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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Whittle v. Weber (12/3/2010) sp-6526

Whittle v. Weber (12/3/2010) sp-6526

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

ORA WHITTLE,                                    ) 
                                                )       Supreme Court No. S-13418 
                        Appellant,              ) 
                                                )       Superior Court No. 4FA-07-01876 CI 
        v.                                      ) 
                                                )      O P I N I O N 
MICHAEL WEBER,                                  ) 
                                                )      No. 6526 - December 3, 2010 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Fourth 
                Judicial District, Fairbanks, Randy M. Olsen, Judge. 

                Appearances: Ora L. Whittle, pro se, Fairbanks, Appellant. 
                Zane    D.   Wilson,    Cook    Schuhmann      &   Groseclose,     Inc., 
                Fairbanks, for Appellee. 

                Before:     Fabe, Christen, and Stowers, Justices. [Carpeneti, 
                Chief Justice, and Winfree, Justice, not participating.] 

                FABE, Justice. 

I.      INTRODUCTION 

                Ora Whittle and Michael Weber are neighbors.               Weber filed this lawsuit 

against   Whittle,   asserting   that   Whittle's   use  of   his   property   is   a   nuisance,   violates 

subdivision covenants, and violates borough ordinances.               As part of discovery, Weber 

requested an inspection of Whittle's property, and the superior court ordered Whittle to 

allow a limited inspection.  For about two months, Weber and Whittle disagreed on the 

----------------------- Page 2-----------------------

date Weber would be allowed access onto Whittle's property. Weber then moved to hold 

Whittle in contempt, and Whittle withdrew his consent to the inspection altogether.  As 

a sanction for failing to comply with its discovery order, the superior court entered 

judgment against Whittle. 

                We affirm the superior court's order directing Whittle to allow a limited 

inspection of his property as part of discovery.         But litigation-ending sanctions should 

be   used   only   in   extreme   circumstances   and   were   not   an   appropriate   remedy   here. 

Because it was unclear that Whittle was refusing to obey the superior court's order and 

that he would not obey the order in the future, it was an abuse of discretion for the 

superior court to enter judgment against Whittle.  Thus we reverse the superior court's 

judgment entered against Whittle and remand for further proceedings consistent with this 

opinion. 

II.     FACTS AND PROCEEDINGS 
                In 1984 Ora Whittle1 moved to the Green Acres Subdivision in Fairbanks; 

in 1991 Michael Weber moved to the adjoining tract of land.  In June 2007 Weber filed 

a complaint against Whittle, alleging that Whittle was "maintaining a nuisance" and 

violating subdivision covenants by "maintaining a junkyard on his property which . . . 

is unreasonably obnoxious and offensive to his residential neighbors." Weber requested 

injunctions prohibiting Whittle "from hauling additional junk onto his property" and 

directing him "to abate the nuisance."  Whittle responded that the subdivision covenants 

had been violated regularly by other residents since Whittle moved there in 1984. 

        1       Ora Whittle died while this appeal was pending.  His estate substituted for 

Whittle pursuant to Appellate Rule 516.           We reach the merits of this appeal because 
attorney's fees are at issue. See, e.g.,Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 
P.3d 457, 460-61 (Alaska 2010) (evaluating a claim on the merits after plaintiff's death 
because "this court will hear an otherwise moot case to determine who is the prevailing 
party for purposes of awarding attorneys' fees") (internal quotation marks omitted). 

                                                 - 2 -                                          6526
 

----------------------- Page 3-----------------------

                In November 2007 Whittle filed a motion to dismiss Weber's complaint, 

arguing   it   was   barred   by   relevant   statutes   of  limitations   and   the   doctrine   of   laches. 

Weber opposed the motion, characterizing the situation as an ongoing nuisance and 

asserting   that   he   had   tried   and   failed  to   work   the   problem   out   with   Whittle.  In 

February 2008 Whittle moved to have his neighbors and Weber's wife joined as plaintiffs 

in the lawsuit, arguing that Weber was acting as a representative for all of them and that 

Whittle "should be able to defend [himself] from all these people's complaints at once, 

instead of having to go through several different proceedings."                  Weber opposed the 

motion. 

