross-Appellant. ) No. 6257 - May 9, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances: Donna C. Willard, Law Offices of
          Donna    C.    Willard,    Anchorage,     for
          Appellant/Cross-Appellee.  Hugh G. Wade,  pro
          se, Anchorage.

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

          CARPENETI, Justice.

I.   INTRODUCTION
     
          I.    Two tenants in common partitioned their property.
After  completing partition, they disagreed as to the  amount  of
owelty1 that was due.   The superior court determined the  amount
owed,  and one co-owner appeals, arguing that the superior  court
overvalued  his  property.   The  other  co-owner  cross-appeals,
arguing that the superior court erred in (1) failing to designate
a  date  for  valuation  of each parcel, (2)  using  an  improper
          formula to determine owelty, (3) entering a money judgment in the
final   order,  and  (4)  determining  that  appellant  was   the
prevailing  party  for purposes of attorneys fees.   Because  the
superior  courts  valuation  of  the  property  was  not  clearly
erroneous  and  the  court did not err in  making  various  other
decisions  which  are  challenged by the parties  on  appeal,  we
affirm the superior courts decision in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Attorneys   Hugh  Wade  and  Michael  Keenan   co-owned
property  near  Seldovia on the MacDonald Spit.  They  owned  the
property  as  tenants-in-common beginning in  1991,  when  Keenan
purchased  the  interest of Wades initial partner, Barrie  White.
They  did  not  enter into a written agreement  concerning  their
joint ownership.
          The  property  initially consisted of an  approximately
five-acre tract, on which there was one cabin that had been built
in  1978.   In 1993 the property was subdivided, and  Keenan  and
Wade  sold approximately two and one half acres to third parties.
Throughout  the first few years of co-ownership, Wade and  Keenan
shared  the  cabin that was on the remaining two acres  of  land.
They  had  agreed  in 1991 to construct a guest cabin,  but  they
disagreed on its location.  Wade insisted on  building the  cabin
below a bluff, but Keenan believed the location was too close  to
the  high-water mark. Wade had a foundation constructed  for  the
guest  cabin  below  the  bluff, but a  storm  in  November  1994
destroyed it.
          In  1995  Keenan  proceeded to build a  separate  guest
cabin.   This cabin has become known to the parties as the Keenan
cabin.   Keenan  first  occupied the new cabin  in  spring  1995.
Thereafter,  he never personally used the original  cabin,  which
each  party recognizes as the Wade cabin.  From 1991 to the  fall
of 1999, Keenan maintained a checking account for the tenants-in-
common  to  pay  for the mortgage, improvements, and  repairs  on
their  property.   However, Keenan testified that  he  personally
paid for many of the construction costs for the Keenan cabin.  As
of   May   7,  1999,  the  parties  de  facto  separation   date,
approximately   $15,000  of  joint  funds  had   been   used   in
construction of the Keenan cabin.  Keenan concedes that  Wade  is
entitled to a credit of $7,500 based on those construction costs.
Beginning in 1998 Keenan made various additional improvements  to
the new guest cabin at his own expense.
          On  May  7, 1999, the parties separated their interests
and  entered  into a de facto partition of the subject  property.
Utilities  were separated, and each party became responsible  for
the expenses of his respective cabin.
          Both  before  and  after  the  May  7,  1999  de  facto
separation,  the parties struggled to determine the best  way  to
settle  their  remaining disputes and terminate the  partnership.
This  struggle  continued until 2003, when Wade wrote  to  Keenan
stating that he wanted to resolve the matter.  Keenan sought  the
help  of Superior Court Judge Mark C. Rowland and requested  that
he  mediate the dispute.  At the meeting with Judge Rowland,  the
parties  decided  to pursue a formal partition of  the  property.
After the Rowland mediation, the single most important issue  was
the valuation of the two parcels and payment of any difference.
          In  April 2004 the parties formally agreed to partition
and  subdivide  the property.  Keenan retained  the  services  of
McLane   Engineering  to  assist  with  the  partition.    McLane
officially  surveyed and divided the property into  two  separate
lots,  with Wade designated the owner of Lot 3A-1 (which includes
the  Wade  cabin)  and Keenan designated the owner  of  Lot  3A-2
(which includes the Keenan cabin).  The Wade lot is approximately
49,827  square  feet.   The  Keenan lot is  approximately  41,575
square  feet.  The parties could not agree on the value of  those
lots or the parties individual contributions to each lot.
            The  parties  agreed that the lots are not  of  equal
value  and  that some provision for owelty would be  appropriate.
Because the parties could not agree as to the appropriate  amount
of owelty, Keenan filed this lawsuit in November 2004.
     B.   Proceedings
          Keenans   complaint  alleged  that  Wade   refused   to
cooperate regarding the partition of the land and the payment  of
owelty.   Keenan requested that the court exercise its  equitable
jurisdiction  and enter a judgment partitioning the  property  as
agreed  by the parties, awarding a monetary sum to one  party  or
the  other  that  is fair and equitable under the  circumstances,
costs,  including reasonable attorney fees, and any other  relief
as  to  this court deems just.  Wade responded by admitting  that
the parties agreed to partition the property but denying (1) that
the  parties  agreed to a particular formula for calculating  the
owelty that should be paid by the party receiving the property of
greater  value  and (2) that the parties agreed to  hire  a  real
estate  appraiser  to appraise the properties and  determine  the
necessary  amount  of  owelty.  Wade also filed  a  counterclaim,
which appears to seek the same determination as Keenans complaint
and  explicitly  seeks a provision for owelty in accordance  with
A.S.  09.45.590.   The  counterclaim  also  seeks  resolution  of
Keenans  claim  for  compensation  for  labor  and  materials  or
increased value.
          Keenan  moved  for  partial  summary  judgment  on  the
partition  issue,  and Wade conceded that the  motion  should  be
granted.  The superior court entered an order affirming the above-
mentioned partition, awarding Lot 3A-2 to Keenan and Lot 3A-1  to
Wade.
          Upon hearing Keenans unopposed motion to establish  the
law of the case, the superior court ordered:
          the  measure for valuing property subject  to
          partition shall be determined on the basis of
          Fair  Market Value, and that for purposes  of
          determining  the amounts due  plaintiff,  the
          Court shall determine:
               1.   The  present  FMV of the  Lot  3A-1
                    land and structure, and
               2.   The  present  FMV of the  Lot  3A-2
                    land,
               3.   The   amount  of  any  credit   the
                    defendant would be entitled to as a
                    result    of    contribution     of
                    partnership funds to the plaintiffs
                    cabin,  as offset by the amount  of
                    personal  funds  expended  by   the
                    plaintiff for partnership expenses.
                    