                In March 2008 Superior Court Judge Randy M. Olsen issued an order 

denying   Whittle's   motion   to   dismiss,   finding   that   "Weber's   claim   for   an   ongoing 

nuisance is not barred by the statute of limitations."             The superior court also denied 

Whittle's motion to join his other neighbors as plaintiffs. 

                In April 2008 Weber requested permission from Whittle to enter his land 

"for   purposes   of   conducting   an   inspection   of   the   items   placed   upon   your   land   to 

determine whether or not hazardous substances or substances of any other nature exist[] 

that could present a threat to the neighbors surrounding your property and/or the ground 

water beneath their property."         Whittle denied the request, invoking his constitutional 

rights and arguing that Weber's request was "vague, ambiguous, & unfounded, with no 

adequate   cause."      Weber   then   filed   a   motion   to   compel   entry   upon   Whittle's   land. 

Whittle opposed the motion and requested a hearing to determine the reason for the 

inspection request and to establish parameters for the inspection. 

                In an order dated July 30, 2008 and mailed August 5, the superior court 

granted Weber's motion to compel entry and ordered Whittle to "provide a mutually 

agreeable date for the conducting of an inspection within 30 days."  The order specified 

that "[t]he inspection will not extend to inside any residence."              On August 6, one day 

                                                  - 3 -                                            6526
 

----------------------- Page 4-----------------------

after the order was mailed, Weber's lawyer drafted a letter to Whittle asking Whittle to 

"advise as soon as possible when we can conduct the inspection." On August 19 Whittle 

filed   a   motion   for   reconsideration,   which   the  superior   court   eventually   denied.   On 

August 18 Weber's lawyer drafted a letter to Whittle asking to conduct an inspection of 

his property on August 24.         According to Whittle, he did not receive the letter until 

August 25. 

                On September 2 Whittle filed a document with the court agreeing to allow 

inspection of his property "on November 14th through November 25th 2008 (excluding 

weekends & holidays), for one day" and requesting "the date, time period, name of [the 

expert who would be coming], & the certification of that expert."                   On September 5 

Weber's lawyer drafted a letter to Whittle asking to conduct an investigation the week 

of October 20.  On September 16 Whittle sent a letter to Weber's lawyer explaining (1) 

that   he   had   not   received   the   lawyer's   August   letter   until   the   date   requested   for   an 

inspection had already passed and (2) that he would allow an inspection for one day 

between November 14 through 25. 

                On October 1 Weber filed a motion requesting that the court order Whittle 

to allow an inspection during the week of October 20 or hold Whittle in contempt if he 

refused.  Weber's lawyer also noted that the time period Whittle had previously offered 

for   the   inspection   would   fall   after   the   extended   deadline   for   expert   reports.  On 

October 14 Whittle filed an opposition to Weber's motion, asserting that he had fully 

complied with the court's order by offering to allow an inspection in November but that 

he now "withdraws all offers to an agreement with [Weber's lawyer]" because Whittle 

"ha[d] tried to reach an agreement with the opposing party, but it was to no avail."  On 

November 7 the superior court held a hearing on Weber's contempt motion. 

                At the contempt hearing, Weber's lawyer argued the importance of the 

inspection to their case and the prejudice his client had already suffered as a result of the 

                                                  - 4 -                                           6526
 

----------------------- Page 5-----------------------

delay.     Whittle responded that he intended to "stand on [his] constitutional rights" and 

expressed his view that the United States Constitution and Alaska Constitution protected 

him against "inspections and that and seizures and searches" of his property without 

evidence of some inappropriate activity.  The superior court declined to hold Whittle in 

contempt for his alleged noncompliance with the July 30 written order, but then orally 

ordered him to allow an inspection of his property within two weeks on penalty of having 

judgment       entered   against    him.    Whittle     repeated     that  he   would    "stand    on"   his 

constitutional rights, and added:          "And if [the court has] the authority to write a search 

and seizure warrant without my permission, then I have no control over that.  But I will 

not agree to let them on my property, so . . . ."  Apparently viewing Whittle's statement 

as a refusal to ever comply with the court's discovery order, the court directed Weber's 

lawyer to draft a final judgment order. 