The  most significant determination in this order was the  courts
decision  not  to consider the value of the Keenan cabin  in  its
determination of owelty.  Instead, the court decided  to  compare
the  value of Wades land and cabin with the value of Keenans  lot
without  his cabin and simply provide Wade with a credit for  the
portion of partnership funds expended on Keenans cabin.
          A  bench  trial  commenced on  February  7,  2006,  and
evidence  was  again  taken on February 9,  2006.   Both  parties
testified.   Keenan  introduced  the  deposition  testimony   and
appraisal  reports  of  appraiser  Mark  Webb.   In  an  official
appraisal, Webb estimated that the Wade property with  the  cabin
was worth $227,500 as of April 25, 2004.  Webb estimated that the
value would increase by at least five percent annually, and  that
it likely had increased by ten percent at the time of trial.2  In
his  deposition, Webb also testified about his letter of  opinion
regarding  the  Keenan lot, in which he concluded that  the  lot,
without  consideration of the cabin, was worth $75,000, based  on
other  sales  of vacant sites in the City of Seldovia,  near  the
MacDonald Spit.
          Keenan  testified that he believed Wades property  with
the  cabin  was worth $260,000, based on [c]omparable sales,  the
appraisal,  the testimony of . . . Mr. Webb and the testimony  of
Mr.  Wade.   He  estimated that the value of  his  own  property,
without the cabin, was $75,000.  Keenan explained his calculation
of   owelty  as  follows:  $260,000  (value  of  Wades  property,
including  the  cabin) minus $75,000 (value of Keenans  property,
not  including the cabin he built) = $185,000, divided by  two  =
$92,500  (the  amount of owelty Wade would owe  Keenan).   Keenan
explained that he did not seek costs for disproportionate  labor,
maintenance, or upkeep of his property.
          Wade  conceded  in  his testimony  that  his  property,
including the cabin, was worth $260,000 at the time of trial.  He
testified  that he believed Keenans lot, without the  cabin,  was
worth  not  less than $150,000.  He based his estimate on  recent
sales  in  the Seldovia/MacDonald Spit community.  Wade  did  not
review  the Multiple Listing Service for comparable sales on  the
MacDonald Spit, but he testified that he was intimately  familiar
with  every  sale that occurred there in the last  year,  and  he
described  two such sales.  In his deposition, Wade had testified
that  his lot, without the cabin, was worth between $100,000  and
$125,000  and  that  it was bigger and sexier than  Keenans  lot.
When asked how, given Wades own testimony regarding the size  and
attractiveness  of  his lot, Keenans lot could  be  worth  25  to
$50,000 more than Wades lot, Wade responded that the conversation
was about apples and oranges.
          In  May  2006  the superior court rendered its  written
decision and order in the case.  The court found that [t]he  best
          evidence provided at trial establishes the value of Lot 3A-1
(Wades property) at $260,000.  The court then addressed the value
of Keenans lot:
          The appraisers opinion was that the value  of
          Lot  3A-2, without consideration of the guest
          cabin  improvement just referred  to,  to  be
          $75,000.   Mr. Wade opined that the property,
          without  building  was worth  $150,000.   The
          court  finds  that Mr. Wades opinion  is  the
          better evidence on  this subject.  It is true
          that  he is not an appraiser and has contempt
          for  them,  but  his  own  appraisal   though
          subject to the risk of bias  seems well based
          on recent like property transactions.
          
The court next addressed whether Wade would receive a portion  of
the  value  of Keenans cabin: Based on the courts ruling  on  the
unopposed motion for a determination of the law of the  case  Mr.
Wade doesnt share in the value of the Lot 3A-2 improvement.   The
court  did,  however, provide Wade with a $7,500 credit  for  his
contribution  to the cabin based on Keenans use of  approximately
$15,000  of  partnership funds.  The court calculated  the  total
amount of owelty due to Keenan as $49,454.09.3
          In  June  2006 the court entered judgment in  favor  of
Keenan  for  $49,454.09.  The court  denied  Keenans  motion  for
reconsideration.  Wade then filed a motion to alter or amend  the
judgment.   He argued that the form of judgment was inappropriate
because  a  money judgment is not appropriate in  an  action  for
partition;  the  money judgment was not in the form  required  by
Alaska  Civil Rule 58; the judgment failed to address and resolve
material  issues  before  the court; the  final  judgment  should
incorporate  the  March 24, 2005 order granting  partial  summary
judgment;  the judgment should resolve and formalize the  parties
stipulations and the courts determinations relating to  utilities
and easements; and the judgment should provide an award of owelty
or equitable compensation for disproportionate improvement to the
property.   Keenan  responded  and  submitted  his  own  proposed
amended  final  judgment.4  The court accepted  Keenans  proposed
judgment  and officially entered a final judgment of  $66,405.13,
including  pre-judgment interest, attorneys fees, and  costs,  on
August 23, 2006.
          Keenan   appeals,  arguing  that  the  superior  courts
decision to substitute Wades valuation of the Keenan lot for that
of  the  appraiser  was clearly erroneous.   Wade  cross-appeals,
arguing that the superior court erred in (1) failing to determine
the appropriate date for valuation, (2) using an improper formula
to  determine owelty, (3) entering a money judgment in the  final
order,  and (4) determining that Keenan was the prevailing  party
for the purpose of awarding attorneys fees.
III. STANDARD OF REVIEW
          I.   Under Alaska Civil Rule 52(a), factual findings shall not be
set  aside  unless  they  are clearly  erroneous.   Valuation  of
property is a factual determination that will be reversed only if
clearly erroneous.5  Under this standard, we will reverse only if
          we are left with a definite and firm conviction that a mistake
has  been  made.6  When reviewing factual findings, we  view  the
evidence  in  the  light most favorable to the  prevailing  party
below.7
          We  review  questions  of  law  using  our  independent
judgment  and will adopt the rule of law that is most  persuasive
in light of precedent, reason, and policy.8
          We review an award of attorneys fees under Alaska Civil
Rule 82 for abuse of discretion.9
IV.  DISCUSSION
     A.   The Superior Courts Decision To Use Wades Estimate of the
          Value of Keenans Lot Was Not Clearly Erroneous.
          