                 On December 2 Weber's lawyer submitted a draft order.  On December 16 

Whittle filed an objection to the entry of judgment against him.                  On December 23 the 

superior court entered final judgment against Whittle, ordering him "to bring his property 

in   compliance   with"   subdivision   covenants   and   "to   abate   the   nuisance   his   property 

presents" to Weber.   The superior court gave Whittle until July 15, 2009 to comply with 

the order and provided that, if he did not, Weber and those hired by Weber would be 

permitted   to   enter   his   property   "for   the   purposes   of   removing   and   disposing   of   the 

personal items stored thereon at Mr. Whittle's expense."  Weber also filed a motion for 

costs   and   enhanced   attorney's   fees   of   50   percent   of   actual   fees;   the   superior   court 

awarded Weber costs and 20 percent of actual attorney's fees. 

                                                    - 5 -                                             6526
 

----------------------- Page 6-----------------------

III.    STANDARD OF REVIEW
 

                We   review   a   trial   court's   decision   to   impose   sanctions   for   discovery 
violations for abuse of discretion.2      This discretion is limited, however, "when the effect 

of the sanction [the trial court] selects is to impose liability on the offending party, 

establish the outcome of or preclude evidence on a central issue, or end the litigation 
entirely."3 Because "litigation ending sanctions are disfavored," we limit trial courts' 

"discretion to impose such sanctions . . . to extreme situations."4 

                We review a trial court's "determination regarding the applicable statute of 
limitations" de novo.5      We review a trial court's decision to permit or deny a defense 

based on the doctrine of laches for abuse of discretion and will not overturn the decision 
unless we have "a definite and firm conviction that a mistake has been committed."6 

                                                                                          7 
Finally, we review a trial court's procedural decisions for abuse of discretion  and a trial 
court's interpretation of the civil rules de novo.8 

        2       Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 

1993). 

        3       Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998). 

        4       Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994). 

        5       Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319, 322-23 (Alaska 

2006). 

        6       Young v. Williams, 583 P.2d 201, 204-05 (Alaska 1978). 

        7       Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007). 

        8       Mikesell v. Waterman, 197 P.3d 184, 186 (Alaska 2008). 

                                                 - 6 -                                           6526
 

----------------------- Page 7-----------------------

IV.     DISCUSSION 

                We begin with the central question in this appeal: whether the superior 

court's entry of judgment against Whittle as a discovery sanction for not allowing an 

inspection of his property was error.        In order to decide this issue, we first address the 

superior court's order directing Whittle to allow an inspection of his property.  We then 

examine Whittle's alleged violations of the superior court's discovery orders and the 

court's imposition of litigation-ending sanctions.           We also briefly consider Whittle's 

other points on appeal. 

        A.      Allowing An Inspection Of Whittle's Property 

                Under Alaska Civil Rule 34(a) 

                [a]ny party may serve on any other party a request . . . to 
                permit entry upon designated land or other property in the 
                possession or control of the party upon whom the request is 
                served     for  the   purpose     of  inspection     and   measuring, 
                surveying, photographing, testing, or sampling the property 
                or any designated object or operation thereon . . . . 

                Any request made pursuant to Civil Rule 34 must "set forth, either by 

individual   item   or   by   category,   the   items   to  be   inspected,   and   describe   each   with 

reasonable particularity.   The request shall specify a reasonable time, place, and manner 
of making the inspection and performing the related acts."9          We have explained that "[i]n 

general, the civil rules are committed to a system of liberal pretrial discovery."10  A court 

may, however, limit discovery under certain circumstances. 

        9       Alaska R. Civ. P. 34(b). 

        10      Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990). 

                                                 - 7 -                                             6526 

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                Whittle argues that the superior court's order permitting Weber to conduct 
an inspection of Whittle's property violated his constitutional rights.11                 We consider 

whether the right to privacy might offer Whittle any protection from the discovery order. 

                We have considered at least one challenge to a discovery order on right-to- 

privacy grounds.        In Jones v. Jennings, involving a lawsuit filed against two police 

officers,   we   affirmed   a   discovery   order   requiring   production   of  one   of  the   officer's 
personnel records and records of citizen complaints filed against him.12               On the officer's 

behalf,    the   Municipality      of  Anchorage       argued    that  this   discovery     request   was 
"unnecessarily intrusive into the privacy of the officers involved."13   Noting that the 

Alaska Constitution expressly protects Alaskans' right to privacy but that "[t]he right to 

privacy is not absolute," we applied the following three-part inquiry, adopted from a 

Colorado Supreme Court case, to determine whether the discovery order was appropriate: 

                (1)      does the party seeking to come within the protection of 
                the right to confidentiality have a legitimate expectation that 
                the materials or information will not be disclosed? 

                (2)      is   disclosure     nonetheless      required     to   serve     a 
                compelling state interest? 

        11      Though Whittle's focus on the Fourth Amendment is misplaced (because 

it does not apply to searches or seizures conducted by a private party, see Schaffer v. 
State, 988 P.2d 610, 612 (Alaska App. 1999)), we address the thrust of his argument, 
which is simply that he is constitutionally protected from unreasonable inspections of his 
property. 

        12      788 P.2d at 733, 737-39. 

        13      Id. at 737. 

                                                   - 8 -                                            6526
 

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                (3)     if so, will the necessary disclosure occur in that manner 
                which     is  least   intrusive   with    respect   to   the  right   to 
                confidentiality?[14] 

We concluded that the officer did have a legitimate expectation that the information 

would   not   be   disclosed   but   then   emphasized   that   disclosure   served   the   compelling 

interest of "preserving democratic values and fostering the public's trust in those charged 
with enforcing the law."15        We also noted that the trial court made the inspection as 

minimally invasive as possible by protecting the officer's financial information and 

family's name and address and by conducting an in camera inspection of the requested 
documents.16     Thus, we affirmed the trial court's order. 

                Other jurisdictions have used similar balancing tests and considered similar 

factors when reviewing discovery requests for entry onto private property.                 Overall, to 

determine whether an inspection is appropriate, courts "must balance the respective 

interests by weighing the degree to which the proposed inspection will aid in the search 
for truth against the burdens and dangers created by the inspection."17           Most courts focus 

on the second Jones factor: the "compelling interest" element.  To determine whether a 

compelling interest exists, courts scrutinize the relevance of the proposed inspection to 

the issue in the legal action.      The Kentucky Supreme Court, looking to federal courts' 

        14      Id. at 738 (quoting Martinelli v. District Court, 612 P.2d 1083, 1091 (Colo. 

1980)). 

        15      Id. at 738. 

        16      Id. at 739. 

        17      Welzel v. Bernstein, 233 F.R.D. 185, 186 (D.D.C. 2005) (internal quotation 

marks omitted); see also DUSA Pharms., Inc. v. New England Compounding Pharmacy, 
Inc., 232 F.R.D. 153, 154 (D. Mass. 2005) (denying motion to compel inspection where 
"any benefit from the inspection . . . is outweighed by the burdens that such inspection 
will impose"). 

                                                 - 9 -                                           6526
 

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practices, observed that "[i]n each case, the place to be inspected is somehow 'at issue' 
in the underlying law suit."18  Thus, other jurisdictions have concluded that the property 

or item to be inspected must be directly connected with the main issue of the legal action; 
some have determined that this "nexus" must appear on the face of the discovery order.19 

Besides focusing on the nexus between the location and the legal cause of action, courts 

may   also   consider   additional   factors   that   connect   the   inspection   to   the   lawsuit;   for 
example, whether a legal action has begun,20 or whether the inspection is necessary (i.e., 

the information cannot be obtained through other avenues).21 

                 Based on our decision in Jones v. Jennings and the approaches of other 

jurisdictions   to   this   question,   we   conclude  that   the   superior   court   did   not   abuse   its 

discretion in ordering Whittle to allow a limited inspection of his property as part of 

discovery.   First, legal action had begun in this case, and that action directly concerned 

the property to be inspected pursuant to the superior court's discovery order. Second, we 

         18      Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 802 (Ky. 2000); see 

alsoBelcher v. Basset Furniture Industrs., Inc., 588 F.2d 904, 910 (4th Cir. 1978) ("Most 
cases involving on-site inspections concern a given object on the premises which is the 
subject matter of the action . . . ."); Welzel, 233 F.R.D. at 186 ("In cases in which a site 
inspection has been allowed, the rationale has often been because the specific location 
relates to the subject matter of the cause of action."). 