          Keenan argues that the superior courts valuation of the
Keenan  lot  was  clearly erroneous because it  relied  on  Wades
estimate  rather  than  an  expert  appraisers  valuation.   Wade
responds  that  it  is  not  error to accept  a  property  owners
determination of the value of his or her own property.
          Keenan  reasons that an objective determination of  the
fair  market  value of partnership assets is necessary  when  the
parties  relationship is being dissolved, relying on Disotell  v.
Stiltner.10  In Disotell, we held that it was error to  permit  a
buyout  of  partnership assets without requiring  some  objective
determination of the value of all of the partnership assets.11  We
emphasized  that  [n]either  party  introduced  evidence  of  any
appraisal  or  any  other evidence of the  value  of  partnership
assets.12  We concluded: Because a buyout is appropriate only  if
it is for fair market value, and there was no admissible evidence
of  fair  market  value, we must remand.13   Wade  responds  that
Disotell did not create the requirement that the market value  of
property  be proved by formal appraisal or  even address  whether
it is error to reject a professional appraisers opinion regarding
the  value  of real property in favor of the owners opinion.   We
agree with Wade.
          Keenans discussion of Disotell fails to recognize  that
in  that  case there was no evidence of the value of  partnership
assets,  whereas  in  this case there was competing  evidence  of
value,  including Wades testimony regarding prices for comparable
land  sales.   In  Disotell, we simply emphasized  the  need  for
objective  evidence  of  the  fair market  value  of  partnership
assets.14   We  have  also held that [o]wners may  express  their
opinions of an assets value, but must use a principled method  of
valuation.15
          Here,  Wades  opinion of the value of  Keenans  lot  is
based  on  his knowledge of comparable sales of property  on  the
MacDonald  Spit.   Although  Wade did  not  review  the  Multiple
Listing  Service or examine tax appraisal records,  he  discussed
the prices for comparable property sales in the area.  First,  he
testified that the nearby Carr-Agni lot sold for $92,000 in 1997.
He stated, it had a very small A-frame which . . . has since been
destroyed  and . . . it sold just for the lot.  At a modest  five
percent  annual  appreciation, the Carr-Agni lot would  be  worth
approximately  $142,722 by the time of trial  in  2006.   Second,
          Wade testified about a lot with two small cabins that sold for
$200,000  in  2005.   According to  Wade,  the  two  cabins  were
[unheated],  uninsulated shacks, no running water, no  utilities,
no  septic.   Assuming a modest five percent annual appreciation,
the  value of the lot would be approximately $210,000 at the time
of  trial  in  2006.   These  sales, adjusted  as  necessary  for
purposes  of  comparison  to  the  Keenan  property,  afford   an
evidentiary basis for Wades valuation.  Thus, the superior courts
decision  to  accept that the value of Keenans lot  in  2006  was
$150,000 rather than $75,000 was not clearly erroneous.
         Keenan  also  argues that Wades opinions  of  value  are
inadmissible  under  Rule  701 of the Alaska  Rules  of  Evidence
because  they  do not meet the standards of being  based  on  the
perception of the witness and helpful to a clear understanding of
his  testimony  or the determination of a fact  in  issue.   This
argument  is  unavailing, however, because we have  held  that  a
property owners testimony regarding the value of his own land  is
admissible.16
          For  these reasons, Wades testimony regarding the value
of  Keenans  lot  is  admissible, and the  superior  court  could
validly rely on this testimony in determining that Keenans lot is
worth  $150,000.  The superior court found that Mr. Wades opinion
is  the better evidence on this subject because though subject to
the  risk  of bias the valuation seems well based on recent  like
property  transactions.  Because we do not have  a  definite  and
firm  conviction that a mistake has been made,17  we  affirm  the
superior courts finding that Keenans lot is worth $150,000.
     B.   The Superior Court Correctly Considered the Trial Date as
          the Appropriate Date for Valuation of the Properties.
          