         19      See Wal-Mart Stores, Inc., 29 S.W.3d at 802 (requiring a "nexus between 

the premises to be inspected and the underlying cause of action" and that "this nexus 
must appear on the face of the order"). 

         20      See, e.g.,Lake Charles Harbor & Terminal Dist. v. Phoenix Dev. Co., 624 

So. 2d 972, 974 (La. App. 1993) (holding that trial court lacked authority to allow entry 
on land before suit was filed). 

         21      See, e.g., DUSA Pharms., 232 F.R.D. at 154 (denying motion to compel 

entry    where     "the  defendant     [had]   offered    plaintiffs   access   to  its  premises    under 
reasonable terms" and "alternative and reasonably adequate methods of discovery" were 
available). 

                                                   - 10 -                                            6526
 

----------------------- Page 11-----------------------

note that, in line with Civil Rule 34's requirements, Weber's request was specific about 

what   information   he   seeks:   he   wants   to   know   whether   "hazardous   substances   or 

substances   of   any   other   nature   exist[]   that   could   present   a   threat   to   the   neighbors 

surrounding   [Whittle's]   property   and/or   the   ground   water   beneath   their   property." 

Moreover, the        superior court endeavored to protect the privacy of Whittle's home by 
explicitly excluding "any residence" from the inspection order.22 

         B.      Entering Judgment Against Whittle As A Discovery Sanction 

                 Alaska Civil Rule 37 "affords trial courts broad power to enforce discovery 
orders by the use of sanctions."23   In relevant part, Civil Rule 37(b)(2) provides: 

                 If a party . . . fails to obey an order to provide or permit 
                 discovery, . . . the court in which the action is pending may 
                 make   such   orders   in   regard   to   the   failure   as   are   just,   and 
                 among others the following: 

                 . . . . 

                 (C)   An   order   striking   out   pleadings   or   parts   thereof,   or 
                 staying   further   proceedings   until   the   order   is   obeyed,   or 
                 dismissing the action or proceeding or any part thereof, or 
                 rendering   a   judgment   by   default   against   the   disobedient 
                 party[.] 

         22      We view this limitation as important not only because of the third Jones 

factor   (least   intrusive   means   of   inspection)   but   because   we   have   recognized   "the 
distinctive nature of the home as a place where the individual's privacy receives special 
protection" and explained that "[t]he privacy amendment to the Alaska Constitution was 
intended to give recognition and protection to the home."  Ravin v. State, 537 P.2d 494, 
503-04 (Alaska 1975). We have cautioned, however, that "[w]e do not mean . . . a person 
may do anything at anytime as long as the activity takes place within a person's home." 
Id. at 504.     Rather, the right to privacy in one's home "must yield when it interferes in 
a serious manner with the health, safety, rights and privileges of others or with the public 
welfare."  Id. 

         23      Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994). 

                                                    - 11 -                                               6526
 

----------------------- Page 12-----------------------

                We have cautioned, however, that only extreme circumstances warrant use 

of litigation-ending sanctions: 

                [S]ince   the   law   disfavors   litigation   ending   sanctions,   the 
                superior court has the discretion to impose such sanctions 
                only in extreme circumstances.           We have held that a party 
                should not be barred from his or her day in court where an 
                alternative remedy would suffice to make the adverse party 
                whole.[24] 

To order litigation-ending sanctions for discovery violations, a trial court must find that 

(1) the noncompliant party willfully violated the order at issue, (2) nondisclosure of that 

information will prejudice the opposing party, and (3) the dismissal is sufficiently related 
to the violation at issue.25    In addition, before a trial court may impose litigation-ending 

sanctions   for   discovery   violations,   "the   record   must   clearly   indicate   a   reasonable 
exploration of possible and meaningful alternatives to dismissal."26 

                In its final judgment, the superior court concluded that Whittle's "open 

court refusal to allow [Weber] or his experts to enter upon his property is willful."  The 

superior court also stated that Whittle "has been given every opportunity to correct this 

refusal, but fails and refuses to do so."        Whittle maintains on appeal that he complied 

with   the   superior   court's   original   written   order   and   that   the   superior   court   itself 

acknowledged this by declining to find him in contempt.                  He also argues that if the 

superior court had ordered the inspection during the hearing, he "would [have] had to 

comply."     He insists that he could not "voluntarily agree" to Weber's inspection of his 

        24      Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647 (Alaska 1992) (internal 

citations and quotation marks omitted). 

        25      See Alaska R. Civ. P. 37(b)(3)(A)-(C); Hughes, 875 P.2d at 752-53. 

        26      Hughes, 875 P.2d at 753; see also Alaska R. Civ. P. 37(b)(3)(D). 

                                                 - 12 -                                            6526
 

----------------------- Page 13-----------------------

property, however, because he believes an inspection would violate his constitutional 

rights; therefore, "asking [him] to agree to it would be asking him to lie to the court." 

                 To   address   whether   sanctions   were   appropriate   here,   we   must   initially 

determine whether Whittle willfully failed to obey a discovery order.  Deciding whether 

Whittle failed to comply requires us to examine two orders, one written and one oral, 

regarding the inspection of Whittle's property. 

                 1.      The superior court's written order 

                 The written order, which was dated July 30, 2008 but not mailed until 

August 5, directed Whittle to "provide a mutually agreeable date for the conducting of 

an inspection within 30 days from the date of this order."  On August 19 Whittle filed a 

motion for reconsideration.  On September 2, before the superior court had ruled on that 

motion, Whittle agreed to an inspection of his property, informing Weber that he would 

allow   the   inspection   "on   November   14th   through   November   25th   2008   (excluding 

weekends & holidays), for one day" and requesting that Weber provide "the date, time 

period, name of [the expert who would be coming], & the certification of that expert." 

The question before us, then, is whether Whittle complied with the superior court's order 

by   providing   within   30   days   of   the   court's   written   order   acceptable   dates   for   the 

inspection or whether the order required him to schedule the inspection for a date that fell 

within the 30-day period. 

                 In   his   opposition   to   Weber's   motion   to   hold   him  in   contempt,   Whittle 

asserted that he "has tried to provide a mutually agreeable date for the conducting of an 

inspection, & it has been done within the 30 days specified in the court's order."                      He 

argued that "[i]f the court would have meant to have the inspection within the 30 days 

period of time, then it would surely have said just that."             During the contempt hearing, 

Whittle repeated that he understood "within 30 days" to refer to the act of providing a 

date for the inspection and further explained, "I [have] done it way - exactly the way 

                                                  - 13 -                                             6526
 

----------------------- Page 14-----------------------

that I understood it."   Weber's lawyer explained that he understood "within 30 days" to 

refer to the date of the inspection itself and argued that his was the only interpretation 

consistent with the September 29 deadline for expert reports.  As Weber acknowledged 

in a previous court filing, however, the language of the order, on its face, permits both 

Whittle's and Weber's interpretations.              The superior court declined to hold Whittle in 

contempt, presumably because it was persuaded that Whittle had an honest, alternative 

interpretation   of   the   order.   Thus,   Whittle   did   not   willfully   fail   to   comply   with   the 

superior court's written order. 

                 2.      The superior court's oral order 

                 The superior court also issued an oral order at the contempt hearing.  Early 

in the hearing, Whittle expressed his view that the United States Constitution and the 

Alaska   Constitution   protected   him   against   "inspections   and   that   and   seizures   and 

searches" of his property without evidence of some inappropriate activity.  The superior 

court tried to explain that Whittle has those protections only against the government, not 

against a private individual, and then returned to Whittle's previous statement that he 

would allow an inspection in November. Whittle reminded the superior court that he had 

withdrawn that offer when Weber moved to hold him in contempt. Then, after declining 

to hold Whittle in contempt for violating discovery, the superior court had the following 

exchange with Whittle: 

                 C:      Mr. Whittle, what I am going to order is that you make 
                 your property available for the inspection and . . . if it doesn't 
                 get done within two weeks, you make it available.  I don't 
                 care   if   you   have   anybody   there,   but   you   have   to   let   their 
                 expert on . . . if you don't and you stand on your right to 
                 refuse     to  let   that   happen,     then   I   will   say   that   they 
                 automatically win that claim.  Because that's the way - that 
                 is going to be sanction. 

                 . . . . 