          Wade argues that the superior court erred in failing to
determine an appropriate date for valuation of the properties; he
also appears to argue that the trial date (February 2006) is  the
appropriate  date.  He argues that if February 2006 was  selected
as  the  date  for  valuation, then no owelty  should  have  been
assessed because he alleges that the parties agreed that the lots
were  each  worth  $260,000 as of the time  of  trial.18   Keenan
responds that the trial court accepted valuations as of the  date
of trial.
          Keenan is correct that the court valued the property as
of  the time of trial.  In its Order Granting Motion to Establish
Law of the Case, the superior court explained that the amount due
to  the  plaintiff would be based on the present FMV [fair market
value] of each lot.  The superior court stated in its order  that
[t]he  best evidence provided at trial establishes the  value  of
[Wades  property, including the cabin] at $260,000.  The  finding
that  Keenans  lot  was worth $150,000 was also  based  on  trial
testimony about the value of the lot at the time of trial.  Thus,
although the superior court did not explicitly state the date  of
valuation, it is clear that the values were determined as of  the
time  of trial.  The superior court did not err by using the time
of trial as the valuation date.
     C.   Wade Waived His Argument that the Superior Court Used an
          Improper Formula To Determine the Appropriate Amount of Owelty
     Because He Failed To Raise the Issue Before the Superior Court.
          
          Wade argues that the superior court adopted an improper
formula  to  determine owelty.  He argues that  the  formula  was
simplistic   and  not  supported  by  authority   or   precedent.
Specifically, Wade argues that the formula is improper because it
credited  Keenan  with one hundred percent of the  value  of  the
improvements  which had been made on his lot  regardless  of  the
source  and  because  it did not require any  accounting  by  Mr.
Keenan  of  the  joint funds which he controlled and  which  were
expended  on his cabin during the five-year period from  1994  to
1999.   Keenan responds that the superior court did  not  err  in
adopting  a  formula for resolution which excluded the  value  of
Keenans   improvements.   Specifically, Keenan  argues  that  the
superior  court  credited Wade with one-half  of  the  amount  of
partnership funds that had been expended on the Keenan cabin  and
that  the  court possesses the power to enter any order necessary
to accomplish a just and equitable partition.
          Wade failed to oppose the formula at issue when it  was
introduced  by Keenans pre-trial motion to establish the  law  of
the  case.  The courts order on that motion determined that  Wade
would  not share in the value of the improvements to Keenans  lot
and  that  Wades improvements to his own cabin would not  entitle
him  to  a  credit.   Wade did not object to the  order  or  seek
reconsideration in a timely manner.  Generally, a partys  failure
to  file a timely opposition to a motion results in waiver of the
right  to object on appeal unless there is plain error.19   Plain
error exists where an obvious mistake has been made which creates
a  high  likelihood  that injustice has resulted.20   Here,  Wade
failed to file any opposition to the motion to establish the  law
of  the case.  Further,  the formula the court adopted took  into
account  both the credit [Wade] would be entitled to as a  result
of  contribution of partnership funds to [Keenan]s cabin and  the
amount   of   personal  funds  expended  by  the  plaintiff   for
partnership expenses.  Thus, the superior court did not  make  an
obvious mistake in adopting the formula.  Wades argument that the
formula is improper is therefore waived.
     D.   The Superior Court Did Not Err in Entering a Money Judgment
          Against Wade.
          