                                                   - 14 -                                              6526
 

----------------------- Page 15-----------------------

                W:      Anyway,   I'm   going   to   stand   on   my   constitutional 
                rights. 

                C:      Okay. 

                W:      And if you have the authority to write a search and 
                seizure    warrant     without   my    permission,    then   I  have   no 
                control over that.       But I will not agree to let them on my 
                property, so  . . . 

                C:      Okay.   With that - if that's your position, then, I am 
                going to enter the order that Mr. Weber has won that issue. 

(Emphasis added.) 

                We consider two points as to whether Whittle's response to the superior 

court's oral order rises to the level of willful noncompliance with a discovery order. 

First, Whittle argued at the contempt hearing and maintains on appeal that he believed 

the   superior   court   did   not   have   the   authority   to   order   an   inspection   of   his   property 

without first having some proof of inappropriate activity, and that he believed agreeing 

to an inspection would allow the court to circumvent that constitutional requirement. 

Consistent with this belief, after Weber moved to hold Whittle in contempt, Whittle 

wanted Weber to present proof of inappropriate activity and withdrew his agreement to 

the inspection of his property.  But Whittle's remarks seemed to recognize that if the trial 

court   had   the   "authority   to   write   a   search   and   seizure   warrant   without   [Whittle's] 

permission, then [Whittle had] no control over that."  Although Whittle maintained that 

he could not "agree" to let Weber on his property, the exchange, read as a whole, is 

certainly susceptible of more than one interpretation. Taken as a whole, Whittle's actions 

could be interpreted as indicating that he would only allow the inspection if ordered by 

the court to do so over his objection. 

                When Whittle indicated to the superior court during the contempt hearing 

that he would not allow an inspection of his property, the court interpreted this statement 

to mean that Whittle would not comply with any further discovery orders and assumed 

                                                 - 15 -                                            6526
 

----------------------- Page 16-----------------------

that   Whittle    would    not   change    his  mind.      We    have   upheld    findings    of  willful 

noncompliance where the plaintiff "made no effort to comply" with the superior court's 

discovery orders and had demonstrated "no intention of ever complying with the court's 
orders."27   In this case, by contrast, Whittle did make an initial effort to comply with the 

superior court's written order by proposing inspection dates.  Morever, it does not seem 

clear from the contempt hearing exchange that Whittle had no intention of complying 

with the court's order; in fact, Whittle seemed to be waiting for the superior court to 

order the inspection over his objection.   In any event, it was incumbent on the superior 

court   to   clarify   whether   Whittle   would   comply   with   the   court's   inspection   order   if 

entered over his objection before imposing any sanctions, much less litigation-ending 

sanctions.    We therefore reverse the sanction and vacate the judgment entered against 

Whittle. 

        C.      Alleged Errors By The Superior Court In Not Barring This Case 

                We briefly consider Whittle's contentions on appeal that the superior court 

committed error in refusing to bar this case under relevant statutes of limitations and the 

doctrine of laches.  We conclude that the superior court did not err in denying Whittle's 

motion to dismiss the suit on these grounds. 

                1.      Statute of limitations 

                On November 14, 2007, Whittle filed a motion to dismiss Weber's lawsuit 

on the ground that it was barred by the statute of limitations for contract actions and by 

the doctrine of laches.      Weber responded that his claim was for ongoing nuisance and 

was therefore not time-barred.        The superior court denied Whittle's motion to dismiss, 

        27      DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d 919, 923-24 (Alaska 2002); 

Hart v. Wolff, 489 P.2d 114, 118 (Alaska 1971) (holding plaintiff willfully refused to 
obey discovery order where he admitted making no efforts to comply during the 30 days 
the trial court gave him). 

                                                 - 16 -                                              6526 

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concluding that Weber's nuisance claim was not barred by the statute of limitations.28 

On appeal, Whittle repeats that statutes of limitations bar Weber's nuisance and violation 

of covenants claims against him. 