          The  superior  court accepted Keenans proposed  amended
final judgment and entered an order on the judgment on August 23,
2006.   The amended final judgment ordered the parties to  engage
the  services  of a title insurance company for  the  purpose  of
conducting  a real estate closing, to execute grants of  easement
and  a  water  rights  agreement in the  form  submitted  by  the
plaintiff attached to his opposition to the defendants Motion  to
Alter  or  Amend  the  Judgment, and to execute  the  appropriate
conveyancing documents.  The judgment also ordered the  defendant
to  deposit the total amount of judgment ($66,405.13)  in  escrow
before  all  the documents were recorded. After recordation,  the
funds were to be disbursed to the plaintiff.
          Wade argues that the form and substance of the judgment
are  fatally  flawed. Specifically, he argues that  the  judgment
          does not partition the property, but rather improperly directs
the  parties  to engage a title insurance company and  create  an
escrow  of  funds.  Wade also argues that the judgment  fails  to
confirm  the  agreement  regarding easements  and  utilities  and
constitutes  a  money  judgment, which he  alleges  is  improper.
Keenan  responds  that  partition was performed  by  the  parties
agreement,  that  the  cases cited by Wade  do  not  support  his
argument  for an alternative to a money judgment, that there  was
already agreement on the easements and utilities issue, and  that
Wades   argument  against  use  of  an  escrow  agent   is   left
unexplained.
          Wades  argument  that  the  superior  court  failed  to
partition  the  property ignores the courts Order on  Motion  for
Partial  Summary Judgment of March 24, 2005.  In that order,  the
court  partitioned the property in accordance with  Plat  2004-6,
awarding the plaintiff Lot 3A-2 and awarding the defendant Lot 3A-
1.   Thus, transfer of title was the only remaining act that  had
to be completed in order to effectuate the partition.  The use of
a title insurance company assists with the title transfer process
(conducting  a real estate closing).  Wade fails to indicate  why
the  use of a title insurance company is improper, so we  do  not
consider this argument.21
          Wades  argument that a money judgment is  inappropriate
in  this  case presents an issue of first impression  in  Alaska.
There is no definitive rule as to whether a money judgment can be
granted  for  owelty  or whether owelty may only  be  awarded  by
charging a lien on the share of greater value.22  To support  his
argument  that  a  money  judgment is inappropriate,  Wade  cites
Updike v. Adams23 and Pino v. Sanchez.24    In Updike, the Supreme
Court  of Rhode Island held that payment of owelty may not be  so
imposed   upon   a  party  as  to  be  unreasonably   burdensome,
considering  both the condition of the property and the  party.25
The  Updike  court  also stated, [w]here one is  unable  to  make
payment  at the time of division, it should be a charge  or  lien
upon  his  share, and a reasonable time should be given  for  the
payment.26  In Pino, the New Mexico Supreme Court held  that  the
trial  court  had erred in allowing a deferral of owelty  payment
until  an  indeterminate  future  date,  and  explained  that   a
reasonable time for payment must be set by the trial court.27  The
rule  in Updike provides a sound approach to the issue of whether
owelty  should be imposed as a money judgment or a  lien  on  the
property  of  greater  value because it takes  into  account  the
difficulty   co-owners  may  have  in  satisfying   large   money
judgments.  The Pino rule is also wise because it ensures that co-
owners who are  entitled to owelty will receive their fair  share
within a reasonable time.
          Here,  Wade  filed a Motion to Alter or Amend  Judgment
and  attached an affidavit in which he described why he  believed
it  would be unreasonably burdensome to impose owelty as a  money
judgment.  He stated:
          The   existing   judgment  orders   immediate
          payment of [$49,454.09].  The ten day stay of
          execution  will expire on June 30,  2006  and
          comes  at  a time when I am short  of  liquid
          assets.   I recently bought a new condominium
          and   have  just  moved  to  it.   My  former
          residence,  a condo is listed for  sale,  but
          has  been on the market for just a few  days.
          I  have no mortgage on either condo, and also
          have  no mortgage on the subject property  in
          Seldovia.   However, I did just negotiate  an
          unsecured  bridge loan from FNBA to  purchase
          the  new  condo and I do not expect that  the
          bank will loan me addition [sic] money on  an
          unsecured basis at this time.
          
          .  .  .  I  can and will, if necessary,  draw
          money  to  pay  the owelty from a  retirement
          account,  but  that  will  have  adverse  tax
          consequences.   I  think  that,   under   the
          appropriate authority the court should fix  a
          time  for  payment not less than  six  months
          from  this date, or should provide for  terms
          such  as I have suggested in my proposed form
          of judgment.
          
Wades affidavit fails to show that it is unreasonably burdensome,
considering  the  condition of the property  and  the  party,  to
impose  owelty as a money judgment.  Wade appears to have various
assets,  including  real property and a retirement  account  that
could  be  used to satisfy the judgment.  It is not  unreasonably
burdensome to require him to make a one-time payment.  Thus,  the
superior  court did not err by entering a money judgment  against
Wade.28
          Finally,  Wade argues that the superior court erred  by
failing   to  confirm  the  agreement  regarding  easements   and
utilities.   Aside from this cursory statement, Wade provides  no
argument  on  this point in his brief.  Thus, we do not  consider
the  argument on appeal.29  Even if we did consider the argument,
it  has  no  merit because Wade and Keenan already agreed  to  an
access easement, view easement, and shared water rights,  and the
court had no duty to confirm their agreement.
     E.   The Superior Court Correctly Determined that Keenan Was the
          Prevailing Party for Purposes of Alaska Civil Rule 82 Attorneys
          Fees.
          
          Wade   argues   that  the  superior  court   erred   by
determining that Keenan was the prevailing party for purposes  of
attorneys  fees.  Wade argues that he should have been designated
as the prevailing party because he prevailed on what he considers
the most important issue at trial: valuation of the property.  He
also  reasons that Keenan cannot be designated as the  prevailing
party  because the judgment he was awarded is substantially  less
than the amount of his Alaska Civil Rule 68 settlement offer.
          Alaska  Civil  Rule 82(a) provides that the  prevailing
party  shall receive attorneys fees.30  The trial judge has  wide
discretion as to whether attorneys fees should be awarded.31   We
          may find an abuse of discretion only if the trial courts
determination as to attorneys fees was manifestly unreasonable.32
The    prevailing  party  is  the  party  who  has   successfully
prosecuted  or  defended  against the  action,  the  one  who  is
successful on the main issue of the action and in whose favor the
decision  or  verdict is rendered and the judgment entered.   The
determination of who is the prevailing party is within the  broad
discretion of the trial court.33  Furthermore, a plaintiff can be
the  prevailing  party  though not receiving  the  full  recovery
sought if the plaintiff prevailed on the basic liability question
and  received  an  affirmative recovery based on  its  successful
litigation of that question, which was substantial in amount. 34
          The  superior courts decision to award Keenan attorneys
fees in the amount of $8,243.6735 is not manifestly unreasonable.
The main issues in this action were the amount of owelty owing to
Keenan   and  the  property  values  considered  in  the   owelty
calculation.   As the superior court stated in its order  of  May
22,  2006, [t]he heart of the parties dispute is whether Mr. Wade
is  to  share in the value [of] the structure built as the  guest
cabin  [Keenans  cabin].   Keenan was successful  on  this  issue
because  the  court determined that Wade would not share  in  the
value  of  the improvements to Keenans lot.  Although Keenan  did
not receive the full recovery he sought,36 he still prevailed  on
the  issue that was the heart of the parties dispute and received
a  substantial  recovery  of $57,436.61  (including  pre-judgment
interest).   Thus,  it was well within the superior  courts  wide
discretion to determine that Keenan was the prevailing party  and
award him Rule 82 attorneys fees.

V.   CONCLUSION
     
          For  the  reasons stated above, we AFFIRM the  superior
courts judgment in all respects.

_______________________________
     1     Owelty  is  defined as [e]quality  as  achieved  by  a
compensatory sum of money given after an exchange of  parcels  of
land  having  different values or after an unequal  partition  of
real property. Blacks Law Dictionary 1137 (8th ed. 2004).

     2     A  ten  percent increase would result in  a  value  of
$250,250 at the time of trial.

     3    The calculation was as follows: $260,000 (Lot 3A-1 with
improvements)  minus  $150,000 (Lot  3A-2  without  improvements)
equals  $110,000 (difference in value). As half of the difference
in  value,  $55,000  was the amount needed to equalize  division.
The  court then subtracted $7,500 for Wades contribution  to  the
cabin,  which  resulted  in $47,500.  Finally,  the  court  added
$1,954.09 for the amount Wade owed for taxes and insurance, for a
total award to Keenan of $49,454.09.

     4     The  amended  final judgment required the  parties  to
engage  the services of a title insurance company for the purpose
of  conducting  a  real estate closing . . .  execute  grants  of
easement  and  a water rights agreement . . . [and]  execute  the
appropriate conveyancing documents . . . .  It also required Wade
to  deposit  the total amount of the judgment in escrow  for  the
purpose  of  disbursement to [Keenan] before the above referenced
documents shall be recorded.  After recordation the funds were to
be  disbursed  to  [Keenan].   The amended  final  judgment  also
included pre-judgment interest, attorneys fees, and costs.

     5    Krize v. Krize, 145 P.3d 481, 487 (Alaska 2006).

     6     Municipality of Anchorage v. Gregg, 101 P.3d 181,  186
(Alaska 2004).

     7     Fuller  v.  City of Homer, 113 P.3d 659,  662  (Alaska
2005).

     8    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     9     See  Ashley v. Baker, 867 P.2d 792, 796 (Alaska  1994)
(stating that determination of which party is prevailing party is
within  broad discretion of trial court and must not be disturbed
unless manifestly unreasonable).