               We have explained that "[u]nder theories of continuing trespass or nuisance, 
each harmful act constitutes a new cause of action for statute of limitations purposes."29 

A nuisance is continuing if it "can be discontinued or abated"; classic examples include 

"an ongoing or repeated disturbance, such as a disturbance caused by noise, vibration or 
foul odor, that may vary over time."30       As Weber points out, his action is for ongoing 

nuisance   and  ongoing   violations.      Weber's   complaint   asserts   that   the   way   Whittle 

currently maintains his property is violating subdivision covenants and is a nuisance.  In 

addition, Weber's affidavit asserts that the situation giving rise to his complaint "is not 

static" and that Whittle "continues to haul junk/garbage at the rate of one to two trailer 

loads per day."   Weber's complaint and affidavit support his contention that his claims 

are for continuing nuisance, and so are not barred by relevant statutes of limitations. 

        28     Weber characterized his lawsuit only as a tort suit and did not separately 

discuss his contract claim for violation of covenants or separately respond to Whittle's 
argument that the suit violated the statute of limitations for contract suits.           Perhaps 
following this lead, the superior court did not address the contract claim. 

        29     Oaksmith v. Brusich, 774 P.2d 191, 200 n.10 (Alaska 1989); see also Van 

Deusen v. Seavey, 53 P.3d 596, 600 n.11 (Alaska 2002) (concluding that a nuisance claim 
was not subject to the relevant statute of limitations where the court held that it was 
temporary and abatable rather than permanent); 58 AM. JUR. 2D Nuisances  26 ("Every 
continuance of the nuisance is a fresh nuisance for which a new action will lie."). 

        30     Bartleson v. United States, 96 F.3d 1270, 1275 (9th Cir. 1996) (internal 

citations and quotation marks omitted); see also Van Deusen, 53 P.3d at 600 (labeling 
an   alleged   nuisance    caused   by  seasonally-located     barking   dogs   "temporary"    and 
"abatable" because it was not "relatively enduring" and was "likely to be abated, either 
voluntarily or by an order of the court"). 

                                              - 17 -                                         6526
 

----------------------- Page 18-----------------------

                2.      Doctrine of laches 

                Whittle also argues that Weber's lawsuit should have been barred by the 

doctrine of laches.  Weber responds that "[i]t was only after [he] was unable to obtain an 

amicable   resolution   through   his   neighbors   and   contact   with   the   defendant   that   this 

lawsuit was filed."  In its order denying Whittle's motion to dismiss, the superior court 

did not directly address this issue but presumably concluded that this aspect of Whittle's 

argument was also unavailing. 

                The doctrine of laches "creates an equitable defense when a party delays 

asserting a claim for an unconscionable period.  To bar a claim under laches, a court must 

find    both  an   unreasonable     delay   in  seeking    relief  and   resulting   prejudice    to  the 
defendant."31     We   have   previously   declined   to   infer   prejudice   from   delay   and   have 

rejected a defendant's defense of laches where he "ha[d] not attempted to show that he 
was   materially   prejudiced   by   such   delay."32     Here,   Whittle   has   not   indicated   what 

prejudice he may have suffered as a result of Weber's delay in bringing this lawsuit. For 

that reason, it was not error for the superior court to reject Whittle's laches defense. 

        D.      Other Alleged Errors 

                Whittle makes a number of other claims on appeal. Among others, Whittle 

alleges that the superior court should not have accepted Weber's late-filed disclosures 

of the areas of expertise in which Weber intended to call experts and erroneously denied 

Whittle's motion to join his other neighbors as plaintiffs.  Because Whittle died during 
the appellate proceeding,33 it is unclear whether this litigation will continue beyond this 

        31      State, Dep't of Commerce & Econ. Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 

358-59 (Alaska 2000) (internal citations and quotation marks omitted). 

        32      Young v. Williams, 583 P.2d 201, 204-05 (Alaska 1978). 

        33      See supra note 1. 

                                                 - 18 -                                           6526
 

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appeal.    Thus, we leave it to the superior court to determine whether these issues have 

become moot. 

V.      CONCLUSION 

                Because the superior court did not abuse its discretion by ordering Whittle 

to   allow   a   limited   inspection   of   his   property   as   part   of   discovery,   we   AFFIRM   the 

superior court's discovery order. The superior court's entry of judgment against Whittle 

as a discovery sanction, however, was error.  We REVERSE and VACATE the entry of 

judgment against Whittle and REMAND to the  superior court for further proceedings 

consistent with this opinion. 

                                               - 19 -                                         6526
 
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