     10    100 P.3d 890 (Alaska 2004).

     11    Id. at 894.

     12    Id.

     13    Id.

     14     Id.;  see also Martin v. Martin, 52 P.3d 724,  730-31
(Alaska  2002) (emphasizing the importance of examining a  partys
motives for valuing a piece of property at a particular amount).

     15    Krize v. Krize, 145 P.3d 481, 487 (Alaska 2006).

     16     Gregory  v. Padilla, 379 P.2d 951, 953 (Alaska  1963)
(owners  opinion of the value of his property is  competent  even
though it may not be very persuasive).

     17     Municipality of Anchorage v. Gregg, 101 P.3d 181, 186
(Alaska 2004).

     18     Wades  argument  ignores the fact that  the  superior
courtss assessment of owelty was based on a comparison of Keenans
lot  without improvements (determined to be $150,000)  and  Wades
lot  with  the  original cabin (determined to be $260,000).   The
basis  for  this comparison is the courts order establishing  the
Law of the Case,  which Wade failed to oppose.  Because there was
a  $110,000 difference in the property values considered  by  the
superior  court, the court did not err in providing for an  award
of owelty.

     19     See  Kenai  Peninsula Borough v. Cook  Inlet  Region,
Inc.,  807  P.2d  487,  500 (Alaska 1991); see  also  Carroll  v.
Carroll, 903 P.2d 579, 583 (Alaska 1995).

     20     Kenai  Peninsula Borough, 807 P.2d  at  500  (quoting
Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)).

     21     See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska  1991)  (stating where a point is given  only  a  cursory
statement in the argument portion of a brief, the point will  not
be considered on appeal).

     22    See 59A Am. Jur. 2d Partition  177-79 (2008).

     23    52 A. 991 (R.I. 1902).

     24    646 P.2d 577 (N.M. 1982).

     25    52 A. at 992 (emphasis added).

     26    Id.

     27    646 P.2d at 578-79.

     28     Wade  also  argues that the superior court  erred  by
providing  for  an  escrow  of funds.  This  argument  is  waived
because  Wades  brief  fails  to  provide  more  than  a  cursory
statement explaining the basis for the argument.  See Adamson  v.
Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991).

     29    See id.

     30    Wade implies that Rule 82 attorneys fees should not be
awarded  in partition cases, and he cites AS 09.45.620 to support
his  position.   That  statute  does  not  support  his  argument
because  it  concerns the costs of partition, not attorneys  fees
required  by litigation.  Further, the statute states  that  when
litigation  arises between some of the parties to the  partition,
the  court may require the expenses of the litigation to be  paid
by  any  or  all  the  parties to the litigation.   AS  09.45.620
(emphasis  added).  This language reinforces the wide  discretion
the superior court possesses to award attorneys fees.

     31     Cooper  v. Carlson, 511 P.2d 1305, 1309  n.5  (Alaska
1973).

     32    Id. at 1309 n.6 (emphasis added).

     33     Day  v.  Moore,  771  P.2d  436,  437  (Alaska  1989)
(internal quotation omitted) (citation omitted); see also  Ashley
v. Baker, 867 P.2d 792, 796-97 (Alaska 1994).

     34      Ashley,  867  P.2d  at  797  (quoting   Hillman   v.
Nationwide  Mutual  Fire Ins. Co., 855 P.2d  1321,  1328  (Alaska
1993)).

     35     This  amount  is calculated based  on  the  judgment,
including  pre-judgment interest, of $57,436.61 and the contested
with  trial  schedule of Rule 82(b)(1).  This  schedule  provides
for  an  attorneys  fee  award of twenty  percent  of  the  first
$25,000  of  the judgment (including pre-judgment  interest)  and
ten  percent of the next $75,000 of the judgment. Alaska R.  Civ.
P. 82(b)(1).

     36     Wade  notes that Keenan offered to settle for $75,000
in  a Rule 68 offer of judgment and thereafter sought $94,000  in
settlement.   But in order to benefit under Rule 68,  Wade  would
have  had to have made an offer that he subsequently bettered  at
trial.   Alaska R. Civ. P. 68(b).  Morever, while obtaining  less
than  his offer, Keenan nonetheless obtained a substantial  money
judgement and prevailed on important issues in the case.

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